Madras High Court
M.Ganesan vs The Accountant General on 25 March, 2011
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/03/2011 CORAM THE HONOURABLE Mr.JUSTICE M.VENUGOPAL W.P.(MD)No.5537 of 2007 and M.P.(MD).No.1 of 2007 M.Ganesan .. Petitioner V. 1.The Accountant General (Accounts and Entitlements) Tamil Nadu, No.361, Anna Salai, Chennai - 600 018. 2.The Secretary to Government of Tamil Nadu Department of Commercial Taxes, Secretariate Buildings, Chennai. 3.The Commissioner of Commercial Taxes, Ezhilagam, Chepauk, Chennai. 4.The District Treasury Officer, Madurai Collector's Building, Madurai. .. Respondents Prayer Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for the records in respect of the order No.A.G.(A&E)/PEN/P14/1/G33-651/RTD/2006-2007/5275 dated 03.08.2006 &20.11.2006 issued by the 1st Respondent and quash the same and direct him to issue a fresh order of the payment of difference amount of Rs.54,788 towards commutation of pension and consequently to issue direction to the 2nd respondent for interest on belated payment of retiral pensionary benefits. !For Petitioner ... Mr.M.Ganesan (Party in person) ^For 1st Respondent ... Mr.P.Gunasekaran, ACGSC For Respondents 2 to 4 ... Mr.N.Elango, Govt. Advocate :ORDER
The Petitioner has filed the present Writ Petition seeking the relief of Writ of Certiorarified Mandamus in calling for the records in respect of the order No.A.G.(A&E)/PEN/P14/1/G33-651/RTD/2006-2007/5275 dated 03.08.2006 & 20.11.2006 issued by the 1st Respondent and to quash the same. The Petitioner has also sought the relief of issuance of directions by this Court in directing the 1st Respondent to issue a fresh order of the payment of difference amount of Rs.54,788/- towards commutation of pension and also to issue a direction to the 2nd respondent for payment of interest on belated payment of pensionary benefits.
2.The Petitioner retired as Deputy Commercial Tax Officer. He is also a Member in the Bar Council of Tamil Nadu. According to the Petitioner, he has filed the present Writ Petition challenging the orders of the 1st Respondent/Accountant General (A&E), Tamil Nadu, Chennai-18 in No.A.G.(A&E)/PEN/A14/1/G33-651/RTD/2006-2007 dated 03.08.2006 and has wrongly arrived at a conclusion in commutation of pension, pension and future pension benefits and also not paid the interest for the belated payments of commutation of pension and Death cum Retirement Gratuity.
3.The Petitioner has been issued with a charge memo before his Retirement on 30.06.2002 by the Deputy Commissioner of Commercial Taxes, Tirunelveli as per Rule 17(b) of the Tamil Nadu Civil Servies (Disciplinary and Appeal) Rules containing three charges as per proceedings ROC.No.A5/18689/2001 dated 28.06.2002 based on the Audit Report.
4.Based on the three charges viz.,
(i) That the Petitioner has discharged his duties as an assessing officer as Deputy Commercial Tax Officer I, Sivakasi during his tenure, with due care;
(ii)He has committed the lapses of failure to levy and collect penal Interest as per Section 24(3) of the Tamil Nadu General Sales Tax Act, 1959 from the four dealers under Central Sales Tax Act and Tax Due from one dealer and thereby caused a loss of Revenue of Rs.83,548/-; and
(iii)He has not performed his duties with utmost devotion and sincerity and thereby violated Rule 20(1) of Tamil Nadu Government Servants Conduct Rules, 1973;
the Petitioner has been placed under suspension by the 3rd Respondent/Commissioner of Commercial Taxes, Chennai as per proceeding No.E2/44615/2002-I dated 29.06.2002 with effect from 29.06.2002 (one day before Retirement on 30.06.2002). Further, it is mentioned in the said proceedings that he shall be retained in service until the pending charges against him are concluded and final orders passed thereon by the competent authority.
5.However, the Petitioner was permitted to retire as Deputy Commercial Tax Officer on superannuation on 30.06.2002 afternoon, [as per proceedings of the Commissioner of Commercial Taxes, in No. E2/44615/2002-I dated 04.09.2003] after conclusion of departmental enquiry, without prejudice to the disciplinary action pending against him.
6.The Government, as per G.O.(2D).No.185 dated 07.10.2005, has finally held that Charge Nos. 1 and 2 have been partly proved and it has not pressed the Charge No.3 and for the proved charges, it has directed to cut a sum of Rs.100/- per month for a period of 3 months from the pension of the Petitioner.
7.The Petitioner contends that prior to the issuance of charge memo to him, he has submitted his application, calculation sheet with form No.5, 6 and 7 and no objection certificate for sanction of his regular pension and pensionary benefits on 19.04.2002 as per Tamil Nadu Pension Rules. In fact, in Form No.7 Column 27 sub clause b and c, he has specifically mentioned the portion of pension commuted at 40% (i.e. Rs.1660/-) worked out to the value of commuted pension of Rs.2,08,364/- (Rs.1660 x 12 x 10.46).
8.The Petitioner submits that the commutation payment order of Rs.2,08,364/- and gratuity payment order of Rs.1,83,534/- issued on 05.07.2002 by the 1st Respondent/Accountant General, Chennai have been freezed by the Assistant Commissioner of Commercial Taxes, Virudhunagar as per proceedings ROC A7/82/02 dated 02.09.2002.
9.The Petitioner has addressed letters to the Commercial Tax Officer I, Virudhunagar (Drawing Officer) and the Treasurey Officer, Madurai (Disbursing Officer) and the Accountant General (Accounts & Entitlements), Chennai on 01.12.2005, 02.12.2005 and 12.12.2005 respectively requesting them to take necessary steps in this regard. Also, his letters of request dated 20.02.2006 and 23.03.2006 etc. have all proved futile. Lastly, he has addressed a letter to the 1st Respondent/Accountant General (by name) dated 14.06.2006 narrating all the facts and he received a confidential letter on 10.07.2006 stating that his matter will be settled in 30 days.
10.The Petitioner received a fresh order for Payment of Pension, Commutation of Pension and Death cum Retirement Gratuity from the 1st Respondent as per proceedings in A.G.(A&E) Pen/P14/1/G33-651/RTD/2006-2007/5275, 76, 77 dated 03.08.2006. He received his pension, Commutation of Pension, Death cum Retirement Gratuity on 03.10.2006 from the Treasury Officer, Madurai. On working out the commutation and by comparing with the earlier copy of the order issued dated 03.07.2002 etc., he found that the wrong calculation has been made in connection with the commutation of pension and date of Retirement taken also varied. He submitted an application on 04.10.2006 to the 1st Respondent requesting for issuance of pay order for balance value of commutation of Rs.54,788/- with interest thereto.
11.The 1st Respondent, in Reference No. Pension 14/I.Urg - 340/06-07 dated 21.11.2006, has replied to him stating that 'The Commuted Value of Pension calculated and authorised for Rs.1,53,576/- in this office letter No.Pension 14/I/G33 - 651/Retd/06-07/5275-77, dated 03.08.2006 is in order' and further stated as follows:
"As per TNPR 1944, the commutation shall be calculated, in the case of disciplinary proceedings pending against Government Servant and final orders received with punishment, then the age next birthday shall be taken based on Government Order date only and not the Retirement date. So, in the above case, as there is a punishment of cut in pension of Rs.100/p.m as per Government Order 185 CT (EJ), department dated 07.10.2005, the age next birthday works out to 62 years and Hence, the difference in Commuted Value of Pension. The calculations made by this office is correct."
12.The stand of the Petitioner is that the 1st Respondent, in his communication dated 21.11.2006, has not referred to the interest claim made by the Petitioner in his petition for the belated payment of pensionary benefits. Also, it is the contention of the Petitioner that he has a statutory right to receive interest on belated payment of gratuity and the same can be granted even in the absence of specific claim [the date of Retirement being 30.06.2002] and since the 1st Respondent has issued orders belatedly for payment of pensionary benefits, particularly the gratuity amount which has been paid on 29.08.2006 without interest the Petitioner is entitled to claim interest for belated payment of pensionary benefit as per rules. Added further, the Petitioner projects an argument that the 1st Respondent having transgressed is legal rights, a direction may be issued by this Court for 9% interest on the belated payment of gratuity and other benefits as per Tamil Nadu Pension Rules.
13.In response, the Learned Counsel for the 1st Respondent submits that the 1st Respondent as Field Officer of the Comptroller and Auditor General of India is vested with the authority of authorising payment of pensionary benefits in respect of the retired/deceased employees of the Government of Tamil Nadu, in accordance with the provisions of the Tamil Nadu Pension Rules and also based on the proposals received from the Officer of the concerned Department.
14.According to the Learned Counsel for the 1st Respondent/ Accountant General, Chennai, the Petitioner's proposals for authorisation of pensionary benefits have been received from the Commercial Tax Officer-3, Virudhunagar in April 2002 and in the proposals of the Department, there is no mention of disciplinary proceedings that have been pending against the Petitioner and the 1st Respondent originally authorised pensionary benefits to him through PPO No.C 81538/CT in July 2002 and subsequently, the 1st Respondent has come to know that disciplinary have been pending against the Petitioner and thereafter, a punishment of a cut in pension of Rs.100/- per month for three months has been imposed on him as per G.O.(2D) 185 CT (EJ) Department dated 07.10.2005. Also, because of the pending disciplinary proceedings against the Petitioner and also the validity of the original authorisation have been cancelled, the fresh authorisations have been issued through PPO No.C 314095/CT in August 2006 and that Commutation of Value of Pension was originally authorised for Rs.2,08,364/- but has been revised to Rs.1,53,576/-.
15.The Learned Counsel for the 1st Respondent/Accountant General (A&E), Chennai contends that Rule 9(4) of Tamil Nadu Pension Rules enjoins only provisional pension is payable to a Government Servant against whom disciplinary proceedings are continuing, even after the date of his retirement and therefore, the regular pensionary benefits cannot be authorised to the Petitioner during the pendency of disciplinary proceedings.
16.That apart, the 1st Respondent has been intimated by the 3rd Respondent as per proceedings dated 04.09.2003 that the Petitioner has been placed under suspension earlier which has been revoked and he has been permitted to retire on 30.06.2002 without prejudice to the disciplinary proceedings pending against him and in the meanwhile, the original Death cum Retirement Gratuity authorisation has not been acted upon and the same has also lost its validity has been returned to the 1st Respondent and cancelled.
17.Furthermore, the Commercial Tax Officer-3, Virudhunagar, in his letter dated 08.12.2005, has informed the 1st Respondent/ Accountant General, Chennai that a punishment of a cut in pension of Rs.100/- per month for 3 months has been imposed on the Petitioner by the 2nd Respondent as per G.O.(2D) No.185 CT(E.I) Department dated 07.10.2005 and requested for issuance of fresh authorisations in lieu of the original authorisations issued earlier.
18.Hence, the 1st Respondent has addressed a communication dated 02.02.2006 to the aforesaid officer to furnish the details of provisional pension paid and the certificate to effect that no other charges are pending.
19.The Learned Counsel for the 1st Respondent submits that the Pension Payment Order and Commuted Value of Pension earlier have not been returned back with a non payment certificate by the Treasury Officer, Madurai. The same have been called for, for cancellation and issuance of fresh authorisation and on 13.03.2006 [received in April 2006] the Treasury Officer has clarified that both the halves of the Pension Payment Order and Commuted Value of Pension authorisations have not been traceable at his end and certified that no payment has been made against the same.
20.The Learned Counsel for the 1st Respondent/Accountant General, Chennai seeks in aid of the Government's Clarification No.98690/Pen/93-5 Finance (Pension) Department dated 27.06.1995 that in the case of retirement of a Government Servant after the disposal of disciplinary proceedings with punishment, commutation shall be allowed based on the original application and commuted value paid with reference to age next birthday on the date of issue of final orders in the disciplinary proceedings and only on the basis of clarifications provided by the 2nd Respondent, the 1st Respondent has arrived at the revised pension, revised Commuted Value of Pension and revised Death cum Retirement Gratuity. The tabular column thereto is as follows:
Original Benefits Authorised Date of retirement 30.6.2002 Original Pension Rs.4150/- with effect from 1.7.2002 Revised Benefits Authorised Revised pension Rs.4150/- with effect from 1.7.2002 to 6.10.2005 and @ Rs.4150 - cut in pension Rs.100 = Rs.4050/- for 3 months from 7.10.2005 to 6.1.2006 and @ Rs.4150/- with effect from 7.1.2006 onwards.
Commuted Pension Rs.1660/-
Commuted Portion (40%) Rs.1660/-
CVP 1660 x 12 x age next birth day on retirement (59) 10.46 = Rs.2,08, 364/- Revised Commuted Pension Rs.1350/-
Commutable Portion (33 x 1/3rd) % Rs.4050/3 = Rs.1350/-
Revised CVP Rs.1350 x 12 age next birth day on 7.10.2005 (date of final order) 9.48 = Rs.1,53,576/-.
Reduced pension Rs.2490/- (4150-1660) Reduced Pension Rs.2800/- (4150 - 1350) Original DCRG Rs.1,83,534/-
Revised DCRG Rs.1,83,534/- (no change)
21.It is worthwhile for this Court to refer to paragraph 9 and 10 of the counter of the 1st Respondent which run as follows:
"9.It is submitted that the revised Commuted Value of Pension of Rs.153576/- was arrived at based on the age factor of 9.48 for age next birth day of 62 years as on 07.10.2005 (i.e.) date of issue of final orders in the disciplinary proceedings. Further, due to the punishment of cut in pension of Rs.100/- p.m. imposed on the petitioner, the Commuted pension shall be calculated on the basic pension of Rs.4150/- less cut in pension of Rs.100=4050/-. Furthermore, at the time of issue of original Pension Payment Order in July 2002, the commutable portion of pension as per the Rules in force at the time of retirement on 30.06.2002 was 40% of pension. Final orders in the disciplinary proceedings against the petitioner were passed only on 7.10.2005. However, in the interim, Government issued G.O.Ms.No.74 Finance (Pension) dated 19.4.2003, wherein the maximum limit for Commutation of the portion of pension was reduced from 40% to 33 1/3rd % of pension with effect from 1.4.2003. Therefore, this Respondent perforce had to calculate revised Commuted Value of Pension as above, which accounted for the difference of Rs.54788/- (Rs.2,08,364 - 1,53,576). ...
10.It is further submitted that the petitioner is eligible to commute the remaining quantum, out of his commutable 1/3rd portion of pension (i.e.) 1/3rd of Rs.4150 = Rs.1383/- less amount allowed to be commuted Rs.1350 = Rs.33, as his punishment period is over and if he so desires, he can apply afresh, in which case the age factor would be arrived at with reference to the date of application."
22.The core submission of the Learned Counsel for the 1st Respondent is that since there is no delay as regards the authorisation of pensionary benefits including Death cum Retirement Gratuity by the 1st Respondent, the claim for payment of interest for the belated payment of DCRG is without any basis and therefore, the claim of the Petitioner in this regard is liable to be rejected.
23.The Petitioner cites the G.O.Ms.No.446, Finance (Pay Cell) Department, dated 18.09.2007 wherein at paragraph 6 it is held as follows:
"The Government has carefully examined the issue in detail and decided to implement the orders of the Hon'ble High Court to all employees who retired between 1-1-1996 and 30-6-1996. Accordingly, Government direct that the orders of the Hon'ble High Court dated 09-03-2004 in W.P.No.13333 of 2000 as upheld by the Division Bench of Madras High Court in its Order dated 11-06-2007 in W.A.No.2886 of 2004 shall be applicable to all those employees who retired between 1-1-1996 and 30-06-1996 for the fixation of their pension by adopting the methodology of determination of pension for those who retired before 1-1- 1996 with effect from the date of their retirement. The employees retired between 1-1-1996 and 30-06-1996 shall exercise option in the option form annexed to re-fix their pension whichever is advantageous to them."
24.He also refers to the G.O.No.74, Finance (Pension) Department of the Government of Tamil Nadu, dated 19.03.2003 wherein it is held hereunder:
"2.Accordingly the Government direct that the maximum limit for Commutation of portion of Pension by the pensioner shall be 33 1/3 % of Pension only.
3.These orders shall take effect from 01.04.2003.
4.Necessary amendments to Tamil Nadu Civil Pension (Commutation) Rules 1944 will be issued separately."
25.Further, he draws the attention of this Court to the G.O.Ms.467 of the Finance (Pension) Department of Government of Tamil Nadu, dated 14.07.1988 wherein in paragraph 2 to 4 it is held thus:
"2.According to rule 60 and 69 of Tamil Nadu Pension rules 1978 the death-cum- retirement gratuity of the retired officers, who were permitted to retire from service without prejudice to the pending disciplinary cases, should be settled only after the issue of final orders to the pending disciplinary cases. Therefore, the Death-cum-retirement Gratuity cannot be released to the retired officers who are permitted to retire from service without prejudice to the disciplinary cases pending against them before finalising disciplinary cases.
3.As per rule 9 of the Tamil Nadu Pension rules, previously in force, "Pension cut" can be imposed only for pecuniary loss sustained by Government by acts of the retired officers during their service period after following the prescribed procedure. This rule was amended in G.O.Ms.No.544 Finance dt.4.7.1986 with retrospective effect from 1.1.79 so as to impose the "Pension cut" for the administrative lapsed also, committed by the retired officers during their service. Under rule 9, the disciplinary proceedings that were initiated during the service period of the Government officials can be continued as deemed proceedings and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service. In cases where is pursued under pension rules for the pecuniary loss caused by the retired officers, while they were in service, there is jurisdiction in withholding their Death-cum-retirement gratuity till the issue of final order, in the pending proceedings, so that the loss can be adjusted in Death-cum- retirement gratuity for the administrative lapses only which do not involve any pecuniary loss to Government the only punishment that can be given to the pensioner in such cases is "Cut in pension", if charges are held as proved, and the withholding of Death-cum-retirement gratuity may not be fully justified.
4.After careful consideration, the Government direct the Death-cum- retirement gratuity shall be released in full to the Government servants who are permitted to retire without prejudice to the disciplinary action pending against them only for the administrative lapses, not involving any pecuniary loss to Government committed during their service period."
26.Also, the Petitioner refers to the G.O.Ms.No.510, Finance (Pension) Department of Government of Tamil Nadu dated 27.06.1995 wherein Amendment to Rule 45-A has been issued which runs hereunder:
"In the said rules, in rule 45-A, after sub rule (1) the following sub-rule shall be inserted namely:-
"(1-A), The period beyond which such interest is payable, shall be as follows:-
1)in the case of a Government Servant retired otherwise on superannuation and where the Death-cum-Retirement Gratuity is withheld on account of disciplinary proceeding pending against him.
a) three months from the date of retirement where the Government Servant is exonerated of all charges and where the Death-cum-Retirement Gratuity is paid on the conclusion of disciplinary proceedings.
b) three months from the date of death where the disciplinary proceedings are dropped on account of death of Government servant.
c) three months from the date of issue of orders by competent authority allowing payment of Death-cum-Retirement Gratuity where the Government Servant is not fully exonerated on the conclusion of disciplinary proceedings and where the competent authority desire to allow payment of Death-cum-Retirement Gratuity."
27.The Petitioner relies on the Division Bench decision of this Court in Government of Tamil Nadu, rep. By the Secretary to Government, Revenue Department, Chennai and another V. M.Deivasigamani (2009) 3 MLJ at page 1 wherein it is held that "An employee is entitled to claim interest on belated payment of pension and other retiral benefits, even in the absence of statutory rules/administrative instructions or guidelines, under Part III of the Constitution of India relying on Articles 14, 19 and 21 of the Constitution of India (1950)."
28.He seeks in aid of the decision of Hon'ble Supreme Court in Poonam Verma and Others V. Delhi Development Authority (2007) 13 Supreme Court Cases 154 at page 155, 156 wherein it is laid down as follows:
"The Scheme in question was closed as far back as in the year 1994. The Central Government in terms of the provisions of the Act or otherwise had no jurisdiction to revive the same. All the authorities under the Act including the Central Government being the creatures of statute were bound to act within the four corners thereof. A specific grievance was raised by the appellants herein that the action on the part of the authority amounted to unfair trade practice. Deficiency of service was also pleaded. The courts having appropriate jurisdiction having found neither unfair trade practice nor deficiency in service, the Central Government ordinarily ought not to have interfered in the matter.
Some officers of the respondent by themselves could not have evolved a Scheme which was beyond the purview and scope of the Act. The respondent being a State within the meaning of Article 12 of the Constitution of India is bound to fulfil the constitutional scheme contained in Article 14 thereof. It could not, going beyond the professed scheme as contained in the Brochure, create a quota. Such a purported decision being wholly without jurisdiction, is a nullity. The Central Government itself directed the authority to confine the "out of turn allotment"
quota by reason of a direction issued in June, 2000 only for widows of: (a) Government servants who dies in harness. (b) Those who were killed by terrorists. The Central Government could act beyond its professed policy decision. The Central Government acted illegally and without jurisdiction in purporting to take a decision that the hard cases may be brought within the purview of the "Out of turn allotment" quota. Having professed to abide by the Brochure which contained the policy of reservation the Central Government could not have in absence of any statutory provision directed creation of any quota and that too after closure of the Scheme."
29.He cites yet another decision of Hon'ble Supreme Court in S.K.Dua V. State of Haryana and Another (2008) 3 SCC 44 at page 47, 48 wherein it is, among other things, held thus:
"13.Having heard the learned counsel for the parties, in our opinion, the appeal deserves to be partly allowed. It is not in dispute by and between the parties that the appellant retired from service on 30-6-1998. It is also undisputed that at the time of retirement from service, the appellant had completed more than three decades in Government Service. Obviously, therefore, he was entitled to retiral benefits in accordance with law. True it is that certain charge- sheets/ show cause notices were issued against him and the appellant was called upon to show cause why disciplinary proceedings should not be initiated against him. It is, however, the case of the appellant that all those actions had been taken at the instance of Mr. Quraishi against whom serious allegations of malpractices and misconduct had been levelled by the appellant which resulted in removal of Mr Quraishi from the post of Secretary, Irrigation. The said Mr Quraishi then became Principal Secretary to the Chief Minister. Immediately thereafter charge- sheets were issued to the appellant and proceedings were initiated against him. The fact remains that proceedings were finally dropped and all retiral benefits were extended to the appellant. But it also cannot be denied that those benefits were given to the appellant after four years.
14.In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well- founded that he would be entitled to interest on such benefits. If there are Statutory Rules occupying the field, the appellant could claim payment of interest relying on such Rules. If there are administrative instructions, guidelines or norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence Statutory rules, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of "bounty" is, in our opinion, well-founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents.
15. To us, the plea of the learned counsel for the appellant that the High Court ought to have entered into the merits of the matter which is based on documentary evidence is well taken. In our considered view, the writ petition ought to have been admitted by issuing rule nisi and ought to have been decided on merits. The High Court, however, dismissed the petition by a cryptic order which reads thus:
"The petitioner seeks only payment of interest on the delayed payment of retiral benefits. We, however, relegate the petitioner to avail of his remedies before the Civil Court, if so advised.
Dismissed with the above observations."
16.The order passed by the High Court, therefore, must be quashed and set aside.
17.The learned counsel for the appellant submitted that an appropriate direction may be issued to the Government to pay interest to the appellant who had retired on 30-6-1998 and about a decade has passed even thereafter. He, therefore, submitted that the matter may be finally concluded by this Court by passing appropriate orders. We would have certainly considered this aspect and prayer made by the appellant but for the fact that the High Court had not entertained the petition and it was summarily dismissed. The High Court thus was not having the affidavit on behalf of the respondent authorities."
30.He invites the attention of this Court to the decision of Hon'ble Supreme Court in Jaswant Singh Gill V. Bharat Coking Coal Limited and Others (2007) 1 SCC 663 at page 664, 665 wherein it is held hereunder:
"Rule 27 of the Coal India Executives' Conduct, Discipline and Appeal Rules, 1978 provides for recovery from gratuity only to the extent of loss caused to the Company by negligence or breach of orders or trust. Penalties, however, must be imposed so long an employee remains inservice. Even if a disciplinary proceeding was initiated prior to the attaining of the age of superannuation, in the event the employee retires from service, the question of imposing a major penalty by removal or dismissal from service would not arise. Rule 34.2 no doubt provides for continuation of a disciplinary proceeding despite retirement of employee if the same was initiated before his retirement but the same would not mean that although he was permitted to retire and his services had not been extended for the said purpose, a major penalty in terms of Rule 27 can be imposed.
Power to withhold gratuity contained in Rule 34.3 of the Rules must be subject to the provisions of the Act. Gratuity becomes payable as soon as the employee retires. The only condition therefor is rendition of five years' continuous service.
The Rules framed by the Coal India Limited are not statutory rules. They have been made by the holding company of Respondent 1. The Payment of Gratuity Act was enacted with a view to provide for a scheme for payment of gratuity to the employees engaged inter alia in mines. The Act provides for a close-knit scheme providing for payment of gratuity. It is a complete code containing detailed provisions covering the essential provisions of a scheme for a gratuity. It not only creates a right to payment of gratuity but also lays down the principles for quantification thereof as also the conditions on which he may be denied therefrom. A statutory right accrued, thus, cannot be impaired by reason of a rule which does not have the force of a statute. The provisions of the Act, therefore, must prevail over the Rules.
Sub-section (6) of Section 4 of the Act contains a non obstante clause vis-a-vis sub-section (1) thereof. As by reason thereof an accrued or vested right is sought to be taken away, the conditions laid down thereunder must be fulfilled. The provisions contained therein must, therefore, be scrupulously observed. Section 4(6)(a) of the Act speaks of termination of service of an employee for any act, wilful omission or negligence causing any damage. However, the amount liable to be forfeited would be only to the extent of damage or loss caused. The disciplinary authority has not quantified the loss or damage. It was not found that the damages or loss caused to Respondent 1 was more than the amount of gratuity payable to the appellant. Section 4(6)(b) of the Act also provides for forfeiture of the whole amount of gratuity or part in the event his services had been terminated for his riotous or disorderly conduct or any other act of violence on his part or if he has been convicted for an offence involving moral turpitude. Termination of services for any of the causes enumerated in sub-section (6) of Section 4, therefore, is imperative. Thus conditions laid down therein are also not satisfied.
Balbir Kaur V. Steel Authority of India Ltd., (2000) 6 SCC 493 : 2000 SCC (L&S) 767; Bhagirathi Jena V. Board of Directors, O.S.F.C., (1999) 3 SCC 666: 1999 SCC (L&S) 804; Tournamulla Estate V. Workmen, (1973) 2 SCC 502:1973 SCC (L&S) 510 :
(1973) 3 SCR 762, relied on Delhi Cloth & General Mills Co. Ltd., V. Workmen, AIR 1970 SC 919, cited Bharath Gold Mines Ltd., V. Regional Labour Commr. (Central), 1986 Lab IC 1976 : (1986) 53 FLR 340 (Kant); D.V.Kapoor V. Union of India, (1990) 4 SCC 314: 1990 SCC (L&S) 696: (1990) 14 ATC 906, distinguished.
The Division Bench of the High Court misdirected itself while holding that the controlling authority under the Payment of Gratuity Act being not the appellate or competent authority against the order of the disciplinary authority inflicting punishment of forfeiture of gratuity, the comments on the said order as well as interference therewith by him or the appellate authority under Section 7(7) of the Act was unwarranted and without jurisdiction. The controlling authority was exercising a power under a statute and, therefore, it having been authorised to administer the provisions of the Act was entitled to determine as to whether any case has been made out to deny the right of the appellant to obtain the amount of gratuity in accordance with the provisions thereof. He, thus, did not exceed his jurisdiction."
31.Yet another decision R.Gandhi V. Union of India and another (1999) 8 Supreme Court Cases 106 at page 110 is relied on the Petitioner wherein at paragraph 13 it is held as follows:
"13.This Court strikes at arbitrary action of the State and accordingly it did in Common Cause by interdicting the arbitrary action of the Government in paying the reduced pension as a result of commutation of 1/3rd pension for the rest of the life of the pensioners and issued an equitable direction to restore the full pension after 15 years "from the period of the retirement" to the pensioners who had commuted 1/3rd of the pension. The period of 15 years has been arrived at after taking into consideration various factors mentioned above. It is a well- settled principle that the words in the judgment of the Court cannot be interpreted as the words in a statute. By the said direction this Court never intended to confer any unfair or undue advantage on the pensioners. It only ensured fairness in the treatment of pensioners at the hands of the Government in respect of deduction of pension. The decision in Common cause has been understood in all subsequent judgments of this Court as 15 years from the date of communication and we are in respectful agreement with the same. This neither prejudices the rights of any of the parties nor confers any undue or unfair advantage upon any party."
32.Conversely, the Learned Counsel for the 1st Respondent/ Accountant General (A&E), Chennai contends that Rule 9 of Tamil Nadu Pension Rules, 1978 speaks of 'Right of Government to withhold or withdraw pension' and in the present case, no mention has been made in regard to the proposals made by the Department of the Petitioner to the effect that disciplinary proceedings have been pending against him and therefore, the 1st Respondent originally authorised the pensionary benefits to him in July 2002 as per PPO No.C 81538/CT and later, it has come to the notice of the 1st Respondent that disciplinary proceedings have been pending against the Petitioner.
33.The Learned Counsel for the 1st Respondent submits that Rule 9(4) of the Tamil Nadu Pension Rules, 1978 visualises 'In the case of a Government Servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 60 or Rule 69, as the case may be, shall be sanctioned.'
34.At this juncture, it is pertinent for this Court to refer to Rule 69 of Tamil Nadu Pension Rules, 1978 under the caption 'Provisional pension where department or judicial proceeding may be pending' which runs thus:
"(1)(a) in respect of a Government servant referred to in sub-rule (4) of Rule 9, the Head of office shall pay the provisional pension not exceeding the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant.
(b)No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon:
Added by G.O.Ms.No.286, Finance (Pension), dated 7th April 1995, vide SRO- B 151/1995, with effect from 4th July 1988. [Provided that no such gratuity, shall be withheld in respect of a Government servant who has been permitted to retire without prejudice to the departmental or judicial proceedings pending against him, where such departmental or judicial proceedings are only for administrative lapses not involving any pecuniary loss to the Government:] Added by SROB-143/1995 [Provided further that where a Government servant, against whom a departmental or judicial proceedings involving pecuniary loss to Government is pending, is permitted to retire without prejudice to such departmental or judicial proceedings, a portion of gratuity may be authorised after deducting the maximum computed financial loss to the Government for which the Government servant is held liable, along with un-recovered Government dues if any, of such Government servants, with interest.]
2.Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government 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 specific period.
(3)Nothing contained in this rule shall prejudice the operation of Rule 6 when final pension is sanctioned upon the conclusion of the departmental or judicial proceedings."
35.Also, Rules 9(5) and 9(6) of Tamil Nadu Pension Rules, 1978 run as follows:
"(5)Where the Government decide not to withhold or withdraw pension but order recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.
(6)For the purpose of this rule, -
New sub-rule (a) inserted and the old sub-rules (a) and (b) renumbered as
(b) and (c) by G.O.Ms.No.174, Finance (Pension), dated 16.2.1990 vide S.R.O.B-
120/90, with effect from 1st January 1979.
[(a) departmental proceedings shall be deemed to include the enquiry pending before the Tribunal for Disciplinary Proceedings;
(b)departmental proceedings shall 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; and (c) judicial proceedings shall be deemed to be instituted,-
(i)in the case of criminal proceedings, on the date of the complaint or report of a police officer, of which the Magistrate take cognizance, is made; and
(ii)in the case of civil proceedings, on the date on which plaint is presented in the Court.
Note.-
(1)As soon as proceeding of the nature referred to in the above rule are instituted, the authority which institutes such proceedings should without delay, intimate the fact to the Accountant-General concerned.
(2)If an officer against, whom an enquiry is held is unable to satisfactorily account for possession by himself or by any other person on his behalf, e.g., dependants, or pecuniary resources or property disproportionate to his known sources of income, a charge of corruption should be presumed to have been proved against him and the case will come within the purview of this rule. The position is that the term "grave misconduct" used in this rule is wide enough to include corrupt practices. In cases where the charge of corruption is proved only after pension has been sanctioned, and it is not therefore possible to invoke the provisions of Rule 6, action to withhold or withdraw pension may be taken under this rule. In this connection Substituted for the expression "the provisions of Rule 9(2) and 9(3) are" vide S.R.O. No.B-83/94. [the provisions of Rule 9(2) is] to be noted carefully. In accordance with these provisions the property or pecuniary resources in respect of Substituted for the expression "the departmental or judicial proceeding" vide SRO B-83/94. [the departmental proceedings] are instituted under Rule 9 should have been acquired by the person concerned or any other person on his behalf any time within the period of four years before the institution of such proceedings if not instituted while the officer was on duty either before retirement or during re-employment."
36.Moreover, Rule 60 of Tamil Nadu Pension Rules, 1978 under the head 'Provisional pension where departmental or judicial proceedings may be ending' which is extracted below:
"Provisional pension where departmental or judicial proceedings may be ending -
(1)(a) In respect of Government servant, referred to in sub-rule (4) of Rule 9, the Audit Officer shall authorise the payment of provisional pension not exceeding the maximum pension which would have been admissible on the basis of the qualifying service up to the date of retirement of the Government servant.
(b)The provisional pension shall be authorised by the Audit Officer during the period commencing from the date of retirement to the date on which, upon conclusion of the departmental or judicial proceedings, final orders are passed by the competent authority.
(c)No gratuity shall be authorised to the Government servant until the conclusion of such proceedings and issue of final orders thereon:
Added by G.O.Ms.No.286, Finance (Pension), dated 7th April 1995, vide SRO151/1995, with effect from 4th July 1988 [Provided that no such gratuity, shall be withheld in respect of a Government servant, who has been permitted to retire without prejudice to the departmental or judicial proceedings pending against him, where such departmental or judicial proceedings are only for administrative lapses not involving any pecuniary loss to the Government:] Added by G.O.Ms.No.287, Finance (Pension), dated 7th April 1995, vide SRO143/1995, with effect from 16th October 1991. [Provided further that where a Government servant against whom a departmental or judicial proceedings involving pecuniary loss to Government is pending, is permitted to retire without prejudice to such departmental or judicial proceedings, a portion of gratuity may be authorized, after deducting the maximum computed financial loss to the Government for which the Government servant is held liable, along with un- recovered Government dues if any, of such Government servant with interest.] (2)Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government 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.
(3)Nothing contained in this rule shall prejudice the operation of Rule 6 when final pension is sanctioned upon the conclusion of the departmental or judicial proceedings."
37.The Learned Counsel for the 1st Respondent projects a plea that since the departmental proceedings against the Petitioner have not concluded, he is only entitled to a provisional pension as per Tamil Nadu Pension Rules and also that as per Rule 60(1)(c), his gratuity amount cannot be authorised to him till the conclusion of disciplinary proceedings and issuance of final orders thereto and therefore, the 1st Respondent is well within its power in not issuing any authorisation as regards the gratuity amount to which the Petitioner is entitled to. In this connection, this Court aptly points out the Rule 60(1)(c) of the Tamil Nadu Pension Rules, 1978 which goes hereunder:
"60(1)(c) No gratuity shall be authorised to the Government servant until the conclusion of such proceedings and issue of final orders thereon:
Added by G.O.Ms.No.286, Finance (Pension), dated 7th April 1995, vide SRO151/1995, with effect from 4th July 1988 [Provided that no such gratuity, shall be withheld in respect of a Government servant, who has been permitted to retire without prejudice to the departmental or judicial proceedings pending against him, where such departmental or judicial proceedings are only for administrative lapses not involving any pecuniary loss to the Government:] Added by G.O.Ms.No.287, Finance (Pension), dated 7th April 1995, vide SRO143/1995, with effect from 16th October 1991. [Provided further that where a Government servant against whom a departmental or judicial proceedings involving pecuniary loss to Government is pending, is permitted to retire without prejudice to such departmental or judicial proceedings, a portion of gratuity may be authorized, after deducting the maximum computed financial loss to the Government for which the Government servant is held liable, along with un- recovered Government dues if any, of such Government servant with interest.]
38.The Learned Counsel for the 1st Respondent takes a stand that the G.O.Ms.No.446, Finance (Pay Cell) Department, dated 18.09.2007 relied on by the Petitioner nowhere speaks of 'Commutation of Pension' and on the other hand, it only refers to 'Revision of Pension' in respect of those retired between 01.01.1996 and 30.06.1996 wherein it has been decided by the Government to implement the orders of Hon'ble High Court dated 09.03.2004 in W.P.No.13333 of 2000.
39.The Learned Counsel for the 1st Respondent contends that till the conclusion of departmental proceedings against the Petitioner on 07.10.2005, he cannot apply for a commutation of pension. Indeed, the G.O.(2D) No.185, Commercial Taxes (E1) Department, dated 07.10.2005 refers to the disciplinary action initiated against the Petitioner as continued deemed proceedings under Tamil Nadu Pension Rules, 1978. The Government on a careful and independent examination of the charges framed against the Petitioner, findings of the Inquiry Officer, further representation of the Petitioner, its disagreements with the findings of the Inquiry Officer etc. have decided to held that the charges 1 and 2 as partly proved and not to press charge 3 and for the proved charges, it has arrived at a provisional conclusion to impose the punishment of cut in pension of Rs.100/- (Rupees one hundred only) per month for a period of three months and also that as per Rule 9 of the Tamil Nadu Pension Rules, 1978, when the Petitioner has been asked to state whether he accepts the proposed punishment, he has stated, in his letter dated 27.7.2005, that he has accepted the proposed punishment. Accordingly, the Government has imposed a punishment of cut in pension of Rs.100/- per month for a period of three months upon the Petitioner for the proved charges.
40.The Learned Counsel for the 1st Respondent advert to G.O.Ms.No.74, Finance (Pension) Department, dated 19.03.2003 wherein a revised limit of commutation has been fixed at 33 1/3rd% of pension by the pensioner for the purpose of commutation of portion of pension which has come into force from 01.04.2003 and earlier the maximum limit for commutation of portion of pension has been at 40%.
41.According to the Learned Counsel for the 1st Respondent, as per Rule 7 of the Civil Pension (Commutation) Rules, 1944, adopted by the Government of Tamil Nadu with effect from 01.12.1963, the Commutation Table prescribed relating to Commutation Value for a pension of rupee one per annum is to be worked out as 16.92 in respect of the commutation value expressed as number of years purchase when the age is 58 years on next birthday, the number of years purchase for the commutation value expressed is 10.78. Likewise, for 16.72 in respect of the commutation value expressed as number of years purchase, when the age is 59 years on next birthday, the number of years purchase for the commutation value expressed is 10.46. But, in the instant case, the revised Commuted Value of Pension of Rs.1,53,576/- has been arrived based on the age factor of 9.48 for age next birth day of 62 years as on 07.10.2005 (i.e.) the date of issue of final orders in the disciplinary proceedings and also due to the punishment of cut in pension of Rs.100/- per month, the commuted pension of the Petitioner has been calculated on the basis of pension of Rs.4150/- less cut in pension of Rs.100/= 4050/- and hence, the revised commuted value of pension has accounted for the difference of Rs.54,788/- (Rs.2,08,364 - 1,53,576). However, a perusal of the Commutation Table as per Rule 7 of the Civil Pension (Commutation) Rules, adopted by the Government of Tamil Nadu with effect from 01.12.1963, by this Court indicates as follows:
[See Rule 8] Age next birth Commutation value Age next birth Commutation value day expressed as number of day expressed as number of years purchase years purchase 39 16.09 62 9.49
42.It is worthwhile for this Court to refer to the averment made by the 1st Respondent in para 10 of its counter which is inter alia to the effect that 'the Petitioner is eligible to commute the remaining quantum, out of his commutable 1/3rd portion of pension (i.e.) 1/3rd of Rs.4150 = Rs.1383/- less amount allowed to be commuted Rs.1350 = Rs.33, since his punishment period has expired and if he so desires, he can apply afresh, in which the age factor with reference to the date of application.'
43.Rule 9(3) of the Tamil Nadu Pension Rules has been omitted as per G.O.Ms.No.344, Finance (Pension), dated 22nd April 1994, vide SRO B-83/94.
44.Countering the submissions of the Learned Counsel for the 1st Respondent, the Petitioner submits that the letter of the Government of Tamil Nadu, in letter No.98690/Pen/93-5, Finance (Pension) Department, dated 27.06.1995 which refers to the clarification being issued to the effect that 'in the case of retirement of a Government Servant after the disposal of disciplinary proceedings with punishment, commutation shall be allowed based on the original application and Commuted Value paid with reference to age next birthday on the date of issue of final orders in the disciplinary proceedings' cannot override the statutory provisions of the Tamil Nadu Pension Rules and as a matter of fact, only the statutory Tamil Nadu Pension Rules will apply to him.
45.The Petitioner in the present Writ Petition has only sought for quashing of the Payment Orders Communication dated 03.08.2006 of the 1st Respondent/Accountant General [relating to pension and pensionary benefits] and also the order of confirmation dated 20.11.2006 issued by the 1st Respondent. He has not challenged the Tamil Nadu Pension Rules, 1978 or the relevant G.Os., letters/ clarifications issued by the Tamil Nadu Government from time to time in this Writ Petition. Therefore, it is not open to the Petitioner to canvass about the same in this Writ Petition.
46.The Petitioner submits that as per Rule 45-A of Tamil Nadu Pension Rules, he is entitled to be paid the interest at the rate of 8% per annum for the belated payment of gratuity by the 1st Respondent/ Accountant General.
47.Repelling the contentions of the Petitioner, the Learned Counsel for the 1st Respondent submits that Rule 60(1)(c) of the Tamil Nadu Pension Rules unerringly points out that 'No gratuity shall be authorised to the Government servant until the conclusion of such proceedings and issue of final orders thereon etc.' and in the instant case, the proceedings against the Petitioner lastly concluded on 07.10.2005 when the Government has issued a G.O.(2D).No.185, Commercial Taxes (E1) Department, in and by which, it has held that charges 1 and 2 against the Petitioner have been partly proved and accordingly, imposed a punishment of cut in pension of Rs.100/- per month for a period of three months, which the Petitioner has accepted by means of his letter dated 27.07.2005, which has been made mention of in the said G.O. as reference No.11 and as such, he is not entitled to claim interest as per Rule 45-A of Tamil Nadu Pension Rules when there is no delay on the part of the 1st Respondent, by no stretch of imagination whatsoever.
48.Inasmuch as the relevant details like provisional pension already paid, along with no other charges pending certificate and a copy of G.O.(2D)No.185, Commercial Taxes (E1) Department, dated 07.10.2005 have been received from the department of the Petitioner only during March/April 2006 and thereafter, on 03.08.2006 when the fresh authorisation has been issued through PPO C 314095/CT, this Court comes to an inevitable conclusion that there is no delay in regard to the authorisation of pensionary benefits including the Death-cum-Retirement Gratuity by the Respondent and as such, the claim of the Petitioner in regard to the payment of interest for the belated payment of DCRG by the 1st Respondent, is negatived by this Court.
49.As far as the present case is concerned, even though at the time of issuance of original Pension Payment Order in July 2002, the commutable portion of pension as per Rules in force at the time of retirement on 30.06.2002 of the Petitioner has been at 40% of pension and since the disciplinary proceedings have finally ended against the Petitioner only on 07.10.2005 as per orders of the Government in G.O.(2D)No.185, Commercial Taxes (E1) Department and in the meanwhile, the G.O.Ms.No.74, Finance (Pension) Department, dated 19.04.2003 has been issued by the Government of Tamil Nadu, in and by which, the maximum limit for commutation of portion of pension has been fixed at 33 1/3rd % reducing the same from 40% with effect from 01.04.2003 and therefore, the 1st Respondent has been constrained to revise the commuted value of pension as per revised calculation which has resulted in a differential sum of Rs.54,788/- (Rs.2,08,364
- Rs.1,53,576) and therefore, the 1st Respondent has acted only in terms of the Tamil Nadu Pension Rules and as per G.O. and Letter issued by the Tamil Nadu Government from time to time which cannot be found fault with in any manner, in the considered opinion of this Court. Accordingly, the Writ Petition fails.
50.In the result, the Writ Petition is dismissed, leaving the parties to bear their own costs. It is made clear that the dismissal of the Writ Petition will not preclude the Petitioner to commute his eligible remaining quantum, out of his commutable 1/3rd portion of pension i.e., 1/3rd of Rs.4150 = Rs.1383/-
less amount allowed to be commuted Rs.1350 = Rs.33, as the punishment period has expired, by means of any fresh application. As and when he files the necessary application to the competent/concerned authority, the said authority is directed to consider the same in accordance with the Tamil Nadu Pension Rules etc. as expeditiously as possible. Consequently, connected miscellaneous petition is also dismissed.
Sgl To
1.The Accountant General (Accounts and Entitlements) Tamil Nadu, No.361, Anna Salai, Chennai - 600 018.
2.The Secretary to Government of Tamil Nadu Department of Commercial Taxes, Secretariate Buildings, Chennai.
3.The Commissioner of Commercial Taxes, Ezhilagam, Chepauk, Chennai.
4.The District Treasury Officer, Madurai Collector's Building, Madurai.