Central Administrative Tribunal - Patna
Ram Ishwar vs East Central Railway on 3 March, 2025
1 O.A. No. 050/00352
352/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH,
O.A. No. 050/00352
352/2022
Order reserved on
on:-13.02.2025.
Order pronounced on:
on:-
CORAM
HON'BLE SHRI RAJVEER SINGH VERMA
VERMA, MEMBER (J)
Ram Ishwar S/o Late Etwar, Resident of village and post - Milki
Anaith, P.S. Ara, Distt. Bhojpur.
.......Applicant
Versus
Patna
Bench 1. The Union of India through the General Manager, The East
Central Railway Zonal Office Hajipur, District
District-Vaishali (Bihar)
Hojipur
Hojipur-84410)
2. The General Manager (Personal), East Central Railway Hajipur,
District
District-Vaishali (Bihar) - Hojipur. 844101
3. The Divisional Manager, East Central Railway, Danapur, P.O.
Danabur Khagaul, District-Patna-801503
District 801503
4. The Senior Assistant,
Assistant, Divisional Engineer (Line), East Central
Railway Dananpur. -801503
5. The Senior Sectional Engineer, (Rail Path) East Central Railway
Dananpur 801503
........Respondents
For Applicant:-
Applicant: Shri S.K. Bariar
Bariar, Advocate,
Smt. Mira Kumari
umari
For Respondents:-
Respondents: Shri H.P. Singh, Sr. CGSC
CGSC,
Shri G.S. Prasad, ASC
2 O.A. No. 050/00352
352/2022
ORDER
PER:-RAJVEER RAJVEER SINGH VERMA VERMA, MEMBER [J]
1. The present OA has been filed by the applicant seeking following reliefs:
relief " I. For a direction to the respondent authorities to pay gratuity to the applicant as early as possible after completing necessary legal formalities.
II. For a direction to the respondent authorities with the observation that conviction of the applicant at the fag of the service merely two months before his due date of retireme retirementnt and that too in a case not connected with his service, shall not be a hindrance in payment of retrial dues."
dues.
2. Brief facts of the case are that applicant was initially Patna Bench appointed as Gang man on 16/01/1978 at Bhojpur, Ara, and subsequently he got promotion at the post of Key man in the year 2006 at Ara and authority concerned issued free pass to the applicant on 14/10/2006. The applicant retired from the post of Key man on 31/10/2013.
3. The applicant moved before the Hon'ble Tribunal vide O.A. No. 424/2014 for pension and other retrial dues, which was allowed on 11/09/2015 (Annexure-1). In pursuance to this order dt. 11.09.2015, the respondents paid the leave encashment, GPF, Group Insurance and also pension but they hey have not yet paid gratuity.
4. Thereafter applicant also filed C.C.P.A. No.86/2016 when the he respondent did not comply the order dated 11/09/2015 and during uring the pendency of the C.C.P.A. 86/2016, 86/2016 P.P.O. No. 201673005 20167300500354 00354 was issued on 26/08/2016 but due due to misunderstanding and illness illness, applicant left the pairavi of the above said C.C.P.A. which was dropped on 21/09/2017(Annexure 21/09/2017(Annexure-2).
3 O.A. No. 050/00352352/2022
5. The applicant met several times to the respondents and prayed for payment of his gratuity but all in vain. Hence this OA.
6. Respondents have filed written statement and on the basis of averments made in written statement opposed the contentions of applicant with a request to dismiss the OA.
7. That in reply to the statement made in Para 4.3 of the O.A respondents have stated that the court of law has convicted him rigorous imprisonment risonment for 7 years and fine of Rs. 5,000/ 5,000/-. The applicant is on bail Patna in pursuance to the order dt. 13.11.2013 passed by the Hon'ble High Bench Court, Patna.
Patna. The appeal before the High Court is still pending hence the applicant cannot claim that FIR lodged against him was false and concocted and judicial proceedings are yet to be concluded concluded.
8. That in reply too the statement made in Para 4.8 & 4.9 of the O.A respondents have stated that in compliance of the order dated 11.09.2015 the applicant was paid settlemen settlementt dues along with provisional pension except gratuity amount.
9. That in reply to the statement made in Para 4.
4.10 of the O.A respondents have stated after substantial compliance the said contempt was dropped.
10. That in reply too the statement made in Para 4.11 to 4.13 of the O.A respondents have stated that the gratuity amount was not released in terms of Para 10 (c) of Indian Railway Pension Rules, 1993 which states that the gratuity amount will not be paid till the finalisation of pending Judicial proceeding. It is further worth mentioning that the 4 O.A. No. 050/00352 352/2022 applicant is not disclosing the result of the criminal appeal pending before the Hon'ble High Court. After order of the Hon'ble High Court necessary action will be taken as per rules.
11. That in view of the above, no grievance of the applicant remains hence this OA may be dismissed.
12. Rejoinder has been filed by the applicant wherein he reiterated the facts mentioned in OA.
13. Arguments of ld. counsel for applicants are summarized as Patna under:-
Bench i. Applicant was retired from service service on 31.10.2013 and he was convicted by the Trial Court under section 323/376/511/34 of the Indian Penal Code and sentence of rigorous imprisonment for seve seven n years including fine of Rs. 5,000/ 5,000/- was inflicted upon him.
Applicant has filed a criminal appeal (SJ No. 687/2013 before the Hon'ble High Court of Patna and the Hon'ble High Court vide order dated 13.11.2013 granted bail to the applicant. ii. Due to pendency of the said criminal appeal before the Hon'ble High Court and in view of Rule 10 (c) of the Railw Railway ay Servant (Pension) Rules, 1993, the respondents have not realized the payment of gratuity though the other retiral benefits that is the leave encashment, GPF, Group Insurance and also pension was realized by the respondents in pursuance of order dated 11 11.09.2015 .09.2015 passed by this Tribunal in OA No. 424/2014.5 O.A. No. 050/00352
352/2022
iii. Ld. counsel has relied upon the judgment dt. 14.08.2013 of Hon'ble Supreme Court based in Special Leave to Appeal (Civil) No. S1427/2009 in the case of State of Jharkhand and Ors. Vs. Jitendra Kumar Shrivastava Shrivastava and Ors. wherein the Hon'ble Supreme Court held that the pension or gratuity even if part thereof cannot be withheld on the basis of executive instructions. iv. Ld. counsel further relied upon the judgment dated 14.08.2013 passed by the Hon'ble High Court Court of Jharkhand in WP (S) No. Patna 2979 of 2013 with IA No. 4074 of 2013 in the case of Union of Bench India Vs. Ramnath Singh wherein the Hon'ble Court held that there is no departmental proceeding initiated against the respondent, neither the criminal proceedings have been initiated by the Union of India against the respondent, this provision cannot be invoked. Thus, in absence of any civil or criminal proceedings initiated by the Union of India against the respondent, the gratuity, commutation of pension and leave leave encashment cannot be withheld by the Union of India merely because a private individual has filed a criminal case more so when this respondent has already retired on 31 July, 2010. Moreover, nothing is found recoverable by the Union of India from the respondent respondent nor there is any pecuniary loss to the Union of India by the act or omission of the respondent.
14. Ld. counsel for respondents has stated that Rule 10 (c) of the Railway Servant (Pension) Rules, 1993 stipulates that no gratuity shall be paid to the Railway Railway Servant until the conclusion of the departmental or 6 O.A. No. 050/00352 352/2022 judicial proceedings and issue of final orders thereon; provided that wherein Disciplinary Proceedings have been instituted under the provisions of Railway Servants disciplinary and appeal Rules, 1968, 68, for imposing any of the penalties specified in clauses i, ii, iii (a) and iv of Rule 6 of the said rules, the said rules of payment of gratuity shall be authorized to be paid to the Railway servant.
15. Ld. counsel for respondents has further relied upon the judgment dt. 15.03.2022 passed by the Hon'ble Supreme Court in the Patna matter of Secretary, Local Self Government, Department and Ors. etc. Vs. Bench K. Chandran etc. wherein it is held that Rule 10 of Railway Servant (Pension) Rules, 1993 is is very clear that no gratuity shall be paid to a Railway Servant until conclusion of departmental or judicial proceedings. The Hon'ble Court further held that the criminal proceedings are pending against the applicant even the Hon'ble High Court has suspen suspended ded the sentence.
16. Ld. counsel has further relied upon order of the Hon'ble CAT, Jodhpur Bench in case of Mr. Mohan lal Balotia Vs. Union of India & Ors. in OA No. 223/2017 dt. 01.03.2019. Para 11 of the order is as under:-
11. Thus, it is clear that where judicial or departmental proceedings are pending on the date of retirement, provisional pension may be sanctioned and DCRG shall be paid after the final outcome of the judicial/departmental proceedings. In view of above, we are of the considered opinion tthathat the provisional pension has rightly been sanctioned to the applicant which does not require any interference from this Tribunal. Further, the action of the respondents withholding gratuity till the final outcome of the judicial proceedings cannot be faulted, faulted, as the same is as per rules.7 O.A. No. 050/00352
352/2022
17. We have heard the ld counsels for the parties and also perused the relevant documents/ pleading placed before us including the judgment by Hon'ble High Court and Hon'ble Supreme Court relied upon by the ld. counsels.
OUR ANALYSIS
18. Perusal of order dt. 13.11.2013 passed by the Hon'ble High Court of Patna in Criminal Appeal No. 687 of 2013, it is understood that the applicant was convicted by the Trial Court in Sessions Trial No. 743 Patna of 2007 under section 323/376/511/34 of the Indian Penal Code and the Bench criminal appeal against such conviction is still pending for its final adjudication before the Hon'ble High Court.
19. Rule 10 (1) (c) of the Railway Pension Rules reads as under:
under:-
"10. Provisional Pension where departmental or judicial proceedings may be pending.
"(1) (a) ***
(b) ***
(c) 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 provided that where departmental proceedings have been instituted under the provisions of the Railway Servants Discipline and Appeal 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 authorised to be paid to the railway servant.
servant."
20. It is an admitted fact that there is no impediment enriching the benefits as nothing recoverable from the applicant towards any pecuniary loss to the Government.
21. The criminal proceedings though initiated by the State Government of Bihar but the FIR was lodged by a private individual and nothing is found recoverable by the Union of India/ Ministry of Railways 8 O.A. No. 050/00352 352/2022 from the applicant nor there is any pecuniary loss to th thee respondents by the act or omission of the applicant.
22. The judgments cited by the counsel for respondents is not relevant in the facts and circumstances of the present case as there were allegations against Shri K. Chandran, the respondent in that case th that at a criminal case under Section read with 7, 13 (1) (d) read with Section 13 (2)) of the Prevention of Corruption Act, 1988 was allegedly committed by Shri Chandran. Such alleged act under the Prevention of Corruption Act, Patna 1988 can only be committed by the employee only during the course of Bench the employment with an intention to cause damage or loss caused to the Government or to favour the complainant but in the instant case, the allegations were leveled by the private individual for the offences punishable under u the Indian Penal Code and such allegations have nothing to do with the course of employment of the applicant in the present case case.
23. The judgment of Hon'ble Supreme Court passed in the matter of State of Jharkhand and Ors. Vs. Jitendra Kumar Shrivastava and anr. (supra), (supra) relied upon by the ld. counsel counsel, is not directly applicable in the instant case for applicant as the facts and issues involved in the present case are altogether different with the facts and issues involved and decided by the Hon'ble Supreme Supre Court due ue to the reason that in that case there was no statutory rule for withholding the pensionary benefits including release of gratuity and the authorities have passed the order to withhold the pension and gratuity only on the basis of executive instructions.
tructions. The Hon'ble Supreme Court in that case had held that a 9 O.A. No. 050/00352 352/2022 person cannot be deprived of pension without the authority of law which is a constitutional mandate enshrined in Article 300 A of the Constitution of India.. The Hon'ble Supreme Court further held that pension or gratuity or even leave encashment cannot be withheld without any statutory provision of the law and further the executive instructions are not having statutory character.
24. The case of the applicant is squarely covered by the judgment dgment dt. 14.08.2013 passed by the Hon'ble High Court of Jharkhand Patna in the case of Union of India through the Regional Director, Eastern Bench Region, Atomic Minerals, Directorate for exploration and research Jamshedpur Vs. Ramnath Singh wherein the Hon'ble Cour Courtt held that in absence of any civil or criminal proceedings initiated by the Union of India against the employee, the gratuity, commutation of pension and leave encashment cannot be withheld by the Union of India merely because a private individual has filed filed a criminal case as nothing is found recoverable by the Union of India from the retired employee there is no departmental proceeding initiated against the respondent, neither the criminal proceedings have been initiated by the Union of India against the respondent, this provision cannot be invoked. Thus, in absence of any civil or criminal proceedings initiated by the Union of India against the respondent, the gratuity, commutation of pension and leave encashment cannot be withheld by the Union of India m merely erely because a private individual has filed a criminal case more so when this respondent has already retired on 31 July, 2010. Moreover, nothing is found recoverable 10 O.A. No. 050/00352 352/2022 by the Union of India from the respondent nor there is any pecuniary loss to the Union of India by the act or omission of the respondent.
25. It is not a case of the respondents that the applicant has caused any pecuniary loss to the railways by his any act or omission. The issue remains for determination is as to whether the pendency of criminal appeal before the Hon'ble High Court, Patna is amounting to pending of judicial proceedings.
26. The interpretation of the expression "conclusion of judicial Patna proceeding has been dealt with in a plethora of judgements and opposing proceeding"
Bench views are available. A large number of such decisions of Hon'ble Supreme Court as well as Hon'ble High Courts have been examined in O.A. 213/2019 of Mumbai Bench by a full bench of the Central Administrative Tribunal consisting of Hon'ble Justice A.K. Srivastava, Hon'ble Justice Govind Govind Selwikar and Hon'ble Mr. Eapen who have gone through all such judgments and held the view pronounced on 2nd November, 2023 that conclusion of Judicial proceeding should end with the judgement of trial court/court of first instance.
Hence, it should be concluded that the expression "After conclusion of departmental or judicial proceedings" occurring under Rule 69 (1) (b) of the CCS (Pension) Rules, 1972 Or Rule 8(1) of CCS (Pension) Rules, 2021 means the termination of proceedings by the court in which the the proceedings / trial is pending. This expression does not include the judicial proceedings pending before the appellate court. 11 O.A. No. 050/00352 352/2022
27. Relevant part of Section 4 of the Payment of Gratuity Act, 1972 is as under:-
under:
4. Payment of gratuity.
Rule (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, -
(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease:
Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement:
Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination Patna has been made, to his heirs, and where any such nominees or heirs Bench is a minor, the share of such minor, shall be deposited with the controlling authority authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority.] Explanation. : For the purposes of this section, disablement means such disablement as incapacitates incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement.
(2) *** (3) *** (4) *** (5) *** (6) Notwithstanding anything contained in subsub-section (1), - (a) the gratuity of an employee, employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused.
(b) the gratuity payable payable to an employee may be wholly or partially forfeited] -
(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or
(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.
28. Subsection (6) of Section 4 of the payment of Gratuity A Act, ct, 1972 has an overriding effect over the Sub Sub-section (1) of Section 4 of the 12 O.A. No. 050/00352 352/2022 Act. In the instant case, the applicant was superannuated and his service was not terminated by the respondents on ground of offence committed by him in the course of his employment.
employ
29. In the instant case, the applicant has not committed any offence in the course of his employment and there is no allegation upon the applicant that he has committed any act or omission or willful omission or negligence, any damage or loss to, or dest destruction ruction of, property belonging to the employer.
employer There is no allegation to inflict damage or loss Patna was caused upon him to the Government Exchequer Exchequer.
Bench
30. It is the settled position of law that the subordinate legislation cannot supplant the statutory provisions of an act of the Parliament, therefore, the provisions enshrined under Section 4 of the Gratuity Act, 1972 have the overriding effect over Rule 10 (c) of the Railway Servant (Pension) Rules, 1993.
31. From the above, we arrived on a conclusion that balance of convenience nvenience lies in favour of the applicant. As a result thereof, OA is allowed and respondents are directed to release the due amount of gratuity in favour of the applicant within two months of the receipt of copy of this order.
32. No order as to costs.
(Rajveer Singh Verma) Member (J) du/-