Central Administrative Tribunal - Bangalore
S Rajendran vs Department Of Forest on 2 September, 2022
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OA.No.170/1257/2019/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/01257/2019
ORDER RESERVED ON:27.07.2022
DATE OF ORDER: 02.09.2022
CORAM:
HON'BLE SHRI SURESH KUMAR MONGA, MEMBER (J)
(On video conference from Central Administrative Tribunal, Chandigarh Bench
at Chandigarh)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
(On video conference from Central Administrative Tribunal, Bangalore Bench
at Bangalore)
Dr. S. Rajendran, IFS (Retd.),
S/o P. Santhanakrishnan,
Age 69 years,
R/a #8, IAS Officers' Colony,
5th C Cross, 16th Main, BTM II,
Bangalore-560 076. ....Applicant
(Party in person - through video conference)
Vs.
The State of Karnataka,
Represented by its Chief Secretary,
Vidhana Soudha,
Bangalore-560 001. ....Respondent
(By Advocate Shri Sridhar N. Hegde - through video conference)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief: 2
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a) To direct the respondent to sanction at least 18% pa interest for the delayed release of DCRG and the Commutation of Pension amount to the applicant.
b) To direct the respondent to pay the interest amount within 2 months from the date of receipt of the order from the Hon'ble Tribunal.
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant was an Indian Forest Officer of 1977 batch borne on Karnataka cadre. He retired on superannuation as an Addition Principal Chief Conservator of Forests, Karnataka Forest Department on 31.10.2011.
b) One month before his retirement, the respondent issued a charge sheet to the applicant for the alleged misconduct during the period between 2002 to 2005 vide DPAR 93 SFP 2011 dated 30.09.2011.
c) The applicant submitted his defence statement on 26.10.2011 denying all the charges framed against him. Pending departmental proceedings, the respondent withheld the retirement benefits like DCRG, Commutation of Pension and 300 days leave encashment benefits to the applicant.
d) Consequent to many representations by the applicant, the respondent Government, pending inquiry, released the 300 days leave encashment benefit to the applicant 0n 17.06.2016.
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e) The respondent Government appointed an inquiry officer to inquire into the charges levelled against the applicant vide G.O.No. DPAR 63 SFP 2017 dated 23.01.2017, after a delay of 6 years. The applicant was aggrieved by the inordinate delay and laches in the inquiry proceedings and approached this Tribunal through OA.No.170/00164/2017 praying for quashing of the inquiry proceedings. This Tribunal quashed the inquiry proceedings vide its order in OA.No.170/00164/2017 dated 03.08.2017.
f) The respondent filed W.P.No.54353/2017 (S-CAT) before the Hon'ble High Court of Karnataka at Bangalore challenging the aforesaid order. Hon'ble High Court of Karnataka dismissed the Writ Petition filed by the respondents upholding the order of this Tribunal vide order dated 03.06.2018.
g) Consequently, the respondent issued a Government Order releasing the DCRG and the Commutation of Pension to the applicant vide Annexure A-1 dated 23.11.2018. Subsequently, the Principal Accountant General (A&E), Karnataka, issued order releasing the DCRG amount of Rs. Nine lakhs two thousand one hundred and seventy two only, as well as the Commutation of Pension amount of Rs. Fifteen lakhs forty thousand eight hundred only, without any interest for the withheld period, vide letter dated 11.12.2018.
h) There is a delay of more than seven years in releasing the retirement benefits to the applicant. Consequently, the applicant has prayed for 4 OA.No.170/1257/2019/CAT/Bangalore Bench 18% interest for the delayed release of DCRG and Commutation of pension amount in the interest of justice.
i) The applicant relies on the provisions of All India Services (Death-cum Retirement Benefits) Rules, 1958, for his claim of interest amount. Section 19A (1) of the All-India Services (Death-cum Retirement Benefits) Rules, 1958, deals with the payment of interest on delayed payment of DCRG, which is as follows:
"If the payment of gratuity or death-cum-retirement gratuity has been authorised after three months from the date when its payment is due and it is clearly established that the delay in payment was attributable to administrative lapses, interest at the rate prescribed by the Central Government from time to time shall be paid on the amount of gratuity or death-cum-retirement-gratuity in respect of the period beyond three months."
j) The rate of interest is already approved by the Government of India vide its Office memorandum No. 38/34/2001- P & PW (F) dated 29.04.2002, that the President is pleased to decide that where the payment of DCRG has been delayed beyond three months from the date of retirement, an interest rate applicable to GPF deposits determined from time to time by the Government of India, will be paid to the retired / dependents of deceased government servants.
k) This Tribunal in OA.No.170/00172/2017 vide its order dated 30.08.2018 has already allowed interest at the current rate of GPF interest in the case of leave encashment benefits to the applicant. 5
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l) The applicant has also relied on various judgments of Hon'ble Supreme Court, Hon'ble High Courts of different States and this Tribunal, in which interest has been sanctioned at rates ranging from 9% to 18%, for the withheld pension, commutation of pension, DCRG and encashment of leave benefits to the aggrieved officials as long as they are not responsible for the delay even when there are no provisions.
m) Based upon the orders of this Tribunal in OA.No.170/00172/2017 dated 30.08.2018, Government of Karnataka had passed an order sanctioning the withheld leave encashment amount.
3. The respondent has filed his written statement wherein he has averred as follows:
a) The applicant had retired on 31.10.2011. As the departmental enquiry was pending against the applicant, the retirement benefits were withheld as per AIS (DCRB) Rules, 1958. Consequent to the orders of this Tribunal and High court order, the departmental enquiry was dropped and the withheld retirement benefits were released.
b) As per Rule 19A (1) of AIS (DCRB) Rules, 1958, interest on the payment of the DCRG is allowed, when the payment is delayed beyond 3 months from the date of retirement. In the present case, however, the applicant was facing Departmental Enquiry on the date of his retirement and Departmental Enquiry was dropped as per the orders of this Tribunal and High Court.6
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c) Government of India in its decision, vide DoPT letter No.25014/30/99- AIS(II), dated 07.08.2000, regarding admissibility of interest on the gratuity allowed after the conclusion of judicial/ departmental proceedings, has ruled as follows:
"2. It has been decided to follow the provision contained in the Government of India Decision no. (1) below Rule 68 of CCS (Pension), Rules 1972, as reproduced below, regarding the admissibility of interest on the gratuity allowed after the conclusion of judicial/departmental proceedings as there is no such provision under the All India Services (Death-cum-Retirement Benefits) Rules, 1958:-
"Where disciplinary or judicial proceedings against a Government servant are pending on the date of his retirement, no gratuity is paid until the conclusion of the proceedings and the issue of the final orders thereon. The gratuity if allowed to be drawn by the competent authority on the conclusion of the proceedings will be deemed to have fallen due on the date of issue of orders by the competent authority. In order to mitigate the hardship to the Government servants who, on the conclusion of the proceedings are fully exonerated, it has been decided that the interest on delayed payment of retirement gratuity may also be allowed in their cases in accordance with aforesaid instructions. In other words, in such cases, the gratuity will be deemed to have fallen due on the date following the date of retirement for the purpose of payment of interest on delayed payment of gratuity. The benefit of these instructions will, however, not be available to such of the Government servants who die during the pendency of judicial/ 7 OA.No.170/1257/2019/CAT/Bangalore Bench disciplinary proceedings against them and against whom proceedings are consequently dropped."
d) In the present case, the applicant has not been fully exonerated from the Departmental Enquiry. The Departmental Enquiry was dropped only by the orders of this Tribunal and High court of Karnataka. Consequently, therefore, his gratuity falls due on the date of issue of final order against the Departmental Enquiry on 23.11.2018. Accordingly, the applicant has been paid DCRG amount of Rs.9,02,172.00 and Commutation of Pension amount of Rs.15,40,800.00 on 11.12.2018 by Principal Account General (A&E), Karnataka, Bengaluru within one month from the dropping of Disciplinary proceedings. Hence, no interest on the gratuity is liable to be paid to the applicant.
4. In his rejoinder to this reply, the applicant has pleaded as follows:
a) The applicant had filed OA.No.170/00164/2017 before this Tribunal praying for quashing the charge memo dated 30.09.2011 and the entire disciplinary proceedings initiated by the respondent against the applicant. This Tribunal in its order dated 03.08.2017 quashed the same as follows:
"12. On detailed consideration of facts and circumstances of the case, we allow the present OA and quash the charge memo dated 30.09.2011 and subsequent order dated 23.01.2017 for continuation of departmental proceedings specifically in view of the inordinate delay in taking up the departmental proceedings. The respondents are also directed to release the withheld DCRG to the applicant within 8 OA.No.170/1257/2019/CAT/Bangalore Bench the period of 3 months from the date of receipt of a copy of the order. The OA is accordingly allowed. No order as to costs."
b) The respondent had approached the Hon'ble High Court of Karnataka through W.P.No.54353/2017 (S-CAT) challenging the orders of this Tribunal. High Court dismissed the Writ Petition on 03.6.2018, which reads as follows:
"We find no error in the above reasoning of the Tribunal to warrant interference. Petition dismissed."
c) Once the charge memo dated 30.09.2011 has been quashed, the respondent has wrongly concluded that the applicant was not fully exonerated. Quashing of the charge memo by the judiciary either under writ or revisional jurisdiction while reviewing the orders or proceedings of the executive, makes them null and void. Once the disciplinary proceedings and the charge memo stand quashed, the accused stands fully exonerated from the charges framed. The applicant was judicially absolved from the charges framed against him by the respondent from 30.09.2011. It means that there is no liability of the defendant to defend himself from the charges framed by the respondent. In other words, the applicant stands fully exonerated judicially.
d) The respondent Government had released the DCRG on 23.11.2018, but it should have released it from the date of retirement of the applicant (31.10.2011) as the judicial orders had quashed the charge memo dated 30.09.2011.
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e) Now, after quashing the charge memo and the entire disciplinary proceedings ab initio by the judiciary, the applicant becomes eligible to get the DCRG and commutation of pension from the date of his retirement and not after the date of dropping of the enquiry proceedings by the respondent.
f) The respondent Government has released the gratuity on 23.11.2018 instead of 31.10.2011, the date of the retirement of the applicant. Hence, there is a delay of seven years, one month and eight days in releasing the gratuity. The applicant is therefore entitled to interest on account of this delay in release of the DCRG as well as the commutation of pension benefit to him by the respondent.
g) The respondent has not raised any objection to the demand by the applicant for interest due on the delayed payment of commutation of pension. He has quoted a number of judgements of the Apex Court where interest at varying rates have been allowed on account of delay in payment of retiral benefits.
5. Heard learned counsels for the parties and perused the pleadings made by them.
6. In the present case, the applicant has prayed for grant of interest of 18% per annum for the delayed release of DCRG and Commutation of Pension amount to the applicant.
7. The applicant had retired on 31.10.2011. However, payment of DCRG and the retirement benefits were delayed by the respondent for the reason that a 10 OA.No.170/1257/2019/CAT/Bangalore Bench departmental enquiry was ordered against the applicant through a charge sheet issued on 30.09.2011. Subsequently, the enquiry proceedings were quashed by this Tribunal vide its order in OA.No.164/2017 dated 03.08.2017. The respondents challenged the aforesaid order before the Hon'ble High Court of Karnataka through W.P.No. 54353/2017 (S-CAT). However, the Hon'ble High Court of Karnataka dismissed the Writ Petition and upheld the orders of this Tribunal vide orders dated 03.06.2018. Consequently, the respondent issued the orders releasing the DCRG amount of Rs. 9,02,172.00 and the Commutation of pension amount of Rs. 15,40,800.00, without any interest for the withheld period vide letter dated 11.12.2018. The applicant has now prayed for grant of interest at the rate of 18% for the delayed release of DCRG and Commutation of Pension amount in the interest of justice.
8. The respondent in their reply have argued that in the present case the applicant was facing departmental enquiry on the date of his retirement and the department inquiry was dropped as per the orders of this Tribunal and the High Court. The respondents has also relied on DoPT letter No. 25014/30/99-AIS(II) dated 07.08.2000 regarding admissibility of interest on the gratuity allowed after the conclusion of judicial/departmental proceedings, stating that the interest is allowed on gratuity only if, on the conclusion of the proceedings, the applicant has been fully exonerated.
9. The respondent has stated that in the present case, the applicant has not been fully exonerated. The inquiry proceedings had been quashed by this Tribunal on grounds of delay in the proceedings and this does not amount 11 OA.No.170/1257/2019/CAT/Bangalore Bench to a full and complete exoneration. The amounts of DCRG and Commutation of Pension have been paid immediately after the inquiry proceedings were quashed by this Tribunal and there is therefore no delay for which interest would be payable.
10. The applicant on the other hand has argued that once the charge memo itself stands quashed, it is wrong to conclude that the applicant was not fully exonerated.
11. The point to be considered in the present case is whether, quashing of the charge memo by this Tribunal in its order dated 03.08.2017 amounts to exoneration of the applicant from the charges.
12. A careful perusal of the orders issued by this Tribunal in OA.No.164/2017 dated 03.08.2017, indicates that this Tribunal had observed as follows in that case:
"10. It is quite clear from the available facts that the present charges were framed on the basis of AG's report only and no independent enquiry was ever conducted by the State Government to find out whether there was any procedural irregularity or infraction were committed by the applicant. It is also not clear whether all the facts were placed by the subsequent CEO, KAMPA before the AG in respect of their observations. Even when the applicant is said to have formulated detailed replies to the AG's observation, it was sent after 4 years with their own comments. The subsequent events as highlighted in the reply statement clearly indicate that no effective measures were taken by respondents to take any final decision on the AG's observations more so when they formed the basis of the present charge memo. Therefore it is 12 OA.No.170/1257/2019/CAT/Bangalore Bench quite clear that the respondent had a very casual approach in the matter resulting in the inordinate delay of more than 5 ½ years in initiating the proceedings against the applicant after the issue of charge memo and the reply received from the applicant. This is in spite of the fact that the applicant is a retired person and will be adversely affected if the retirement benefits are not provided.
11. The Hon'ble Apex Court in Anant R Kulkarni Vs Y.P.Education Society & Others in Civil Appeal No. 3935/2013 213 SCC 515 had clearly observed that it is a settled legal proposition that a departmental enquiry can be quashed on the ground of delay provided the charges are not very grave. In this case, the charges are based purely on observation of audit without any proper examination of the State Government and we do not consider the same as grave. Moreover there is an inordinate delay on the part of State Government and the KAMPA to decide the matter more so when the applicant had retired nearly 6 years back and his DCRG amount had been withheld. Therefore we hold that in view of such an inordinate delay, continuation of the departmental proceeding cannot be sustained.
12. On detailed consideration of facts and circumstances of the case, we allow the present OA and quash the charge memo dated 30.09.2011 and subsequent order dated 23.01.2017 for continuation of departmental proceedings specifically in view of the inordinate delay in taking up the departmental proceedings. The respondents are also directed to release the withheld DCRG to the applicant within the period of 3 months from the date of receipt of a copy of the order. The OA is accordingly allowed. No order as to costs."
13. The observations made by this Tribunal while disposing of OA.No.164/2017 clearly concluded that the respondent had a very casual approach in the matter, resulting in an inordinate delay in initiating the 13 OA.No.170/1257/2019/CAT/Bangalore Bench proceedings against the applicant after the issue of charge memo and the reply received from the applicant. It had further concluded that the charge is based on the observation of the Audit without a proper examination by the State Government and the charge cannot be considered as grave. Hence, keeping in view the above observations, the charge memo dated 30.09.2011 itself was quashed.
14. Once the charge memo itself stands quashed, then nothing survives in the departmental proceedings. Consequently the applicant stands fully exonerated, since, the charge memo itself does not ipso facto exist after the passing of the order by this Tribunal. Hence, the contention of the respondent that the applicant is not fully exonerated, cannot be accepted.
15. The applicant had referred to a number of judgements of the Hon. Apex Court where directions for payment of interest have been made on account of delayed payment of pensionary benefits. Some of these judgements were perused and these reveal the following facts:
a) In the case of Vijay Malhotra Vs. State of Uttar Pradesh, AIR 2000 SC 3513 dated 31.01.2000, the facts of the case reveal that the Appellant retired from service on 31.8.1997. However, most of his retiral benefits were released to him some time in 1998-99. Hon'ble Apex Court observed that in this case, there is absolutely no reason or justification for not making the payments for months together. The court, therefore, directed the respondents to pay to the appellant within 12 weeks from today simple interest at the rate of 18 percent with effect from the date of his retirement till the date of payments.14
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b) In the case of Nalini Kant Sinha Vs. State of Bihar and others, 1993 Supp (4) SCC 748, the petitioner had retired from service as Deputy Secretary to Government of Bihar on attaining the age of superannuation on 31.01.1979. His case was considered for promotion to the post of Joint Secretary upon his completion of two years service as Deputy Secretary. The Government of Bihar vide order dated 22.04.1988 appointed him as Joint Secretary from 14.4.1976 to 31.01.1979 (up to date of retirement). The payment of pay during the period of promotion was denied to him because he had not performed the work of post of Joint Secretary. However, the benefit of counting of pay for pension was granted. The petitioner had claimed an amount of Rs.46,379 towards difference in salary, gratuity and difference in pension for the period. Hon'ble Apex Court quantified the Rs.47,000, as amount payable to the petitioner in respect of all his claims up to October 31, 1992 and also granted him interest at the rate of nine percent per annum on the sum of Rs. 47,000 from April 22, 1988 till the date of payment.
c) In the case of Harendra Nath Vs. State of Bihar and others, 1987 (Supp) SCC 56, the Hon'ble Apex Court observed as follows:
"1.Special leave granted limited to the question of the date from which the appellant should be paid interest on the pension and gratuity amount etc. due to him.
2. Heard both sides. The High Court has awarded interest with effect from the date of the institution of the writ petition instead of with effect from the date on which the pension and gratuity amount 15 OA.No.170/1257/2019/CAT/Bangalore Bench etc. became due on his superannuation about four years earlier. The appeal is, therefore, partly allowed to the extent that the appellant will be awarded interest from the date of his superannuation in 1981 instead of the date of the institution of the writ petition (i.e. August 5, 1985). The respondents will pay the cost of this appeal to the appellant which we quantify at Rs.2000."
16. Keeping the above in view, the applicant is fully eligible for payment of interest on account of delayed payment both on DCRG as well as on Commutation of Pension amount, which was released to him after a delay of around 7 years on account of the charge memo, which stands quashed.
17. However, it is considered to be appropriate if the interest due for the delayed payments of DCRG as well as Commutation of Pension is made at the prevailing rate of GPF instead of the rate of 18% as prayed for by the applicant.
18. Keeping in view the above, the OA is partly allowed with the directions that the respondent shall pay interest for the delayed payment of DCRG as well as Commutation of Pension amount at a rate equal to the prevailing GPF interest rate to the applicant. This amount may be calculated and paid to the applicant within a period of 4 weeks from the date of receipt of a certified copy of this order. Ordered accordingly.
19. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA)
MEMBER (A) MEMBER (J)
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