Central Administrative Tribunal - Madras
V Paramasivam vs Department Of Telecommunication on 2 January, 2024
1 OA No.310/00964/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00964/2019
Dated this 2nd January Two Thousand Twenty
Four
CORAM :
HON'BLE MR M. SWAMINATHAN JUDICIAL MEMBER
V. Paramasivam,
No.D3/118G-S.V. Puram,
Venkatesa Mills P.O., Udumalpet,
Coimbatore District. .. Applicant
By Advocate M/s G.J. Baskar Narayan
Vs.
1. Union of India
rep by its Deputy Secretary,
Room No. Sanchar Bhavan,
No.29, Asoka Raod, New Delhi.
2. The Assistant General Manager,
Bharat Sanchar Nigam Limited,
K.V. Road, Jamnagar.
3.The Assistant General Manager
(Admn.) & AO (Salary),
Bharat Sanchar Nigam Limited GMTD,
Jamnagar.
4.The Controller of Communication Accounts,
7th Floor, P&T Administration Building,
Gujarat Telecom Region,
Khanpur, Ahmedabad. .. Respondents
By Advocate Mr. J. Vasu for R.1 & 4
Mr. S. Udayakumar for R.2 & 3
2 OA No.310/00964/2019
ORDER
(Pronounced by The Hon'ble Mr. M. Swaminathan, Judicial Member) The applicant has filed the OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
"to call for the entire records pertaining to the impugned order of the 1st respondent bearing NO.8- 21/2017 Vig.II dated 25.03.2019 quash the same and direct the respondents to pay provisional pension to the applicant and pass such further or other orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case and thus render justice."
2. Brief facts of the case are as under:
The Applicant was initially appointed as Postal Clerk on 23.06.1969 at Chitra Durga, Mysore. On passing Departmental Examination, the applicant was appointed as Junior Accountant and posted at Bangalore in 1976. Thereafter, he was promoted as Junior Accounts Officer and posted at Gauhati. On the request made by him, he was transferred to Coimbatore in the year 1980. The Applicant was promoted as Accounts Officer in 1992 and posted at Junagarh (Gujarat) He was further promoted as Senior Accounts Officer during 1994 and was instructed to resume the charge as Chief Accounts Officer in Department of Telecom. In 2001 the applicant was absorbed by BSNL, Jamnagar (Gujarat) to work for BSNL and worked as Senior Accounts Officer till his retirement on the basis of superannuation by the letter of the 2nd Respondent dated 27.11.2009. On 3 OA No.310/00964/2019 30.11.2009. the applicant retired from service on superannuation. Though the applicant was permitted to retire on the basis of superannuation vide order dated 27.11.2009, but vaguely suppressed his service in BSNL and categorized the applicant as DOT Employee. The Applicant filed OA No.1575 of 2016 before this Tribunal seeking the release of his retirement benefit including DCRG, Commuted Value of Pension and leave encashment and to issue a permanent pension order. On 16.08.2017 this Tribunal disposed of the OA.No.1575 of 2016 with a direction to the respondents to deal the matter in terms of the law and pass a reasoned speaking order on the claim of the applicant for the release of retirement benefits. Pursuant to the order, the 4th respondent herein has passed an order to the effect that the applicant is not entitled to get Gratuity in terms of Rule 69(c) of CCS (Pension) Rules, 1972. Against the said order,the applicant filed OA No.1511 of 2018 before this Tribunal. During the pendency of the said OA, the 1st respondent issued show cause notice on 18.01.2018 to implement 100% cut on pension. The Applicant has sent reply on 20.03.2018. On the advice of UPSC dated 04.10.2018 the 1st respondent has passed the impugned order dated 25.03.2019, withholding of 100% of the monthly pension on permanent basis. Aggrieved, the applicant has filed the present OA.
3. Heard the learned counsel for the applicant M/s. G. J. Baskar 4 OA No.310/00964/2019 Narayanan and the learned counsel for the respondents 2 & 3, Mr. S. Udyakumar, and the learned counsel for the respondent s1 & 4 Mr. J. Vasu, and perused the pleadings and the materials placed on record..
4. The learned counsel for the applicant contended that withholding 100% of monthly pension and retirement benefits of the applicant is bad and against the due process of law, especially where no pecuniary loss/charges were levelled against him during his tenure of service and no disciplinary proceedings were initiated against him. The counsel for the applicant further contended that the impugned order of the 1st respodent is against Rule 9 of the CCS (Pension) Rules, 1972. It is also his case that the order has been passed after a lapse of 24 years from the date of alleged occurrence, wherein the applicant was falsely implicated by the CBI and after a lapse of 17 years from the date of FIR.
5. The learned counsel for the applicant has further contended that withholding of 100% monthly pension by the present impugned order dated 25.03.2019 and withholding of terminal benefits by an earlier order dated 22.12.2018 lead to double jeopady. Under Article 20(2) of the Constitution, no person shall be prosecuted and punished for the same offence more than once. Section 300 Cr.P.C lays down that a person once convicted or acquitted, cannot be tried for the same offence, which is not 5 OA No.310/00964/2019 in due process of law and it is illegal.
6. The learned counsel for the applicant assailed the impugned order, against the Payment of Gratuity Act, 1972 and also it violates Article 300- A of the Constitution, since the pensionary right as the right in property and it cannot be deprived without the authority of law. It is also pointed out by the learned counsel that the applicant has preferred an appel against his conviction and the sentence was suspended by the Hon'ble High Court of Gujarat and he was enlarged on bail.
7. The learned counsel for the applicant relied upon the following decisions in support of his contentions and prayed for allowing the OA.
(i) CAT, Principal Bench order dated 03.12.2008 in OA No.1818 of 2008 (Para No.7,8 & 23)
(ii) CAT, Madras Bench order dated 19.11.2019 in OA.No.271 of 2017 (Para No.8 & 9)
(iii) Hon'ble Apex Court Judgement dated 04.05.1971 reported in 1971 AIR 1409
8. The learned counsel for the respondents 1 & 4 submitted that the Disciplinary Authority can proceed with institution/completion of the disciplinary proceedings, including imposition of penalty on the basis of 6 OA No.310/00964/2019 conviction of a public servant by a Criminal Court notwithstanding the fact that the higher court on appeal filed by the public servant may have suspended the sentence passed by the trial court till the final disposal of the appeal. Thus, mere suspension of sentence or filing an appeal is not a bar on taking disciplinary actions as per rules. He further submitted that the UPSC advice dated 04.10.2018 imposing the penalty of "withholding of 100% of the monthly pension on permanent basis and withholding of gratuity admissible to the applicant is perfectly in order.
9. The learned counsel further contended that in terms of Rule 9 (1) of the CCS (Pension) Rules 1972, the President has the right to withhold the pension or gratuity, or both either in full or in part or withdrawing the pension in full or in part, whether permanently or for a specific period, and of ordering recovering from a pension or gratuity of the whole or party of any pecuniary loss caused to the government if in an departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service render upon re- employment after retirement. 1st proviso to these rules states that the UPSC shall be consulted before any final orders are passed. Thus he prayed for the dismissal of the OA
10. The learned counsel for the respondent 2 & 3 submitted that the 7 OA No.310/00964/2019 CBI, Anti Corruption Branch, Gujarat has filed two cases i.e., RC No.24 of 2000 on the file of the Special court No.3, Mirzapur, Ahmadabad and in the case, the applicant was acquitted and aggrieved by the Judgement of the Special Court, the prosecution has filed Appeal No.1976 of 2010. Another case RC No.28 of 1998 on the file of Special Court No.3, Mirzapur, Ahmadabad, the applicant was convicted and the applicant filed appeal against the said Judgment before the Hon'ble High Court of Gujarat bearing Appeal No.117 of 2010 both the case are still pending in the Hon'ble High Court of Gujarat. He further submitted that DCRG and retrial benefits are withheld in view of the pending Criminal Appeals before the Hon'ble High Court, and once the case are decided the retrial benefits will be settled to the applicant. He submitted that the respondents are regularly paying the provisional pension as contemplated under rule 69 of the CCS (Pension) Rules, 1972. Therefore he prayed for the dismissal of the OA.
11. The learned counsel for the Respondents relied upon the following decisions and prayed for the dismissal of the OA:
(i) Judgement dated 12.07.20222 of the Hon'ble High court of Gujarat in Special Civil Application No.5858 of 2019.
(ii) CAT, Hyderabad Bench order dated 19.01.2021 in OA No.988 of 2019
(iii) CAT, Cuttack Bench order dated 01.02.2021 in OA No.612 of 2015 8 OA No.310/00964/2019
(iv) Judgement dated 26.11.2018 of the Hon'ble High Court of Delhi in WP (C ) No.12470 of 2018.
12. In order to decide the issue, it is pertinent to refer to the decisions relied on by the respective counsel. Firstly, the decisions relied by the learned counsel for applicant are extracted one by one.
(i) The relevant portion of the order of the Principal Bench of this Tribunal in OA No.1818 of 2008 are extacted as hereunder:
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 authorized. If there are 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.
23. In the result, for the foregoing reasons, OA is allowed to the extent that the respondents shall now release the retrial 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 9 OA No.310/00964/2019 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.
(ii) The relevant portions of the Madras Bench of this Tribunal in OA.No.271 of 2017 dated 19.11.2019 are reproduced as hereunder:
As per Rule 9, retrial benefits can be withheld only if any disciplinary action is pending at the time of retirement. -
"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 proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 69 shall be sanctioned."
The alleged second charge memo was not pending and no enquiry was on when the applicant retired.
8. The charge memo issued subsequent to the retirement was already quashed by this Tribunal in OA 1631/15 and there is nothing which prevents the respondents from releasing the retrial benefits. Regarding the claim of 18% interest, we find that the action of withholding the benefits was done only due to the initiation of disciplinary OA 271/2017 proceedings. It was not due to any laches on the part of the respondents. So, the applicant is not entitled to get any interest as claimed.
9. Hence, we hereby direct the respondents' authority to release the retrial benefits and other benefits, if any, withheld within a period of three months from the date of receipt of a copy of this order.
(iii)) The relevant portions of the Hon'ble Apex Court Judgement relied upon by the learned counsel are as follows:
"The question whether the pension granted to a 10 OA No.310/00964/2019 public servant is property attracting Art.
31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India (1). It was held that such a right constitutes "property" and any interference will be a breach of Art. 3 1 (1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh (2) approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is "property" within the meaning of Art. 3 1(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority".
13. Likewise, the decisions relied on by the learned counsel for the respondents in support of his contentions are furnished hereunder:
(i) The relevant portions of the Judgement of the Hon'ble High court of Gujarat are reproduced as hereunder:
7. Since the impugned order of pension cut is solely based on the conviction of the petitioner and the Criminal Appeal is pending before this Court, the petition against order of pension cut is not entertained at this stage only on the ground of his conviction which has been rendered by the Trial Court on 19.8.2017.11 OA No.310/00964/2019
8. The respondents shall have a fresh look at the order of penalty depending on the outcome of the Criminal Appeal No.1182/2017 pending before this Court.
9. With the aforesaid observations, the petition is partly allowed. Rule is made absolute to that extent. Direct Service is permitted. No costs.
(ii) The relevant portions of the order of the Hyderabad Bench of this Tribunal reads as follows:
"Time is a non spatial continuum that is measured in terms of events which succeed one another from past through present to future. The Hon'ble High Court has not used the expression at ―that point of time in its order supra to refer to the date of retirement. Hence, any criminal case filed after the retirement will also be a good ground to withhold the leave encashment. VII. Therefore, the action of the respondents is as per rules and we find no error in their decision to withhold the pensionary benefits till the OA No.988/2019 criminal proceedings are finalized. Hon'ble Supreme Court has held that the rules are to be scrupulously followed in the following judgments. The Hon'ble Supreme Court observation in T. Kannan and ors Vs S.K. Nayyar (1991) 1 SCC 544 held that "Action in respect of matters covered by rules should be regulated by rules". Again in Seighal's case (1992) (1) supp 1 SCC 304 the Hon'ble Supreme Court has stated that "Wanton or deliberate deviation in implementation of rules should be curbed and snubbed." In another judgment reported in (2007) 7 SCJ 353 the Hon'ble Apex court held "the court cannot de hors rules VIII. The legal principles stated supra also support the action of the respondents. We have gone through the additional material furnished by the Ld. Counsel for the applicant at the time of the final hearing of the case and found that the definitions of Pension, clause 9 of CCS (Pension) Rules etc. to be of no assistance to the case of the applicant. The reference to K.V.Jankiraman case would also be of no help to the applicant because it deals with promotion and not in respect of pension and pensionary benefits. The pertinent aspect of the issue pertaining to moral turpitude of the 12 OA No.310/00964/2019 applicant in misappropriating NREGS payments is under adjudication by the competent court. The technical aspect is as to whether the criminal case was pending on the date of retirement is of little significance vis-à-vis the substantive aspect as to whether the conduct of the applicant in misappropriating NREGS payments comes under the ambit of moral turpitude and is to be dealt as an offence, which is under adjudication. It is substantive justice, which prevails over technical justice, as held by the Hon'ble Supreme Court in State Rep. by Inspector of Police, CBI vs M Subrahmanyam on 7 May, 2019 in Criminal Appeal No(s). 853 of 2019 (arising out of SLP (Crl.) No(s). 2133 of 2019). Therefore, till the criminal OA No.988/2019 case under reference is finalized, withholding of pensionary benefits by the respondents to the extent claimed by the applicant is in order.
(iii) As regard to the order of the Cuttack Bench of this Tribunal, the learned counsel for the respondents relied on the following paragraphs:
"In the present case, the operation of the sentence has been stayed by the Appellate Court but there has been no suspension of the conviction of the applicant. Under such circumstances, in keeping with the observations of Hon'ble Apex Court (para 13 supra) and Hon'ble High Court of Delhi (para 14 supra), the pendency of judicial proceedings in Hon'ble High Court, cannot have any effect on the decision taken by respondents, which is in accordance with statutory provisions, following conviction by trial court. This aspect has been unambiguously made clear by Hon'ble Apex Court themselves (Para 13supra) which in turn was relied upon by Hon'ble High Court of Delhi (Para 14 & 15 supra) and by Jodhpur Bench (para 16 supra).
The reliance on N.K.Suparna's case (Para 9 supra) is also of no help to applicant, in view of unambiguous views expressed by Hon'ble High Court of Delhi (Para 14 supra).
24. In view of foregoing, there is no merit in the OA and accordingly same is dismissed. No order as to costs.
25. It is, however, observed that depending upon the outcome 13 OA No.310/00964/2019 of the pending Criminal Appeal before the Hon'ble High Court of Orissa, the applicant shall have liberty to seek his remedies in accordance with law.
(iv) In respect of the Hon'ble High Court of Delhi, the following paragraphs are relevant to his contentions are reproduced as hereunder:
39. The submission of Mr. Mishra that the withholding of 100% monthly pension and forfeiture of gratuity is unconstitutional has no merit. There is no absolute right in a government servant to receive either pension or gratuity.
Under a duly framed law, the same can be withheld and withdrawn. Rule 9 of the Pension Rules, having been framed by the President in exercise of his constitutional power contained in proviso to Article 309 of the Constitution, the same has statutory force in terms of the said Article of the Constitution.
40. For the aforesaid reasons, we find no merit in this petition and dismiss the same leaving the parties to bear their respective costs. We may, however, add that in the eventuality of the petitioner's criminal appeal succeeding, his claim for pension and other retrial dues, which have been denied to him by virtue of the order dated 19.01.2016, would need reconsideration in the aforesaid light.
14. I have considered the submission made by the learned counsel on both sides and carefully gone through decisions referred to by the respective counsels.
15. The facts are not in dispute. Admittedly, this is the third round of litigation before this Tribunal. It is very clear that in the Criminal Appeal filed by the applicant, the Hon'ble High Court has only suspended the 14 OA No.310/00964/2019 execution of sentence of imprisonment imposed upon the applilcant but not his conviction. His conviction by the Trial Court has not been stayed or set aside by the Hon'ble High Court and the appeal of the applicant is still pending. As per the judgments cited by the learned counsel for the respondents, the respondents have rightly taken a decision not to grant the retiral benefits and also passed the penalty order of withholding of 100% of the monthly pension. In the light of the judgment of the Hon'ble High Court of Delhi in WP (C ) No.12470 of 2018, in the eventuality of the applicant succeeds in his Criminal Appeal, his claim for pension and other retrial dues, which have been denied to him by virtue of the impugned order dated 25.03.2019 would need reconsideration. Therefore in my considered opinion, the applicant at present is not entitled to the relief sought in the OA and the same will be subject to the outcome of the Criminal Appeal which is pending before the Hon'ble High court of Gujarat.
16. In view of the foregoing reasons, there is no merit in the OA and it is dismissed accordingly. No order as to Costs.
17. It is however, observed that depending upon the outcome of the pending Criminal Appeal before the Hon'ble High Court of Gujarat, the 15 OA No.310/00964/2019 applicant shall have liberty to seek his remedies in accordance with law.
(M. SWAMINATHAN)
mas MEMBER(J)
02.01.2024