Central Administrative Tribunal - Bangalore
K Anbu vs South Western Railway on 12 January, 2023
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OA.No.170/00249/2022/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00249/2022
DATED THIS THE 12TH DAY OF JANUARY, 2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
1. K. Anbu
S/o Late Kannan
Aged about 61 years
Retired Senior Section Engineer
S.W. Railway, Workshop, Mysuru
R/o #343, 1st stage, B Block
5th Main, 6th Cross
Srinagara, Mysuru 570 008
2. K. Ramesh Singh
S/o Late J. Krishna Singh
Aged about 61 years
Retired Senior Technician
S.W. Railway, Workshop, Mysuru
R/o # 1618, 2nd stage,
Srirampura, Mysuru 570 023 .... Applicants
(By Shri K. Shivakumar, Advocate)
Vs.
1. Union of India
Represented by General Manager
South Western Railway
Gadag Road, Hubballi 580 020
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OA.No.170/00249/2022/CAT/BANGALORE
2. Principal Chief Personnel Officer
South Western Railway
Gadag Road,
Hubballi 580 020
3. Deputy Chief Personnel Officer
Central Workshop,
South Western Railway
Mysuru South, Mysuru 570 008 ....Respondents
(By Shri H.R. Sreedhara ACGSC)
O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(i) Quash the communications dated 17.06.2021 (Annexure-A1) as unconstitutional, against rules and untenable in the eyes of law;
(ii) Pass an order directing the respondents to disburse the full pension and all other pensionary benefits like DCRG and commutation of pension with 18% interest within a specified period as to this Hon'ble Tribunal deem fit and proper."
2. The facts in brief as stated by the applicants are as under:
3OA.No.170/00249/2022/CAT/BANGALORE The first applicant who was working as Senior Section Engineer and the second applicant, working as Senior Technician in Mysuru Workshop of South Western Railway, on attaining the age of superannuation, retired from service on 30.06.2021. Further to their retirement, they were granted only provisional pension and the entire gratuity was withheld on the ground that a criminal case is pending against them on the date of their retirement. The applicants requested the respondents to release the withheld DCRG since the criminal case pending is based on private complaint made against them as Directors of Railway Co-operative Bank and the allegation made in the said complaint has nothing to do with their official duties and no disciplinary proceedings were contemplated/pending against them on the date of retirement. As their request has not yielded any positive results, the applicants have approached this Tribunal.
3. Learned counsel Shri K. Shivakumar representing the applicants submitted that the gratuity and pension cannot be withheld merely due to pendency of criminal case and there is no finding against the applicants which warrants for withholding of gratuity and no departmental proceedings is pending against the 4 OA.No.170/00249/2022/CAT/BANGALORE applicants. The pendency of the judicial proceedings in its nature would not cause any loss to the railways warranting withholding of retiral benefits. In support of his contention, learned counsel has placed reliance on the following:
1. Order passed by the Central Administrative Tribunal, Lucknow Bench in Baijoo vs Union of India and others, OA No. 213/2015 (DD 21.04.2017)
2. Order passed by the Central Administrative Tribunal, Calcutta Bench in Sri Tapan Kumar Basu vs Union of India and others, OA No. 1179/2016 (DD 28.06.2018)
3. Opinion issued by the Law Officer, South Western Railway, Mysuru dated 28.05.2019.
4. Per contra, learned counsel Shri H.R. Sreedhara representing the respondents, justifying the action of the respondents in granting provisional pension and withholding retirement gratuity, submitted that the applicants were the elected Directors of the Railway Co-operative Bank Limited, Mysuru. At the time of retirement, they had judicial proceedings pending 5 OA.No.170/00249/2022/CAT/BANGALORE against them before the Hon'ble Principal Civil Judge (Junior Division) and JMFC Court, Mysuru, under Sections 149, 419, 465, 420, 471 of Indian Penal Code under PCR No. 56/2016. In view of the pending judicial proceedings, Respondent No. 3, invoking the provisions of Rule 9 and 10 of the Railway Services (Pension) Rules, 1993 read with RBE No. 25/2004 dated 05.02.2004, has taken a decision to withhold the applicants' settlement benefits.
5. We have carefully considered the rival submissions made by the learned counsel for the parties and perused the material on record.
6. Rule 9 (3) and 10 (1) (C) of Railway Services (Pension) Rules, 1993 reads thus:
"9. Right of the President to withhold or withdraw pension.
(1) xxxx (2) xxxx (3) In the case of a railway 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 6 OA.No.170/00249/2022/CAT/BANGALORE under sub-rule (2), a provisional pension as provided in Rule 10 shall be sanctioned.
10. Provisional Pension where departmental or judicial proceedings may be pending.
(1)(a) In respect of a railway servant referred to in sub-rule (3) of Rule 9, the Accounts Officer shall authorise the provisional pension not exceeding the maximum pension which would have been admissible on the bases of qualifying service up to the date of retirement of the railway servant or if he was under suspension on the date of retirement, upto the date immediately preceding the date on which he was placed under suspension.
(b) The Provisional pension shall be authorised by the Accounts Officer during the period commencing from the date of retirement upto 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 railway servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon; provided that where departmental proceedings have been instituted under the provisions of the Railway Servants Discipline and Appeal Rules, 1968, for imposing any of the penalties specified in clauses (i), (ii), (iii a) and (iv) of Rule 6 of the said rules, the payment of gratuity shall be authorised to be paid to the railway servant."
RBE No. 25/2004 dated 05.02.2004 is extracted herein below:
7OA.No.170/00249/2022/CAT/BANGALORE "RBE No.25/2004 Board's letter No. F(E)III/2003/PN1/33 dated 5.2.04 (RBE No.25/2004) Sub: Policy regarding release of pensionary dues in cases where judicial proceedings are pending against the retiring Railway servants.
In terms of Rules 9(3) and 10[C] of Railway Services (Pension) Rules,1993, a railway servant, who is retiring on attaining the age of superannuation or otherwise, against whom any departmental or judicial proceedings, including criminal and civil proceedings, are instituted or continued under Rule 9(2) of the Rules ibid, shall be sanctioned provisional pension and his/her gratuity shall be withheld. The sanction of final pension and release of gratuity shall depend upon the final orders issued on conclusion of the departmental or judicial proceedings. In this background, the All India Railwaymen's Federation has represented that the Rule 9(3) and 10[C] of the Pension Rules are applied by one of the Zonal Railways in each and every case of judicial proceedings, even in those civil cases pertaining to partition of property and divorce, without making any distinction as to whether such disputes have any concern with the Railways or not, which is causing hardship to the retired Railway servants.
2. The matter has been examined in consultation with the Department of Pension & Pensioners' Welfare, the nodal Department of Government of India on pensionary matters.
After careful consideration of the matter, it has been decided by the President that since the judicial proceedings pending against a Railway servant automatically become proceedings under Rule 9 of Pension Rules after his/her retirement, the concerned disciplinary authority should review such cases at the time of retirement and satisfy itself as to whether the 8 OA.No.170/00249/2022/CAT/BANGALORE judicial proceedings pending against the Railway servant attract any of the provisions contained in the Railway Servants (Conduct) Rules 1966, or are in any way prejudicial to the interest of the Railways/Government, and on conclusion of the judicial proceedings the retired Railway servant shall not have been fully exonerated and/or the penalty of cut in pension or gratuity or both, in part, or in full shall have been imposed. If the result of the review is in the affirmative, it shall be appropriate to continue the judicial proceedings as deemed proceedings under Rule 9 of Railway Services (Pension) Rules, 1993. On the other hand, if the judicial proceedings pertain to mere civil cases of property disputes between a Railway servant and any other private party, or partition suit without any criminal angle involved and with which Railways/Government have no concerned, or divorce suits having no bearings on the conduct of the Railway servant, as laid down in Railway Servants (Conduct) Rules,1966, such judicial proceedings need not be continued as deemed proceedings under Rule 9 of Railway Services (Pension) Rules,1993. It has also been decided by the President that PHODs, DRMs and GMs being the appointing authorities of non-gazetted Railway servants and Group 'B' Railway officers, may review all the cases where judicial proceedings pending against the Railway servants at the time of retirement have already been treated as deemed proceedings or are to be treated as such in future under Rule 9 of Railway Services (Pension) Rules, 1993 and decide about the desirability or otherwise of continuing such proceedings under Rule 9 of the Pension Rules. Similar cases of retiring group 'A' officers as are not found desirable to continue as proceedings under Rule 9 of Pension Rules shall be referred to Railway Board, with the recommendations of the General Manager, for taking a final decision."
9OA.No.170/00249/2022/CAT/BANGALORE
7. In the light of the aforesaid rules and instructions of Railway Board, the railway servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted, such railway servant is entitled to provisional pension as provided in Rule 10. A reading of this rule in the light of RBE No. 25/2004 makes it clear that it is incumbent upon the railway officers to review the cases where judicial proceedings are pending against the railway servants at the time of retirement which have already been treated as deemed proceedings or are to be treated as such in future under Rule 9 of Railway Services (Pension) Rules, 1993 and to take a decision whether to continue such proceedings under Rule 9 of the Pension Rules. Central Administrative Tribunal, Lucknow Bench in Baijoo, supra, considering RBE No. 25/2004 has held thus:
"8. At the very outset, I would like to point out that in view of R.B.E No. 25/2004 it is incumbent upon the disciplinary authority to review the cases at the time of retirement to satisfy itself as to whether judicial proceedings pending against the railway servant attract any of the provisions contained in Railway Servant Conduct Rule 1966 or are in any way prejudicial to the interest of Railway/Government. Admittedly the proceedings were pending since 2005. The applicant retired in 2014 but the 10 OA.No.170/00249/2022/CAT/BANGALORE exercise contemplated under aforesaid RBE has not been carried out by the Disciplinary Authority.
9. It is well settled that gratuity and pension cannot be withheld merely due pendency of criminal case. While exercising power under Rule 9 r/w 69 of the CCS Pension Rules, the President has to be satisfied, that the pensioner committed grave misconduct in discharge of his duties. In absence of any such finding, the President cannot hold the pension or withhold gratuity. In the present case also there is no finding against the respondent warranting withholding of any part of pension or gratuity by the President as the respondent was neither facing any departmental proceedings nor the judicial proceedings having anything to do with his official functions. There is nothing on record that any loss has been caused to the Government by any act/omission of the applicant. The gratuity and pension in absence of disciplinary proceedings or permission of controlling authority in writing obtained by the employer for delayed payment on the grounds on which proposed to be withheld cannot be withheld. (See State of U.P. & others vs. Dhirendra Pal Singh, (2017) 1 SCC 49). In another judgment delivered by Hon'ble Apex Court in Allahabad Bank Vs. A. C. Agarwal, (2013) 2 Supreme, it has been held that payment of gratuity is a statutory right of employee could not be taken away unless appropriate Government exempt the employer under section 5 of Payment of Gratuity Act. In the case of State of Jharkhand and Ors vs. Jitendra Kumar Srivastava and Anr, (2013) 12 SCC 210 the Hon'ble Apex Court held that under the embargo of administrative instructions having no statutory force, cannot be a ground to take a way part of pension or gratuity or even leave encashment. Para 16 & 17 is thus relevant and reproduced herein below:
"16. Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as 11 OA.No.170/00249/2022/CAT/BANGALORE a right in 'property'. Article 300 A of the Constitution of India reads as under:
'300A. Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law.' Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.
17. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as 'law' within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different."
10. The proceedings which are pending against the applicant are arising out of matrimonial dispute and not in pursuance of any Act or omission in performance of duties by the applicant in course of his employment. The question is not res-integra that even criminal proceedings pending at the time of retirement are such which has no nexus with discharge of official duties of the retiring employee and have no impact to loss to the Railway/Government the same shall not be an impediment in releasing the gratuity. Admittedly no departmental proceedings were initiated against the applicant during the course of his employment. Therefore, mainly on account of pendency of criminal proceedings 12 OA.No.170/00249/2022/CAT/BANGALORE which has no nexus with discharging of official duties by the applicant during the course of his employment, the amount of gratuity cannot be withheld."
8. Similarly, Central Administrative Tribunal, Calcutta Bench in Shri Tapan Kumar Basu, supra, referring to the judgments of the Hon'ble Apex Court in D.V. Kapoor vs Union of India and others reported in AIR 1990 SC 1923 and in D.S. Nakara and others vs Union of India reported in AIR 1983 SC 130 as well as the decision rendered by the Hon'ble High Court of Delhi in WP (C) No. 6633/2011 has held thus:
"7. What transpired from the enumerations hereinabove is that inarguably and indubitably the retiral dues of pensioner could not be forfeited without a conviction in a criminal case or a final order in a departmental proceeding and no such benefits could be withheld unless the proceedings come "within the ambit of grave misconduct in discharge of public duty in office".
8. As already indicated earlier, it could be noted that in the present case the applicant has not been convicted by Criminal Court of law. Nothing would be recoverable from him by the Employer upon conclusion of the Criminal proceedings"
9. In the light of the aforesaid judgments cited above, read with RBE No. 25/2004, it was mandatory on the part of the 13 OA.No.170/00249/2022/CAT/BANGALORE respondents to take a decision inasmuch as the desirability or otherwise of continuing the proceedings under Rule 9 of the Pension Rules in the wake of the pending judicial proceedings.
Respondent No. 3 has issued the impugned order without following this required procedure. Hence the impugned order at Annexure-A1 suffers from infirmities and cannot be sustained.
10. Given the circumstances, we are of the considered view that the interest of justice would be sub-served in setting aside the impugned order and remitting the matter to the Respondent No. 3 after providing an opportunity to the applicants to submit the particulars/details of the judicial proceedings pending against them. Thereafter, Respondent No. 3 shall take an appropriate decision as envisaged under RBE No. 25/2004 dated 05.02.2004 read with Rule 9 and 10 (1)(c) of Railway Services (Pension) Rules, 1993.
11. In the result, we pass the following:
14OA.No.170/00249/2022/CAT/BANGALORE ORDER
1) Separate impugned orders both dated 17.06.2021 (Annexure-A1) issued by Respondent No. 3 are set-aside and the matter is restored to the file of Respondent No. 3 providing liberty to the applicants to furnish details regarding pending judicial proceedings against them to enable Respondent No. 3 to take a decision with regard to settlement benefits as envisaged in RBE No. 25/2004 dated 05.02.2004 and Rule 9(3) and 10(1)(c) the Railway Services (Pension) Rules, 1993, keeping in mind the legal principles enunciated by CAT, Calcutta Bench in OA No. 1179/2016 dated 28.06.2018 and OA No. 213/2015 dated 21.04.2017 order passed by CAT, Lucknow Bench.
2) The applicants are directed to furnish the details of the pending judicial proceedings as aforesaid, within a period of two weeks from the date of receipt of the certified copy of this order and on such submission of the particulars, the Respondent No. 3 is directed to take an appropriate decision in accordance with law in any event 15 OA.No.170/00249/2022/CAT/BANGALORE not later than six weeks from the date of submission of particulars of the details by the applicants.
3) OA is disposed of in terms of above.
4) No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/