abdul rehman mir vs REVENUE DEPARTMENT

ITEM 12 1 TA 107 OF 2023

CENTRAL ADMINISTRATIVE TRIBUNAL
SRINAGAR BENCH, SRINAGAR
T.A. 107/2023
Heard and Reserved on: 21.09.2026
Pronouncement of Order on: 26.10.2026
C O R A M
HON’BLE MS. JUSTICE RITU TAGORE,MEMBER(JUDL.)
Abdul Rehman Mir Age 63 years
Son of Sona Ullah Mir
Resident of Ashmander Pulwama.
…… Applicant
By Advocate :
Mr. Fayaz Ahmad Lone
VERSUS
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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ITEM 12 2 TA 107 OF 2023

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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ITEM 12 3 TA 107 OF 2023

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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ITEM 12 4 TA 107 OF 2023

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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ITEM 12 5 TA 107 OF 2023

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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ITEM 12 6 TA 107 OF 2023

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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ITEM 12 7 TA 107 OF 2023

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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ITEM 12 8 TA 107 OF 2023

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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ITEM 12 9 TA 107 OF 2023

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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ITEM 12 10 TA 107 OF 2023

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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ITEM 12 11 TA 107 OF 2023

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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ITEM 12 12 TA 107 OF 2023

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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ITEM 12 13 TA 107 OF 2023

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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ITEM 12 14 TA 107 OF 2023

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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ITEM 12 15 TA 107 OF 2023

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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ITEM 12 16 TA 107 OF 2023

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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ITEM 12 17 TA 107 OF 2023

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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ITEM 12 18 TA 107 OF 2023

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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ITEM 12 19 TA 107 OF 2023

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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ITEM 12 20 TA 107 OF 2023

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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ITEM 12 21 TA 107 OF 2023

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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ITEM 12 22 TA 107 OF 2023

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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ITEM 12 23 TA 107 OF 2023

(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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ITEM 12 24 TA 107 OF 2023

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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Date: 2026.10.26 14:24:46+05'30'
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