Central Administrative Tribunal - Delhi
K.Srivatsan vs Govt. Of National Capital Territory Of ... on 15 November, 2011
Central Administrative Tribunal
Principal Bench
OA NO. 1188/2011
New Delhi this the 15th day of November, 2011
Honble Mr.G.George Paracken, Member(J)
Honble Dr. A.K.Mishra, Member(A)
K.Srivatsan
4/20, W.E.A.
Karol Bagh
New Delhi-110005.
. Applicant
(By Advocate: Shri N.K.Singh for Mrs. Avnish Ahlawat)
Versus
1. Govt. of National Capital Territory of Delhi
Secretariat, I.P.Estate,
New Delhi
Through Chief Secretary,
2. Director of Education,
Govt. of NCT of Delhi
Old Secretariat,
Delhi-110054.
3. Principal
Sarvodaya Kanya Vidyalaya
Pandara Road, New Delhi.
4. Municipal Corporation of Delhi
Through Commissioner
Town Hall
Delhi-6.
.. Respondents
(By Advocate: Mrs. P.K.Gupta for respondents No.1 & 2
Sh. Rajinder Khatter for respondent No.3)
O R D E R
Honble Shri George Paracken:
The applicant in this case has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 against the alleged inaction on the part of the respondents in not paying him all the retrial benefits after he has superannuated from service on 30.6.98. His grievance is particularly against letter dated 17.8.2010 of respondent No.2, i.e., Director of Education to the Dy. Secretary (Vig.) stating that the matter regarding releasing of retirement benefits and payment during the period of suspension of the applicant is to be dealt/decided by the administrative department and under Rule 69 (C) of CCS (Pension) Rules, 1972 and no gratuity shall be paid to a Government servant until the conclusion of the departmental or judicial proceedings and issuing the necessary orders thereafter.
2. Learned counsel for applicant has submitted that his case is squarely covered by a decision of a Coordinate Bench of this Tribunal in OA-4305/2010 V.B.Bansal Vs. Union of India and others. The applicant in the said OA was holding the post of Assistant Commissioner of Income Tax and he had retired on 30.6.2008. He was seeking a declaration that the action of the respondents invoking Rule 69 of the CCS (Pension) Rules, 1972 was wholly illegal. He has also sought a further direction to the respondents to release his pension, gratuity, leave encashment and DCRG along with interest at the rate of 10 per cent per annum. The undisputed fact in the aforesaid case was that the applicant therein was working as Income Tax Officer. The CBI registered a case against him on 2.2.2005 under Section 13 (2) read with Section 13 (1) (c) of the Prevention of Corruption Act, 1988 for his acquiring assets disproportionate to his known sources of income. After investigation, the CBI has sent report of cancellation of FIR in the year 2007 but even after a period of four years, the learned Magistrate dealing with the case, did not pass any order on the cancellation report. The case of the applicant therein was that no disciplinary proceedings were pending against him to invoke the said Rules against him. Considering the aforesaid facts of the case, this Tribunal allowed the OA holding that in the facts and circumstances of the case, respondents were not within their right to invoke provisions of Rule 69 of Pension Rules, 1972. Applicant was, therefore, held to be entitled to full pension and post retrial benefits within a period of six weeks failing which respondents were directed to pay interest @ 9% p.a. till the date of actual payment.
3. According to respondent No.3, i.e., the Municipal Corporation of Delhi (MCD for short), CBI has registered case No. RC DAI/2008-A-0031 dated 30.6.2008 against him and others u/s 13 (2) read with 13 (1)(d) of Prevention of Corruption Act on the basis of a complaint dated 27.6.2008 of Anil Wasan, the then Assistant Commissioner, City Zone. The applicant was placed under suspension on 3.12.2007. Later on, his suspension was revoked on 5.2.2008 and was again re-imposed upon him w.e.f. 29.2.2008. While the aforesaid suspension period was continuing, he was repatriated to his parent department, namely, the Services Department, Service Branch, Govt. of NCT of Delhi, vide order dated 26.3.2008. However, they have stated that in the aforesaid criminal case, CBI has already filed a closure report before the Court of sh. N.K.Sharma, Special Judge, CBI, Tis Hazari, Delhi as intimated by the CBI to MCD vide their letter No. RC-DAI-2008-A-0031/5575 dated 12.5.2011 (Annexure R-1) but the judge has not taken a final decision in the matter so far. As regards the releasing of pensionary benefits to the applicant is concerned, according to them, it is for the parent department to do the needful.
4. According to the reply filed by the second respondent, namely, the Director of Education, while the applicant was working on deputation in the MCD, the CBI has filed a criminal case No.RC-DAI-2008-A-0031 dated 30.6.2008 before the CBI Special Judge, Delhi and it has taken up the matter with the Director of Vigilance, Govt. of NCT of Delhi to further take up the matter with the MCD to finalise the disciplinary proceedings pending against the applicant. They have also submitted that since the CBI has already submitted a closure report, the applicant should be exonerated from all the charges levelled against him. However, the MCD has written to the Directorate of Vigilance, Govt. of NCT of Delhi on 14.3.2011 that the competent authority had approved initiation of major penalty proceedings against the applicant who was working with the MCD on deputation at the relevant period. But at the same time, they have also stated that the DMC Service, Control and Appeal Rules, 1959 do not apply in his case as he was not an employee of the Corporation. Therefore, MCD has forwarded the authenticated copies of the record along with draft charges to the Directorate of Vigilance, Govt. of NCT of Delhi for initiating major penalty proceedings against him. The applicants case was also considered by the Public Grievance Commission of Govt. of NCT of Delhi but held vide its order dated 29.3.2009 that the entire retirement benefits can be released to the applicant only after finalization of the departmental proceedings. They also requested the Directorate of Vigilance to expedite the departmental proceedings against the applicant, which has been pending from the year 2008. However, the Director of Vigilance, Govt. of NCT of Delhi vide its letter dated 5.9.2011 informed the Chief Vigilance Officer, MCD that they did not furnish any formal proposal nor any supporting documents for initiation of disciplinary proceedings against the applicant. Further, the applicant has already retired from service on 30.6.2008. Therefore, it is necessary to obtain the Presidential sanction before initiating the disciplinary proceedings against him.
5. We have heard the learned counsel for the parties. The undisputed position in this case is that the applicant is an employee of the Govt. of NCT of Delhi. While he was on deputation with the MCD, a criminal case was filed against him by the CBI way back on 30.6.2008. After investigation they themselves have filed a closure report before the Special Judge, CBI, Tis Hazari Court, Delhi, as informed by them to the MCD vide their letter dated 12.5.2011. During the pendency of the aforesaid criminal case, the applicant who was under suspension was repatriated to his parent department on 26.3.2008 and he retired from service from there on 30.6.2008. Later, the MCD, has decided to initiate disciplinary proceedings against him under the provisions of the DMC Service, Control and Appeal Rules, 1959 as per their letter dated 14.3.2011. They could not proceed further in the matter as they realized later that the said rules do not permit them to take any action against a deputationist. They have, therefore, requested the Govt. of NCT of Delhi, i.e., the parent office of the applicant to initiate disciplinary action against him. However, vide letter dated 5.9.2011, the GNCTD has informed the MCD that since the applicant has already retired from service, the Presidents sanction is required for initiation of disciplinary proceedings against him under Rule 9 of CCS (Pension) Rules, 1965.
6. In the above facts and circumstances, in our considered view, after the CBI has filed its closure report before the Special Judge, Tis Hazari in the criminal case filed by them against the applicant, there is no question of invoking Rule 69 of CCS Pension Rules, 1972, as already held by the Coordinate Bench of this Tribunal in OA-4305/2010 (supra). Now the question which remains is whether the applicant should wait till the disciplinary proceedings can be finalized the other post-retiral benefits are paid to him. It is the respondents own contention that since the applicant has already retired from service he can be proceeded against only under Rule 9 of CCS (Pension) Rules, 1965. Under the said rules the President has the right to withhold the pension or gratuity or both, either in full or in part or withdrawing a pension in full or in part, whether permanently or for a specified period. However, under the sub-rule 6 of the said rules, departmental proceedings should be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner or if the Government servant has been placed under suspension from an earlier date, on such date. In the present case the respondents have not issued any statement of charges against the applicant so far. Therefore, there is no justification on the part of the respondents in no granting the full pension and all other retiral dues to the applicant.
7. In view of the above position, this OA is allowed. It is declared that the applicant is entitled to full pension and all other post retiral benefits. Accordingly, the respondents shall restore the full pension to the applicant forthwith and grant all the post retirement benefits within a period of six weeks from the date of receipt of a copy of this order. As regards the claim of interest is concerned, we order that if the respondents fail to make the payment to the applicant within the aforesaid period of time, the applicant will be entitled to interest on the entire pending amount at the rate of 9 per cent per annum from the due date till the date of actual payments. There shall be no order as to costs.
( Dr. A.K. Mishra ) ( George Paracken )
Member (A) Member (J)
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