.
4. In the case of I.Yesudanam OA-2281/2009 it was held that the leave encashment and other retirement benefits could not be withheld on the ground of pendency of judicial proceedings. In the said case this Tribunal viewed that even during pendency of judicial proceedings, Govt. servant is entitled to release of leave encashment, CGIES and GPF amount payable to him. Relevant excerpt of the order passed in said case read as under:-
11. A perusal of the order passed by the Tribunal in OA-2154/2002, relied upon by the applicant, shows that Sh. J.P. Sharma was suspended on 26.02.2001 under Rule 10(1)(b) of the CCS(CCA) Rules, 1965 and superannuated on 31.03.2002 whereupon a provisional pension in terms of Rule 69 of CCS(Pension) Rules, 1972 was granted to him. He had sought payment of all retiral dues such as gratuity, leave encashment, full pension etc. with interest although he was involved in a case of embezzlement of government money and FIR was filed with respect to offences under Section 120-B, 420, 468, 477-A, IPC and 13(2) r/w 13(1)(c) of P.C. Act, 1988. Having considered the submissions made and provisions of the various Rules the Tribunal found that while no judicial proceedings could be said to have been instituted or deemed to be so, the applicant having been suspended, departmental proceedings would be deemed to have been instituted against him as per Rule (9)(6)(a) of CCS(Pension) Rules, 1972 and therefore on.ly a provisional pension could be paid. Further by reference to Rule 9(4) and 3(o) of the CCS (Pension) Rules, 1972 and keeping in view the judgment of the Apex Court in D.V. Kapoor Vs. UOI and Ors., (1990) 4 SCC 314, the Tribunal noted that use of the term pension was in contradistinction to gratuity, and thus gratuity would be payable. Again by a reference to CCS (Leave) Rules, 1972, particularly Rule 39(3) thereof it was noted that the competent authority could withhold cash equivalent of earned leave in such a case if there was a possibility of some money becoming recoverable on conclusion of the criminal/disciplinary proceedings. It was held that in absence of such satisfaction of the concerned authority having been expressed by an order in writing, the leave encashment could not have been withheld. In this background the applicant was found to be entitled to leave encashment and gratuity and also to provisional pension only.
12. When this matter was taken to the Honble High Court of Delhi in CWP No. 6465/2003 the Court took note of Rule 10 of the CCS (CCA) Rules, 1965 and Rules 9 and 69 of the CCS (Pension) Rules, 1972. The question of leave encashment was not entertained and notice was issued limited to the question of release of gratuity. The Court referred to relevant citations and in particular noted that criminal proceedings start after the filing of the chargesheet before the Court. Having examined the matter from various angles the Court came to the conclusion that in the facts of the case it could not be said that departmental proceedings had been instituted against the applicant therein, as Rule 10(1)(b) relates to suspension in a case where criminal offence is under investigation, inquiry or trial and the suspension which was ordered could not be considered to be relevant to departmental proceedings. Further, the date of suspension viz. 26.02.2001, could not be treated as the date of institution of judicial proceedings either. Thus, to give only provisional pension was found to be unjustified. But, the validity of Rules 9(4) and 69(1) of CCS (Pension) Rules, 1972, was not found to be questionable. I am therefore not persuaded that these judgments would be of any assistance to the applicant in the facts of the present case, which are at variance, so far as claim for payment of gratuity is concerned.