Central Administrative Tribunal - Delhi
Vinod Kumar Rai vs Indian Council Of Agricultural ... on 5 April, 2023
1
OA No. 1903 of 2021
Court No.6 (item No.28)
Central Administrative Tribunal
Principal Bench
OA No.1903 /2021
Reserved on: 03.03.2023
Pronouncement on: 5 .4. 2023
Hon'ble Dr.Chhabilendra Roul, Member (A)
Vinod Kumar Rai, S/o Sh. Nath Rai,
Aged about 62 years
Resident of Village -Narottampur,
Post Naipurakala (Dafi)
P.S. - Lanka, District-Varanasi,
PIN 221011.
- Applicant.
(Through Advocate: Sh.Praveen Chandra)
Versus
1. Secretary, Indian Council of Agricultural
Research Department of Agriculture Research&
Education, Krishi Bhavan, New Delhi
Pin Code:110001.
2. Director, Indian Council of Agricultural
Research-National Institute of Agricultural &
Policy Research, Dev Prakash Shastri Marg,
Pusa New Delhi, Pin Code 110012.
-Respondents
(Through Advocate: Mr.S.S. Lingwal)
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):-
1. The present Original application has been filed by the applicant regarding the decision of the respondents withholding various retirement benefits in respect of the applicant at the time of his retirement.2 OA No. 1903 of 2021
Court No.6 (item No.28)
2. The brief facts of the case are that the applicant joined in the Indian Council of Agricultural Research (ICAR), Respondent No.1, on 26.07.1985 as a junior stenographer. FIR No.247/2017 Under Section 377/511 IPC and Under Section 8 of POSCO Act was filed against the present applicant on 18.11.2017 in police station Inderpuri, New Delhi. The applicant was arrested by the Police on 21.11.2017 and was suspended from service on 21.11.2017 in view of his being in custody for more than 48 hours in connection with the said FIR. Later on, the applicant was granted bail and his suspension was revoked on 19.1.2018. On 30.04.2019, the applicant superannuated and retirement orders (impugned order) was issued on the same day. Though provisional pension and GPF payment orders were issued, the respondents withheld the payment of applicant‟s dues in respect of Gratuity, Leave Encashment and Group Linked Insurance Scheme (GIS). The applicant made several representations (dated 17.5.2019, 13.08.2019, and 15.01.2021) for release of his remainder retirement benefits. However, the respondents have not considered his request favourably as yet. Being 3 OA No. 1903 of 2021 Court No.6 (item No.28) aggrieved, the applicant has come to this Tribunal in the present OA seeking the following relief:-
i) To direct Respondents to disburse his legitimate post retirement benefit to the extent of Gratuity, Leave Encashment, Group Linked Insurance Scheme, and all other amount at the earliest.
ii) To direct Respondents to give compound interest of 18 % on the above mentioned amount from the day it was legitimate due to the applicant.
iii) Applicant prays for the issueance of appropriate order(s) / direction(s) upon Respondent Authorities to pay to the Applicant the cost of present Original Application and the compensation for the mental harassment which has to undergo for pursing the same.
iv) And /or to pass such order/ order(s) / direction/ direction(s) as your lordship may deem fit and proper for doing conscionable justice to the applicant.
3. On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.
4. The applicant in his OA and through his counsel during arguments has sought the prayed relief based on the following grounds:-
(i) Retirement benefits are like property protected under Article 300A of the Indian Constitution.4 OA No. 1903 of 2021
Court No.6 (item No.28) This right cannot be taken away without following due process of law.
(ii) Withholding the retirement benefits without following due process of law violates the fundamental rights of the applicant enshrined under Articles 14, 19(1)(f), 21 and 31(1) of the Indian constitution.
(iii) The respondents have arbitrarily withheld the retirement benefits without following due process of law and ignoring 35 years unblemished service of the applicant.
5. As regards the applicability of Rule 9 of the CCS(Pension Rules , 1972 to the instant case, the counsel for the applicant averred that the Respondents have incorrectly interpreted the provisions under the CCS(Pension) Rules, 1972 and withheld the retirement benefits of the applicant. He argued that as per the Rule 9 (6) (b) , unless the Magistrate has taken cognizance of the offence, it cannot be said to be instituted. In the instant case, though the FIR No.247/2017 Under Section 377/511 IPC and Under Section 8 of POSCO Act was filed against the present applicant on 18.11.2017, on the date of applicant‟s retirement, the magistrate had not taken cognizance of the case. He argued that mere filing of FIR and ongoing investigation is not termed institution of a Judicial proceedings as per the CCS (Pension) Rules, 1972. In 5 OA No. 1903 of 2021 Court No.6 (item No.28) the instant case, the Learned magistrate took cognizance of the offence in the year 2021, much after the retirement of the applicant on 30.4.2019. Because of this, it cannot be said that there was a Judicial proceeding instituted against the applicant on the date of superannuation. Hence, withholding gratuity and sanctioning Provisional pension, instead of final pension, was contrary to the aforesaid pension rules.
6. As regards payment of Leave encashment, he cited Rule 39(3) of CCS(Leave) rules, 1972 and averred that the competent authority can withheld payment of leave encashment only if the government servant retiring from service was under suspension, or disciplinary or criminal proceedings were pending in which, as per the satisfaction of the competent authority, there is possibility of some money becoming recoverable from the government employee after conclusion of the disciplinary or judicial proceedings. In the instant case, the counsel for the applicant averred, there was no disciplinary case pending and no judicial proceedings instituted against the applicant at the time of his retirement, in which there was any possibility of recovery of money from the government servant because of any pecuniary loss to the government. 6 OA No. 1903 of 2021 Court No.6 (item No.28)
7. Similarly, the counsel for the applicant sates that though the Respondents have accepted the legitimate due on account of GLIS of the applicant, they have not paid the amount even after lapse of two and half years since the date of superannuation.
8. The respondents in their counter affidavit and through their counsel‟s averment during arguments have quoted Rule 9(4) and Rule 69(C) of CCS (Pension) Rules, 1972. As per Rule 9 (4), when Judicial proceedings have been instituted at the time of retirement, the competent authority shall withhold the payment of retirement benefits. Similarly, as per Rule 69(C), no gratuity could be paid to the Government servant till the conclusion of judicial proceedings. The main crux of the argument by the counsel for respondents is that the Judicial Proceedings were initiated against the applicant in respect of FIR No.247/2017 Under Section 377/511 IPC and Under Section 8 of POSCO Act. Hence, he was not entitled for payment of Pension including Gratuity and Under Rule 39(3) of CCS (Leave) Rules, 1972, the leave encashment can be withheld. However, the applicant has already been granted provisional pension. However, no gratuity is to be paid till the conclusion of the judicial 7 OA No. 1903 of 2021 Court No.6 (item No.28) proceedings. The respondents have stated in their counter affidavit that they have processed the request of the applicant for leave encashment and have promised to pay the due amount to the applicant shortly.
9. As regards payment in respect of GLIS is concerned, the respondents have stated that the applicant has worked at different ICAR institutes and the details of his GIS contribution are not indicated in the service records. The respondents are trying to collect the information and once the information is collected, the amount due to the applicant will be paid to him.
10. I have gone through records of the case thoroughly and heard the arguments carefully. In view of the statement by the Respondents in respect of leave encashment, GLIS and provisional pension, the only grievance which remained in these aspects is expeditious payment of leave encashment and GLIS amount due to the applicant. That leaves only one major grievance of payment of gratuity to the applicant. The core issue here is whether, at the time of superannuation on 30.4.2019, there was judicial 8 OA No. 1903 of 2021 Court No.6 (item No.28) proceeding instituted against the applicant and the applicability of Rule 9(4) in the instant case for withholding pension including gratuity under the said rule. As on 30.4.2019, the CCS (Pension) Rules, 1972, as amended from time to time, were prevalent. It would not be out of place to quote the Rule into for better appreciation of the applicability of the said Rules in the instant case.
"Rule 9 of the CCS (Pension) Rule, 1972: Right of President to withhold or withdraw pension
1. The President reserves to himself the right of withholding a 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, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement: Provided that the Union Public Service Commission shall be consulted before any final orders are passed:
Provided further that where a part of pension is withheld or withdrawn the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five per mensem.
2. (a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the 9 OA No. 1903 of 2021 Court No.6 (item No.28) authority by which they were commenced in the Same manner as the Government servant had continued in service:
Provided that where the departmental proceedings are instituted by an authority subordinate to the President that authority shall submit a report recording its findings to the President.
b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re- employment, -
(i) shall not be instituted save with the sanction of the President,
ii) shall not be in respect of any event which took place more than four years before such institution, and
iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.
3. Omitted
4. In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 69 shall be sanctioned.
5. Where the President decides not to withhold or withdraw pension but orders 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, -
a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the 10 OA No. 1903 of 2021 Court No.6 (item No.28) Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and
(b) judicial proceedings shall be deemed to be instituted:
i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made,
ii) in the case of civil proceedings, on the date the plaint is presented in the court"
"Rule 69: Provisional pension where departmental or judicial proceedings may be pending (1) (a) In respect of a Government servant referred to in sub-rule (4) of Rule 9, the Accounts Officer shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying_ service up to the date of retirement of the Government servant, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension.
(b) The provisional pension shall be authorized by the Accounts Officer during the period commencing from the date of retirement up to 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 the Government 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 Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for imposing any of the penalties specified in Clauses (i), (ii) and (iv) of Rule 11 of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant. 11 OA No. 1903 of 2021 Court No.6 (item No.28) (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."
11. As per definition clause of the said Rules, Pension includes Gratuity unless otherwise mentioned. To be specific, the definition of pension as per Definition Clause of the said rules states:
"the „pension" includes gratuity except when pension is used in contradistinction to gratuity, but does not include dearness relief,."
In view of this all the provisions for withholding pension will also apply to withholding gratuity.
12. Now the moot question, in view of the contradictory position taken by the counsels for the applicant and the respondents, is whether there was a judicial proceeding instituted against the applicant before or on the date of superannuation that is on 30.4.2019. The interpretation taken by the applicant is that as per Rule 9 (6) (b) (i), no judicial proceedings were instituted as on 30.4.2019 against applicant as the Learned Magistrate took cognizance of the offence in respect of FIR No.247/2017 Under Section 377/511 IPC and Under Section 8 of POSCO Act in the year 12 OA No. 1903 of 2021 Court No.6 (item No.28) 2021. Mere filing of the FIR cannot be construed that judicial proceedings were instituted against the applicant in respect of the said FIR. The counsel for the Respondents have relied on the fact that the applicant was suspended as he remained under police/ judicial custody from 21.11.2017 till 6.1.2018 and the FIR was under investigation at the time of the retirement of the applicant. The offence was a one under Under Section 377/511 IPC and Under Section 8 of POSCO Act and it amounts to grave misconduct on the part of the applicant. Moreover, there is no disciplinary case instituted against the applicant alleging any grave misconduct on the part of the applicant on account of the FIR Under Section 377/IPL and Under Section 8 of POSCO Act.
13. I do agree with the counsel for the applicant that there was no proven grave misconduct against the applicant at the time of his retirement. Though the said FIR was lodged against the applicant, the judicial proceedings as per Clause 9(6) (b) (i) of the CCS (Pension) Rules, 1972 were not instituted against the applicant on the date of his superannuation. Hence, there was no valid reason to withhold payment of Gratuity to the applicant. In view of this, the action of 13 OA No. 1903 of 2021 Court No.6 (item No.28) the Respondents in withholding gratuity and allowing only payment of provisional payment to the applicant without following due procedure of law is arbitrary and amounts to non-application of mind.
14. In view of the above, the following orders are passed:
(i) The respondents are directed to pay the due amounts in respect of leave encashment and GLIS to the applicant with immediate effect, with interest at GPF rate for delayed payment of the same from date of retirement till the date of payment.
(ii) The respondents are directed to pay gratuity and issue final PPO for pension in view of the above interpretation of „Institution of Judicial Proceedings" under Rule 9 (6) (b) (i) of the CCS (Pension) rules, 1972. For delayed payment of gratuity for the period beyond three months from the date of retirement till the date of actual payment, interest at GPF rate shall be paid.
15. The present OA is disposed of in above terms. There shall be no order as to costs.
All pending MAs are also disposed of accordingly.
(Dr. Chhabilendra Roul) Member (A) /mk /