Central Administrative Tribunal - Delhi
S R Tewari vs M/O Home Affairs on 23 December, 2022
1
OA No. 2986/2019
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 2986/2019
Order reserved on: 01.11.2022
Order pronounced on: 23.12.2022
Hon'ble Mr. Manish Garg, Member (J)
S.R.Tewari,
S/o Late Sri Chandika Tewari,
R/o 61, Prashasan Nagar, Jubilee Hills,
Hyderabad-500110
Age 65 years
Group A
Designation: Indian Police Service (IPS) Officer
...Applicant
(By Advocate: Mr. Varun Agarwal for
Mr. Ashish Verma)
Versus
1. Union of India,
Through Secretary,
Ministry of Home Affairs,
North Block, New Delhi-110001.
2. Govt. of Andhra Pradesh,
Through Secretary,
General Administration (SC.C) Department,
A.P.Secretariat,
Penumaka - Amravathi Road, 4th Block,
Velagpudi, Andhra Pradesh-522503.
... Respondents
(By Advocate : Mr. Ashok Kumar for respondent
No.1.
None for respondent No.2)
2
OA No. 2986/2019
ORDER
This Original Application has been filed by the applicant under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s):
"a) Quash and set aside Impugned Order dated 12.09.2006, Government of India, Ministry of Home Affairs read with Order dated 25.06.2019 issued by Government of Andhra Pradesh, General Administration Department;
b) Direct the respondents to forthwith release 5% of Pension and full amount of Gratuity and Commutation to the Applicant.
c) Award all consequential benefits
d) Any other relief which this Hon‟ble Tribunal deems fit and proper in the facts and circumstances of the case."
2. Brief Facts:
2.1 The applicant herein is a 1982 batch IPS Officer of Andhra Pradesh Cadre, who retired on superannuation on 31.12.2013.
2.2 At the time of retirement, he was working as Officer on Special Duty in the office of Commissioner, Printing Stationery and Store Purchase, Government of Andhra Pradesh.3 OA No. 2986/2019
2.3 The applicant is aggrieved by impugned order dated 12.09.2006 issued by Ministry of Home Affairs (MHA), respondent No.1 herein, read with Order dated 25.06.2019 issued by Government of Andhra Pradesh, General Administration Department, respondent No.2 herein, whereby the MHA vide its order dated 12.09.2016 alleged that the applicant had indulged in undesirable activities and he has been declared a land grabber by the Andhra Pradesh Land Grabbing Court which has also been confirmed by the Hon‟ble High Court.
2.4 Thereafter, respondent No.2 vide impugned order dated 25.06.2019 has directed the Pay and Accounts Officer, Andhra Pradesh to withhold 5% of the Service Pension along with 100% of the gratuity and commutation of pension due to the applicant on the ground that alleged disciplinary proceedings are pending against him.
2.5 It is submitted that after retirement in 2013, applicant got empanelled and promoted to the Above Super Time Scale (a) of IPS in rank of 4 OA No. 2986/2019 Additional Director General of Police on par with IPS Officers of 1984 batch w.e.f. 12.03.2010 vide order dated 21.04.2017. Thus, it is clear that no departmental enquiry/proceedings were pending against him pursuant to which any penalty to the above-mentioned effect of not granting pensionary benefits to the applicant can be imposed.
2.6 It is further submitted that primarily, the said act of respondent No.2 is in teeth of All India Services (Death-cum-Retirement Benefits) Rules, 1958 (the 1958 Rules). The only way in which such benefits can be withheld are as follows:
(i) Rule 3(2) of the 1958 Rules clearly stipulates that only the Central Government and not even the State Government, may withhold or withdraw any pension or any part of it, for a specified period or indefinitely, on a reference from the State Government concerned, if after retirement a pensioner is convicted of a serious crime or be guilty of grave misconduct. It further states that no such order shall be passed without consulting 5 OA No. 2986/2019 the Union Public Service Commission. Relevant portion of the said rules is reproduced below for ease of reference:
"3(2) The Central Government may withhold or withdraw any pension or any part of it, for a specified period or indefinitely, on a reference from the State Government concerned, if after retirement a pensioner is convicted of a serious crime or be guilty of grave misconduct.
Provided that no such order shall be passed without consulting the Union Public Service Commission."
(ii) Rule 6 of the 1958 Rules further states that the Central Government may withhold or withdraw pension or gratuity or any part of it, if the pensioner is found guilty in a departmental or judicial proceedings of grave misconduct or to have caused pecuniary loss to the Central or a State Government by misconduct or negligence, during his service, including service rendered on re-
employment after retirement. However even such departmental proceedings can be in respect of an event which took not more than 4 years before the institution of such proceedings. In the present case, the applicant has not been found guilty in 6 OA No. 2986/2019 departmental or judicial proceedings and most importantly almost 10 years have elapsed since the passing of Memo dated 29.12.1997. Relevant portion of the said rules is reproduced below for ease of reference.
"6(1) The Central Government reserves to itself the right of withholding a pension or gratuity, or both, either in full or in part, whether permanently or for a specified period, and of ordering recovery from pension or gratuity of the whole or part of any pecuniary loss caused to the Central or a State Government, if the pensioner is found in a departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Central or a State Government by misconduct or negligence, during his service, including service rendered on re- employment after retirement:
Provided that no such order shall be passed without consulting the Union Public Service Commission:
Provided further that-
(a) such departmental proceeding, if instituted while the pensioner was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the pensioner, be deemed to be a proceeding under this sub-rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the pensioner had continued in service.
(b) such departmental proceeding, if not instituted while the pensioner was in service, whether before his retirement or during his re-employment;
(i) shall not be instituted save with the sanction of the Central Government;7 OA No. 2986/2019
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and
(iii) shall be conducted by such authority and in such place or places as the Central Government may direct and in accordance with the procedure applicable to proceeding on which an order of dismissal from service may be made;"
2.7 It is submitted that no such consultation with the Central Government, let alone the Union Public Service Commission, was ever initiated. No such proceedings as stipulated under Rule 3 or Rule 6 ever took place.
2.8 It is also submitted that the said criminal case Crl.P.No.2177/2011 stands quashed on merits by the Hon‟ble High Court vide order dated 21.11.2016 with the following observation:
"20. I hereby make it clear that though the Petitioner is retired from service, is entitled to claim all his service benefits as per law."
2.9 Thereafter, applicant vide representation dated 17.01.2019 requested respondent No.1 for release of the pension benefits due to the applicant under the Act. He also sent email dated 29.05.2019 and 13.06.2019 addressed to Secretary 8 OA No. 2986/2019 (Political) of Government of Andhra Pradesh for releasing the pension benefits of the applicant. On 25.06.2019 the Government of Andhra Pradesh has directed the Pay and Accounts Officer to withhold 5% of the service pension along with other full pensionary benefits as alleged disciplinary proceedings are pending against him. Hence this OA.
3. Per contra, learned counsel for the respondent No.1 filed the counter reply wherein it is contended that letter dated 12.09.2006 has not ordered for any cut in pension of the applicant and the order dated 25.06.2019 sanctioning 95% provisional pension and withholding other pensionary benefits to the applicant has been issued by respondent No.2. It is submitted that the entire matter pertained to the State Government, therefore, the relevant rule position has been brought to the notice of State Government and they are advised to take appropriate action in the matter vide letter dated 27.01.2020.
9 OA No. 2986/20194. On the other hand, respondent No.2 also filed their reply wherein it is contended that the applicant has been indulged in certain undesirable activities. He has been declared as a land grabber by Andhra Pradesh Land Grabbing Court and the same has been confirmed by the Hon‟ble High Court of Andhra Pradesh. Against the decision of Hon‟ble High Court, applicant has filed a SLP(C) No.17463/2003 before the Hon‟ble Supreme Court which is still pending. It is further contended that applicant has been found blameworthy in a recruitment scam which has been investigated by State C.I.D. and which is now pending with the State Government for grant of prosecution sanction under reference dated 21.04.2005. He also manipulated a gallantry medal for an operation in which he allegedly did not participate. The case is pending before the State Anti Corruption Bureau.
Further, the Rangachary Commission of Enquiry has found his nexus with ex-naxal underworlds in the commission of various instances of land 10 OA No. 2986/2019 grabbing. He is reported to have manipulated his central deputation by bribing the concerned State Official who concealed his criminal antecedents and that he was involved in a criminal case. In this regard, respondent No.1 has requested respondent No.2 to check up the position and send a report for taking appropriate action in the matter. It has been verified and found that the charges against the applicant regarding manipulation in getting gallantry medal, his involvement with ex-naxal underworld and bribing the State Official are dropped.
5. It is further contended that in reply to Govt.
Memo, the applicant has submitted his explanation vide letter dated 11.02.2008 requesting the Government to drop further action in the matter as the State Govt. has already considered the similar matter and dropped action against him in 1998 vide Memo No.1081/SC.C/96-11, General Administration (SC.C) Dept., dated 02.09.1998. It is further submitted that the Under Secretary to 11 OA No. 2986/2019 Govt. of India, MHA vide his letter dated 05.12.2008 has stated that the applicant has filed the aforesaid SLP before the Hon‟ble Supreme Court against the order passed by the Hon‟ble High Court of Andhra Pradesh upholding the decision of the Special Court declaring him a land grabber under the A.P. Land Grabbing (Prohibition) Act. It is further submitted that since the matter is sub judice before the Hon‟ble Supreme Court, the action of the State Government, dropping him of the charge relating to land grabbing, on consideration of his representation, is incorrect and legally not tenable. The decision on his representation can be taken by the State Govt. only after final outcome of the case before the Hon‟ble Supreme Court, and further action on release of pensionary benefits could not be taken in view of the directions of the Government of India in their letter dated 05.12.2008, the final outcome of the SLP pending before the Hon‟ble Supreme Court.
12 OA No. 2986/20196. Heard Sh. Varun Agarwal for Sh. Ashish Verma, learned counsel for applicant and Sh.
Ashok Kumar, learned counsel for respondent no.1.
None appeared on behalf of respondent no.2.
7. Learned counsel for applicant has submitted the written arguments wherein it is stated that the criminal case filed against the applicant was quashed on merits by the Hon‟ble High Court vide order dated 21.11.2016. Hon‟ble High Court observed that applicant is entitled to claim all his service benefits as per law. Thereafter, respondent No.2 in the counter affidavit claims that further action on release of pension benefit could not be taken in view of the directions of respondent No.1 in their letter dated 05.12.2008 and it is submitted that they have requested respondent No.1 vide letter dated 26.07.2019 to issue appropriate orders in the matter. He stated that respondents are passing the bucks on each other and have withheld the pension benefits of the applicant without any legally sustainable justification. The only reason 13 OA No. 2986/2019 assigned in the counter of respondent No.2 is that the SLP filed by the applicant is pending before the Hon‟ble Supreme Court in land grabbing case. It is submitted that the said pendency of SLP has no bearing on the present issue for the following reasons:
"i. The Respondent no. 2 has completely violated the procedures set out in the Service Rules while withholding the Pension Benefits that too on no valid grounds considering that the further actions against the Applicant were dropped against the Applicant vide Memo dated 02.09.1998.
ii. Issuance of the Memo dated 21.01.2009 reviving the memo dated 29.12.1997 after more than 10 years is illegal and unlawful.
iii. There is no departmental proceedings pending against the Applicant which can result in punishment of any kind to the Applicant as on date.
iv. Admittedly, vide order dated 21.04.2017, the Applicant got promoted to Above Super Time Scale (a) of IPS in rank of Additional Director General of Police on par with IPS officers of 1984 batch w.e.f. 12.03.2010. The said promotion indicates that there was nothing against the Applicant which warranted to withhold 5% of the Service Pension along with 100% of the gratuity and commutation the pension.
v. The Director General of Police vide letter dated 12.01.2018 has already recommended to drop further action against the Applicant considering that no judicial authority has declared that the applicant has committed any offences relating to land grabbing."14 OA No. 2986/2019
8. ANAYLSIS:
8.1 It is seen from the records of proceedings dated 26.09.2022, this Tribunal was pleased to pass following orders:-
"The applicant is aggrieved by impugned order dated 28.06.2019. During the course of the argument, learned counsel for the respondent no. 2 has highlighted that the issue of land grabbing is subject matter of SLP (Civil) No. 017463 of 2003.
My attention has also been drawn by the learned counsel for respondent no 1 to the office order dated 26-27/07/2020 page 216 annexure R 1 wherein the operative paras are as under:-
"5. The State Government in their letter under reference have reported that one criminal case (Crime No. 1 of 1998) is still pending against Shri S.R. Tewari before the court they have revived their earlier memo dated 29.12.1997. Therefore, in terms of Rule 6 (2) of the AIS (DCRB) Rules, 1958, no gratuity or death-cum-
retirement gratuity shall be paid to him until the conclusion of such proceedings and the issue of final orders thereon. However, a provision pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service upto the date of retirement, may be sanctioned by the State Government.
6. With regard to revival of Memo dated 29.12.1997, the State Government may consider the matter in the light of afore- mentioned Rule 24 (1) of the AIS (D&A) Rules, 1969.
7. The State Government is requested to take appropriate action in the matter in the light of 15 OA No. 2986/2019 Rule position mentioned above and suitably inform Shri S.R. Tewari, IPS (AP:1982, retired)."
In view of the same learned counsel for respondents does not dispute that as per para 5 of the office order dated 27.01.2020 no criminal case is pending against the applicant except the Supreme Court order whereas status quo order has been passed by the Hon‟ble Supreme Court and is likely to be listed for final hearing. However, the office order dated 27.01.2020 as well as page 29 of their reply No. 26011/12/2006- IPS.II (Part) dated 18.02.20 page 247 where the communication has been sent by Ministry of Home Affairs to the Chief Secretary, Government of Andhra Pradesh seeking factual report in the matter. Prima facie it appears that no criminal or disciplinary proceedings are contemplated under CCS (CCA) Rules or pending adjudication. It is also that revealed till date since 2013 no memo or charge sheet has been issued as per the rules even though the applicant retired on 31.12.2013. It is settled law that in absence of departmental or criminal proceeding as contemplated under CCS Pension Rule 1972 where no such proceedings are pending adjudication. The amount of retiral dues cannot be withheld except in accordance with law. In view of this matter, let the learned counsel for respondent no. 2 take appropriate instructions with regard to the release of the retiral dues by the next date of hearing.
List on 01.11.2022 as „Part-heard‟."
8.2 Despite the aforesaid directions, the respondent no.2 failed to comply with the same.
Even there was no representation on 01.11.2022.
Furthermore, even no written submissions have been filed by the respondent no.2 despite giving ample opportunities. Noticing the said facts, this 16 OA No. 2986/2019 Tribunal is of the view that the respondent no.2 has nothing to add except the stand taken by them in their counter reply.
8.3 On perusal of records, it would reveal that the respondent no.2 was pleased to pass following order dated 02.09.1998, which reads as under:-
"In the reference 1st cited the remarks of Sri S.R.Tiwari, IPS, formerly Commandant, APSP Battalion, were called for, for his association with A.P. Policemen Cooperative Housing Society, as Chief Promoter in violation or the provisions of AIS (Conduct) Rules, 1968.
Sri S.R.Tiwari, IPS in his letter 2nd cited has informed that he has not committed any act in contravention of the AIS (Conduct) Rules,1968; that association in the above matter was to help the Police Personnel in getting a shelter over their heads before they retire from service and not with any other motive or intent; and that in the same process, if there has been any minor infringement of any Conduct Rules, the sane is not intentional. He has finally requested the Government to drop further action in the matter.
The Director General & Inspector General of Police, A.P., in his letter 3rd cited has requested the Government to take a lenient view and drop further action against the MOS as the MOS with service/welfare motive alone, associated with the said Co-operative Society.
The Government have carefully examined the explanation submitted by Sri S.R.Tiwari, IPS and have decided to warn him to be more careful in future.
Accordingly, he is hereby warned to be more careful in future.
K.MADHAVA RAO 17 OA No. 2986/2019 CHIEF SECRETARY TO GOVERNMENT"
8.4 Thereafter, Vide Order dated 5.12.2009, following stand was taken by the respondent no.2, reproduced herein in below:-
"(Kind attention Shri W Ganeshan, Addl. Secretary(AIS) Subject: Disciplinary Proceedings against Shri S R Tiwari, IPS (AP:82) - Reg.
Sir, I am directed to refer to this Ministry's letter of even no. dated 6.11.2008 (copy enclosed) and also the discussions held with you by the undersigned during the visit to Hyderabad on 17.11.2008. The reply from the State Government to our aforesaid letter, is still awaited.
2. Shri Tiwari has filed an appeal before the Supreme Court against the orders passed by the High Court of Andhra Pradesh upholding the decisions of the Special Court declaring him a land grabber under the A.P. Land Grabbing (Prohibition) Act. The matter is pending before the Supreme Court.
3. Since the matter is sub-judice before the Supreme Court, the action of the State Government, dropping him of the charge relating to land grabbing, on consideration of his representation, is incorrect and legally not tenable. The decision on his representation can be taken by the State Government only after the final outcome of the case before the Supreme Court. Government of Andhra Pradesh are therefore, requested to take appropriate action and issue a revised order/ letter in the matter. The action taken may please be intimated to this Ministry at an early date."18 OA No. 2986/2019
8.5 Furthermore, vide order dated 21.01.2009, the respondent no.2 was pleased to pass following office orders:-
"Based on a petition received from the President of the Ravindra Co-Operative Housing Society alleging certain irregularities against the Sri S.R.Tiwari, IPS, the then Chief Promoter of the Andhra Pradesh Police Housing Society, Government have called for explanation of the Member of Service. After careful examination of the explanation submitted by the Member of Service, Government have taken a lenient view by dropping further action against him with a warning "to be more careful in future", vide Government Memo. 1" cited in the matter.
2) Subsequently, it came to the notice of the Government that the Member of Service has been declared as a land grabber by the Andhra Pradesh Land Grabbing Court vide its Judgment dated 03-
12-1997 in Land Grabbing Court Nos.131/1995 and 136/1995 and the same has been confirmed by the Andhra Pradesh High Court and the Member of Service has filed an appeal in the Supreme Court of India which is pending. The explanation of the Member of Service has been called for in the above matter vide Government Memo. No.35/SC.D/2007- 3, dated:18-01-2008 and the Member of Service has submitted his explanation denying the allegation on the contentions stated therein and requested to drop further action.
3) Government have examined the entire matter in detail and viewed that the final decision on the representation may be taken only after final outcome of the case before the Supreme Court since the matter is sub-judice before the Supreme Court. The Government of India also requested this Government to keep the orders issued in the reference 1 cited in abeyance until further orders.
4) Accordingly, the orders issued in the reference 1"
cited, dropping further action against Sri S.R.Tiwari, IPS, are hereby kept in abeyance until further orders."19 OA No. 2986/2019
8.6 Thereafter, the respondent no.2 was pleased to sanction provisional pension vide Order dated 01.08.2014, which reads as under:-
"G.O.Rt.No.2757 Dated:1.8.2014
Read the following:
1. Govt. Memo No.58/SC.C/A2/2014, dated:
29.05.2014.
2. Govt. Letter No.58/SC.C/A2/2014, dated:
29.05.2014.
3. From the PAO, A. P., Ir.No. PAO/ PAG.II/ U.A/2014-15/1694, dt.24.7.2014.
&&&&& ORDER:
Under Rule 6(2) of All India Service (DCRB) Rules, 1958, sanction is hereby accorded for payment of 95% of the service pension as provisional pension amounting to Rs. 35, 435/- (Thirty five thousand four hundred and thirty five only) per month to Sri Shree Ram Tewari, IPS (RR:82)(Retd).
2. The Provisional Pension sanctioned in para 1 above shall commence from 01.01.2014 and is payable to the retired Member of Service SB A/C No.33555714500 IFS Code SBINO013271, State Bank of India, Arora Colony Branch, Jubilee Hills, Road No.71, Hyderabad-500096.
3. Sri Shree Ram Tewari, IPS (RR:82)(Retd) is informed that should the amount of provisional pension sanctioned in para 1 above, is afterwards found to be in excess of that to which he is actually entitled t, he will be called upon to refund such excess amount.
4. This order does not require the concurrence of Finance Department as per the rules and orders on the subject.
20 OA No. 2986/2019 (BY ORDER AND IN THE NAME OF THE
GOVERNOR OF ANDHRA PRADESH)
I.Y.R.KRISHNA RAO
CHIEF SECRETARY TO GOVERNMENT"
8.7 The moot question which arises for
consideration is as to "Whether by virtue of the Office order dated 21.09.2009, dropping further action against the applicant can be kept in abeyance until further orders in garb of pendency of SLP?
The answer to the above issue can be gauged from the records itself that vide Office Memorandum dated 22.07.2015, the respondent no.2 was pleased to pass following order in favor of the applicant, which is reproduced herein below:-
"Memo.No.275/SC.D/A1/2005-12 Dated: 22-07-2015 Sub:- Public Servants -Crime No.1/98 CID Police Station, Hyderabad against Sri S.R.Tewari, IPS, formerly Commandant (SAR CPL) Prosecution sanctioned under Sec.197 Cr.PC Withdrawal of the prosecution- Orders - Issued.
Ref: 1) G.O.Ms.No.275, General Administration (SC.D) Department, Dated: 24-04-2007.21 OA No. 2986/2019
2) From Sri S.R.Tewari, IPS (Retired) Representation, dated: 25.11.2014.
3) Govt. Memo. No.275/SC.D/A1/2005-11, General Administration (SC.D) Department, Dated: 26.02.2015.
4) From the Director General of Police, A.P., Hyderabad Letter No.300/G1/2015,Dt:17.04.2015.
***** In the reference 1st cited, State Government, in exercise of the powers conferred by section 197 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) read with section 13(2) of the A.P. (Regulation of Appointments to Public Services and Rationalization of Staff Pattern and Pay Structure) Act, 1994 (State Act 2 of 1994), accorded sanction for prosecution of Sri S.R. Tiwari, IPS, who was at the relevant time working as the Commandant, Special Armed Reserve/ Central Police Lines, Hyderabad for the offences punishable under section 420 read with section 120- B of the Indian Penal Code 1860 and section 13(1) read with Sections 3, 4 and 10 of the A.P. (Regulation of Appointments to Public Services and Rationalization of Staff Pattern and Pay Structure) Act, 1994 and or any other provisions of Law in respect of the aforesaid acts while acting or purporting to act in the discharge of his official duties and for taking Cognizance of the offence in the Court of Competent Jurisdiction.
2. Sri S.R.Tewari, IPS (now Retired) in his representation in the reference 2nd cited has inter-alia stated that entire allegations made in the charge sheet are in respect of the violations of the provisions of Act 2/1994, but Section 120(B), and Section 420 of IPC have been added to get rid of period of limitation provided under Act 2/1994. In fact the provisions under Act 2 of 1994 is a self-contained Act and any violation of the provisions, punishment is provided in the Act 2/94 itself; that it is not out of place to mention that the court has taken cognizance only under Section 420 IPC and not under Act 2/1994 and there is hardly any evidence to support any case under Section 420 IPC; that the Hon'ble High Court in its orders Dt:09.12.2013 in Writ Petition No.23217 of 2004 and 26982 of 2008, held that the appointments 22 OA No. 2986/2019 made are not illegal, and therefore the prosecution in criminal case in this matter cannot be sustained; and, requested to withdraw prosecution against him.
3. The Director General of Police (HOPF), Andhra Pradesh, Hyderabad in his letter in the reference 4th cited has stated that it is a fit case to recommend for withdrawal of prosecution in public interest against Sri S.R. Tewari, IPS (Retd.), considering the fact that there is hardly any evidence in support of charge and in consideration of the services he rendered during his service. Further no useful purpose will be served in pursuing prosecution in this long pending case and in view of the judgement of Division Bench of Hon'ble High Court and requested to consider the request of Officer for withdrawal of prosecution against him, on legal as well as on humanitarian grounds.
4. After careful examination of the matter, Government have decided that the prosecution against Sri S.R. Tiwari, IPS, formerly Commandant of Special Armed Reserve/ Central Police Lines, Hyderabad be withdrawn. Accordingly, Government hereby order for withdrawal of the prosecution pending against Sri S.R. Tiwari, IPS(Retd.), formerly Commandant of Special Armed Reserve Central Police Lines, Hyderabad.
MUKESH KUMAR MEENA SECRETARY TO GOVERNMENT (POLITICAL)"
(emphasis supplied) 8.8 The matter does not end here, the Hon‟ble High Court vide Order dated 21.11.2016 in Crl. P. No.2177/2016 had held as under:-
"17. Having regard to the above facts and circumstances, I do not find any reason to interfere with the decision taken by the respective by the respective Governments for withdrawal of the criminal prosecution pending against the petitioner under Section 321 of Cr.P.C.
18. For the foregoing reasons, in exercise of the jurisdiction under Section 482 Cr.P.C., the proceeding pending against the petitioner /A-15 23 OA No. 2986/2019 in C.C.No.664/2007 on the file of VI Additional Chief Metropolitan Magistrate, City Criminal Courts, Namaplly, Hyderabad is hereby quashed.
19. The criminal petition is accordingly allowed.
20. I hereby make it clear that though the petitioner is retired from service, is entitled to claim all his service benefits as per law."
(emphasis supplied) 8.9 The respondent no.1 sought clarification from the respondent no.2 vide Office order dated 18.2.2019, which reads as under:
"In view of above, the State Government is requested to provide/furnish the following:
i. a factual report in the matter;
ii. copy of advice/instruction, if any, given by this Ministry to revive the memo dated 29.12.1997; and iii. action taken by the State Government on the recommendations of the DGP, AP."
8.10 Finally, the respondent no.2 in response thereto vide office communication dated 26.07.2019 highlighted their stand as under:-
"8. As the matter stood thus, the Member of Service made a representation dt.17.01.2019 to MHA, Gol, wherein he has inter-alia has stated that, no consultation with the Central Government let alone the Union Public Service Commission was ever initiated, no proceedings as stipulated under Rule 3 or Rule 6 ever took place; Memo dated 29.12.1997 alleging Land grabbing against Applicant was revived illegally in 2009 after almost 10 years despite the fact that matter is still pending adjudication before Hon'ble Supreme Court. The 24 OA No. 2986/2019 said revival violates Rule 24 of the 1969 Rules as stated in preceding paragraphs. Moreover, the said Memo can never be the basis for withholding the benefits due to the Applicant. The DGP has also recommended to drop further action in the matter. Therefore, the State Government has completely violated the procedures set out in the Service Rules while withholding the Pension Benefits that too on no valid grounds considering that the further actions against the Applicant were dropped against the Applicant vide Memo dated 02.09.1998. Issuance of the Memo dated 21.01.2009 reviving the memo dated 29.12.1997 on the advise of Ministry of Home Affairs, New Delhi is illegal and unlawful. The State Government has totally overlooked the fact that Status Quo has been granted by the Supreme Court in the Land Grabbing case against the Society and more importantly there is no departmental proceeding pending against the Applicant which can result in punishment of any kind to the Applicant as on date. With the above, the Member of Service has requested to release the pending pension benefits to him.
9. Further, I am to herewith enclosing the copies of the references 1st to 5th cited for ready reference, as desired.
10. I am directed to request for early appropriate orders in the matter."
8.11 As can be seen from above, it is not only irony but apathy of state of affairs that despite the Order dated 21.11.2016 in Crl. P. No.2177/2016 as well as stand taken by the respondent no.2, as well as the Office Memorandum dated 22.07.2015 in favor of the applicant, the case of the applicant is stuck up in Contemptuous act, which is overpowered by 25 OA No. 2986/2019 the zeal of executive instructions shifting onus of decision making to one or the other. Even there is no dispute that Order dated 21.11.2016 in Crl. P. No.2177/2016 passed by the Hon‟ble High Court have become final and binding. The pendency of SLP No.17463/2003 titled AP Policemen Co-op Housing Society Vs. Ravindra Coop Housing Society before the Hon‟ble Apex Court has nothing to do with release of pensionary benefits wrongfully withheld. It is not even the case of the respondents, that they shall be remediless in the event any proceeding is to be initiated after outcome of the above noted SLP in accordance with law.
8.12 In Civil Appeal No. 6770 OF 2013 - (Arising out of Special Leave Petition (Civil) No. 1427 of 2009) titled State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Anr. decided on 14.8.2013 reported in (2013) 12 SCC 210 has held as under :-
26 OA No. 2986/2019"12. Right to receive pension was recognized as right to property by the Constitution Bench Judgment of this Court in Deokinandan Prasad vs. State of Bihar; (1971) 2 SCC 330, as is apparent from the following discussion:
"29. The last question to be considered, is, whether the right to receive pension by a Government servant is property, so as to attract Articles 19(1)(f) and 31(1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Article 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same.
30. According to the petitioner the right to receive pension is property and the respondents by an executive order dated June 12, 1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order passed on August 5, 1966. There is only a bald averment in the counter- affidavit that no question of any fundamental right arises for consideration. Mr. Jha, learned counsel for the respondents, was not prepared to take up the position that the right to receive pension cannot be considered to be property under any circumstances. According to him, in this case, no order has been passed by the State granting pension. We understood the learned counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be considered to affect the petitioner's right regarding property so as to attract Articles 19(1)(f) and 31(1) of the Constitution.
31. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of 27 OA No. 2986/2019 quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the right of persons like the petitioner to receive pension under the circumstances mentioned therein.
32. The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India A.I.R. 1962 Pun
503. It was held that such a right constitutes "property" and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh I.L.R. 1965 Pun 1 approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is "property" within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property"
cannot possibly undergo such mutation at the whim of a particular person or authority.
33. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. The State of Punjab I.L.R. 1967 P & H 278. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a 28 OA No. 2986/2019 bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a Government servant It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision, on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.
34. This Court in State of Madhya Pradesh v.
Ranojirao Shinde and Anr.
MANU/SC/0030/1968 : [1968]3SCR489 had to 29 OA No. 2986/2019 consider the question whether a "cash grant" is "property" within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property".
35. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by Sub-article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1)of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law".
13. In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651, this Court recognized that even when, after the repeal of Article 19(1)(f) and Article 31 (1) of the Constitution vide Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court.
Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in "property".
30 OA No. 2986/201914. Article 300 A of the Constitution of India reads as under:
"300A Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law."
Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.
15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold -even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different.
16. We, accordingly, find that there is no merit in the instant appeals as the impugned order of the High Court is without blemish. Accordingly, these appeals are dismissed with costs quantified at Rs. 10,000/- each."
9. In view of the above proposition of law, which was followed in LPA No.693/2013 - Deepak Sapra vs. Punjab National Bank (DHC), there 31 OA No. 2986/2019 cannot be any blanket executive instructions to keep the subject matter at abeyance till further orders for an indefinite period without any justifiable reasons, more so when the applicant was neither charge-sheeted nor any departmental proceedings are pending. Even otherwise, in the facts of the present case, the reference has been dropped vide Office Order dated 22.7.2015.
10. In view of the above facts and circumstances of the case, more particularly in light of Office Order dated 22.07.2015 and Office Order/Communication dated 26.07.2019, Order dated 21.11.2016 in Crl. P. No.2177/2016 passed by the Hon‟ble High Court, have become final and binding and the Impugned Order dated 12.09.2006 read with 25.06.2019 has become in-consequential.
Thus, the present Original Application is allowed with the direction to respondent no.1 to pass appropriate order(s) in favour of the applicant in light of Office Order/ Communication dated 26.07.2019 issued by the respondent no.2 for 32 OA No. 2986/2019 release of balance of 5% of pension and also gratuity and such other superannuation benefits as entitled to in accordance with law, failing which the applicant shall be paid interest at GPF rate after expiry of period of two months till the actual date of payment.
There shall be no orders as to costs.
(Manish Garg) Member (J) /sd/