Central Administrative Tribunal - Delhi
Dr. Anil Mehra vs Gnct Of Delhi on 3 December, 2008
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1818/2008 Wednesday, this the 3rd day of December 2008 Honble Shri Shanker Raju, Member (J) Dr. Anil Mehra Medical Superintendent, Aruna Asif Hospital, Delhi (Retired) S/o Shri Kailash Narain Mehra R/o Y-74, Hauz Khas, New Delhi-16 Group A, Aged 61 years (Approx.) ..Applicant (By Advocate: Shri Saurabh Ahuja) Versus 1. GNCT of Delhi through its Chief Secretary Delhi Secretariat, Players Building IP Estate, New Delhi-2 2. Union of India through its Secretary Ministry of Health & Family Welfare Nirman Bhawan, Delhi 3. Medical Superintendent Aruna Asif Ali Hospital 5, Rajpur Road, Delhi 4. Principal Secretary Department of Health & Family Welfare 8th Floor, A-Wing, Delhi Secretariat IP Estate, New Delhi-2 5. Lt. Governor Govt. of NCT of Delhi Raj Niwas, Delhi 6. Senior Accounts Officer (Admn.) Principal Accounts Office GNCT of Delhi A Block Vikas Bhawan, New Delhi 7. Deputy Controller of Accounts (Funds) GPF Cell, GNCT of Delhi Old Secretariat, Delhi-6 ..Respondents (By Advocates: Ms. Jyoti Singh and Shri Ankur Chhibber) O R D E R
To receive pension and other retiral dues is a valuable fundamental right guaranteed to a government servant, which cannot be withheld, except by a process under the statutory rules and by way of a well-defined process of law ruled by the Constitution Bench of Apex Court in D.S. Nakara & others v. Union of India, 1983 SCC (L&S) 145.
2. Also held by the Apex Court in State of West Bengal v. Haresh C. Banerjee & others, (2006) 7 SCC 651 that where withholding of pension is bad in law is to be examined in judicial review.
3. Applicant, who retired on attaining the age of superannuation as Medical Superintendent on 31.1.2008, has assailed non-release of retiral dues and payment thereof with interest.
4. A brief factual matrix of this case transpires that the applicant, who had been inducted as a Senior Medical Officer in Central Health Services from time to time, was lastly promoted to the Senior Administrative Grade while posted as Medical Superintendent, Aruna Asif Ali Hospital. Applicant retired on superannuation on 31.1.2008. At the time of retirement, applicant was neither issued a charge-sheet nor was any criminal case lodged against him, yet despite making several representations, he has not been paid, on release, his retiral dues. However, on 14.5.2008, he was allowed the provisional pension but rest of the benefits, like leave encashment, gratuity and commutation of pension have been withheld. Several representations preferred by the applicant have not been paid any heed to, including the representation where grant of provisional pension was questioned. A vigilance report by the Director, Govt. of NCT of Delhi was issued on 1.2.2008 and was received on the same date whereby it is stated that the CVC has advised for initiation of major penalty proceedings. Accordingly, a charge sheet was later on issued to the applicant only on 21.11.2008 alleging a gross misconduct whereby in violation of terms and conditions of NIT guideline issued by the CVC and GFR 160 without obtaining the prior approval of the Finance Department, applicant had awarded the contract for sanitation services in 13 hospitals under DHS to M/s Goodyear Services, L-3, bidder. According to which, Department had to bear extra expenditure.
5. After the factual matrix, position of rules is relevant to be highlighted. CCS (Pension) Rules, 1972 (for short Pension Rules) has applicability in the instant case. Rule 83 of the Pension Rules provides that except in case of a government servant where provisions of Rules 9 and 69 have to apply, pension shall become payable from the date a government servant ceases to be borne on the establishment. As per Rule 56 of the Pension Rules, two years before the date of superannuation of a government servant, Head of Department is enjoined with a date to prepare a list and to seek No Demand Certificate. Rule 58 of the Pension Rules obligates Head of Office to prepare pension papers in Form 7 two years before the date on which a government servant is due to retire on superannuation. Three stages on completion of papers are provided under Rule 59 of the Pension Rules. The third stage is 10 months prior to the date of retirement where Head of Office gives certificate regarding the length of qualifying service to the government servant and to ask him to complete the papers. The papers so submitted are forwarded to the Accounts Officer under Rule 61 of the Pension Rules not later than 6 months before the date of retirement of government servant. Rule 63 of the Pension Rules enjoins Government to intimate the government servant as to dues at least two months before the date of retirement.
6. Rule 68 of the Pension Rules provides interest on delayed payment of gratuity and as per G.I., Deptt. of Pers. & A.R., OM dated 10.1.1983 on judicial proceedings pending on the date of retirement on its conclusion, interest is to be paid and as there is no interest on pensionary benefits, the time limit for payment of pensionary benefits has been laid down by G.I., Dept. of P & PW OM dated 5.10.1999 where it is to be paid at best maximum three months from the date of date of retirement of a government servant. Rule 69 of the Pension Rules authorizes grant of provisional pension to the government servant as per Rule 9 (4) of the Pension Rules and gratuity till the departmental proceedings are final shall not be paid.
7. In the above backdrop, rule in issue before is Rule 9 of the Pension Rules, which is reproduced below:-
9. Right of President to withhold or withdraw pension (1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement:
Provided that the Union Public Service Commission shall be consulted before any final orders are passed:
Provided further that where a part of pension is withheld or withdrawn, the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five (Rupees One thousand nine hundred and thirteen from 1-4-2004 per mensem.
8. Shri Saurabh Ahuja, learned counsel appearing for applicant states that as per the decision of the Apex Court in D.V. Kapoor v. Union of India & others, (1990) 4 SCC 314, if a government servant at the time of retirement has not been issued a charge sheet, his retiral benefits cannot be withheld. For this, a coordinate Bench decision in Smt. Santosh Verma v. National Capital Territory of Delhi, Dept. of Training and Technical Education and others, 1998 (1) ATJ 215 has been relied upon wherein it is ruled that Rule 69 of the Pension Rules does not cover a situation where action under Rule 9 of Pension Rules is merely contemplated and as one who retires without being issued a charge-sheet, the entire retiral benefits are to be released.
9. Learned counsel states that Rule 9 (6) of the Pension Rules defines institution of departmental proceedings on the date when statement of charges issued. In the above backdrop, it is stated that as the applicant was served upon a charge sheet only on 21.11.2008 whereas he has retired on 31.1.2008 when admittedly no charge sheet was issued, his retiral benefits cannot be withheld without any basis.
10. Learned counsel for applicant has relied upon decision of coordinate Bench of this Tribunal in Satbir Singh v. Union of India & others (OA-1055/2007) decided on 21.11.2007 wherein the aforesaid analogy has been held by observing that if on the date of retirement one is allowed to superannuate and no charge sheet was filed, retiral dues cannot be withheld.
11. On the other hand, Ms. Jyoti Singh, learned counsel appearing for respondents clearly contended that as the vigilance clearance was not given to the applicant, his retiral dues have rightly not been released. However, by pointing out the Annexures, it is stated that Rule 69 of the Pension Rules allows provisional pension on post-retirement institution and while interpreting Rule 9 (4) of Pension Rules, it is stated that a government servant, who since retired on attaining the age of superannuation and against whom any departmental proceedings are instituted with service of the charge sheet, the provisional pension is to be paid and no other retiral dues are to be paid. However, it is stated that in pursuance of a delay in the inquiry, leave encashment, insurance and GPF have been allowed to the applicant and he is getting full provisional pension from the date of retirement.
12. Learned counsel for respondents by referring to the rule of interpretation stated that it is the legislative intent in case of a person against whom serious charges have been found during the period he served as a government servant should not be let-off and an inquiry is permissible if the event is not more than 4 years before such institution and as the Presidential sanction has been given to initiate the inquiry against the applicant, this suffices the requirement of Rule 9 of the Pension Rules.
13. I have carefully considered the rival contentions of the parties and perused the material placed on record.
14. It is trite law that while interpreting a statute or a rule, intention of legislature is to be gathered from the language used and we cannot induct words or read it into, as ruled by the Apex Court in Vemareddy Kumaraswamy Reddy v. State of A.P., 2006 (2) SCALE 314. It is also trite that while interpreting a statute, which is unambiguous, Court cannot make up any deficiency in such rule as held in Sanjay Singh & another v. Union Public Service Commission, Allahabad & another, 2007 (1) SCC (L&S) 870. When a literal construction is to be followed, it is also to be borne in mind that law interpreting a statute has to be so construed and in a manner to make a machinery workable.
15. However, a literal construction is to be avoided if it causes any injustice as ruled by Apex Court in M/s. Girnar Traders v. State of Maharasthra & others, 2007 (10) SCALE 391.
16. It is also trite law that one of the cardinal rules for interpretation that when there are several provisions under the statute or rule, a harmonious construction is to be adopted. In the light of above, applicant in this OA has not questioned the statutory authority and jurisdiction of the President of India on a laid down methodology to withhold or withdraw pension and has also not challenged the charge sheet issued to him. However, his challenge is that when the retiral dues are payable to a government servant on the date of his retirement on superannuation and at best as per the available time limit within three months from the date of retirement, withholding the same on a non-existent disciplinary proceeding, which has to be construed in legal parlance as initiated under Rule 9 (6) of the Pension Rules from the date the charge sheet was issued, withholding of retiral benefits and non-payment thereof is not in accordance with law.
17. As regards Rule 9 (1) of the Pension Rules, the prerogative in consultation with the UPSC of the President to recover as a penal in full or part or from gratuity on a pecuniary loss caused to the Government or on a grave misconduct or on a negligence is undisputed. However, in a situation where while the government servant before retirement was issued a charge sheet despite his retirement or during his re-employment, the proceedings become a deemed proceeding. However, the final orders, in such a case, when the proceedings are initiated by a lower authority then the President, approval of the President on concurrence is mandated. Rule 9 (2) (b) of the Pension Rules accords a right to the President to institute a proceeding against a government servant while he was in service before his retirement or during his re-employment and for this, the condition precedent is that the sanction of the President is to be sought and an institution, i.e., issue of the charge should not take place on an event, which is more than four years before such institution. The literal interpretation of the aforesaid provision talks only on non-institution while the government servant was in service and gives an authority to institute proceedings only during his re-employment. However, as per Rule 9 (4) of the Pension Rules, which is a bone of contention before me, stipulates that a provisional pension has to be sanctioned under Rule 69 of the Pension Rules in case the government servant, who has retired on attaining the age of superannuation and against whom any departmental proceedings are instituted or whether departmental proceedings are continued without instituted earlier. If a logical or rationale interpretation of principle of literal construction is applied, Rule 2 (b) of Pension Rules is qualified by Rule 9 (4) of Pension Rules where even in case of government servant, who has since retired and against whom any departmental or disciplinary proceedings are instituted and continued only refers to the methodology of holding a proceeding under Rule 9 (2) (a) & (b) of the Pension Rules, it only provides a consequence of grant of sanctioning of provisional pension. We cannot isolate on harmonious construction the provisions of Rules 2 (b) & 4 of the Pension Rules to read in such a manner that the retiral dues would not be released but only provisional pension in case even at remotest point of time without any definite time limit being laid down if after retirement a charge sheet is issued to the applicant in a disciplinary proceeding then it has an effect of non-release of the entire retiral dues but except grant of provisional pension. Rule 9 (6) of the Pension Rules for this purpose defines institution of disciplinary proceedings, which when a statement of charge is issued to the government servant, clearly signifies that unless a charge sheet is issued to the government servant, it cannot be held that he is facing a disciplinary proceeding on institution for which the retiral dues are to be withheld. Pension being a fundamental right its withholding can take place in law only as per the statutory rules and withholding of reasonable restrictions as permissible under Article 19 (2) of the Constitution of India.
18. However, the other provisions of rule cannot be isolated while reading down the provisions of Rule 9 of the Pension Rules. As a recognition of pension and retiral dues as a fundamental right, Rule 83 of the Pension Rules, though subject to provisions of Rule 9 of the Pension Rules, pension is payable from the date a government servant ceases to be borne on the establishment. If the above provision is to be literally construed, it has to be legally inferred that as soon as government servant retires, he has a right to be paid not only the retiral dues but also the pension and this can be restricted and withheld only as per Rule 9 of the Pension Rules. Whereas Rule 9 of Pension Rules, in case of continued proceedings, provides for grant of provisional pension but Rule 9 (2) (b) of the Pension Rules, the departmental proceeding and its institution thereof does not lay down a time limit by which the proceeding against a retired government servant is to be instituted if not already and gives a methodology of institution of proceedings with the sanction of the President only during the re-employment of a government servant. It is trite that in the matter of welfare legislation, like Rules, the provisions are to be interpreted liberally. In such an event, merely because the Rule 9 (4) of the Pension Rules construed grant of provisional pension under Rule 69, whereas the same rule i.e., Rule 69 also accords provisional pension only when at the time of retirement one has been facing departmental proceedings and as per the Leave Rules also when leave salary is withheld on account of pending disciplinary proceedings, it has not to be construed in a manner that if a government servant, who has not been proceeded against departmentally by issue of a charge sheet prior to the retirement, if a charge sheet is issued not immediately on the date of retirement and thereafter reasonably within the time limit laid down as per Rule 68 of the Pension Rules. Though the right of the President to impose penalty on a continued proceeding or a fresh proceeding in a disciplinary proceeding cannot be interfered and curtailed in any manner but simultaneously the fundamental right of the government servant to be paid his retiral dues cannot be put to hold. The institution of proceedings in the instant case as per Rule 9 (6) of the Pension Rules was only on 21.11.2008 when the applicant was served with a memorandum of charges. As such preliminary inquiry report or the advice of CVC are of no avail regarding withholding of retiral dues to the applicant. In State of U.P. & another v. Shri Krishna Pandey, 1996 SCC (L&S) 1250 by not adhering to the time limit for initiating departmental inquiry and taking proceeding after four years, the respondents when allowed to superannuate while referring to a similar provision of Regulation 351-A of Civil Services Regulations, the Apex Court has ruled as under:-
6. It would thus be seen that proceedings are required to be instituted against a delinquent officer before retirement. There is no specific provision allowing the officer to continue in service nor any order passed to allow him to continue on re-employment till the enquiry is completed, without allowing him to retire from service. Equally, there is no provision that the proceedings be initiated as disciplinary measure and the action initiated earlier would remain unabated after retirement. If Rule 351-A is to be operative in respect of pending proceedings, by necessary implication, prior sanction of the Governor to continue the proceedings against him is required. On the other hand, the rule also would indicate that if the officer caused pecuniary loss or committed embezzlement etc. due to misconduct or negligence or dereliction of duty, then proceedings should also be instituted after retirement against the officer as expeditiously as possible. But the events of misconduct etc. which may have resulted in the loss the Government or embezzlement, i.e., the cause for the institution of proceedings, should not have taken place more than four years before the date of institution of proceedings. In other words, the departmental proceedings must be instituted before lapse of four years from the date on which the event of misconduct etc. had taken place. Admittedly, in this case the officer had retired on March 31, 1987 and the proceedings were initiated on April 21, 1991. Obviously, the event of embezzlement which caused pecuniary loss to the State took place prior to four years from the date of his retirement. Under these circumstances, the State had disabled itself by their deliberate omissions to take appropriate action against the respondent and allowed the officer to escape from the provisions of Rule 351-A of the Rules. This order does not preclude proceeding with the investigation into the offence and taking action thereon.
19. Moreover, in Uco Bank & another v. Rajinder Lal Capoor, (2007) 2 SCC (L&S) 550 on release of the retiral dues on a legal fiction, the Apex Court held as follows:-
18. The fact that charge-sheet was issued only on 13.11.98 was not in dispute. It also stands admitted that the respondent attained the age of superannuation on or before 01.11.1996. Disciplinary Proceedings admittedly were initiated against the respondent in terms of Regulation 20 (3) (iii) of UCO Bank Officer Employees' Services Regulations, 1979 which reads as under:
"The officer against whom disciplinary proceedings have been initiated will cease to be in service on the date of superannuation but the disciplinary proceedings will continue as if he was in service until the proceedings are concluded and final order is passed in respect thereof. The concerned officer will not receive any pay and/or allowance after the date of superannuation. He will also not be entitled for the payment of retirement benefits till the proceedings are completed and final order is passed thereon except his own contributions to CPE"
19. A bare perusal of the said provision would clearly show that by reason thereof a legal fiction has been created. We are not oblivious of the legal principle that a legal fiction must be given full effect but it is equally well-settled that the scope and ambit of a legal fiction should be confined to the object and purport for which the same has been created.
20. In Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr. ((2007AIR SCW2425 )[2007(5) SCALE 452], it was observed :"46. Legal fiction, it is well-settled, must be construed having regard to the pur-port of the statute. (See Sadashiv Dada Patil vs. Purushottam Onkar Patil(D) by LRs. [2006(10) SCALE21]; M.P State Electricity Board vs. Union of India & Ors. [2006 (9) SCALE 194]; Maruti Udyog Ltd. vs. Ram Lal & Ors. [(2005) 2 SCC 638]; Bharat Petroleum Corpn. Ltd. vs. P. Kesavan & Anr. [(2004) 9SCC772]]."
21. The aforementioned Regulation, however, could be invoked only when the Disciplinary Proceedings had clearly been initiated prior to the respondent's ceases to be in service. The terminologies used therein are of seminal importance. Only when a disciplinary proceeding has been initiated against an officer of the bank despite his attaining the age of superannuation, can the disciplinary proceeding be allowed on the basis of the legal fiction created thereunder, i.e., continue "as if he was in service". Thus, only when a valid departmental proceeding is initiated by reason of the legal fiction raised in terms of the said provision, the delinquent officer would be deemed to be in service although he has reached his age of superannua-tion. The departmental proceeding, it is trite law, is not initiated merely by issuance of a show cause notice. It is initiated only when a charge-sheet is issued (See Union of India etc. etc. v. K.V. Jankiraman, etc. etc., reported in AIR 1991SC 2010). This aspect of the matter has also been considered by this Court re-cently in Coal India Limited & others v. Saroj Kumar Mishra (5) SCALE 724] wherein it was held that date of application of mind on the allegations levelled against an officer by the Competent Authority as a result whereof a charge-sheet is issued would be the date on which the disciplinary proceedings said to have been initiated and not prior thereto. Pendency of a prelimi-nary enquiry, therefore, by itself cannot be a ground for invoking Clause 20 of the Regulations. Albeit in a different fact-situation but involving a similar question of law in Coal India Ltd. (supra) this Court held :
"13. It is not the case of the appellants that pursuant to or in furtherance of the complaint received by the vigilance department, the competent authority had ar-rived at a satisfaction as is required in terms of the said circulars that a charge-sheet was likely to be issued on the basis of a preliminary enquiry held in that behalf or otherwise.
14. The circular letters issued by the appellants put restrictions on a valuable right of an employee. They, therefore, are required to be construed strictly. So construed there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard." It was fur hermore observed that:
"20. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued."
(See also Union of India v. Sangram Keshari Nayak, 2007 (6) SCALE 348)
22. Respondent, therefore, having been allowed to superannuate, only a pro-ceeding, inter alia, for withholding of his pension under the Pension Regulations could have been initiated against the respondent. Discipline and Appeal Regulations were, thus not attracted. Consequently the charge-sheet, the enquiry report and the orders of punishment passed by the Disciplinary Authority and the Appellate Authority must be held to be illegal and without jurisdiction.
20. In D.V. Kapoors case (supra), the Apex Court ruled that deprivation of pension and gratuity should be in accordance with the procedure prescribed by law and thereafter Rule 9 (2) of the Pension Rules has been referred to hold that even after allowing the delinquent employee to voluntary retire during the pendency of the departmental inquiry, the inquiry can be continued. A coordinate Bench of this Tribunal in Santosh Vermas case (supra) while taking cognizance of Rule 9 (4) of the Pension Rules observed as under:-
I have considered the matter carefully. Rule 9 (4) of the CCS Pension Rules reads as follows:-
(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 proceedings are continued under sub-rule (2), a provisional pension as provided in (Rule 69) shall be sanctioned.
5. The Supreme Court in Union of India v. K.V. Jankiraman 1991 (2) SCALE SC 423 have held that departmental proceedings can be said to have commenced only when a charge memo in disciplinary proceedings or charge-sheet in criminal prosecution is issued to an employee. This view is also reflected in Rule 9 (6) which reads as follows:
(6) For the purpose of this rule-
(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charge is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and
(b) judicial proceedings shall be deemed to be
(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognisance, is made and
(ii) in case of civil proceedings, on the date the plaint is presented in the court.
6. It is the admitted position that on the date the applicant retired, no charge-memo had been issued to her. Therefore, she was entitled to receive on that date all her retiral benefits. It has been held by the Supreme Court in the case of D.V. Kapoor v. U.O.I., JT 1990 (3) SC 403 that while the President reserves to himself the right to withhold pension, the condition precedent is that in any departmental enquiry or judicial proceedings, the pensioner is found to be guilty of grave misconduct or negligence during the period of his original service or on re-employment. Therefore, after retirement, if the respondents decide to initiate proceedings under Rule 9 of the Pension Rules, then an order to make recovery from pension can be made only after the aforesaid condition is met, namely, that there is a finding that the pensioner committed a grave misconduct or negligence. Till that stage is reached, the respondents cannot deprive the applicant of her pension.
7. I am in agreement with the learned proxy counsel for the applicant that Rule 69 of the Pension Rules does not cover a situation where action under Rule 9 is merely contemplated. Under Rule 69 when departmental / judicial proceedings are pending at the time of retirement and/or yet to reach a conclusion, in such a situation, pending the result of the disciplinary proceedings, provisional pension has to be authorised. If there is no disciplinary proceedings initiated till the time of retirement, then there is no requirement to take recourse to Rule 69 because there is no charge against the retiring official. This is not to say that the respondents are barred from taking action against the applicant under Rule 9 but the effect on the pension must be consequent to the result of the disciplinary proceedings.
8. In the light of the discussion above, the OA is allowed. Respondents are directed to release the pension, commutation of pension and DCRG to the applicant within a period of three months from the date of receipt of a copy of this order with 12% interest in respect of arrears of pension and DCRG from the date it was due to the applicant till the date of actual payment.
21. In the light of above, I am satisfied that the applicant when superannuated on 31.1.2008, no disciplinary proceedings were instituted against him. As such, the grounds to withhold his retiral dues on a subsequent event, i.e., on 21.11.2008, cannot justify such withholding of the retiral dues.
22. Another aspect of the matter, which is to be given credence in the present case is that as per the certificate issued by the Head of Department on 23.1.2008, respondents have allowed the applicant leave encashment, insurance and his 100% GPF where leave encashment has not been released as per the Leave Rules, yet on the same analogy, i.e., the disciplinary proceedings were not instituted on the date of retirement, withholding of other retiral dues amounts to an act of the respondents whereby they have approbated and reprobated simultaneously. A consistent stand is not expected of a model employer in the matter of valuable right of pension of a retiree.
23. In the result, for the foregoing reasons, OA is allowed to the extent that the respondents shall now release the retiral dues to the applicant, including regular pension, commutation value of the pension and gratuity but without any interest. However, at the time of release, an undertaking shall be taken from the applicant to abide by the outcome of disciplinary proceedings and to refund any of the amount paid to him thereof. This shall be done within a period of two months from the date of receipt of a copy of this order. No costs.
( Shanker Raju ) Member (J) /sunil/