Central Administrative Tribunal - Patna
Shailendra Kumar Mishra vs Posts on 2 July, 2024
1 OA No. /050/00455/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/00455
455 of 2022
Reserved on 29.04.2024.
Pronounced on:
CORAM
HON'BLE MR. AJAY PRATAP SINGH, MEMBER [J]
SHAILENDRA KUMAR MISHRA, Son of late Raghubir Mishra, Resident of
Village and Post Office-Patori,
Office Via- Anandpur, District
District-Darbhanga (Bihar) PIN--
847101 at present retired ASRM HRO, RMS, PT PT- Dn Patna PIN-800004.
Mobile No. 7004598094.
7
Email: skmishra [email protected] .......... Applicant.
-Versus-
1. The Union of India through the SecretarySecretary,, Government of India,
Ministry of Communication, Department of Posts, Dak Bhawan, Sansad
Marg, New Delhi-110001.
Delhi
Patna 2. The Director General,
General Department of Posts, Government of India, Dak
Bench
Bhawan, Sansad Marg, New Delhi-110001.
110001.
3. The Chief Postmaster General,
Gene , Bihar Circle, Meghdoot Bhawan, PatnaPatna--
800001.
4. The General Manager
Manage Finance (Postal) Bihar Circle, G.P.O. Campus,
Patna G.P.O.-800001.
G.P.O.
5. The Director of Postal Services,
Services, Head Quarter, Meghdoot Bhawan, Patna
-800001.
800001.
6. The Senior Superintendent
Supe of RMS PT--Dn Patna- 800004.
7. The Head Record Officer,
Officer, HRO, RMS, PTPT-Dn. Patna- 800004.
........Respondents.
For Applicant:-
Applicant: Shri Om Prakash Singh, Advocate.
For Respondents:-
Respondents: Shri G.K. Agarwal, Learned Additional Standing Counsel.
ORDER
AS PER:-
PER: AJAY PRATAP SINGH, MEMBER[JUDICIAL]
1. By way of present Original Application under Section 19 of Administrative Tribunals Act, 1985,, whereby challenging Order dated 11.02.2022 Annexure-A/4, DCRG not been sanctioned because a CBI case registered for offences under Section 120 B read with Section 420, 468 and 471 of IPC and Section 13(2) read with Section 13(1) (d) of Prevention of Corruption Act ct is pending and as per Rule 69 of Central Civil Services (Pension) Rules 1972, (Herein Herein after for brevity referred as Rules, 1972) DCRG is not payable as criminal case is pending against retired employee. So also seeking direction to 2 OA No. /050/00455/2022 sanction and pay retirement gratuity by setting aside order dated 11.02.2020 (Annexure-A/4) A/4) and direct to pay commutation value of pension ( in short CVP) and issue Pension Payment Order along with interest on delayed payment of retirement gratuity.
PRAYER
2. Applicant has claimed following main reliefs (extracted from OA) is under:
under:-
"8(i) Your Lordships may graciously be pleased to quash the O/o SSRM PT PT-Dn Dn Patna No- Pen/S.K. Mishra/Retired ASRM/PTASRM/PT- Dn Patna dated 11.02.2022 (Annexure-A/4).
8(ii) Your Lordshipss may graciously be pleased to direct the respondents to sanction and pay retirement gratuity to the applicant with interest. 8(iii) That your Lordships may graciously be pleased to direct the respondents to pay commutation value of pension to the applican applicantt and issue pension payment order in favour of applicant.
8 (iv) Cost of the case may please be awarded to the applicant for litigation and sorrow faced by applicant."
Patna Bench FACTS IN BRIEF
3. The shorn of unnecessary details, briefly stated facts as adumbrated by applicant that applicant retired from post of Assistant Superintendant Railway Mails, Head Record Office, Patna Division on 30.11.2021 30.11.2021. Memo dated 30.11.2021 .11.2021 issued as per Sub-Rule Sub (4) of Rule 64 of Rules 1972 for payment of provisional pension from 01.12.2021.
01.12.2021. Respondent No.6 issued impugned order dated 11.02.2022 (Annexure-A/4) that DCRG is not payable able to applicant under Rule 69 of Rules, 1972 as against him criminal case is pending.
4. It is also the case of applicant that not facing any departmental proceedings on date of superannuation, criminal case is pending in special case no. 4 of 2014,, PS. CBI Patna and applicant admitted to bail and not been convicted till date. Department of Posts issued O.M. Dated 25.03.2014 and his case is covered and respondents cannot withheld retirement gratuity/DCRG and respondents sanctioned provisional pension under Rule 64 (4) of Rules, 1972 and after six months, provisional pension to be treated as final and pension and Pension Payment Order as well as CVP amount are to be released. 3 OA No. /050/00455/2022
5. Per contra, contra respondents have contested claim of applicant by filing written statement that applicant superannuated on 30.11.2021 30.11.2021,, provisional pension, GPF amount, leave ve encashment were paid. Criminal case case, CBI Case No.. 04/2014 arising out of RC No. 84 of 2014, 0232014 A 0008 0008dated 30.11.2015 was registered against him by CBI, ACB, Patna under Section 120-B,420,471 B,420,471 of IPC and Section 13(2) (1) (d) of Prevention of Corruption Act, 1988 before Special Judge, CBI Court; Patna in connection with official duties, crime committed by him in engagement of GDS for verification authority as well as appointing authority as Inspector Posts, South Sub-Division Sub Division Jhanjharpur under Madhubani Division. It is alleged that applicant verified mark sheet of Rajesh Kumar without Patna Bench any verification report from the Sanskrit Board. Later on CBI verified and found said mark sheet of Rajesh Kumar was fake, forged and certificate of Madhyama Exam to Postal department was forged & fictitious. So also in cases of candidates namely Miss Manaorama Kumari, Ajit jit Kumar, Pawan Kumar, Raman Kum Kumar ar Paswan,, Binod Kumar, Digamber Dinker verification reports, mark sheets ts found forged. CBI, ACB, Patna vide letter dated 30.10.2015 recommended for criminal prosecution of applicant and was sent to judicial custody on 08.05.2019 till 22.05.2019 and placed under suspension vide order dated 15.05.2019.
6. The respondents have also made averments that memo of charges dated 26.09.2019 for major penalty was served on applicant in connection with serious misconduct in engagement of GDS of Ajit Kumar, Pawan Kumar Kumar.. The Disciplinary proceedings were concluded and penalty vide order dated 26.09.2019 "reduction of pay ay by two stages in the pay matrix level level-8 from Rs.
s. 74,300 to Rs.
70,000 for a period for fo 15 months without cumulative effect and not earn any annual increment during punishment period and after period of punishment no effect."
4 OA No. /050/00455/2022
7. The respondents further stated in WS that due to pendency of criminal case ase against him at CBI Court, Cou Patna, his DCRG was withheld as per Sub -Rule Rule 1(a) &
(c) of Rule 69 and Sub-rule Sub (4) of Rule 9 of Rules 1972. Thus applicant is not entitled for DCRG, DCRG CVP and PPO till criminal case pending before CBI Court pertaining to serious misconduct during discharge of official duties as applicant cant in capacity of appointing authority submitting fake verification reports of GDS for illegal gratifications.
gratifications
8. Respondents also made averments in the WS that in case of Dukhan n Prasad Singh versus Union of India, India, Hon'ble High Court of Allahabad, facts were different than of present case.
case Mr. Dukhan Prasad Singh was exonerated in Patna Bench departmental proceedings, whereas in present case major penalty inflicted on 26.09.2019 against applicant for grave misconduct for alleged irregularities committed by applicant applicant in capacity of appointing authority while working as Inspector Post, South Sub-Division Division Jhanjharpur and prosecuted under Section 120 B, 420,471 of IPC and Section 13 (2) read with 13(1)(d) of P.C. Act, 1988 for involvement in verifying mark sheet of GDS by then SPOs SPOs, Madhubani Division,, in capacity of verifying authority which was later found bogus. Thus applicant has been found to be involved in grave misconduct and conduct is of grievous misconduct under Rule 8 of Rules, 1972.
9. Respondents also distinguished case of Syed Sagar Ali in OA No. 3910/2016, acquitted by court of law, whereas in case in hand applicant is facing serious casee under P.C. Act, 1988 for official acts. Applicant has committed grave misconduct found guilty in disciplinary proceedings and on prima prima-facie facie case of guilty of grave misconduct, CBI, CBI, ACB, Patna lodged FIR and charge sheet filed, Special Case No. 04/2014 arising out of RC No. 8A of 2014 under Section 120-B,, 420,471 of IPC and Section 13(2) read with 13( 13(1) (d) of Prevention of Corruption Act, 1988 is still pending. Hence applicant not eligible under Rule 8 of Rules, 5 OA No. /050/00455/2022 1972 for grant of pension and issuance of PPO and under sub-sub-rules (a) 3 (b) &
(c) of Sub-rule rule (1) of Rule 69 of Rules 1972,, DCRG cannot be paid until the conclusion of judicial proceedings and final orders are passed in pending Special case before CBI Court, Panta.
10. Rejoinder has been filed by applicant specifically denying contentions of respondents made in WS and has stated that in CBI case applicant has been admitted to bail and disciplinary proceedings concluded on 26.09.2019 and applicant retired on 30.11.2021. Rule 9 of Rules 1972 1972,, empowers, President and not respondents to withhold pension and DCRG and Rule 69 of Rules 1972 is not applicable in present case and once memo dated 30.11.2021 for provisional Patna Bench pension under Sub-Rule Sub (4) of Rule 64 of Rules, 1972 1972,, respondents under Rule 9 of Rules 1972, 1972, do not have power to withhold pension, CVP CVP, DCRG under Rule 69(1) (a) & (c) of Rules, 1972 and SSRM cannot issue impugned order. Applicant is facing charge sheet in criminal case and Rule ule 8 of Rules, 1972 is not attracted.
acted.
Case is covered by ratio in case of V.K. Bajpai Vs. Union of India decided by CAT Bench, Lucknow.
Lucknow SUBMISSIONS
11. Shri Om Prakash Singh, learned counsel for applicant contended that:
that:-
(i) Provisional Pension accordance with Sub Sub-Rule (4) of Rule 64 of Rules, 1972 granted and not under Rule 69 of Rules, 1972 and impugned order dated 11.02.2022 under Rule 69, withholding DCRG as criminal case is pending is not tenable as provisional pension already sanctioned under Rule 64 (4) of Rules, 1972.
(ii) Impugned order dated ated 11.02.2022 withholding of DCRG due to pendency of criminal case issued by Senior superint superintendent endent is non-est as Sub-Rule Rule (4) of Rule 9 of Rules, 1972 does not contemplate, where judicial proceedings have been instituted prior to 6 OA No. /050/00455/2022 superannuation and continued after his superannuation. Thus applicant is entitled for regular pension as well as CVP and all other benefits including release of DCRG, withheld vide impugned order dated 11.02.2022 by Senior Superintendent.
(iii) Senior Superintendent does not have power to withheld regular pension, DCRG and CVP except President under Rule 9 of Rules, 1972.
(iv) Hon'ble High Court, Allahabad in case of Dukhan Prasad Singh Versus Union of India, 2006 (4) AWC 3210, Co-ordinate ordinate Patna Bench,, Bench at Delhi in case of Syed Sagar Ali Vs. Urban Bench Development in OA No. 3910 of 2016 2016,, decided on 20.02.2019, Hon'ble High Court, Delhi in Shri Ashok Kumar Vs. North Delhi Power, in WP © No.510 of 2012, decided on 05.09.2013, Hon'ble Supreme Court in case of State of Jharkhand Vs. Jitendra Kumar Srivastava, (2013) 12 SCC 210. Hon'ble High Court, Patna in case of Arvind Kumar Singh Vs. State of Bihar in CWJC No. 15328 of 2016,, decided on 02.05.2018 02.05.2018, reported in 2018(2) PLJR 933 and Hon'ble High Court at Allahabad, Lucknow Bench in case of Ram Pal Versus State of UP in Service Single Case No. 582 of 2010 decided on 30.08.2012, quashed orders of withholding gratuity.
12. Shri Gopal Krishna Agarwal, learned Additional Central Government Standing Counsel argued that:-
(i) Applicant is facing grave charges of misconduct, while discharging official duties as appointing authority for appointment of Gramin Dak Sevaks, vaks, in cases of Rajesh Kumar, Ajit Kumar, Pawan Kumar, by fraudulent act without verification of genuineness of mark sheets of Bihar Sanskrit Shiksha Board, Madhyama Exam 7 OA No. /050/00455/2022 Certificate, forged and fictitious ious mark sheets verified as genuine.
CBI on investigation found mark sheets not verified from the Board and were forged. CBI has registered Special Case No. 4 of 2014 arising out of RC No. 8A of 2014 under Section 120-B 420, 471 IPC and Section 13 (2) readd with Section 13 (1) (d) of Prevention of Corruption Act, 1988 and Special Case is pending before Special Court, CBI, Patna and charge sheet have bbeen filed as prima-facie facie case made out grave misconduct.
(ii) Charge sheet under CCS (CCA) Rules, 1965 was served and enquiry concluded with punishment vide major penalty order dated Patna Bench 26.06.2019. The applicant was sent to judicial custody and is on bail and criminal proceedings are still pending.
(iii) Applicant is facing criminal proceedings in Prevention of Corruption rruption case, offence committed during official duties from 05.06.2007 to 06.08.2010,, holding post of Inspector Posts. In disciplinary proceedings major pen penalty alty inflicted vide memo dated 26.09.2019. As per Rule 8 of Rules 1972 1972,, pension is subject to future good conduct, charge sheet in Special Case by CBI already filed prima-facie facie guilty of grave misconduct, as charge sheet is on record in criminal case.
(iv) Applicant is facing criminal proceedings in Special Court, CBI, Patna for grave misconduct during service, offences under Section 120 B, 468, 471 of IPC and Section 13(1) (d) & 13 (2) of Prevention of Corruption Act, 1988 pending trial and in disciplinary proceedings charges established of grave misconduct Rule 8 of Rules 1972,, provides future good co conduct nduct implied condition of every grant of pension and appointing authority withhold a part thereof, 8 OA No. /050/00455/2022 whether permanently or for a specified period period,, if found guilty of grave misconduct. So also under Sub Sub-Rule (4) of Rule 9 of Rules 1972, provides that in case government servant retired on attaining age of superannuation and against whom any departmental or judicial proceedings are continued, provisional pension as provided in Rule 69 of Rules 1972 shall be sanctioned. Respondents issued impugned mpugned order dated 11.02.2022 in consonance with Sub Sub-sub-rule rule
(b) & (c) of Sub-Rule (1) of Rule 69 of Rules 1972 and provisional pension being granted regularly after decision in special CBI case final pension,, PPO and CVP shall be settled in accordance with Patna Bench Rules, 1972.
13. No other point is pressed at the Bar by learned counsel appearing for the parties.
14. Heard. This Tribunal has bestowed anxious considerations on the rival contentions of learned counsel appearing for the he parties and perused the material placed on record as well as precedents relied.
15. Dispute in present case is that applicant seeking quashment of order dated 11.02.2022 (Annexure-A/4) (Annexure passed by Senior Superintendent, RMS Patna Division, whereby whereb under Rule 69 of Rules 1972,, DCRG withheld as criminal case, CBI Case No. 04/2014, arising out of R.C. No. 8A of 2014, has been registered for offences punishable under Section 120 B, 420, 468, 471 of IPC and Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 is pending. So also applicant seeking direction to respondents to release C.V.P. and issue PPO in favour of applicant with full pension. Stand of the respondents that pension can be claimed based on statutory pension pens Rules Rules, 1972 and no one can claim pensionery ry benefits dehors the statutory rules. Applicant has been subjected to disciplinary proceedings of grave misconduct proved and major penalty inflicted 9 OA No. /050/00455/2022 vide order dated 26.09.2019, 26.09.2019, superannuated on 30.11.2021 and by operation of Rule 8 of Rules 1972, appointing authority is empowered to withhold pension or a part thereof, whether permanently or for a specified period if pensioner is found guilty of grave misconduct or convicted of a serious crime. Applicant has been found guilty of illegalities in appointment of GDS verifying fake mark sheet as genuine while acting as appointing authority. CBI has registered CBI case No. 4 of 2014 pending trial, charge sheet has been filed prima prima-facie facie case of grave misconduct made ma out. So also Sub-rule rule (4) of Rule 9 of Rules 1972 provides that in case government servant who retired on attaining age of superannuation or otherwise against whom any departmental or judicial proceedings are instituted, a Patna Bench provisional pension as provided under Rule 69 shall be sanctioned sanctioned. Sub-sub-Rule Rule (1) of Sub-rule rule (a) & (b) of Rule 69 provides during pendency of criminal proceeding only provisional pension shall be sanctioned, read with Sub-Rule Rule (4) of Rule 9 and Sub-Sub-Rule Sub (c) of Sub-Rule Rule (1) of Rule 69 of Rules, 1972 no gratuity shall be paid to government servant until conclusion of judicial or disciplinary proceedings. Sub-Rule Sub (2) of Rule Rule-69 further provides payment of provisional pension made shall be adjusted against final retirement settlement upon conclusion of such proceedings. Rule 44-Restriction Restriction on commutation of Pension, of CCS (Commutation of Pension) Rules, 1981 1981, provides applicant pplicant not eligible to commute a percentage of his provisional pension as judicial proceedings are pending before Special CBI Court, Patna. Respondents stand is that till pendency of criminal proceedings related to grave misconduct pending applicant has been sanctioned provisional pension and CVP CVP,, PPO and DCRG can only be released once criminal case ca e is decided and de decision iss taken by appointing authority under Sub-Rule Sub 1 (a) of Rule 8 of Rules 1972 relating to such conviction.
THE ISSUE 10 OA No. /050/00455/2022
16. From the above submissions of learned counsel appearing for parties and material placed on record, relevant norms and precedents. The sshort-issue issue for consideration:
consideration:-
"Whether Whether impugned order dated 11.02.2022 is justified and applicant is entitled for release of retirement gratuity, full pension, Pension Payment ayment Order rder and amount of commuted value of pension during pendency of criminal case, CBI No. 04/2014 before Special Court, CBI, Patna relating to offences punishable under Section 120 B, 420, 468, 471 of the IPC and Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 and after departmental enquiry, penalty in inflicted flicted for grave Patna Bench misconduct?
misconduct?"
DISCUSSION
17. Undisputed facts facts are that applicant was posted as Inspector of Posts, South Sub Division, Jhanjharpur and was assigned official work in capacity of verifying authority as well as appointing authority for engagement of GDS BPM at Sankorth BO and a list of 20 applicants, with their application to applicant for verification and preparation of merit list.
list. Applicant verified and wrote remarks verified from TR of exam Branch of Sanskrit Board and found correct and signed on 27.05.2009 on photocopy of candidate Rajesh Kumar and file did not contain any verification report from the concerned Board and found that Rajesh Kumar submitted forged mark sheet and certificate of Madhyama Exam to the Postal department. So also in cases of Ajit Kumar, GDSMC, Pawan Kumar, GDS GDS/MC /MC found working based on fake mark sheets.
18. CBI, ACB Patna on 30.10.2015 recomme recommended nded for criminal prosecution under Section 13(2) read with Section 13(1) (d) of Prevention Corruption Act, 1988 and also recommended for departmental enquiry under departmental Rules. Applicant was sent to jail from 08.05.2019 to 22.05.2019 and suspended on 11 OA No. /050/00455/2022 08.05.2019. Major penalty Charge sheet was served vide memo dated 26.09.2019 in connection with serious misconduct committed by him in engagement of Ajit Kumar, GDS/MC and Pawan Kumar, GDS MD/MC MD/MC.. Applicant was awarded major punishment vide memo dated 26.09.2019 26.09.2019.. The grave misconduct alleged was prima-facie facie found to be proved and major penalty of reduction of pay by two stages in Pay Matrix Level 8 from 74,300 to 70,000 for a period of 15 months without cumulative effect and will not earn annual increme increment nt and thereafter no effect.
19. CBI, also in CBI Case No. 4 of 2014 arising out of RC No. 8A of 2014 under Section 120-B, B, 420, 471 of IPC and Section 13(2) read with Section 13 (1) Patna Bench
(d) of Prevention of Corruption Act, 1988 filed charge sheet related to illegalities legalities committed in engagement of GDS as verifying as well as appointing authority, while working as Inspector of Posts, CBI Case No. 4/2014 is still pending against applicant.
20. Undisputedly, the charges against applicant are of grave nature. Applic Applicant ant charged with serious misconduct committed by him while working as appointing authority in the engagement of GDS for alleged illegal gratification while discharging official duties and facing criminal trial, CBI Case No. 04/2014,, CBI Court, Patna under Section 120 B, 420, 468, 471 of the IPC and Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act 1988 1988.
21. In Written Statement, respondents herein stated that major penalty charge sheet served and after giving opportunity of hearing as per CCS (CCA) Rules, 1965 major penalty order dated 26.09.2019 inflicted.
22. Relevant Rules of Rules, 1972 for ready reference reads as:
as:-
(i) 8. Pension subject to future good conduct (1) (a) Future good conduct shall be an implied condition of every grant of pension and its continuance under these rules. 12 OA No. /050/00455/2022
(b) The appointing authority may, by order in writing, withhold or withdraw a pension or a part thereof, whether permanently or for a speci specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct.
Provided that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the amount of 4 [rupees three hu hundred and seventy-
five] per mensem.
(2) Where a pensioner is convicted of a serious crime by a Court of Law, action under sub-rule rule (1) shall be taken in the light of the judgment of the court relating to such conviction.
(3) In a case not falling underr sub
sub-rule
rule (2), if the authority referred to in sub-rule rule (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order under sub sub-rule (1),
(a) serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit, within fifteen days of the receipt of the notice or such further time not exceeding fifteen days as may be allowed by the [appointing authority] Patna Bench such representation as he may wish to make against the proposal; and
(b) take into consideration the representation, if any, submitted by the pensioner under Clause (a).
(4) Where the authorityy competent to pass an order under subsub-rule rule (1) is the President, the Union Public Service Commission shall be consulted before the order is passed.
(5) An appeal against an order under sub-
sub-rule rule (1), passed by any authority other than the President, shall lie to the President and the President shall, in consultation with the Union Public Service Commission, pass such orders on the appeal as he deems fit.
EXPLANATION. - In this rule, -
(a) the expression `serious crime' includes a crime involving an offe offence nce under the Official Secrets Act, 1923 (19 of 1923);
(b) the expression `grave misconduct' includes the communication or disclosure of any secret official code or password or any sketch, plan, model, article, note, document or information, such as is me mentioned ntioned in Section 5 of the Official Secrets Act, 1923 (19 of 1923) (which was obtained while holding office under the Government) so as to prejudicially affect the interests of the general public or the security of the State.
(ii) Rule 9
9. Right of President to withhold or withdraw pension . (4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceeding proceedings are continued under sub-rule rule (2), a provisional pension as provided in 2 [Rule 69] shall be sanctioned.
(iii) Rule 69 13 OA No. /050/00455/2022
69. Provisional pension where departmental or judicial proceedings may be pending (1) (a) In respect of a Government servant referred to in subsub-rule rule (4) of Rule 9, the Accounts Officer shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retire retirement ment of the Government servant, 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.
(b) The provisional pension shall be authorized by the Accounts Officer during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.
(c) No gratuity shall be paid to the Government serservant vant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon :
Provided that where departmental proceedings have been instituted under Rule 16 of the Central Civil Services (Classification, Patna Bench Control and Appeal) Rules, 1965, for imposing any of the penalties specified in Clauses (i), (ii) and (iv) of Rule 11 of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant.
(2) Payment of provisional pension made under sub sub-rule rule (1) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.
GOVERNMENT OF INDIA'S DECISION Grant of cent per cent provisional pension under Rule 69 mandatory even if departmental or judicial proceeding proceedingss are continued. - It has come to the notice of Finance Ministry that some of the administrative authorities are not following Rule 69 of the CCS (Pension) Rules, 1972, which provide that Government servant who has retired and against whom any departmental or judicial proceedings are instituted or are continued, shall be paid provisional pension. The payment of provisional pension under these rules is mandatory. But some administrative authorities appear to be under the impression that in cases where the departmental partmental proceedings instituted against a Government servant were for a major penalty and in which ultimately no pension might become payable on the conclusion of the proceedings after his retirement under Rule 9 of the CCS (Pension) Rules, 1972, even th thee provisional pension need not to be sanctioned. This view is against the letter and spirit of the rule. The Ministry of Home Affairs, etc., are, therefore, requested to bring to the notice of administrative authorities under them the correct position unde underr the rules so that the provisional pension under Rule 69 ibid is not denied to the retired Government servants.
23. Rule 4 of CCS (Commutation of Pension Rules 1981.
Restriction on commutation of pension - No Government servant against whom departmental or or judicial proceedings, as referred to in Rule 9 of the Pension Rules, have been instituted before the date of his retirement, or the pensioner against whom such proceedings are instituted after the date of his retirement, shall be eligible to commute a percentage percentage of his provisional pension authorised under Rule 69 of the 14 OA No. /050/00455/2022 Pension Rules or the pension, as the case may be, during the pendency of such proceedings.
[Emphasis Emphasis supplied]
24. The applicant has committed grave misconduct or negligence during his tenure re of service is fact and power of appointing authority to pass an order of withholding or withdrawing the pension or part thereof in terms of the rules reproduced herein above is not in dispute. It is also not disputed that departmental proceedings was was initiated and the applicant was found guilty of commission of above alleged misconduct therein.
25. It is now settled that requirement for imposing of punishment was to Patna Bench arrive at a finding of misconduct which is of grave nature involving misconduct of committing committing negligence and illegalities in official duties as appointing, verifying authorities for appointment of Gramin Dak Sevak and his is duty was to verify mark sheet from concerned certified fake mark sheets as genuine and later on CBI registered criminal case no. 4 of 2014 punishable under section 120 B, 420, 468, 471 of IPC and Sect Section 13(2) read with section 13(1) (d) of Prevention of Corruption Act, 1988. The Criminal proceedings are still pending and in departmental enquiry charges has been proved.
26. Rule 8, imposes condition for every grant of pension, future conduct must be good and under Rules 1972 for continuing pension. Appointing authority by order order in writing withhold, withdraw a pension or a part thereof, whether permanently or for a specified specified period, if petitioner is convicted of a serious crime or is found guilty of grave misconduct. Case in hand appointing authority has taken decision to sanction and grant provisional pension as applicant found guilty of grave misconduct in enquiry and CBI case No. 4 of 2014 is pending pending before Special Court, CBI at Patna an and under 15 OA No. /050/00455/2022 sub-Rule Rule (4) of Rule 9 of Rules, 1972 only provisional pension is legally payable. Rule 69 of Rules 1972,, further provides that once provisional pension as stipulated in sub rule (4) of Rule 9 admissible based on qualifying service and shall continue up to and date after the conclusion of departmental or judicial proceedings and final orders are passed by the competent petent authority. Sub-Sub Rule (C) of sub sub-sub sub rule (1) of Rule 69 further specifically bar payment of gratuity until conclusion of the departmental or judicial proceedings and issue of final orders thereon.
27. In present case in hand applicant superannuated on 30.11.2021 and Patna provisional position was sanctioned vide memo dated 30.11.2021 w.e.f. Bench 01.12.2021 for a period of six months or till issue of PPO from DA (PA) Patna. Rule 8, Sub-Rule Sub Rule (4) of Rule 9 and Rule 69 of Rules, 1972 specifically mandates that once criminal proceedings are continued and not been finalized and grave misconduct in enquiry made out established, than till finalization of criminal proceedings/judicial proceedings and without order from appointing appointing authority, applicant DCRG cannot be released, so also not entitled for PPO and CVP amount during pendency of criminal trial.
28. Rule 4 of Central Civil Services (Commutation of Pension) Rules 1981 (in short Rules 1981) imposes restriction on commutation of pension, when Government Servant against whom departmental or judicial proceedings as prescribed in Rule 9 of Rule, 1972 have been instituted before date of his retirement and eligible for not be eligible to commute a percentage of provisional pension under rule 69 of pension during pendency of such proceedings. Since part of pension is withheld in present case under Rule 8 of Rules 1972 and not eligible as per Rule 4 of 1981 for commutation 16 OA No. /050/00455/2022 of pension. The competent authorities authorities have passed orders in present case and merely mentioning of incorrect provision of rules in order will not create any right in favour of applicant, when same authority is competent under Rules 9 (4) and 69 of Rules 1972 to issue order of provisi provisional onal pension, merely mentioning sub-rule sub rule (4) of Rule 64 in order dated 30.11.2021 for grant of provisional pension instead Rule 9(4) or Rule 69 of Rules 1972 will not create any right and no pension can be given dehors statutory pension rules.
29. This Tribunal Tribunal has analyzed the scheme of statutory Pension Rules, 1972 and Rules 1981, CBI case is pending before Special Court, CBI, Patna Patna related to Prevention of Corruption Act, Act, 1988 and offences related to IPC, I Bench do not find any merit in this Original Applicat Application.
30. Shri Om Prakash Singh, counsel for applicant has also laid much emphasis on cases Dhukhan Prasad Singh, Syed Sagar Ali, Ashok Kumar, Jitendra Kumar Srivastava, Arvind Kumar Singh and Ram Pal (supra).
31. But it is settled position of law that judgment has got no universal application rather the judgment is to be tested on the basis of each case. Reference in this regard be made to the judgment rendered of Hon'ble Supreme Court in case of Dr. Subramanian Swamy versus State of Tamil Nadu and others, (2014) 5 SCC 75. Relevant levant paragraph reads as under:-
"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for that what it actually decides, aand not what logically follows from it. The court should not place reliance on decisions without discussing as to how the factual situation fits in with the facts and situation of the decision on which reliance is placed."
[Emphasis supplied]
32. This Tribunal now proceeding to examine the factual aspects as was in case of Dukhan Prasad Singh versus Union of India & Ors (supra) 17 OA No. /050/00455/2022 and found that after retirement retirement not granted full pension and there was no departmental proceeding pending but was facing trial in case no. 932 of 1992, related to his service during employment. F.I.R. was registered and charge sheet for minor penalty issued, during departmental enquiry, exonerated of all the charges charges leveled against him. In such circumstances Hon'ble High Court, Allahabad held that order of provisional pension as provided in Rule 69 of Rules 1972 could not have been passed instead of regular pension.
33. But herein the case on hand applicant face faced d disciplinary proceedings Patna Bench before superannuation and major penalty, punishment imposed and CBI registered CBI case No. 4 of 2014 under section 120B, 420, 471 of IPC and section 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988 and still pending for grave misconduct, illegalities committed in discharge of official duties. Therefore judgment rendered in case of Dukhan Prasad Singh Vs Union of India & Ors (supra) will not be applicable as there is material difference in the facts of the two cases.
34. In case of Syed Sagar Ali (supra) applicant was convicted under section 302 IPC was superannuated being in custody. Th Thee Tribunal at Delhi allowed OA as applicant was involved in judicial proceedings, Criminal Case unconnected with performance of his duties. Therefore the ratio of Syed Sagar Ali (supra) will not be applicable in present case as there is material difference in facts of the case in hand.
35. In case of Shri Ashok Kumar Versus North Delhi Power Ltd (supra) and Jitendra Kumar Shrivastava (supra) and Arvind Kumar Singh (Supra) and Rampal Ghosh (supra) and shortt question for consideration was "whether whether in absence of any provision in Pension Rules, ules, 18 OA No. /050/00455/2022 the state government can withhold a part of pension during pendency of departmental/criminal partmental/criminal proceedings?"
proceedings Hon'ble courts were dealing with different set of service rules. So far as facts and legal position applicable is different facts not applicable applicable in present case. So also Hon'ble Supreme Court held in case of Nair Service Service Society versus DR. T. Beer M Masthan, asthan, (2009) 5 SCC 545 Their Lordships held as ::-
"48...It is well settled that judgements in service jurisprudence should be understand with reference to the particular service rules governing the filed."
[Emphasis supplied]
36. Therefore, judgments rendered in case of Dhukhan Prasad Singh, Patna Bench Syed Sagar Ali, Ashok Kumar, Jitendra Kumar Srivastava, Arvind Kumar Singh and Ram Pal (supra) are not applicable in the case on hand as there is material difference in facts of case on hand.
CONCLUSION
37. In view whereof, issue is decided against the applicant. The impugned order dated 11.02.2022, withholding withhold of gratuity until conclusion of the judicial proceedings and issue of final order thereto in present OA is upheld being justified and same does not suffer from any infirmity, remain remainss unassailable and applicant is not entitled to the relief sought in the O.A.
38. Resultantly, the Original Applicant being devoid of merit accordingly dismissed.
39. There shall be no order as to cost. As a sequel thereof, pending Miscellaneou Application(s),, if any shall also stand disposed of. Miscellaneous (Ajay Pratap Singh) Judicial Member.
Central Administrative Tribunal, Patna Bench, Patna.
bp/-