Himachal Pradesh High Court
Between vs Kamal Swaroop Tondon Reported In Air ... on 5 July, 2022
Bench: Sabina, Satyen Vaidya
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 5th DAY OF JULY, 2022
.
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION No. 898 of 2018
Between:-
(1) UNION OF INDIA THROUGH ITS
SECRETARY,
MINISTRY OF COMMUNICATIONS AND
TELECOM, SANCHAR BHAWAN 20,
ASHOKA ROAD, NEW DELHI.
(2) DIRECTOR GENERAL POST OFFICES,
DEPARTMENT OF POST OFFICE,
NEW DELHI.
(3) CHIEF POST MASTER GENERAL,
DEPARTMENT OF POST INDIA,
SECTOR-17, CHANDIGARH.
(4) SENIOR SUPERINTENDENT POST OFFICES,
HAMIRPUR DIVISION, HAMIRPUR (H.P.)
177001.
(5) SUB POST MASTER, SUB POST OFFICE,
MUNDKHAR, HAMIRPUR.
.....PETITIONERS
(BY MR. BALRAM SHARMA,
ASSISTANT SOLICITOR GENERAL OF INDIA)
AND
SHRI KARAM SINGH, (PA) (RETD.)
S/O LATE SHRI PRABH DYAL,
RESIDENT OF VILLAGE AND POST OFFICE
MUNDKHAR, TEHSIL BHORANJ,
DISTRICT HAMIRPUR (H.P.).
.....RESPONDENT
(MR. TARUN SHARMA,
ADVOCATE)
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This petition coming on for admission this day, Hon'ble
Ms. Justice Sabina, passed the following:
.
ORDER
Petitioners/Union of India has filed the petition challenging the order dated 11th July, 2017 Annexure P-3 passed by the Central Administrative Tribunal, Chandigarh Bench (hereinafter referred to as the Tribunal) as well as the order dated 11th December, 2017 (Annexure P-4) passed by the Tribunal in Review Petition.
2. Shri Balram Sharma, learned Assistant Solicitor General of India has submitted that the Tribunal has erred in allowing the original application filed by the respondent. The gratuity of the respondent could be withheld as in the departmental proceedings he had been found guilty of the charges leveled against him. In support of his arguments, he has placed reliance upon the judgment passed by the Hon'ble Supreme Court of India in U.P. State Sugar Corporation Ltd.
& ors. vs. Kamal Swaroop Tondon reported in AIR 2008 SC 1235, wherein it was held as under:-
"18. Negativing the contention, this Court held that the power to withhold gratuity was conferred on the President and such action could not be said to be illegal. It was ruled that the Government could adjust its dues against the amount of death- cum-retirement gratuity otherwise payable to Government servant."::: Downloaded on - 07/07/2022 20:02:15 :::CIS 3
2. Learned Assistant Solicitor General of India has also relied upon the judgment of Punjab and Haryana High Court in Danpath .
Singh Ranga vs. State of Haryana and others reported in 2009 (6) SLR 171, wherein it was held as under:
"16. All the issues raised in the present appeal are dealt with by the Full Bench in the judgment, referred to above. The enquiry proceedings initiated prior to the superannuation of the appellant can continue after his retirement. Though the appellant is entitled to provisional pension, but the amount of gratuity can be withheld to recover the loss, if any, proved to be suffered by the respondents."
3. He has further relied upon the judgment of Delhi High Court in Govt. of NCT and Anr vs. Km. Agrahari Sreo and others, reported in 2013(2) AD (Delhi) 479, wherein it was held as under:-
"12. Ordinarily, on the subject of penalty levied in relation to the quantum thereof, reasons for the quantum of the penalty need not be recorded. But, in the peculiar facts of this case reasons ought to have been recorded for the reason Union Public Service Commission as well as DoPT concurrently held that it was not a case of willful default and thus it was not a case of grave misconduct. Union Public Service Commission highlighted in addition that it was not a case where any financial loss was caused. These aspects of the matter were not discussed by the Central Vigilance Commission. Thus, the Presidential opinion ought to have discussed the aforesaid."::: Downloaded on - 07/07/2022 20:02:15 :::CIS 4
4. Learned Assistant Solicitor General has further relied upon the judgment of Uttarakhand High Court in Sarju Prasad Tyagi vs. .
State of U.P. and Ors. reported in 2007(1) U.D 328, wherein it was held as under:-
"8. From perusal of the charge sheet it is evident that all the three charges leveled against the petitioner do not relate to pecuniary loss caused to the Government. Learned Standing Counsel has submitted that the pension of the petitioner can be withheld, if he is found guilty of grave misconduct and in the present case, the pensioner is found guilty of the misconduct, as such, the Respondents have rightly withheld 25% amount of the pension of the petitioner."
5. Learned counsel for the respondent, on the other hand, has opposed the petition and has submitted that during departmental proceedings it was not found that the respondent had caused any pecuniary loss to the petitioners/department. Hence, the gratuity of the respondent could not be withheld by the petitioners.
6. Respondent was working with the petitioners as Postal Assistant. On 23rd September, 2010 respondent was issued statement of Imputations of Misconduct/Misbehaviour. Respondent was informed that action was liable to be taken against him under Rule 16 of the CCS(CCA) Rules, 1965 (hereinafter referred to as 'the Rules').
Respondent submitted his reply to the notice on 30th September, 2010.
It was averred that Rakesh Kumar (GDSMP) had already credited the ::: Downloaded on - 07/07/2022 20:02:15 :::CIS 5 misappropriated amount with the department. F.I.R. No. 25/2010 was lodged against the respondent under Sections 409, 420, 467 and 468 .
of the Indian Penal Code, 1860 by SSP, Post Office, Hamirpur Division.
Respondent was granted bail in the said case and till date, the criminal case has not been decided. Respondent retired from service on attaining the age of superannuation on 31st December, 2015.
Respondent was released all his retiral benefits, except gratuity. The gratuity amount of respondent was withheld due to pendency of criminal case. Hence, the respondent approached the Tribunal by way of an original application.
7. Vide order dated 11th August, 2017, original application filed by the respondent was allowed and vide order dated 11th December, 2017 review petition filed by the petitioners was dismissed by the Tribunal. Hence, the present petition by the petitioners.
8. Admittedly, in the departmental proceedings it was ordered that one increment of the respondent be stopped without cumulative effect for one year. The said order has admittedly become final. Thus, the disciplinary proceedings stand duly concluded and admittedly in the disciplinary proceedings there was no finding that the respondent was guilty of causing any pecuniary loss to the department.
9. Rule 69 (1)(c) of the CCS (Pension) Rules reads as under:-
::: Downloaded on - 07/07/2022 20:02:15 :::CIS 6"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 that 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."
10. Learned counsel for the petitioners has placed reliance on the above rule to substantiate his argument that the gratuity amount has been withheld as criminal case is still pending against the respondent. Although, the Rule 69(1)(c) of the CCS (pension) Rules provides that the gratuity of an employee can be withheld in case departmental and judicial proceedings are pending against him but the said rule has to be applied keeping in view the facts of each case.
However, the gratuity of the respondent could have been withheld in case it was found in the departmental proceedings that there was any pecuniary loss to the department. So far as the departmental proceedings are concerned, they have duly been concluded and there is no finding to the effect that respondent was also required to make up any pecuniary loss to the department. In the departmental proceedings minor penalty has been imposed on the respondent. In this situation, the pendency of criminal case would not entitle the petitioners to withhold the gratuity under Rule 69 of the CCS (Pension) Rules.
::: Downloaded on - 07/07/2022 20:02:15 :::CIS 711. In the facts and circumstances of the present case, the judgments relied upon by the learned counsel for the petitioners failed .
to advance the case of the petitioners as they are based on different facts. In case the respondent had been held liable in the departmental proceedings to make up the pecuniary loss caused to the department, the petitioners would have been within their right to withhold the gratuity of the respondent but in the absence of such finding, there was
12.
r to no occasion for the petitioners to have withheld the gratuity of the respondent.
In the facts and circumstance of the case, the learned Tribunal has rightly allowed the original application filed by the respondent and has rightly dismissed the review petition filed by the petitioners. Accordingly, no ground for interference is made out.
Petition is dismissed.
Pending miscellaneous application(s), if any, also stand disposed of.
(Sabina) Judge (Satyen Vaidya) Judge 5th July, 2022(tm) ::: Downloaded on - 07/07/2022 20:02:15 :::CIS