Central Administrative Tribunal - Delhi
Dr. M.R. Diwan, Ifs (Retd.), Advocate, ... vs Union Of India (Uoi), Through The ... on 19 October, 2006
ORDER Meera Chhibber, Member (J)
1. By this O.A., applicant has sought a direction to the respondents to make the entire payment of gratuity of Rs. 3,50,000/- along with interest @ 2% p.m. w.e.f. 1.5.2004 till final payment is made and the entire payment of pension along with commutation of pension after giving the pay scale of PCCR as was given to Shri S.K. Raha, who was junior to the applicant w.e.f. 01.8.1978 with a further direction to Respondent No. 3 to provide all the records so that he may claim his pending dues after going through the entire records.
2. It is submitted by the applicant that he superannuated from service w.e.f. 30.4.2004 (page 27) but till date neither gratuity nor commutation of pension have been paid, as a result of which he is finding it difficult to survive. He has also stated that vide letter dated 14.10.2005, applicant has been informed by Respondent No. 3 that they do not have any dues to be paid to the applicant, which is absolutely wrong. He has stated that there is no valid inquiry pending against the applicant relating to the charge of recovery or causing any pecuniary loss to the Government, therefore, his gratuity cannot be forfeited. He has relied on D.V. Kapoor Vs. Union of India and Ors. reported in AIR 1990 SC 1923 to state that President is empowered to withhold or withdraw pension permanently or for a specified period in whole or in part or to order recovery of pecuniary loss caused to the State in whole or in part subject to minimum. The employee's right to pension is a statutory right. The measure of deprivation, therefore, must be correlative or commensurate with the gravity of the misconduct or irregularity as it offends the right to assistance at the evening of his life as assured under Article 41 of the Constitution. He, therefore, submitted that there is no justification in withholding the gratuity or commutation of pension of applicant, therefore, the relief may be granted to him. He also relied on the judgment given by this Tribunal in the case of N.S. Kain v. Union of India and Ors. OA 470/2004, decided on 10.9.2004.
3. O.A. is opposed by the respondents, on the ground that applicant absented from duty for over 3 : years and has been flouting Government orders even after reporting back for duty in March, 1992. He used to leave Headquarters without the approval of the competent authority and had committed serious financial irregularities during his posting as DFO, Nicorbar Division. Shri Diwan was taking unilateral action in matters of public importance without consulting the District Administration or the PCCF. Accordingly, the Lt. Governor vide D.O. dated 13.10.1992 requested the Ministry to place the applicant under suspension and initiate disciplinary action against him. He was placed under suspension with immediate effect vide order dated 10.2.1993 and disciplinary proceedings were initiated against him by the competent authority. Having come to know about the issue of suspension order, the applicant left Andaman and Nicobar Islands to avoid acceptance of the said order without giving any intimation to the U.T. Administration about his whereabouts. During the inquiry, full opportunity was given to the applicant but since he did not cooperate in the inquiry, ex-party proceedings were taken up with due intimation to the applicant. Ultimately, applicant was dismissed from service vide order dated 3.7.2001, which was challenged by the applicant in O.A. 181/202. The said O.A. was allowed. The impugned order dated 3.7.2001 was quashed but the case was remanded back to the department for starting the proceedings from the stage, the ex-parte proceedings were taken on 6/7.2.1996. It was also made clear that quashing of the impugned order will not amount to automatic reinstatement of the applicant and department may pass appropriate orders in accordance with the rules and instructions. Thereafter, the inquiry is pending against the applicant. In terms of Rule 6 of all India Services (Death-cum-Retirement benefits) Rules, 1958, no gratuity shall be paid to the retiring Government servant against whom departmental/judicial proceedings are pending. They have thus submitted that no gratuity can be paid to him till departmental proceedings are pending against him. Further, under Rule 69 of the CCS (Pension) Rules, when a departmental proceeding is pending against the Government servant, he is entitled only for provisional pension and no gratuity can be paid until the conclusion of the departmental proceedings and issue of final orders. The applicant is already getting his provisional pension regularly. Rule 9 of the CCS (Pension) Rules, as relied upon by the applicant, is not applicable in the present circumstances of the case as that deals with penalty after conclusion of inquiry. They have thus prayed that the O.A. may be dismissed.
4. Applicant, on the other hand, has submitted that the inquiry is absolutely not sustainable in law as respondents are, in fact, holding a de novo inquiry by appointing a new Inquiry Officer, which is not permissible in law. Therefore, in law it cannot be said that there is any inquiry pending against the applicant.
5. I have heard the applicant as well as counsel for the respondents. Whether the inquiry which is being carried on by the respondents against the applicant is valid or not is not the subject matter of this O.A. because I am informed by the counsel for respondents as well as applicant himself that he has challenged the inquiry in separate O.A. 418/2005. It is relevant to note that when applicant had challenged his order of dismissal in OA 181/2002 though the order of dismissal was quashed but matter was remanded back to the Department for proceeding from the stage ex-parte proceedings were taken against the applicant on 6.2.1996. It was also made clear that quashing of the impugned order will not amount to automatic reinstatement of the applicant and Department may pass appropriate orders in accordance with the rules and instructions. It is thus clear that liberty was very much given to the respondents to start the proceedings from that particular stage. Since inquiry is challenged in a separate O.A., unless that O.A. is decided in favour of applicant, we cannot look into the sustainability of the inquiry in this O.A. A suggestion was given to the applicant during the course of hearing to await the outcome of his other O.A. or to get it clubbed with other O.A. but he insisted that this O.A. should be heard and decided without waiting for the decision in O.A. 418/2005, therefore, this O.A. has to be decided as it is.
6. The fact remains that after the liberty was given by this Tribunal, respondents had issued an order dated 24.10.2003 whereby applicant was deemed to have been placed under suspension from the date of his dismissal i.e. 3.7.2001 until further orders and the inquiry was also initiated. Without going into the question whether the order passed was valid or not, it is enough for me to record that the inquiry is still pending against the applicant. At this stage, it would be relevant to quote from Rule 6 of All India Services (Death-cum-Retirement Benefits) Rules, 1958, which, for ready reference, reads as under:
6. Recovery from pension.-
(1) x x x x x x (2) Where any departmental or judicial proceeding is instituted under Sub-rule (1), or where a departmental proceeding is continued under Clause (a) of the proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be sanctioned by the Government which instituted such proceedings, during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceedings, final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service upto the date of retirement, or if he was under suspension on the date of retirement, upto date immediately proceeding the date on which he was placed under suspension; but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceedings and the issue of final orders thereto.
7. On perusal of above rule, it is clear that where any departmental or judicial proceeding is instituted against an officer, only provisional pension is required to be paid and gratuity or death-cum-retirement gratuity shall not be paid to him until the conclusion of such proceeding and issue of final orders thereon. It is only where charge sheet is issued for minor penalty that gratuity or death-cum-retirement gratuity shall not be withheld. In the instant case, applicant was served with a charge sheet for major penalty and the inquiry is still pending, therefore, naturally his gratuity could not have been released.
8. Reliance placed by applicant on the judgment of N.S. Kain (supra) is absolutely misplaced because the judgment in the said case was given relying on the cases of D.V. Kapoor and F.R. Jesuratnam v. Union of India and Ors. 1990 SCC 640 wherein it was held that gratuity is not a bounty, therefore, it can no longer be regarded as a provision in the discretion of the President, as provided in the Pension Regulations. It was also recorded therein that there is no legal provision empowering the authorities to forfeit the gratuity payable to an employee. However, both the judgments, namely, that of D.V. Kapoor and F.R. Jesuratnam (supra) have already been over ruled by a subsequent judgment of the Hon'ble Supreme Court in the case of Jarnail Singh v. Secretary, Ministry of Home Affairs and Ors. wherein it is clearly held that as per Rule 69(1)(c) of the CCS (Pension) Rules, no gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon. In the above judgment, reference was also made to Rule 3(1)(o) of the CCS (Pension) Rules wherein the definition clause 'pension' is stated to include gratuity also except when the term 'pension' is used in contradistinction to gratuity, but does not include dearness relief. Reference was also made to Article 366(17) of the Constitution of India to indicate that conceptually pension includes gratuity. It was also observed that these provisions were not brought to the notice of Hon'ble Supreme Court in the cases of D.V. Kapoor and F.R. Jesuratnam (supra). Therefore, it became necessary to amend Rule 9(1) of the CCS (Pension) Rules in 1991 to clarify the position.
9. The case of N.S. Kain (supra) was decided on 10.9.2004 but Jarnail Singh's case (supra) was not even referred to even though it was already pronounced and published also, therefore, it can safely be stated that the judgment in the case of N.S. Kain was given on the basis of over ruled judgments. The judgment in O.A. 470/2004 is, therefore, per incuriam and does not have any binding effect. It goes without saying that the Tribunal as the first court instance is bound by the latest judgment on the point given by Hon'ble Supreme Court under Article 141 of the Constitution, therefore, reliance placed by applicant on a judgment, which itself is based on a judgment which stands already over ruled cannot be said to be a good law nor can it be used as a precedence. The issue has already been crystalised in the case of Jarnail Singh (supra) by Hon'ble Supreme Court wherein it was clarified that if a departmental or judicial proceeding is pending against the employee, his gratuity and commutation of pension can be withheld by the respondents under Rule 69(1)(c) of the CCS (Pension) Rules. The same position exists in Rule 6 all India Services (Death-cum-Retirement benefits) Rules, 1958 as well, which is evident from para 5 above. Therefore, in the given circumstances, the relief as prayed by the applicant cannot be granted to him at this stage. However, liberty is given to the applicant to agitate the matter at later stage after O.A. 418/2006 is decided in his favour. As on date, since the inquiry is still going on against the applicant, no direction can be given to the respondents to release his gratuity or commutation of pension.
10. With the above observations, this O.A. is disposed of. No order as to costs.