abdul rehman mir vs REVENUE DEPARTMENT on 26 October 2026

1. Union Territory of Jammu & Kashmir

2. Comm. Secretary Revenue Civil Secretariat Srinagar.

3. Divisional Commissioner Kashmir, Old Secretariat Srinagar.

4. Deputy Commissioner Pulwama.

5. Add. Deputy Commissioner Pulwama.

6. Tehsildar Pampore. ….Respondents By Advocate :- Mr. Rais Ud Din Ganaie, DAG O R D E R (FINAL) JUSTICE RITU TAGORE, MEMBER [JUDL.]

01. The present Transfer Application, originally instituted before the Hon’ble High Court of Jammu & Kashmir and

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Devendra Tripathi

Ladakh at Srinagar as WP(C) No. 733/2021, titled Abdul Rehman Mir v. Union Territory of Jammu & Kashmir & Others, and subsequently transferred to this Tribunal, has been filed by the applicant seeking directions to the respondents for release of his pensionary and other retiral benefits, including gratuity, leave encashment, General Provident Fund (GPF) and other admissible dues, which, according to him, have been withheld despite his superannuation from Government service on 31.03.2019. The applicant has also sought release of the aforesaid benefits along with interest, contending that the pendency of criminal proceedings arising out of FIR No. 24/2009 cannot, in the absence of fulfilment of the conditions prescribed under the applicable statutory provisions, justify withholding his lawful retiral dues.

02. Briefly stated, the facts of the case, as emerging from the pleadings and the documents placed on record, are that the applicant was serving as a Junior Assistant in the Revenue Department and was posted in the office of the Deputy

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Commissioner, Pulwama. On 13.08.2009, FIR No. 24/2009 came to be registered against him at Police Station Vigilance Organisation, Kashmir, in connection with allegations that he had demanded illegal gratification of Rs. 2,000/- from the complainant in consideration of issuance of a dependency certificate. The allegations were registered under Section 5(1)(d), read with Section 5(2), of the Jammu & Kashmir Prevention of Corruption Act, Samvat 2006, and Section 161 of the Ranbir Penal Code.

03. It is the case of the applicant that, following registration of the aforesaid FIR, the matter was examined by the competent authorities and departmental proceedings were also initiated against him. The applicant was placed under suspension and a departmental enquiry was conducted. Upon consideration of the matter by the Review Committee, the applicant was reinstated in service vide Government Order No. FC(Adm) 19 of 2011 dated 19.01.2011. The applicant contends that his reinstatement, following examination of the matter by the competent

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Devendra Tripathi authorities, disentitled the respondents from continuing to withhold his retiral benefits merely on account of the criminal case.

04. The applicant ultimately retired from Government service on 31.03.2019. According to him, despite his retirement and entitlement to the admissible pensionary benefits, the respondents failed to release the same. He submitted representations to the concerned authorities seeking release of his retiral dues and also approached the competent authorities for processing his pension case. However, the grievance remained unresolved, compelling him to institute proceedings before the Hon’ble High Court of Jammu & Kashmir and Ladakh, seeking appropriate directions for fixation and release of pension, gratuity, leave encashment, GPF and other admissible benefits.

05. The applicant has further placed reliance upon the order dated 15.04.2021 passed by the Hon’ble High Court of Jammu & Kashmir and Ladakh at Srinagar in WP(C) No.

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733/2021, titled Abdul Rehman Mir v. Union Territory of Jammu & Kashmir & Others, in which the issue concerning processing of his pensionary benefits was considered. The applicant maintains that, notwithstanding the aforesaid order and the subsequent processing of his pension case, the respondents have failed to release his complete retiral benefits and continue to rely upon the pendency of the criminal proceedings arising out of FIR No. 24/2009 as a ground for withholding the same. He, therefore, seeks appropriate directions for release of the benefits admissible to him in accordance with the applicable rules..

06. Per contra, the respondents have filed their reply, opposing the claim of the applicant. Their case is that the Transfer Application is misconceived insofar as it seeks release of those retiral benefits which, under the applicable statutory provisions, cannot be released during the pendency of judicial proceedings. It is submitted that the applicant retired from service on 31.03.2019 while the

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Devendra Tripathi criminal proceedings arising out of FIR No. 24/2009 were pending against him and had not attained finality. The respondents contend that the applicant’s pensionary benefits are, therefore, required to be regulated in accordance with Articles 168-A and 168-D of the Jammu & Kashmir Civil Service Regulations.

07. The respondents have further submitted that, in compliance with the applicable statutory provisions and the directions issued by the Hon’ble High Court, the applicant’s case was processed for fixation of pension and provisional pension was sanctioned in his favour under Article 168-D(1) of the Jammu & Kashmir Civil Service Regulations. According to the respondents, the said provision requires payment of provisional pension during the pendency of the relevant judicial or departmental proceedings, while gratuity or death-cum-retirement gratuity cannot be released until conclusion of such proceedings and issuance of final orders. It is their case that the withholding of gratuity is neither arbitrary nor

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Devendra Tripathi punitive but is in conformity with the statutory scheme governing retiral benefits.

08. The respondents have accordingly prayed for dismissal of the Transfer Application, contending that the applicant cannot claim unconditional release of all retiral benefits while the criminal proceedings remain pending before the competent court. They maintain that the statutory scheme itself prescribes the manner in which the pensionary benefits of a retired Government servant are to be regulated during the pendency of qualifying proceedings and that the action taken in the applicant’s case is in conformity with the same.

09. I have heard the matter and carefully examined the pleadings, the documents placed on record, the reply filed by the respondents and the material relating to the criminal proceedings. The controversy which arises for consideration is whether the respondents were justified in withholding the applicant’s retiral benefits on account of the pendency of the criminal proceedings arising out of

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FIR No. 24/2009 and, if so, to what extent such withholding is permissible under the Jammu & Kashmir Civil Service Regulations and the other applicable rules governing retirement benefits.

10. Before examining the rival contentions, it would be appropriate to notice the statutory framework governing the matter. Articles 168-A and 168-D of the Jammu & Kashmir Civil Service Regulations deal with the circumstances in which pensionary benefits of a retired Government servant may be regulated during the pendency of judicial or departmental proceedings. In addition, Rule 37(2)(v) of the Jammu & Kashmir Civil Services (Leave) Rules, 1979 specifically deals with withholding of the cash equivalent of earned leave in the circumstances prescribed therein. The applicability of these provisions has to be examined separately, keeping in view the nature of the benefit claimed and the conditions prescribed for withholding the same.

11. Article 168-A of the Jammu & Kashmir Civil Service

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Regulations deals with the Government’s authority to recover from the pension of a retired Government servant any loss caused to the Government through his negligence or fraud during the period of service, where such loss is established in departmental or judicial proceedings. The Article also lays down the conditions subject to which departmental or judicial proceedings may be instituted or continued after retirement, including the requirement of Government sanction and compliance with the prescribed limitations, wherever applicable. Thus, any action affecting the pensionary entitlement of a retired employee on the basis of such proceedings must be tested against the requirements stipulated in the said Article. The mere existence of allegations or registration of a criminal case, without examining whether the proceedings satisfy the prescribed statutory requirements, cannot by itself determine the permissibility of withholding retiral benefits.

12. Article 168-D(1) of the Jammu & Kashmir Civil Service

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Regulations prescribes the manner in which pension and gratuity are to be dealt with where departmental or judicial proceedings of the nature contemplated under Article 168-A are pending. In such circumstances, provisional pension is payable subject to the conditions prescribed by the Regulations, whereas payment of gratuity or death-cum-retirement gratuity is deferred until the proceedings are concluded and final orders are passed. The operation of Article 168-D must, therefore, be understood in conjunction with Article 168-A, and the restriction on payment of gratuity can be sustained only where the relevant proceedings and the action taken by the competent authority fall within the scope of the applicable statutory provisions.

13. The legal position concerning the interpretation of Articles 168-A and 168-D of the Jammu & Kashmir Civil Service Regulations came to be examined by the Hon’ble High Court of Jammu & Kashmir and Ladakh in Ghulam Mohi-ud-Din Lone v. State of Jammu & Kashmir &

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Others, LPA No. 220/2019, decided on 11.12.2020. The Hon’ble High Court considered the distinction between registration of an FIR or investigation by the investigating agency and institution of judicial proceedings for the purposes of the aforesaid provisions. It was held that mere registration of an FIR or pendency of investigation, without presentation of a complaint or charge-sheet before the competent court, does not by itself amount to institution of judicial proceedings within the meaning of the Civil Service Regulations.

14. The aforesaid judgment also emphasizes that the statutory conditions prescribed under Articles 168-A and 168-D must be satisfied before the Government can resort to payment of provisional pension and withholding of gratuity on the ground of pending proceedings. The decision, however, cannot be read as laying down that gratuity must invariably be released whenever a Government servant has superannuated. The decisive consideration is whether qualifying judicial or

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Devendra Tripathi departmental proceedings stood instituted in the manner contemplated by the Regulations and whether the action taken by the competent authority falls within the statutory scheme.

15. In the present case, the factual position emerging from the material placed on record requires consideration in the light of the aforesaid principle. The FIR in question was registered on 13.08.2009, when the applicant was in service. More importantly, the documents forming part of the original proceedings before the Hon’ble High Court, including the material relating to the criminal case, indicate that a charge-sheet was presented before the competent court in connection with the aforesaid FIR. The applicant thereafter continued in service and was reinstated vide Government Order dated 19.01.2011, but ultimately retired on 31.03.2019. Thus, the case, as presented in the available record, is not one in which the respondents rely merely upon an FIR remaining under investigation on the date of retirement.

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16. The distinction assumes significance because, in Ghulam Mohi-ud-Din Lone (supra), the question arose in circumstances where the criminal case had not reached the stage of institution of judicial proceedings before the competent court on the date of retirement. In the present matter, the material relating to the charge-sheet indicates that the criminal process had been set in motion before the competent court while the applicant was still in service. Consequently, the principle that mere registration of an FIR or pendency of investigation does not constitute institution of judicial proceedings cannot, by itself, lead to a conclusion that the statutory provisions are inapplicable to the applicant’s case.

17. The applicant’s reinstatement in service following the departmental review is also required to be considered in its proper perspective. Reinstatement by the competent authority, even after examination of the matter in departmental proceedings, does not by itself terminate independent criminal proceedings instituted before the

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Devendra Tripathi competent criminal court. The two proceedings operate in their respective fields, and the consequences of reinstatement cannot be extended to an automatic conclusion that the criminal proceedings have ceased to exist or that all restrictions arising under the applicable pension regulations stand extinguished. At the same time, the respondents must act in accordance with the precise statutory requirements and cannot treat the mere pendency of a criminal case as authorizing every possible restriction on retiral benefits.

18. In view of the above, the respondents’ reliance upon Article 168-D(1) for regulating provisional pension and withholding gratuity cannot be rejected solely on the ground that the applicant had been reinstated in service in 2011. The relevant consideration is whether the criminal proceedings were instituted in accordance with the requirements of Article 168-A and remained pending on the date of retirement, and whether the restrictions imposed upon the applicant’s pensionary benefits are

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Devendra Tripathi confined to those authorized by the Regulations. The material available in the present case indicates that the criminal proceedings originated while the applicant was in service and that a charge-sheet had been presented before the competent court. The respondents’ action must, therefore, be examined on that factual footing.

19. The question of leave encashment, however, stands on a distinct statutory footing. Rule 37(2)(v) of the Jammu & Kashmir Civil Services (Leave) Rules, 1979 empowers the competent authority to withhold the whole or part of the cash equivalent of earned leave where a Government servant retires while under suspension or while disciplinary or criminal proceedings are pending against him, if, in the view of the competent authority, there is a possibility of some money becoming recoverable from him on conclusion of such proceedings. The rule further contemplates release of the amount withheld after conclusion of the proceedings, subject to adjustment of Government dues, if any.

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20. A plain reading of Rule 37(2)(v) makes it clear that the mere pendency of criminal proceedings is not, by itself, the sole condition for withholding leave encashment. The competent authority must also form the requisite opinion that some money may become recoverable from the employee on conclusion of the proceedings. The power under the said rule is, therefore, conditional and must be exercised upon due application of mind to the facts of the case. The authority cannot withhold the entire amount of leave encashment indefinitely merely by referring to the pendency of a criminal case without examining whether the statutory condition concerning possible recovery of Government dues is satisfied.

21. In the present case, although the respondents have relied upon the pendency of criminal proceedings and the provisions governing pension and gratuity, their reply does not, by itself, establish that a specific and reasoned determination contemplated under Rule 37(2)(v) was made regarding the possibility of recovery of Government

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Devendra Tripathi dues from the applicant on conclusion of the proceedings. The question of withholding leave encashment must, therefore, be considered independently under the said rule. The respondents cannot automatically extend the embargo applicable to gratuity under Article 168-D to leave encashment without satisfying the distinct requirements prescribed by the Leave Rules.

22. The claim relating to General Provident Fund also requires consideration under the rules governing the GPF account. GPF accumulation is distinct from pension and gratuity, and the mere pendency of criminal proceedings does not, without an applicable statutory provision or a lawful adjustment, furnish an automatic ground for withholding the amount standing to the credit of the subscriber. The respondents have not identified in their reply any specific provision under which the applicant’s GPF accumulation may be withheld solely on account of the pendency of the aforesaid criminal proceedings. The competent authority is, therefore, required to examine the

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Devendra Tripathi claim under the applicable GPF rules and release the admissible amount, subject to any lawful deduction or adjustment supported by the governing provisions.In Ghulam Mohi-Ud-Din Lone(supra), the Hon’ble Division Bench held that, although gratuity may be withheld in accordance with Article 168-D during the pendency of qualifying judicial proceedings, GPF and leave salary cannot be withheld merely on that account in the absence of statutory conditions authorizing such withholding. The Court accordingly directed release of admissible retiral benefits.

23. The principle that pension and other retiral benefits are not a bounty but constitute enforceable legal entitlements has been recognized by the Hon’ble Supreme Court in D.S. Nakara and Others v. Union of India, (1983) 1 SCC 305, and State of Jharkhand and Others v. Jitendra Kumar Srivastava and Another, (2013) 12 SCC 210. The latter decision reiterates that pensionary benefits cannot be withheld in the absence of authority of

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law. These principles, however, must be applied consistently with the statutory provisions which expressly regulate the payment of benefits during the pendency of qualifying proceedings. They do not extinguish a restriction validly imposed under the applicable regulations, nor do they permit the administration to withhold a benefit for which no statutory authority exists.

24. Applying the aforesaid principles to the facts of the present case, it emerges that the claim for provisional pension and gratuity has to be regulated in accordance with Articles 168-A and 168-D of the Jammu & Kashmir Civil Service Regulations 1956, having regard to the institution and pendency of the criminal proceedings. Since the respondents have stated that provisional pension has already been sanctioned, no fresh direction for sanction of provisional pension is required, though the respondents remain obliged to ensure its regular payment in accordance with the applicable rules. Likewise, the applicant cannot claim unconditional release of gratuity

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Devendra Tripathi merely on the basis of his superannuation or reinstatement in service when the statutory conditions governing withholding of gratuity are attracted.

25. At the same time, the respondents cannot treat the pendency of the criminal proceedings as an omnibus ground for withholding every retiral benefit. The claim for leave encashment must be considered under Rule 37(2)(v) of the Jammu & Kashmir Civil Services (Leave) Rules, 1979, and the claim for GPF must be examined under the rules governing that fund. The competent authority is required to record its decision with reference to the applicable statutory provision and the relevant facts, rather than merely reiterating that a criminal case remains pending.

26. In view of the foregoing discussion, the Transfer Application deserves to be disposed of with directions to the respondents to undertake the aforesaid exercise in accordance with the applicable statutory provisions. The applicant’s claim for gratuity shall remain governed by

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Articles 168-A and 168-D of the Jammu & Kashmir Civil Service Regulations, subject to the conclusion of the criminal proceedings and the passing of final orders in accordance with law. The respondents shall, however, independently consider the claims relating to leave encashment, GPF and other outstanding retiral dues in the light of the specific rules governing each benefit.

27. In view of the foregoing discussion, the Transfer Application is disposed of with the following directions:

(i) Provisional pension: The respondents shall ensure the regular payment of provisional pension to the applicant in accordance with Articles 168-A and 168- D of the Jammu & Kashmir Civil Service Regulations, 1956, if already sanctioned, subject to the applicability of the said provisions and fulfilment of the prescribed conditions. In case provisional pension has not been sanctioned or released, the respondents shall take necessary steps in accordance with the applicable rules.

(ii) Gratuity/death-cum-retirement gratuity: The applicant’s claim for gratuity or death-cum- retirement gratuity shall be regulated in accordance with Article 168-D read with Article 168-A of the Jammu & Kashmir Civil Service Regulations and other applicable provisions. If the criminal proceedings arising out of FIR No. 24/2009

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Devendra Tripathi constitute qualifying proceedings under the aforesaid provisions and remain pending, the claim shall be dealt with accordingly. Upon conclusion of the proceedings and passing of final orders, the competent authority shall take an appropriate decision regarding release of gratuity in accordance with law, within a period of four months from the date of conclusion of the proceedings and passing of the requisite final orders.

(iii) General Provident Fund (GPF): The respondents shall examine the applicant’s claim for release of his GPF accumulation under the applicable GPF rules and release the admissible amount, subject to verification of the relevant records and adjustment of any lawful deductions or recoveries duly authorized under the applicable provisions. The amount shall not be withheld merely on account of the pendency of the criminal proceedings unless such withholding is supported by an applicable statutory provision.

(iv) Leave encashment: The respondents shall consider the applicant’s claim for leave encashment in accordance with Rule 37(2)(v) of the Jammu & Kashmir Civil Services (Leave) Rules, 1979. Any decision to withhold the whole or any part of the cash equivalent of earned leave shall be based upon fulfilment of the conditions prescribed under the said Rule, including the requisite satisfaction of the competent authority regarding the possibility of recovery of money from the applicant upon conclusion of the proceedings. A reasoned decision shall be taken on this claim independently of the decision concerning gratuity.

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(v) Other outstanding retiral dues: The respondents shall examine the applicant’s claim for any other outstanding retiral or service benefits and release all amounts found admissible, subject to verification of the relevant records and any lawful deduction or adjustment permissible under the applicable rules. No benefit shall be withheld solely on the ground of pendency of the criminal proceedings in the absence of statutory authority for such withholding.

(vi) Final settlement of pensionary benefits: Upon conclusion of the criminal proceedings and passing of final orders in accordance with law, the respondents shall undertake the final settlement of the applicant’s pensionary benefits in accordance with the applicable rules, subject to any lawful adjustment or recovery ordered by the competent authority. The exercise shall be completed within four months from the date of conclusion of the proceedings and passing of the requisite final orders.

(vii) Interest on delayed payment: The respondents shall consider the applicant’s claim for interest on delayed payment of retiral benefits in accordance with the applicable rules and the governing judicial precedents, and pass an appropriate reasoned order thereon.

28. The respondents shall pass a reasoned and speaking order on the claims covered by clauses (iii), (iv), (v) and (vii) above within eight weeks from the date of receipt of a certified copy of this order. Any amount found admissible and not lawfully liable to be withheld shall be released

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Devendra Tripathi within the same period, subject to any lawful adjustment or recovery in accordance with the applicable provisions.

29. It is made clear that nothing contained in this order shall be construed as an expression of opinion on the merits of the criminal proceedings arising out of FIR No. 24/2009. The competent criminal court shall adjudicate the matter independently in accordance with law. The respondents shall also remain at liberty to take such action concerning the applicant’s retiral benefits as may be permissible under the applicable statutory provisions upon conclusion of the proceedings and passing of final orders.

30. The Transfer Application is disposed of in the aforesaid terms. There shall be no order as to costs.

31. Registry shall consign the record to the Record Room after due compliance.

(JUSTICE RITU TAGORE) Member(Judl.)

26.10.2026 DEVENDRA TRIPATHI

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