Central Administrative Tribunal - Lucknow
Virendra Kumar Shukla Aged About 61 ... vs Union Of India Through The Secretary on 27 February, 2014
Central Administrative Tribunal ,Lucknow Bench, Lucknow. Original Application No. 180/2013 Reserved on 14.2.2014 Pronounced on 27th February, 2014. Honble Sri Navneet Kumar, Member (J) Virendra Kumar Shukla aged about 61 years son of late Shiv Ram Shukla resident of 2/43, Rajni Khand, Sharda Nagar, Lucknow. Applicant By Advocate: Sri R.S. Pawar Versus 1. Union of India through the Secretary, Ministry of Railways, Govt. of India, New Delhi-110006. 2. Divisional Railway Manager, Northern Railways, Lucknow Division, Hazratganj, Lucknow. 3. Chief Works Manager, Northern Railway, Charbagh, Lucknow. Respondents By Advocate: Sri Rajendra Singh ORDER
By Honble Sri Navneet Kumar, Member (J) The present O.A. is preferred by the applicant under section 19 of the AT Act with the following releifs:-
i) Issue an order or direction in the appropriate nature directing the opposite parties to make the payment of the amount of retirement gratuity and the amount of commutation of 40% amount of pension to the applicant with effect from due date along with interest @ 18% per annum from due date till the date of actual payment in accordance with law.
ii) Issue any other or further order or direction which this Honble Tribunal may deem proper in the facts and circumstances of the case in favour of the applicant.
iii) Allow the present O.A. with costs.
2. The brief facts of the case are that the applicant was initially appointed on the post of Mechanist in 1975 and thereafter, he was promoted to the post of Skilled Mechanist Grade II, and thereafter Skilled Mechanist Grade I, and lastly on the post of Junior Engineer in the Northern Railway. The applicant superannuated on 31.7.2012 and while he was in service, a criminal case was pending against him. The applicant pointed out that after retirement , all retiral dues were paid to him except i) amount of gratuity, ii) commutation amount of 40% pension and iii) regular pension instead of provisional pension which is being paid to the applicant since 1.8.2012, for which the applicant has also submitted a representation which is said to have been still pending for final adjudication.
3. The learned counsel appearing on behalf of the respondents filed their counter reply and through counter reply, it was indicated by the respondents that the applicant was involved in a criminal case and as such a case u/s 498-A, 313 and504 IPC was lodged against him. The respondents also wrote a letter to the SHO, Mahila Police Station, Lucknow who was required to furnish details regarding detention of the applicant beyond 48 hours and whether the applicant has been arrested and sent to jail. In response thereto, the SHO made an endorsement stating that the applicant has been arrested by the police on 6.9.2005 and he was presented before the Court on 7.9.2005 and he was released on bail. It is also pointed out by the learned counsel for respondents that the said criminal case is still pending before the court below. The learned counsel for respondents have also mention Rule 9(3) of Railway service (Pension) Manual and has pointed out that according to the said rule, the applicant is not entitled to get the relief as claimed for.
4. Learned counsel for applicant has filed Rejoinder Reply and through Rejoinder reply , mostly the averments made in the O.A. are reiterated. It is also submitted that Rule 9(3) of the said rule pertains to departmental proceedings and judicial proceedings relating to service and not otherwise. The learned counsel for applicant has also relied upon two decisions of the Honble Apex Court as such-
i) Bengali Babu Misra and State of U.P. and another reported in 2003 (50) ALR, 538
ii) Radhey Shyam shukla Vs. State of U.P. and others reported in (2009) 4 UPLBEC 3045
5. Heard the learned counsel for the parties and perused the record.
6. Undisputed facts are that the applicant who was initially appointed with the respondents organization finally superannuated on 31.7.2012. During this period, the applicant was involved in a criminal case and proceedings were initiated against the applicant and during the pendency of the said proceedings, the applicant superannuated and after retirement, all retirement dues were paid to the applicant except i)amount of gratuity, ii) commutation amount of 40% pension and (iii) regular pension instead of provisional pension which is being paid to the applicant since 1.8.2012. The learned counsel for the applicant has also pointed out that he has submitted a representation to this effect to the authorities on 4.4.2013 for releasing the aforesaid amount. The rule 9(3) of Railway Service (Pension) Rules provides that 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 under sub-rule (2) , a provisional pension as provided in Rule (96) shall be sanctioned and as per Rule 10(1)(a) provides that in respect of a Railway Servant referred to in sub rule (3) of Rule 9, the Accounts Officer shall authorize the provisional pension which would have been admissible on the basis of qualifying service upto the date of retirement of the Railway servant or if he was under suspension on the date of retirement, upto the date immediately proceeding the date on which he was placed under suspension. and Rule 10(1)(c ) provides that 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 Railway Servants (D&A) 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 authorized to be paid to the railway servant. Not only this, it is also provided in Rule 10(2) that the payment of provisional pension made under sub rule (1) shall be adjusted against final retirement benefits sanctioned to such railway 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.
7. In the instant case, it is explicitly clear that a criminal case is pending against the applicant. As per the aforesaid provisions of Railway Pension Rules, it is clear that the amount of gratuity etc. can be withheld on account of departmental or judicial proceedings. The Departmental proceedings are quasi judicial proceedings and a domestic enquiry is required to be conducted. The departmental enquiry is to be conducted against any person in strict adherence to statutory provisions and the principles of natural justice.
8. The judicial proceedings in the course of which evidence is or may be legally taken on oath. Judicial proceedings refer to any proceedings that take place in a court of law in which a judge presides. The proceedings can be either criminal or civil. The judge need not even be the one making the final decision on the case in order for proceedings to be considered judicial proceedings, as long as the action is occurring in a court room where the judge has authority. Civil litigation is also considered a form of judicial proceeding. Unlike criminal law, the state is not involved in bringing a civil lawsuit. An individual who was wronged by another individual, corporation or legal entity, brings the lawsuit in civil cases. The defendant is summoned to court after a plaintiff sues and the trial is heard in front of a judge. Again, the judge may not be the one to make the decision on whether the defendant is guilty or not, as a jury trial is common in civil litigation as well.
9. Since the respondents are a model employer, they are supposed to take a decision on the applicants representation as well which they have failed to do. Since the applicant submitted his representation on 4.4.2013, in such a situation, I deem it proper to issue a direction upon the respondents to consider and dispose of the representation of the applicant in accordance with rules and pass a speaking order and decision so taken be communicated to the applicant.
10. With the above observations, O.A. stands disposed of . No order as to costs.
(Navneet Kumar) Member (J) HLS/-