Central Administrative Tribunal - Jodhpur
Mohan Lal Balotia vs M/O Railway on 1 March, 2019
1
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH
...
Original Application No. 290/00223/2017
With Misc. Application No.290/00179/2017
Reserved on : 21.02.2019
Prounced on : 01.03.2019
CORAM:
HON'BLE MRS. HINA P.SHAH, MEMBER (J)
HON'BLE MS. ARCHANA NIGAM, MEMBER (A)
Mohan Lal Balotia son of late Shri Gheesa Lal aged 65 years
resident of near Shiv Temple, Ship House, Bharata Colony,
Naya Talab, Jodhpur
...Applicant
(By Advocate: Shri Rishab Tayal)
Versus
1. Union of India through General Manager, North West
Railway, Rajasthan, Jaipur
2. General Manager (Personnel), North West Railway, Jaipur
3. Divisional Manager, North West Railway, Jodhpur
...Respondents
(By Advocate: Shri Vinay Jain)
ORDER
Per Mrs. Hina P.Shah, M(J) Considered the Misc. Application No.179/2017 for condonation of delay. In the interest of justice, the same is allowed and delay in filing the OA is condoned. 2
2. The present OA has been filed by the applicant u/s 19 of the Administrative Tribunals Act, 1985 praying for the following reliefs:-
"It is most respectfully prayed and submitted that this Original application may be allowed, and the non- applicants may be directed to pay gratuity to the applicant with interest @ 24% from the date of retirement till actual date of realization."
3. Facts of the case, as stated by the applicant, are that the applicant was appointed on 2.9.1970 against sports quota. He has got several awards and appreciation certificates. While working as Fitter-I, he retired on superannuation on 31.10.2009. His family consists of three daughters and three sons. It is his plea that due retiral benefits have not been paid to him. The applicant states that he was subjected to a criminal case under Section 498A, 304B IPC and have faced ordeal of criminal trial and vide judgment dated 30.1.2003 of the Additional Sessions Judge, Fast Track, Jodhpur he was convicted and sentenced for the said offence. He moved the Hon'ble High Court against the said judgment by filing S.B. Cr. Appeal No.194/2003. The Hon'ble High Court vide its order dated 12.3.2003 has suspended the sentence awarded by the Trial Court vide its judgment dated 30.1.2003. On account of criminal case, the applicant was placed under suspension 3 on 26.1.2003 which was revoked and the applicant was reinstated back in service. After retirement, since he was not paid his retiral benefits, he made representations and also sent legal notice dated 18.9.2013. The said notice was replied by the respondents vide letter dated 26.12.2013 giving reasons for withholding the said amount and stating that disciplinary proceedings as well as criminal case are pending against the applicant, therefore, he was only entitled for the provisional pension, which was being given to him (Ann.A/3). It is the submission of the applicant that since the Hon'ble High Court has stayed the conviction and sentence awarded by the Trial Court, therefore, the departmental enquiry was kept in abeyance (Ann.A/4). It is further the case of the applicant that gratuity can be withheld when enquiry is pending, whereas in the applicant's case, enquiry for misconduct is kept in abeyance. Also the sentence awarded by the Trial Court convicting the applicant has been suspended and sentence has been stayed, therefore, at present, it cannot be said that enquiry is pending against the applicant. The proceeding of the Trial Court also concluded in the year 2003 and therefore, no such proceedings are pending against the applicant. Since the applicant has been retired, 4 no right is left with the respondents to withheld the same. Time and again, the applicant has represented to the respondents to release the amount of gratuity, but it has gone to their deaf ears. Therefore, the applicant has approached this Tribunal seeking direction to the respondents to pay gratuity along with interest at the rate of 24% per annum from the date of retirement till the actual date of reimbursement.
4. The respondents have filed reply dated 19.7.2018 stating that the applicant was convicted by the competent court for offence u/s 498A, 304B IPC with 13 years imprisonment and a fine of Rs. 2000 vide judgment dated 30.1.2003. Against the said judgment, the applicant preferred appeal before the Hon'ble High Court, but the said appeal has not been decided by the Hon'ble High Court till date and in the meantime the applicant stood retired. The appeal before the Hon'ble High Court is still pending. Therefore, the department has rightly withheld the amount of gratuity as per Rule 10 of the Railway Services (Pension) Rules, 1993, which provides as under:-
"10. Provisional Pension where departmental or judicial proceedings may be pending.
(1)(a) In respect of a railway servant referred to in sub-rule (3) of Rule 9, the Accounts Officer shall 5 authorise the provisional pension not exceeding the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement of the railway servant or if he was under suspension on the date of retirement, upto the date immediately preceding the date on which he was placed under suspension.
(b) The provisional pension shall be authorised by the Accounts Officer during the period commencing from the date of retirement upto and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.
(c) No gratuity shall be paid to railway 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 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. (2) Payment of provisional pension made under sub-
rule (1) shall be adjusted against final retirement benefits sanctioned to such railway servant upon conclusion of such proceedings, but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period."
The respondents, therefore, state that it is just and proper on the part of the respondents to withhold the amount of gratuity. They further state that the applicant was granted provisional pension and other settlement dues, except gratuity. It is further stated that the applicant had filed a complaint before the District Consumer Forum, Jodhpur for releasing the gratuity, but the said complaint 6 was dismissed by the Consumer Forum vide its judgment dated 21.02.2013 (Ann.R/1). The applicant has concealed this fact of approaching the District Consumer Forum and for the same relief approached this Tribunal. Therefore, the present OA deserves to be dismissed on this ground itself. The applicant was convicted by the Trial Court vide judgment dated 31.01.2003, and he was sentenced to 13 years of imprisonment with a fine of Rs. 2000 and against the said judgment the applicant approached the Hon'ble High Court. The Hon'ble High Court though suspended the sentence, but mere suspension of his sentence does not take away the conviction of the applicant unless he is fully acquitted by the Court. It is clear that proceedings are pending before the Hon'ble High Court. Further, the applicant was issued a chargesheet dated 26.3.2003 by the department for his criminal misconduct on his conviction by the Sessions Court, Jodhpur and on issuing chargesheet for major penalty, the applicant has submitted representation dated 01.04.2003 and has requested to defer the departmental proceedings/action till the outcome of appeal pending before the Hon'ble High Court (Ann.R/2). The applicant has been asked to submit final decision/outcome of his criminal case, but till date the applicant has not been 7 able to produce the final verdict. Since the criminal proceedings are pending against the applicant, therefore, the respondents have not paid gratuity amount to the applicant under Rule 10 of the Railway Services (Pension) Rules, 1993. Therefore, there is not merit in this case and the same deserves to be dismissed.
5. Heard Shri Rishab Tayal, counsel for the applicant and Shri Vinay Jain, counsel for the respondents and perused the material available on record.
6. Besides reiterating the facts stated earlier, the learned counsel for the applicant states that the applicant was suspended on 9.1.2003 and the Trial Court had convicted him vide its order dated 30.1.2003. The Hon'ble High Court was pleased to suspend his sentence vide order dated 12.3.2003 and accordingly, the applicant was reinstated on 9.4.2003. Thereafter the applicant superannuated on 31.10.2009. It is the submission of the applicant that action of the respondents in not releasing gratuity is arbitrary, discriminatory and in violation of Article 14 and 16 of the Constitution of India. He won many medals/prizes representing the railways in sports and his services were applauded during the entire service tenure, but he has 8 unfortunately been made to run from pillar to post for getting retiral benefits. Withholding gratuity is pecuniary loss to him whereas the department will not face any loss if the said amount is paid to him. Further, gratuity is not property of the employer and that instead of provisional pension, he is entitled to regular pension. At present no enquiry is pending against him as the Hon'ble High Court has suspended his sentence in the year 2003 itself. Therefore, the respondents should release the gratuity to the applicant with interest.
In support of his contention, the applicant relies on the judgment of the Hon'ble Supreme Court in the case of State of Jharkhand and Ors. vs. Jitendra Kumar Srivastava and Anr. reported in (2013) 12 SCC 210 wherein it was clearly observed that appellant cannot withheld even a part of pension or gratuity and appeal filed by the State was dismissed with costs. He, therefore, states that since his case is covered by the said case, he is entitled for gratuity with interest.
7. On the other hand, the respondents besides reiterating the submissions made earlier stated that the sentence of conviction is stayed and conviction is suspended but the proceedings are pending before the Hon'ble High Court and, 9 therefore, the respondents are justified in withholding gratuity, which is as per Rule 10 of the Railway Services (Pension) Rules, 1993. Since the criminal proceedings are pending before the Hon'ble High Court and departmental proceedings as per the as per the application of the applicant, therefore, the applicant is paid provisional pension. Unless and until the proceedings pending against the applicant are over and final verdict is issued, the applicant will not be entitled to gratuity as per rules. The respondents contend that the judgment relied upon by the applicant cannot be applied in the present case, since in the said case the Hon'ble Supreme Court had clearly held that in the absence of specific rules, pension being property cannot be withheld but in the present case, the Railway Services (Pension) Rules, 1993 are very clear on the subject and, therefore, the said case cannot be applied to the present case. Therefore, non-payment of gratuity is justified as per law and rules on the subject.
8. Considered rival contentions of the parties.
9. Admittedly, the applicant was convicted u/s 498A and 304B IPC. The Trial Court had sentenced him for 13 years imprisonment and a fine of Rs. 2000 is imposed vide its 10 judgment dated 30.1.2003. Against the said judgment, the applicant filed appeal before the Hon'ble High Court which is still pending. The Hon'ble High Court has only suspended the sentence but the appeal is not finally decided. It is also clear that applicant has submitted letter to respondents to withhold the departmental proceedings till the outcome of appeal before the Hon'ble High Court. The applicant is being paid provisional pension and except gratuity he has been paid all settlement dues. Rule 10 of Railway Services (Pension) Rules, 1993 is very clear that no gratuity shall be paid to a railway servant until conclusion of departmental or judicial proceedings and issue of final order thereon, provided that where departmental proceedings have been instituted under the provisions of Railway Servants Disciplinary and Appeal Rules, 1968, for imposing any of the penalties specified in clause (i),(ii),(iii) (a) and (iv) of the said rules, the payment of gratuity shall be authorised to be paid to the railway servant.
10. In the present case, it is clear that major penalty chargesheet has been issued to the applicant on 26.3.2003 for his criminal misconduct. After his sentence being suspended by the Hon'ble High Court, the applicant was reinstated on 9.4.2003. The applicant has requested vide 11 his application dated 1.4.2003 to the respondents to defer the department proceedings till the outcome of the pending appeal before the Hon'ble High Court (Ann.R/2). From this, it is clear that the departmental proceedings as well as criminal proceeding are pending against the applicant. Final verdict of pending proceedings before the Hon'ble High Court is still awaited. Therefore, the respondents are justified in withholding the gratuity of the applicant since Rule 10 of the Railway Services (Pension) Rules, 1993 prohibits to release gratuity in such cases until the conclusion of the departmental or judicial proceedings and issue of final orders thereon. A similar matter has also been considered by the CAT-Chandigarh Bench in OA No.450/2014 decided on 27.4.2015 in the case of Surjan Dass vs. Union of India, wherein it was held that the impugned order in so far as it relates to withholding of gratuity is legally sustainable and does not suffer from the infirmity of being in violation of the relevant rules and accordingly did not incline to direct the respondents to release the amount of gratuity as this withholding does not amount to any illegality or violation of rules.
11. Thus, it is clear that where judicial or departmental proceedings are pending on the date of retirement, 12 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 that 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, as the same is as per rules.
12. Therefore, the OA is misconceived and lacks merit. Accordingly, it is dismissed with no order as to costs.
(ARCHANA NIGAM) (HINA P.SHAH) ADMV. MEMBER JUDL. MEMBER R/