Retiral Benefits Cannot Be Withheld Over Suspected Involvement In Criminal Case: J&K&L High Court

The court while reaffirming the constitutional protection available to retiral benefits, ruled that unless judicial or departmental proceedings have actually been instituted in the manner prescribed under the Jammu and Kashmir Civil Service Regulations (CSR), the Government lacks statutory authority to withhold full pension and gratuity by granting only provisional pension.

The Court was hearing a writ petition filed by the Union Territory of Jammu & Kashmir challenging an order of the Central Administrative Tribunal, Srinagar Bench, directing the Government to release pension and other post-retiral benefits to a retired Principal of Government Polytechnic College, Pulwama, after finding that no judicial or departmental proceedings were pending against him at the time of his retirement.

A Division Bench comprising Acting Chief Justice Sanjeev Kumar and Justice Mohd Yousuf Wani observed,

"...unless departmental or judicial proceedings are instituted under Article 168-A, the resort to Article 168-D of the CSR cannot be taken and the employee cannot be denied full pension or granted only the provisional pension."

Respondent Firdous Ahmad Itoo retired as Principal of Government Polytechnic College, Pulwama, on attaining the age of superannuation in 2024. Despite his retirement, the Government sanctioned only provisional pension and withheld other post-retiral benefits, including gratuity, without communicating any formal reason to him. Aggrieved thereby, he approached the Central Administrative Tribunal, Srinagar Bench.

Before the Tribunal, the retired officer challenged the Government Order contending that in the absence of any judicial or departmental proceedings, the Government had no authority to deny his full pension and retiral dues. He also asserted that pension and gratuity constitute property protected under Article 300-A of the Constitution.

The Government defended its action by submitting that information received from the Crime Branch indicated that the respondent had surfaced as a suspect in FIR registered by the Economic Offences Wing, Srinagar, and that an enquiry relating to alleged embezzlement in the Islamic University of Science and Technology (IUST) was also contemplated against him.

The Tribunal rejected the Government's stand, holding that neither any judicial proceedings nor departmental enquiry had been instituted against the respondent, and consequently directed release of the withheld retiral benefits. The Union Territory challenged that decision before the High Court.

Court's Observations:

Affirming the Tribunal's view, the Division Bench held that the controversy stood concluded by the earlier Division Bench judgment in Ghulam Mohi-ud-din Lone v. State of J&K and the Supreme Court decision in Union of India v. K.V. Jankiraman.

The Court observed that Articles 168-A and 168-D of the Jammu and Kashmir Civil Service Regulations create a clear statutory scheme under which provisional pension and withholding of gratuity become permissible only after institution of judicial or departmental proceedings in the manner recognised by law. Mere suspicion, contemplated enquiry or pendency of investigation does not satisfy this statutory requirement, it emphasised.

The Court further reproduced with approval its earlier pronouncement in Ghulam Mohi-ud-din Lone, emphasizing that pension and gratuity are constitutional property protected by Article 300-A and cannot be taken away except by authority of law. Quoting the earlier Division Bench judgment, the Court observed,

"The hard earned benefit in the shape of pension and gratuity that accrues to an employee is in the nature of 'property'. The right to property may not be a fundamental right any more but it continues to be a Constitutional right and cannot be taken away without due process of law."

The Court also reiterated that executive instructions or administrative apprehensions cannot substitute the statutory conditions prescribed under the Civil Service Regulations.

It further noted that the statutory framework does not authorise withholding retiral benefits merely because an FIR has been registered and investigation is pending. Referring again to Ghulam Mohi-ud-din Lone, the Court observed,

"The respondents have not brought to our notice any other statutory provision... which entitle the employer... to deny post retirement benefits to an employee merely on the ground that at the time of his superannuation, an FIR into his misconduct was registered and pending investigation."

Applying these principles, the Bench found that it was undisputed that no judicial proceedings or departmental enquiry had been instituted against the respondent at the time of his retirement. Consequently, the statutory conditions for withholding pension and gratuity were absent.

Holding that the Central Administrative Tribunal had correctly applied the settled legal position, the High Court dismissed the writ petition filed by the Union Territory and upheld the directions requiring release of the respondent's pension and other post-retiral benefits.

Case Title: Union Territory of J&K & Anr. v. Firdous Ahmad Itoo & Anr.

Citation: 2026 LiveLaw (JKL) 305

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