Central Administrative Tribunal - Delhi
Ishwar Singh vs Comm. Of Police on 12 December, 2017
1 OA 3525/15
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.3525 OF 2015
New Delhi, this the 12th day of December, 2017
CORAM:
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
...........
Ishwar Singh
(Retired Sub Inspector (Exe.) of Delhi Police)
Belt No. D-2055, PIS No. 28750787
S/o Sh. Karan Singh
R/o Quarter No. C-44, New Police Line,
Kingsway Camp, Delhi-110009 ..... Applicant
(By advocate: Mr. Sourabh Ahuja)
Vs.
1. Union of India
Through its Secretary
Ministry of Home Affairs
North Block, New Delhi
2. Pay and Account Officer
PAO - xvi (Delhi Police - ii)
Ministry of Home Affairs,
17/11, Jamnagar House,
Mansingh Road, New Delhi-110011
3. Commissioner of Police
Delhi Police,
Police Head Quarter,
IP Estate, MSO Building,
New Delhi-110002
4. Pay & Accounts Officer
GPF Cell,
Old Secretariat,
Delhi
5. Deputy Commissioner of Police (Security)
Page 1 of 9
2 OA 3525/15
Through Commissioner of Police,
Police Head Quarter,
IP Estate, MSO Building,
New Delhi-110002. ..... Respondents.
(By advocate: Mr. N.K. Singh for Mrs. Avnish Ahlawat)
..........
ORDER
The applicant has filed the present O.A. under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:
"(a) Quash and set aside the impugned order dated 13.05.2015 (mentioned in Para 1 of the OA), whereby the respondents have only granted provisional pension to the Applicant and withheld all the pensionary/retiral benefits including gratuity, commuted pension, leave encashment, regular pension etc. And
(b) Direct the respondents to release the pensionary/retiral benefits including gratuity, commuted pension, leave encashment, regular pension etc. from the date of Applicant‟s superannuation i.e. 30.04.2015, And
(c) Accord the Applicant with all consequential benefits arising there from viz. difference in the pension, arrears arising there from, interest @ 18% per annum on the arrears and interest @ 18% per annum on the delayed payment of the retiral/pensionary benefits including gratuity, commuted pension, leave encashment, regular pension etc. And
(d) Award cost in favour of the Applicant and against the respondents. And/or
(e) Pass any further order, which this Hon‟ble Tribunal may deem fit, just equitable in the facts and circumstances of the case."
2. Resisting the O.A., the respondents have filed a counter reply. The applicant has also filed a rejoinder reply refuting the stand taken by the respondents.
3. I have carefully perused the records and have heard Shri Sourabh Ahuja, the learned counsel appearing for the applicant, and Shri Page 2 of 9 3 OA 3525/15 N.K.Singh for Mrs.Avnish Ahlawat, the learned counsel appearing for the respondents.
4. It has been submitted by Shri Sourabh Ahuja, the learned counsel appearing for the applicant that on 30.4.2015, i.e., the date of retirement of the applicant there were no departmental proceedings or judicial proceedings instituted/pending against the applicant and, therefore, the respondents have acted illegally and arbitrarily in granting provisional pension to the applicant and in not granting him final pension, commuted value of pension, gratuity, leave encashment, and CGEIS amount soon after his retirement from service on attaining the age of superannuation.
5. On the other hand, it has been submitted by Shri N.K.Singh, the learned counsel appearing for the respondents that as on the date of his retirement, the applicant was involved in a criminal case FIR No.487/2014 under Sections 498-A/406/34 IPC, PS Tilak Nagar, Delhi. Therefore, the respondent-Department released provisional pension in favour of the applicant and withheld his final pension, commuted value of pension, gratuity, leave encashment, and CGEIS as per rules. It has also been submitted by Shri N.K.Singh that the aforesaid criminal case was last posted to 24.2.2016 for trial and has not yet been finalized. Therefore, there is no infirmity in the impugned action/decision taken by the respondent- Department.
Page 3 of 9 4 OA 3525/15
6. After having considered the rival contentions on the basis of pleadings/materials available on record, this Tribunal has found substantial force in the contention of the applicant.
7. It is the admitted position between the parties that FIR No.487/2014 under Sections 498-A and 406 read with Section 34 of the Indian Penal Code was registered at the Tilak Nagar Police Station, Delhi, on the complaint lodged by Monika, the daughter-in-law of the applicant, against five persons including the applicant. After completion of investigation, the police filed charge sheet only against Charan Singh Phogat (son of the applicant) as accused. In Column 12 of the charge sheet the name of the applicant was mentioned by the police for the reason that there was no evidence available against him, thus and thereby meaning that the applicant was not arraigned as an accused in the charge sheet. After perusing the charge sheet and other materials available on record, and upon hearing the learned counsel appearing for the parties, the learned Metropolitan Magistrate, Mahila Court, West, Tis Hazari Court, Delhi, by its order dated 13.2.2015, took cognizance of the offence punishable under Sections 498-A and 406 IPC and issued summons only against Charan Singh Phogat, the son of the applicant. Thus, the FIR/criminal case against the applicant and others was dropped on the passing of the order dated 13.2.2015 (ibid). However, challenging the order dated 13.2.2015(ibid), the daughter-in-law of the applicant filed criminal revision before the learned Additional Sessions Judge, FTC (West), Tis Hazari,Delhi. The learned Additional Sessions Page 4 of 9 5 OA 3525/15 Judge,FTC (West), Tis Hazari, Delhi, disposed of the criminal revision, vide order dated 8.7.2015, the operative part of which is reproduced below:
"8. Keeping in view this averments mentioned above in my opinion there is sufficient evidence against Tinki and Karambir also in the complaint. Therefore to that extent order of trial court is set aside. Trial court is directed to summon Tinki and Karambir also for facing trial u/s 498/34 IPC and 406/34 IPC and proceed accordingly. Revision petition stands disposed off. Copy of order be set along with trial court record to the Ld. Trial court."
Thus, the order dated 13.2.2015(ibid) passed by the learned Metropolitan Magistrate refusing to take cognizance of any offence in the criminal case attained finality.
8. In view of the above admitted position between the parties, the only point, which arises for consideration in this case, is whether judicial proceedings were instituted/pending against the applicant on 30.4.2015, i.e., the date of his retirement on attaining the age of superannuation, and the respondents were justified in withholding payment of gratuity and final pension, commuted value of pension, leave encashment, and CGEIS.
9. For deciding the point in issue, it would be apposite to refer to the relevant provisions of Rule 9 and Rule 69 of the CCS (Pension) Rules, 1972 and Rule 4 of the CCS (Commutation of Pension) Rules,1981. 9.1 Rule 9(4) & (6) of the CCS (Pension) Rules, 1972 reads thus:
"9(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.
xx xx Page 5 of 9 6 OA 3525/15 (6) For the purpose of this rule -
(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges 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 instituted -
(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 cognizance, is made, and
(ii) in the case of civil proceedings, on the date the plaint is presented in the Court."
9.2 Rule 69 of the CCS (Pension) Rules, 1972, reads thus:
"69. Provisional pension where departmental or judicial proceedings may be pending.
(1) (a) In respect of a Government servant referred to in sub-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 retirement 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 servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon:
Provided where departmental proceedings have been instituted under Rule 16 of the Central Civil Services (Classification, 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.Page 6 of 9 7 OA 3525/15
(2) Payment of provisional pension made under sub-
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."
9.3 Rule 4 of the CCS (Commutation of Pension) Rules,1981, reads thus:
"4. Restriction on commutation of pension-No Government servant against whom departmental 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 fraction of his provisional pension authorized under Rule 69 of the Pension Rules or the pension, as the case may be, during the pendency of such proceedings."
10. Under Rule 9(6)(b)(i) of the CCS (Pension) Rules, 1972, criminal proceedings shall be deemed to be instituted against a Government servant on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made. Undoubtedly, „report‟ of a Police Officer, referred to in Rule 9(6)(b)(i) ibid, of which the Magistrate takes cognizance, is the report of the Police Officer under Section 173(2) of the Code of Criminal Procedure, 1973, made to the Magistrate. The said report is commonly known as „charge sheet‟. In the instant case, admittedly, the police registered the FIR against the applicant and others, and had filed the charge sheet without naming the applicant as an accused due to lack of evidence against him. After perusing the charge sheet and other materials available on record and upon hearing the learned counsel appearing for the Page 7 of 9 8 OA 3525/15 parties, the learned Metropolitan Magistrate, vide order dated 13.2.2015(ibid), had refused to take cognizance against the applicant and some others and had directed issuance of summons only against the son of the applicant. Thus, the FIR/criminal case, in which the applicant was named by the complainant as an accused, was dropped on 13.2.2015. The order dated 13.2.2015(ibid) passed by the learned Metropolitan Magistrate, qua the applicant, was upheld by the learned Additional Sessions Judge in criminal revision filed by the complainant, i.e., the daughter-in-law of the applicant. Thus, it is clear that there was no criminal case/judicial proceedings instituted/pending against the applicant on the date of his retirement, i.e., on 30.4.2015, and the provisions of Rules 9 and 69 of the CCS (Pension) Rules, 1972 and Rule 4 of the CCS (Commutation of Pension) Rules, 1981, as regards payment of provisional pension, and withholding of payment of gratuity and final pension, commuted value pension, etc., are not attracted in the case of the applicant. The respondent- departmental authorities have misread and/or misunderstood the relevant provisions of Rules 9 and 69 of the CCS (Pension) Rules, 1972 and Rule 4 of the CCS (Commutation of Pension) Rules, 1981, and have withheld the payment of gratuity, final pension, commuted value of pension, etc., without any rhyme or reason. Therefore, the respondents cannot be held to be justified in withholding the aforesaid retirement benefits of the applicant.
11. In the light of what has been discussed above, the respondents are directed to pay to the applicant gratuity, final pension, commuted value Page 8 of 9 9 OA 3525/15 of pension, leave encashment, and CGEIS, along with interest at GPF rate thereon for the period from 1.5.2015 till the date of actual payment within a period of three months from today.
12. In the result, the O.A. is partly allowed to the extent indicated above. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER AN Page 9 of 9