Page No.# 1/13 GAHC010148472023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3978/2023 PRAFULLA CHANDRA LAHKAR SON OF LATE MADHAB CHANDRA LAHKAR JYOTI NAGAR (NEAR ELITE GAS AGENCY), TARAJAN, JORHAT, ASSAM, PIN-785001 VERSUS THE STATE OF ASSAM AND 6 ORS REP. BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM, ENVIRONMENT AND FOREST DEPARTMENT, DISPUR, GUWAHATI-781006 2:THE ADDITIONAL CHIEF SECRETARY ENVIRONMENT AND FOREST DEPARTMENT ASSAM DISPUR GUWAHATI-781006 3:THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND HEAD OF FOREST FORCES ASSAM ARANYA BHAWAN PANJABARI GUWAHATI-781037 4:THE DIVISIONAL FOREST OFFICER (DFO) SONITPUR EAST DIVISION BISWANATH CHARIALI ASSAM 5:THE ACCOUNTANT GENERAL (A AND E) Page No.# 2/13 ASSAM MAIDAMGAON BELTOLA GUWAHATI ASSAM-781029 6:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM PENSION AND PUBLIC GRIEVANCES DEPARTMENT DISPUR GUWAHATI-781006 7:THE DIRECTOR OF PENSION ASSAM HOUSEFED COMPLEX DISPUR GUWAHATI -78100 Advocate for the Petitioner : MR. A K BARUAH, MR A DAS,MR. N MAHAJAN Advocate for the Respondent : GA, ASSAM, SC, AG,SC, FOREST BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 18-02-2026 Heard Mr. A.K. Baruah, learned counsel for the petitioner. Also heard Mr. I. Borthakur, learned standing counsel, Forest Department, Assam appearing for the respondent Nos. 1 to 4, Mr. B. Chakraborty, learned standing counsel, AG(A&E), Assam appearing for the respondent No. 5 and Mr. N. Das, learned Govt. Advocate, Assam representing respondent Nos. 6 & 7. 2. The petitioner in the present proceeding has prayed for a direction upon the Page No.# 3/13 respondent authorities to authorize to him regular pension as well as the release to him other pensionary benefits pursuant to his superannuation from service w.e.f. 30-04-2023. 3. The petitioner, herein, after successfully completing his Rangers Couse conducted by the Forest Department, was appointed as Ranger vide order dated 31-05-1989. Thereafter, the petitioner came to be promoted to the post of Assistant Conservator of Forest vide issuance of order dated 31-05-2012. The petitioner while serving as Assistant Conservator of Forest was on 04-09-2018 placed under arrest by the police in connection with BI(EO) P.S. Case No. 25/2017. The petitioner after being placed under arrest was enlarged on bail vide order dated 10-09-2018 passed by the court of learned Addl. Chief Judicial Magistrate, Kamrup (M). The petitioner on being enlarged on bail resumed his services w.e.f. 14-09-2018. The petitioner being in the zone of consideration for promotion to the rank of Deputy Conservator of Forest, his case was considered by the Selection Committee. However, the case of the petitioner came to be kept in sealed cover in view of the pendency of the enquiry against him in the proceeding of BI(EO) P.S. Case No. 25/2017. The petitioner, thereafter, retired from his service on reaching the age of superannuation w.e.f. 30-04-2023. Pursuant to the superannuation of the petitioner from his service, the petitioner had submitted all requisite documents before the departmental authorities and accordingly, pension proposal was prepared in respect of the petitioner and forwarded to the office of the AG(A&E), Assam for authorizing to him his pension and pensionary benefits. The departmental authorities also approached the authorities of the Bureau of Investigation (Economic Offence), Assam to know the stage of the proceeding of enquiry Page No.# 4/13 involved in the matter so as to facilitate the processing of the matter for release to the petitioner the retirement benefits like, leave encashment, GIS etc. The petitioner’s pension and pensionary benefits having not been released and a provisional pension also not having been authorized to the petitioner, the petitioner has instituted the present proceeding. 4. Mr. A.K. Baruah, learned counsel for the petitioner at the outset submits that in pursuance to the direction passed in the present proceeding, the petitioner was authorized his provisional pension vide issuance of office order dated 18-06-2024 w.e.f. the date following the date of his retirement. Mr. Baruah submits that in the criminal proceeding instituted against the petitioner, the Investigating Agency on conclusion of the investigation had laid charge-sheet against the petitioner on 07-09-2018 under Section 120B/ 420/ 468/ 471/ 406/ 409/ 34 IPC read with Section 41 of the Assam Forest Regulation Act, 1995. He submits that the criminal proceeding instituted against the petitioner is pending at the trial stage. 5. Mr. Baruah has submitted that the petitioner having superannuated from his services, he is entitled to be authorized his pension and pensionary benefits. However, the respondents have not authorized to him his regular pension and pensionary benefits. Mr. Baruah by referring to the provisions of Rule 21 of the Assam Services (Pension) Rules, 1969 (in short “the Rules of 1969”) has submitted that the power to withhold pension of a retired Government Servant is reserved to the Governor of Assam and the said power is permissible to be so exercised only if a departmental or a judicial proceeding was initiated against a retired Government servant and he is found, therein, to be guilty of grave Page No.# 5/13 misconduct or negligence during his period of service, including the service rendered upon reinstatement after retirement. Mr. Baruah has submitted that against the petitioner no department proceeding was instituted during his service tenure and the only proceeding that was instituted against him is the proceeding instituted in BI(EO) P.S. Case No. 25/2017. He submits that the criminal case not having been taken to its logical conclusion and the petitioner not having been found guilty of the charges framed against him therein, it was not permissible to the respondent authorities to not release to the petitioner his due pension and pensionary benefits. Mr. Baruah has submitted that the action on the part of the respondent authorities in not authorizing to the petitioner his due pension and pensionary benefits has the effect of withholding of pension of the petitioner, which according to him would be permissible only when the condition as stipulated in Rule 21 are satisfied. 6. Mr. Baruah, learned counsel for the petitioner, in support of his submission has placed reliance on the decision of the Hon’ble Supreme Court in the case of State of Jharkhand & Ors. Vs. Jitendra Kr. Srivastava & Ors. reported in (2013) 12 SCC 210. He has further placed reliance on a decision of the Coordinate Bench of this Court in the case of Birendra Rajbangshi Vs. State of Assam & Ors. reported in 2016 (4) GLT 920. 7. In the above premises, Mr. Baruah submits that this Court would be pleased to direct the respondent authorities to authorize the petitioner his due pension and pensionary benefits w.e.f. the date subsequent to the date he had proceeded on superannuation. Mr. Baruah submits that the pension and pensionary benefits as required Page No.# 6/13 to be authorized to the petitioner would, however, be subject to the final outcome of the criminal proceeding pending against the petitioner. 8. Per contra, Mr. I. Borthakur, learned standing counsel, Forest Department, Assam submits that the Investigating Agency had laid charge-sheet against the petitioner on 07- 09-2018. He submits that the proceedings in pursuant to the laying of the said charge- sheet has not been taken to its logical conclusion. Mr. Borthakur submits that a charge- sheet having been filed against the petitioner in terms of the provisions of Rule 22 of the Rules of 1969, the petitioner would be entitled to a provisional pension and not a regular pension and gratuity. Mr. Borthakur submits that it is only on conclusion of the criminal proceeding instituted against the petitioner that the petitioner would be entitled to a regular pension, in the event he is not found guilty of the charges so framed against him therein. Mr. Borthakur submits that the petitioner while being entitled to a provisional pension would not be entitled to a provisional DCRG, inasmuch as, the same is barred by the provision of Rule 22 of the Rules of 1969. In the above premises, Mr. Borthakur submits that the petitioner, herein, prior to conclusion of the criminal proceeding instituted against the petitioner and the decision arrived at, therein, by the competent court, with regard to the guilt of the petitioner, no direction would be permissible to be issued to the respondents to authorize to the petitioner a regular pension along with other pensionary benefits. 9. I have heard the learned counsel for the parties and also perused the materials available on record. 10. The facts noticed, hereinabove, are not in dispute. The petitioner was placed under Page No.# 7/13 arrest on 04-09-2018 in connection with BI(EO) P.S. Case No. 25/2017 and he continued to remain under detention till 10-09-2018. Thereafter, he was directed to be enlarged on bail by the court of learned Addl. Chief Judicial Magistrate, Kamrup (M) at Guwahati. The petitioner had retired from his service on attaining the age of superannuation w.e.f. 30- 04-2023. The claim made by the petitioner is that the criminal proceeding instituted against him having not been taken to its logical conclusion and the petitioner not being found to be guilty with regard to the charges framed against him therein, the respondent authorities could not have, in view of the provisions of Rule 21 of the Rules of 1969, proceeded to withhold the pension and pensionary benefits of the petitioner. 11. The petitioner has, accordingly, projected that the action on the part of the respondent authorities in not authorizing to the petitioner his pension amounts to withholding of his pension and the same is in clear violation of the provision of Rule 21 of the Rules of 1969. The provisions of Rule 21 being relevant is extracted here-in-below:- “21. The Governor of Assam reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding the pensioner is found guilty of grave misconduct or negligence during the period of his service, including, service rendered upon re-employment after retirement provided that- (a) such departmental proceeding, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service; [Explanation. -The continuation of the proceeding after the final retirement of the officer shall be automatic under sub-rule (a) of Rule 21 and no fresh Page No.# 8/13 decision of the Governor and/or the Appointing Authority nor any show cause notice to the person concerned shall be necessary. The powers under Rule 21 shall be exercisable not only in case of causing pecuniary loss to Government but also in all other cases. (b) such departmental proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment— (i) shall not be instituted save with the sanction of the Governor of Assam; (ii) shall not be in respect of any event which took place more than 4 years before such institution; and (iii) shall be conducted by such authority and in such place as the Governor of Assam may direct and in accordance with procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service; (c) no such judicial proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution; and (d) the Assam Service Commission shall be consulted before final orders are passed. Explanation. - For the purpose of this rule- (a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension from an earlier date, on such date; and (b) a judicial proceeding shall be deemed to be instituted- (i) in the case of a criminal proceeding, on the date on which the complaint or report of the police officer, on which the Magistrate takes cognizance, is made, and (ii) in the case of a civil proceeding, on the date of presentation of the plaint in the Court.” 12. A perusal of the provision of Rule 21 would reveal that the Governor of Assam has reserved to himself the right of withholding or withdrawing a pension or any part of it Page No.# 9/13 whether permanently or a specified period and the right of ordering the recovery of a pension of the whole or part of a pecuniary loss to the Government, if in a departmental or a judicial proceeding the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment. The explanation as appended to the Rule 21 defines departmental proceeding for the purpose of the Rule to have been instituted on a date when the statement of charges is issued to the Government servant and/ or pensioner as the case may be and if the officer has been placed under suspension from an earlier date, on such date and a judicial proceeding has been defined to mean in respect of a criminal proceeding the date on which the complaint or report of a police officer on which a magistrate takes cognizance is made. In other words, in the terms of Rule 21, a judicial proceeding shall be deemed to have been instituted against an officer and/ or a pensioner as the case may be on the date the charge-sheet is so submitted by the Investigating Agency before the competent court and/ or the court takes cognizance of a complaint lodged against the officer concerned. In the case on hand, it is seen that the Investigating Agency on conclusion of the investigation had laid charge-sheet in the matter against petitioner on 07-09-2018, accordingly, a judicial proceeding against the petitioner shall be deemed to have been instituted w.e.f. 07-09-2018. Accordingly, on the date on which the petitioner had proceeded on superannuation i.e. on 30-04-2023, a judicial proceeding stood instituted against the petitioner. 13. Having noticed the above position, this Court would now consider the provision of Rule 22(1) of the Rules of 1969. The same being relevant, is extracted here-in-below:- Page No.# 10/13 “22. (1) Where any departmental or judicial proceeding is instituted under Rule 21 or where a departmental proceeding is continued under clause (a) of the proviso thereto against an officer who has retired on attending the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which upon conclusion of such proceeding, final order are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement, or if he was under suspension on the date of retirement, up to the date immediately preceding the date on which he was placed, under suspension; but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final order thereon.” 14. The provision of Rule 22(1) of the Rules of 1969 mandates that where any departmental or a judicial proceeding is instituted under Rule 21 or a departmental proceeding is continued under Clause-(a) of the proviso, thereto, against an officer who has retired on attaining the age of compulsory retirement or otherwise, shall be paid during the period commencing from the date of his retirement to the date on which upon conclusion of such proceeding, final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement or if he was under suspension on the date of retirement, up to the date immediately presiding the date on which he was placed under suspension. Provisions of Rule 21 further bars release of gratuity or death cum retirement gratuity (DCRG) to such officer until the conclusion of such proceeding and issue of final orders thereon. In other words, during the pendency of a judicial proceeding and/ or a departmental proceeding against an officer after he has proceeded on superannuation, only a provisional pension would be permissible to be so authorized to the officer concerned and he would not be entitled to draw gratuity and/ or DCRG. Page No.# 11/13 15. Having noticed the provisions of the Rules, the contentions raised by the learned counsel for the petitioner is now being examined. The learned counsel for the petitioner had made his submission only by relying on the provisions of Rule 21 of the Rules of 1969 and had not factored in the provisions of Rule 22(1) of the Rules of 1969. The provisions of Rule 21 of the Rules of 1969, in the considered view of this Court, cannot be read in isolation dehors the provisions of Rule 22(1). The provisions of Rule 22(1) in respect of a pensioner against whom a departmental and/ or a judicial proceeding is pending has to be given primacy over the provisions of Rule 21. The provisions of Rule 22, in the considered view of this Court, operates during the period of pendency of a departmental and/ or judicial proceeding against the petitioner and thereafter in the event the petitioner is found to be guilty in either of the said proceedings, the provisions of Rule 21 would become operative. Accordingly, the non-authorization of regular pension and DCRG to the petitioner, in the considered view of this Court, is not erroneous. 16. The petitioner, in support of his contention has relied upon a decision of the Hon’ble Supreme Court rendered in the case of Jitendra Kr. Srivastava (Supra), this Court on perusal of the said judgment finds that, therein, the Hon’ble Supreme Court had considered the provisions similar to one as contained in Rule 21 of the said Rules of 1969, existing in the provisions of the Bihar Pension Rules, more particularly, Rule 43(b) thereof. The Hon’ble Supreme Court in the said case had not considered a provision similar to the one contained in the provisions of Rule 22(1) of the Rules of 1969. The conclusions drawn by the Hon’ble Supreme Court in the said decision being one so drawn solely basing on the provisions of Rule 43(b) of the Bihar Pension Rules, the said decision in the Page No.# 12/13 considered view of this Court would have no application to the fact situation arising in the present writ petition. It is settled position of law that a slight difference in facts shall render the ratio of a decision relied upon to be inapplicable to the facts of the case. Accordingly, this Court is of the considered view that the decision of the Hon’ble Supreme Court rendered in the case of Jitendra Kr. Srivastava (Supra) shall not advance the case of the petitioner. 17. The learned counsel for the petitioner has, thereafter, relied upon a decision of a Coordinate Bench of this Court rendered in the case of Birendra Rajbangshi (Supra). This Court has perused the said decision of the Coordinate Bench of this Court and finds that the said decision was so rendered solely noticing the provisions of Rule 21 of the Rules of 1969. The provisions of Rule 22 was not brought to the notice of the Coordinate Bench and accordingly, the same was not so considered by it while rendering the judgment in the case of Birendra Rajbangshi (Supra). Accordingly, this Court is of the considered view that the said decision would not advance the case of the petitioner, herein. 18. In view of the above discussions, this Court is of the considered view that the petitioner at this stage would not be entitled to a direction for being authorized with his regular pension and final DCRG. The petitioner, in the considered view of this Court, would be entitled only to a provisional pension and would also not be entitled to a provisional DCRG. However, the provision of Rule 21 having only barred the release of gratuity and DCRG, this Court is of the considered view that the petitioner would be entitled to the other pensionary benefits like leave encashment, GIS etc. which is required Page No.# 13/13 to be authorized by the department concerned. Accordingly, while not accepting the claim of the petitioner for being authorized his regular pension and final DCRG, this Court directs the respondent authorities to release to the petitioner his other retirement benefits not barred by the provisions of Rule 22(1) of the Rules of 1969, like leave encashment benefits, GIS etc. This Court further directs that the petitioner shall be continued to be paid his provisional pension till conclusion of the criminal proceeding presently pending disposal against him. 17. With the above observations and directions, the present writ petition stands disposed of. JUDGE Comparing Assistant