Central Administrative Tribunal - Lucknow
Ms Sandhya Tiwari vs Department Of Personnel And Training on 10 January, 2025
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH
Original Application No. 332/00284/2022
This the, 10th day of January, 2025
HON'BLE MR. JUSTICE ANIL KUMAR OJHA, MEMBER (J),
Ms. Sandhya Tiwari, aged about 63 years, daughter of Mr. K. P.
Singh, resident of G-203, Utsav Halwasia Enclave, Indira Nagar,
Faizabad Road, Lucknow.
..Applicant
By Advocate: Shri Shireesh Kumar.
VERSUS
1. Union of India through the Secretary, Department of Personnel
and Training, Ministry of Personnel, Public Grievance & Pensions,
Government of India, North Block, New Delhi-110001.
2. State of U.P. through the Additional Chief Secretary, Appointment,
Government of U.P., Civil Secretariat, Lok Bhawan, Lucknow.
3. The Director, Pension, 9th Floor, Indira Bhawan, Ashok Marg,
Lucknow.
4. The Chief Treasury Officer, Jawahar Bhawan, Ashok Marg,
Lucknow.
.....Respondents
By Advocate: Shri S.S. Rajawat, R- 2 to 4.
ORDER
Per Hon'ble Justice Anil Kumar Ojha, Member (J) Heard learned counsel for the applicant, learned counsel for the respondents and perused the records.
2. Through this Original Application, applicant has prayed for the following reliefs:
"(i). to direct the respondents to forthwith release the total amount of gratuity of the applicant in her favour.
(ii). To direct the respondents to allow interest to the applicant on the total amount of gratuity at the rate fixed by the Central Government with effect from 01.04.2019 up to the date of actual payment as per Rule 19-A of the Rules of 1958.
(iii) Any other order which is deemed just and proper in the nature and circumstances of the case be also passed in favour of the applicant in the interest of justice along with the cost of this original application."
3. The background facts are that applicant an IAS officer retired from service on attaining the age of superannuation on 31.12.2018. All retiral dues except gratuity were paid to the applicant.
Page 1 of 6Applicant was served upon an order dated 05.04.2018, issued by the Executive Director (Administration), U.P. Cooperative Federation Ltd. Lucknow annexing therewith a copy of an enquiry report dated 13.03.2018 calling upon the applicant to submit her objections against the same. Applicant raised objections against enquiry report dated 13.03.2018 but vide order dated 05.11.2018, Deputy Registrar called upon the applicant to appear before him for hearing.
The gratuity of the applicant cannot be withheld on the ground of pendency of the proceedings under Section 68 of the U.P. Cooperative Society Act, 1965.
To regulate the disciplinary proceeding against an officer of All India Services, the Government of India promulgated the Rules in the name of All India Services (Death cum Retirement Benefits) Rules, 1958. The Rule 6 of the Rules of 1958 provides for recovery from pension and as per Rule 6(1) of the Rules of 1958, the Central Government reserves to itself the right of withholding pension or gratuity or both either in full or in part, permanently or for a specified period and of ordering recovery from the pension or gratuity of the whole or part of any pecuniary loss caused to the Central or State Government, if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or to have cause pecuniary loss to the Central or State Government by misconduct or negligence during his service including the services rendered on re-employment after retirement.
Further averment is neither any departmental proceeding had ever instituted against the applicant under Rule 6 of the Rules of 1958 nor she was ever found guilty of a grave misconduct to have caused pecuniary loss to the Government as such the gratuity of the applicant cannot be withheld.
Further pleadings are that Rule 19-A of the Rules of 1958 provides for interest on delayed payment of gratuity and as per Rule 19-A of the Rules of 1958, if the payment of gratuity has been delayed beyond three months from the date when its payment became due and it is clearly established that the delay in payment was attributable to administrative lapse then the interest at the rate prescribed by the Central Government from time to time shall be paid on the amount of gratuity in respect of the period beyond three months.
The delay in payment of the amount of gratuity is not attributable to the applicant. Applicant being a retired officer having no other means of livelihood except her post retiral benefits but even then the amount of gratuity has not been released in her favour in violation of rules, Page 2 of 6 accordingly the applicant is entitled not only to the amount of gratuity but interest also.
4. Respondent No. 2 by filing their counter affidavit has, inter-alia, stated that in view of the provisions of Rule 19-C of the Rules, 1958, after withholding the gratuity, all post retiral benefits have been sanctioned by the State Government to the applicant. Since, No Dues Certificate from the Department of PCF, Food and Civil Supplies Department and Department of Secondary Education have not been received to the Department of appointment, hence, the amount of gratuity has been withheld.
Further averment is that applicant was posted as Officiating Director with effect from 14.02.2004 to 30.06.2006 in PCF and with effect from 16.04.2012 to 12.02.2013, while she was posted as Managing Director, PCF, there were certain irregularities in the PCF as such the Commissioner and Registrar, Cooperative, Uttar Pradesh, Lucknow vide its letter dated 27.12.2018 has informed that under Section 68 of U.P. Cooperative Societies Act, 1965, the applicant was called upon for hearing but she is not appearing and she is disregarding the orders and as such till the final orders are passed in the aforesaid irregularities by Commissioner / Deputy Registrar (Centralised) Cooperative Uttar Pradesh Lucknow and on their requests of withholding of the Gratuity till final orders are passed in the matter, the gratuity of the applicant was not released.
Further pleaded that vide order dated 27.12.2018, the Commissioner / Registrar, Cooperative has informed that while the applicant was posted as Managing Director, PCF, there was a irregularity of amount of Rs. 35,77,577.56/- in PCF and the enquiry was held against the applicant and other officers and after receiving the enquiry report, the proceeding under Section 68(2)of the U.P. Cooperative Societies Act, 1965 was held and the request has been made to withheld the post retiral benefits of the applicant, till the final order is passed by Deputy Commissioner/ Deputy Registrar (Centralised) Cooperative, UP, Lucknow.
As such in view of the above, until the No Dues Certificate is received with respect to the applicant while she was posted at PCF, the gratuity of the applicant could not be released.
5. Applicant by filing rejoinder affidavit reiterated the averments made in the Original application, however, pleaded that The respondents could not have withheld the amount of gratuity that was Page 3 of 6 payable to the applicant but without any justifiable reason, the amount of gratuity of the applicant has been withheld and it is wrong on the part of the respondent no. 2, who have stated that the PCF, Department of Food and Supplies and Department of Secondary Education have not furnished the no dues certificate in favor of the applicant. In fact the applicant was informed that the no dues certificate in her favor had been furnished by all the departments before her retirement.
Further averred that the letter dated 27.12.2018 has not been brought on record by the respondent and it is wrong on the part of the respondents to have stated that there was an irregularity for a sum of Rs. 35,77,577.56/- in the PCF. The applicant has already submitted all the necessary papers and documents before the authorities in the proceeding under Section 68 of the U.P. Cooperative Societies Act, 1965, but no notice of the same was taken and unilaterally the report has been submitted but no final order has been passed even after lapse of more than four years. The applicant reiterated that the proceedings under Section 68 of the U.P. Cooperative Societies Act, 1965, is altogether different than a proceeding under Rule 9 of the Rules of 1958 and the amount of gratuity can only be withheld if a proceeding under Rule 9 of the Rules of 1958 has been initiated. But the amount of gratuity is not released in favor of the applicant and for all these reasons, the applicant is entitled to the amount of gratuity.
6. Learned counsel for the applicant submitted that pension of the applicant has been finalized of the applicant whereas gratuity has been withheld without any rhyme and reason. Respondent Department cannot be permitted to blow hot and cold together. There is no requirement of no dues certificate in the present matter. Further submitted that Rule 19 (C) of All India Services (Death cum Retirement Benefits) Rules, 1958 has been selectively quoted and explanation has not been mentioned in the counter affidavit.
Further submitted that no dues certificate can be issued with reference to immediate preceding 5 years of service from the date of retirement. The posting of the applicant in capacity of the Executive Director of the UP Cooperative Federation Limited was for the period February 2004 to June 2006 and Managing Director from April 2012 to February 2013, hence, no dues certificate is not required from the UP Cooperative Federation Limited for release of the amount of gratuity as per Para 5 (1) clause (f) of the Government Order dated 28.07.1989.
Page 4 of 6Further argued that applicant is entitled for interest as per Rule 19(a) of the All India Service (Death-cum-Retirement Benefits) Rules, 1958.
7. Learned counsel for the respondent no. 2 strongly opposed the aforesaid submissions and argued that as per Rule 19 (c) of All India Services (Death cum Retirement Benefits) Rules, 1958, applicant cannot be given gratuity.
8. In Para 6 of the counter affidavit filed by respondent no. 2, Rule 19
(c)-Recovery and Adjustments of Government dues, has been quoted but explanation attached thereto has not been quoted.
9. The provisions of Rule 19 (c) of All India Services (Death cum Retirement Benefits) Rules, 1958 are being quoted below:
"19-C. Recovery and adjustments of Government dues. -
(1) It shall be the duty of every retiring member of the service to clear all Government dues before the date of his retirement. (2) Where a retiring member of the Service does not clear the Government dues and such dues are ascertainable.-
a. An equivalent case deposit may be taken from him; or b. An equivalent amount shall be deducted from the gratuity and the death-cum retirement gratuity.
Explanation- For the purpose of this rule, dues which are ascertainable shall include balance of house building or conveyance advance, arrears of rent and other charges pertaining to occupation of Government accommodation, over payment of pay and allowances and arrears of income-tax deductable at source under the Income-tax Act, 1961 (43 of 1961).
10. From the perusal of the provisions of Rule 19 (c) alongwith explanation, it is manifest that dues which ascertainable shall include balance of house building or conveyance advance, arrears of rent and other charges pertaining to occupation of Government accommodation, over payment of pay and allowances and arrears of income tax deductable at source under the Income Tax Act, 1961 (43 of 1961), thus, the case of the applicant does not fall under the aforesaid categories.
11. Applicant was posted as Executive Director with effect from 14.02.2004 to 30.06.2006 in PCF and Managing Director with effect from 16.04.2012 to 12.02.2013. She retired on 31.12.2018, thus, she was posted more than 05 years ago in the cooperative department before her retirement, hence, Para 5 (1) clause (f) of the Government Order dated 28.07.1989, no dues certificate is not required from the UP Cooperative Federation Limited for release of the amount of gratuity as no dues Page 5 of 6 certificate is required only to immediate preceding 5 years of service from the date of retirement.
12. It is admitted fact that neither any departmental proceeding / judicial proceeding had ever been instituted against the applicant nor any such proceeding is pending against the applicant till today, hence, her gratuity cannot be withheld by the Respondent Department.
13. It is also noteworthy that pension is being paid to the applicant but her gratuity has been withheld which are self-contradictory if something was adverse against the applicant why her pension was finalized.
14. In view of the above, OA deserves to be allowed.
15. Accordingly, OA is allowed. Respondents / competent Authority are directed to pay gratuity to the applicant within two months from the date of receipt of certified copy of this order. Applicant is also entitled for interest on delayed payment of gratuity at the prevailing bank rate from the date of it's became due till the actual date of payment.
No order as to costs.
Pending MAs, if any, also stand disposed of accordingly.
(Justice Anil Kumar Ojha) Member (J) Digitally signed by Jay Narayan Singh Date: 2025.01.13 '14:29:42 +05'30 Page 6 of 6