Central Administrative Tribunal - Madras
N Madhivanan vs M/O Labour on 28 August, 2023
1 OA 70/2019 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAT BENCH OA NO.70/2019 Dated Monday the 28" day of August Two Thousand Twenty Three CORUM: HON'BLE MS. LATA BASWARAJ PATNE, JUDICIAL MEMBER N.MADHIVANAN, age 60 years Senio~ Sociai Security Assistant (Retired), S/o (Late) S.Natarajan, 4/151, Melapandamangalam, Maruthandakurichy PO, TRICHY 620 102. sa Applicant By Advocate M/s N.K.S#tinivasan Vs THE REGIONAL PROVIDENT FUND COMMISSIONER-I, Emplcyees Provident Fund Organization, Ministry of Labour, Govt. of India, Regional Office, 5.J,Plaza, Swarnapurt, SALEM 636 004, bes Respondent By Advocate Mr.V.Vijay Shankar €) 2 OA 70/2919 ORAL ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) Heard learned counsel Mr.N.K.Srinivasan for the applicant and learned counsel MrVijay Shankar for the respondents.
Z. The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
"{i)Get aside. the Orders passed by the Assistant PF. Commissioner {(ADMN} vide Letter No-TN/RO-SLM/ADM/A3/Superannuation/2018 dated 25.05.2018 and No.TN/RO-SLM/ADM/A3/Superannuation/ 2018 dated 22.06.2018 and direct-the Respondents to disburse the retained EL encashment along with 8% of interest within a period of time as stipulated by this Hon'ble Tribunak
(ii) to pass such further and other orders'as may be deemeg R and preper and thus render justice."
3. The brief facts of the case as stated by the applicant are as follows:
The Applicant was an employee of Employees Provident Fund Organization. When he was working at Trichy EPFO office it was reported that a few Contract Labourers working under a Contractor in the Neyveli Lignite Corporation [hereinafter referred to NLC] had applied toan from their EPF Account. Normally the NLC administration after receiving the application from the members will forward the same to the concerned EPF Organization Unit. But the concerned Contractor after receiving the Loan Application has to send the same to the EPFO office. After scrutiny the eligible members. will get the loan. One of the conditions to grant housing loan is that the individual has to complete five years of service. In the given case ail of them did not fulfil this condition. On that ground all the ineligible NLC applicaticns were sent to NLC for verification. NLC Authorities found that those applications were not sent by them. After investigation, it was found that an outside agency had prepared such of those loan appiications along with NLC 3 OA 70/2019 seal and sent it to the EPF Organization. The issue was investigated by Police and in the name of Enquiry the Applicant was called for for anquiry and then he was arrested. No one was enquired in the whole office at Trichy except the Applicant. It is pertinent to mention here that the Applicant's name is not found in the FIR. Then the Applicant was suspended and on revocation of suspension he was posted to Salem. Departmental enquiry was conducted and concluded but the findings of the Inquiry are still kept pending. The articles of charge itself isa clear proof that the Applicant has been implicated in this issue. The Applicant retired on 31.05.2018. Terminal benefits are not granted to the Applicant except provisional pension. The Applicant requested E.L. encashment as per the Rule 39(3) of CCS (Leave), Rules, 1972. Judicial decisions are also in favour of Applicant's Contention, But the Respondent denied the same. Being aggrieved, the applicant has filed the present application for the aforesaid relief.
4. After notice the respondents have appeared through their counsel and | filed detailed reply and opposed the relief and contended that the disciplinary proceedings has been concluded and applicant has been imposed with penalty of cut in pension at the rate of 10% for a period of three years concurrently under Rule 9 of CCS (Pension) Rules 1972. As well as the deemed suspension period from 05.06.2015 from 24.05.2016 is not regularised, Against the applicant criminal case No.23/2015 filed by the District Crime Branch under Section 259, 468, 471, 420, 120(b) of IPC has been filed before the District Munsif-cum-~Judicial Magistrate court, Neyveli in CC No.211/2017 the same case is pending at the stage of evidence in which applicant is accused no.2. Moreover the respondent has not inclined to release the leave encashment of the applicant in accordance with Rule 39(3) of FRSR Part TIT Leave Rules which is extracted as under:
4 OA 70/2019"The authority competent to grant leave may withhold whole or part of cash equivalent of earned leave in the case of a Government servant who retires from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Government dues, if any."
Hence the respondents prayed for the dismissal of the OA.
5. Learned counsel for the applicant has argued that as per the rules, the respondents at the most can withheld gratuity or DCRG however the respondents are not permitted to withhold the leave encashment. Therefore, the order dated 25.05.2018 and 22.06.2018 are in contravention with law. Learned counsel for the applicant has relied upon the order dated 09.11.2012 passed by the Punjab & Haryana High court In LPA Mo.113/2012 wherein the High court categorically stated that the respondent government cannot withhold leave encashment on the ground of pendency of either departmental proceedings or criminal proceedings and the same view has been taken by the Hon.High court of Madras in WP 1484/2016 and vide its order dated 29.01.2016 ordered to release the leave encashment to the petitioner therein. Learned counsel for the applicant further contended that leave encashment is a part of the salary and it cannet be withheld on his superannuation. Learned counsel for the applicant also relied upon letter dated 18.01.2011 and contended that in view of the said instructions by the . Ministry of Finance the respondents cannot withhold the entire amount of leave encashment, at the most considering the allegatians levelled in the said FIR or in the criminal case, they can withhold some part of the leave encashment as well as the respondents are very weil aware that the applicant's name was not there in the FIR initially however subsequently the 5 OA 70/2019 same has been added. The criminal case though ik was pending from 2015, no charge sheet has been filed as per instructions.
6. On the other hand, learned counsel for the respondents submits that on the ground of pending criminal case the authority competent has taken a decision not to release the applicant's leave encashment that is in accordance with Rule 39(3) of FRSR Part IIT Leave Rules. In the said criminal case the applicant has been arrayed as accused no.2 and the said case is pending at the stage of evidence and in view of the same learned counsel for the respondents has prayed for dismissal of the OA.
7. It is to be noted that the action of the respondents is in accordance with Rule 39(3) of FRSR Part III Leave Rules. It is also to be noted that by letter dated 18.01.2011 issued in respect of release of leave encashment In under Rule 39(3) of CCS (Leave) Rules to retired employees the matter has been dealt with as under:-
"3. It is clear from the provisions of Rule 39(3) of CCS(Leave) Rules, 1972 as further clarified by DoPT, that leave encashment should not be withheld in respect of a retiring employee because of pendency of a departmental proceeding etc. as a matter of course.
The charges against the officer should be carefully considered before deciding whether withholding of the amount of leave encashment due to the employee is necessary keeping in view the nature of charges against the individual. Such charges should refer to or imply a specific loss to the public money because of embezzlement or other acts of misconduct of the officer. Further, where it is proposed to withhold the leave encashment at the time of retirement till the pending proceedings are finalized, the amount of leave encashment to be withheld should not exceed the amount of. possible recoveries from the charged retiring officer on finalization of the proceedings."
8. It is to be noted hat from the said letter it Is clear that if the respondent authority propose to withhold the leave encashment at the time of retirernent till the pending proceedings are finalised, the amount of leave encashment to be withheld should not exceed the amount of possible ee ei 6 OA 70/2019 recoveries from the charged retired official on finalisation of the proceedings. So far none of the parties have produced any of the documents In respect of the said criminal proceedings.
9. In view of the same, the applicant is at liberty to make a comprehensive representation relying upon the said criminal proceedings as well as FIR to the charge sheet to the competent authority and request to release the leave encashment in the light of para 3 of the said letter dated 18.01.2011 within a period of two weeks from the date of receipt of a certified copy of this order. If such representation is made the respondents are directed to consider the sarne in accordance-with law as weil as in the light of the para 3 of the letter dated 18.01.2011 within a period of three months from the date of receipt of such representation.
10. OAis disposed of. No order as to costs.