Central Administrative Tribunal - Patna
Ajay Kumar Singh vs Central Institute Of Mining Fuel ... on 21 October, 2022
-1- OA/051/00771/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH
CIRCUIT BENCH AT RANCHI
OA/050/00771/2019
Reserved on: 23.08.2022
Pronounced on: 21.10.2022
CORAM
HON'BLE MR. M.C. VERMA, JUDICIAL MEMBER
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
Ajay Kumar Singh, son of Dhananjay Prasad Singh, resident of 406,
Madhuri Palace, Bartand, P.O. & P.S. and District
District- Dhanbad.
.... Applicant.
By Advocate: - Shri Rupesh Singh
-Versus
Versus-
1. CSIR- Central Institute
ute of Mining and Fuel Research through its
Director, having its Office at Barwa Road, P.O. & P.S. and District-
District-
Dhanbad.
2. The Finance & Accounts Officer, CSIR-CIMFR
CSIR having its office at
Barwa Road, P.O., P.S. and District-
District Dhanbad.
3. The Administrative Officer, CSIR--CIMF,
CIMF, having its Office at Barwa
Road, P.O., P.S. and District- Dhanbad.
4. The Section Officer, CSIR-CIMF,
CIMF, having its Office at Barwa Road,
P.O., P.S. and District- Dhanbad.
.... Respondents.
By Advocate: - Shri Abhay Prakash
ORDER
Per S.K. Sinha, A.M A.M: Applicant, pplicant, a retired Scientistof Scientistof Central Institute of Mining and Fuel Research (CIMFR), has preferred this OA praying for following reliefs:-
"(a) For issuance of appropriate order upon the respondents to release the admissible ble amount of gratuity along with interest @ 12% from the due date till payment to the applicant upon his superannuation which has
-2- OA/051/00771/2019 been illegally and arbitrarily withheld/not released without any rhyme or reason in spite of repeated requests and demands to to that extent made by the applicant before the competent authority.
(b) To quash and set aside Office Memo No. 3(968)/88-Estt./203 3(968)/88 Estt./203 dated 31.01.2019 and direct the respondents for release of withheld amount of Leave encashment of Rs.35,110.23 since the Employer Employer Organization has not found the applicant responsible for the loss in the departmental proceedings against the applicant.
(c ) For any other relief to which the Applicant may be found entitled in law. "
2. Short facts giving rise to the OA are that the CBI registered an FIR [ RC1 (A) /2003 ] on 28.01.2203 against some officials/employees of CSIR CSIR-CIMFR (earlier known as Central Mining Research Institute/ CMRI) including the applicant for causing loss of approximately Rs 50 lakhs to the orga organization nization in purchase of chemicals and equipment equipment. CBI submitted charge sheet on 19.04.2006 under provisions of the IPC and the PC Act, 1988 and the criminal trial in the case is still going on. Prior to the FIR, the t organization hadinitiated initiated three disci disciplinary proceedings against the applicant with two charge memoranda issued on 22.11.2002 and one on 31.12.2002 under Rule 14 of CCS(CCA) Rules, 1965 for alleged allegedly ly causing loss to the organization in purchase purchases. After completion of the departmental departmental inquiries, the Disciplinary Authority inflicted punishments vide orders dated 11.09.2206, 14.09.2206 and 15.09.2006 of reduction to one lower sstage tage in the time scale of pay for a period of one year with cumulative effect in future. The applicant preferred preferred appeal against
-3- OA/051/00771/2019 the orders of the Disciplinary Authority and subsequently approached the Tribunal in three successive OAs raising first the issue of punishment by the disciplinary authority and later challenging the decision decision(s) of the appellate authority. The appellate authority first modified the major punishment to a minor punishment of 'Censure' and finally changed that to a warningvide vide order dated 01.05.2014.The applicant superannuated from service on 30.06.2017. On retireme retirement, nt, he was paid the due Provident Fund amount and was issued the PPO for monthly pension. However, he was not paid the thegratuity and the leave l encashmentamount.. The applicant made representations before the respondent authorities for payment of pending retirement ement benefits. The he respondent authorities constituted a committee and on recommendation of the committee released the leave encashment amount (for 300 days) on 30.01.2019 withholding Rs 35,110 35,110/- as the tentative loss caused to the organization organization.Gratuity amount ount due to the applicant on retirement has also been withheld on account of the pending criminal case.
case.The The applicant preferred this OA praying for direction to the respondents to pay the Gratuity amount with interest and also the withheld amount of Leave EEncashment.
3. Applicant's contention is that he is entitled for payment of gratuity as per Section 4 of the Payment of Gratuity Act.
Act. While Section 4 (6) the said Act prescribes the conditions under which whole or part of the gratuity may be withheld o or forfeited,, none of
-4- OA/051/00771/2019 those conditions are attracted against him . Also,Hon'ble Hon'ble Supreme Court has held that the provisions of the Payment of Gratuity Act cannot be overridden by any other statute and that the retirement benefits are legal rights of employees under Article 300 A of the Constitution of India India.. Applicant has further submitted that he was not held guilty of any misconduct in the departmental proceedings.
4. Contesting the OA, respondents espondents filed written statement maintaining that CIMFR is aninstitute of CSIR to promote research and development in the area of mining and ffuel technology. Institute has adopted certain central rules/guidelines /guidelines such as CCS(CCA) Rules and CCS(Conduct) Rules besides issuing own bye-laws, laws, rules and regulatio regulations framed d by the Governing Body of CSIR.
CSIR 4.1 Regarding the instant OA, responden espondents averred that though the A Appellate Authority had converted the major punishment awarded to the applicant in the Departmental proceedings to a warning warning, hewas still facing the criminal case in the Special CBI Court for offences under Section 120B, 420, 467, 468 and nd 471 of IPC and Section 13(1)(d) and 13 (2) of th thee Prevention of Corruption Act.,1988.
Act. .
CSIR has adopted the CCS(Pension) Rulesand Rule 69 (i) (c) of the CCS (Pension (Pension) Rules provides that no gratuity shall be paid to the Government Servant until the conclusion of the Departmental or Judicial Proceedings and issue of final orders therein.
therein As criminal trial is still in progress, tthe decision to withhold the gratuity was in in accordance with the rules. Respondents furtheraverred further thatRule Rule 39
-5- OA/051/00771/2019 (3) of the CCS(Leave) Rules Rules,1972 1972 empowers the competent authority to withhold whole or part of cash equivalent of earned leave of an official on attaining the age of retirement if there is a possibility of some money being recoverable from him in some disciplinary or criminal proceeding pending against him. A committee considered ed the case of applicant and other scientists in accordance with the CCS (Leave) Leave) Rules and the communication dated 18.01.2011 of Ministry of Finance directing that the leave encashment amount withheld should be proportionate to the possible recovery and recommended withholding part of the leave encashment amount of the applicant..
Hence, the decision to withholdthe
the part
part of leave encashment
amount was in accordance with the law/rules.
law The OA is thus devoid of merit and deserves dismissal.
5. After admission, we heard the rival counsel and considered their submissions and materials on record.
6. Applicant through submissions of his counsel and pleadings has assailed the decision to withhold the gratuity and part of the leave encashment amount of the applicant on two grounds. First, that the Central Civil Service Rules, after being adopted by the CSIR and made applicable to its employees with necessary modifications, loses its statutory power conferred under the original rules. Ld. Counsel Shri Rupesh Singh has argued that the Central Civil Service Rules are promulgated by the President under A Article 309 of the Constitution and any amendment in these rules at the Council / organizational
-6- OA/051/00771/2019 level replacing the original statutory authorities such as President of India with own functionaries takes away the statutory power of these rules. He arguess that CSIR is not a Government body and the Council cannot exercise legal powers under the Rules conferred upon the Government authorities. Hence, the decision of respondents to withhold the gratuity and part of the leave encashment amount under the CC CCSS (Pension) Rules and CCS (Leave) Rules respectively was without the statutory authority.
6.1. Secondly, the applicant is entitled to the payment of gratuity under the Payment of Gratuity Act, 1972. Gratuity of an employee can be forfeited partially or w wholly holly as per the Section 4(6) (a) and 4(6)
(b) of the Act, but the requirement for forfeiture of the gratuity under these sections are not fulfilled in the instant case. Further, Hon'ble Apex Court has held that the provisions of the Payment of Gratuity Ac Actt cannot be overridden by a rule which does not have the force of a statue. Ld. Counsel for applicant has relied upon the judgment judgments of Hon'ble Supreme Court in State of Jharkhand vs Jitendra Kr Srivastava [ (2013) 12 SCC 210] and in Jaswant Singh Gill Vss Bharat Cooking Coal Ltd and Others [ (2007) 1 SCC 663] and Chandigarh Bench of CAT in Ashok Kr Vs Union of India and Others Others(OA OA No. 060/00777/2017) in support of his averment.
7. Counsel for respondents Shri Abhay Prakash drew attention to the Rules and Regulations of CSIR under which the Prime Minister of
-7- OA/051/00771/2019 India is its ex ex-officio officio President and the Minister-in-Charge Minister Charge of the Ministry/Department dealing with CSIR is the ex officio Vi Vice--
President. Ld. counsel averred that CSIR had been registered as Society with the objective to grant it due functional autonomy. Director General of CSIR is its Principal Executive Officer and responsible for proper administration of the affairs of the C Council ouncil subject to any order passed by the GoI. Learned counsel further submitted that the CCS (Pension) Rules and the CCS (Leave) Rules have been adopted and made applicable in the CSIR. The decision to withhold the applicant's Gratuity in terms of Rule 69 (C) of the CCS (Pension) Rules, 1972 and Rs 35,110.23 from leave encashment amount as per Rule 39(3) of the CCS(Leave) Rules, 1972 was on the ground of the pendency of a criminal case against the applicant before the Special CBI Court on the charges of violation of the provisions of IPC and the Prevention of Corruption Act. Counsel for respondents relied upon the judgement of Hon'ble Jharkhand High Court in Director, CSIR-CIMFR CIMFR Vs. Shankar Prasad in WP(S) No. 6964 of 2019 decided on January 6, 2021 an and the decision of Hyderabad Bench of CAT in OA No. 988 of 2019 in which the Tribunal held that there was no error in the decision to withhold pensionary benefits of a Government servant if criminal proceedings are pending against him.
8. The issue for adjudication in this OA is whether the decision of respondents to withhold the gratuity amount and part of the leave
-8- OA/051/00771/2019 encashment amount of the applicant are in accordance with the law/rules.
9. The learned counsel for applicant has argued that the withhold withholding ing of gratuity and leave encashment amount by CSIR under the Central Civil Services Rules was without statutory authority. To fortify his argument, learned counsel has relied upon the order of Hon'ble Supreme Court in the case of State of Jharkhand Vs. Ji Jitendra tendra Kumar Srivastava [ (2013) 12 SCC 210]. In that case, the appellant State Government had approached Hon'ble Apex Court against the order of the Division Bench of Hon'ble Jharkhand High Court that the State Government had no powers to withhold pension in absence of specific Rules under the Bihar Pension Rules, 1950. Earlier, the appellant State government had sanctioned 90% of the pension (as provisional pension) and withheld the leave encashment and gratuity on ground of pending criminal cases against the respondent employee. Hon'ble Supreme Court held that gratuity and pension are not bounties; an employee earns these benefits by dint of his long, continuous, faithful and unblemished service. These are in the nature of "property". The right to property cannot be taken away without the due process of law as per the provisions of Article 300-A A of the Constitution of India. Hon'ble Apex Court dismissed the appeal holding that there is no provision in the Bihar Pension Rules ,
-9- OA/051/00771/2019 1950 for withholdi withholding ng of the Pension /gratuity when such departmental proceedings or judicial proceedings are still pending.
10. In the instant case, the CCS(Pension) Rules,1972 and CCS (Leave) Rules have specific provisions for withholding pension/gratuity and leave encash encashment ment amount if departmental proceeding or criminal case is pending against the public servant. Hence, the applicant cannot draw support from the order of Hon'ble Supreme Court in State of Jharkhand Vs. Jitendra Kumar Srivastava supra .
11. Ld. Counsel for respondents has submitted that Hon'ble Jharkhand High court in WP No. WP(S) 6964 of 2019 (CSIR (CSIR-CIMFR CIMFR Vs Shankar Prasad) upheld the legality of the Vice Vice-President President of CSIR exercising the statutory power of withholding pension and gratuity under Rule 9 of tthe he CCS (Pension) Rules, 1972. Hon'be High Court relied on the decision of the Apex Court in the case of Prahlad Sharma vs State of UP [(2004) 4 SCC 113, para 7 & 8] that a corporation or any other organization may adopt the rules on any subject, as may be applicable in the State Government or any other organization. But by doing so only the rules are adopted not the authorities unless specifically provided for. Otherwise, it would result in a queer situation where the authorities of the organization whose rules ules on a particular subject have been adopted by another organization would start exercising those powers in relation to the matters of the organization adopting the rules, which would
-10- OA/051/00771/2019 obviously not be permissible. Adopting the rules would only mean that same procedure would be applicable in respect of the employees of the organization adopting the rules.
12. Based on the judgement of Hon'ble Jharkhand High Court and in WP (C) supra and the observation of Hon'ble SC in Prahlad Sharma Vs. State of UP [su [supra] pra] we are inclined to hold that adoption of Central Civil Services Rules by CSIR and extending them to the organization and its employees with suitable modification is in accordance with law. Earlier, the applicant came to this Tribunal against the maj major or punishment awarded by the Disciplinary Authority and later challenging the decision(s) of the appellate authority in the departmental proceeding(s) conducted against him. Undisputably, applicant had accepted the applicability of the CCS(CCA) Rules iin n CSIR under which the entire exercise of departmental proceeding including appeal were conducted.
13. The applicant's second ground is that the condition for forfeiture of the gratuity as provided under Section 4(6) and 4(8) of the Payment of Gratuity Ac Act, t, 1972 are not met in this case. Hence, the withholding of applicant's gratuity was against the Act. Ld. Counsel for Applicant cited the case of Jaswant Singh Gill Vs. BCCL and Others Otherssupra in which Hon'ble Supreme Court held that provisions of the Payment of Gratuity Act, 1972 would prevail over the Conduct, Discipline and Appeal Rules Rules, 1978 of Coal India Limited which were not statutory rules. The appellant in that case,, a former
-11- OA/051/00771/2019 Chief General Manager(CGM) of the respondent company, had approached Hon Hon'ble 'ble Apex Court against the order of Division Bench of Hon'ble Jharkhand High Court which had held that the order of forfeiture of gratuity passed by the Chairman Chairman-cum-CMD CMD of the BCCL could not be interfered by the Assistant Labour Commissioner who had held the order of forfeiture of gratuity as untenable under the Payment of Gratuity Act . The appellant had earlier been awarded the punishment of dismissal and forfeiture of gratuity in a disciplinary proceeding conducted under the Conduct, Discipline and Appeal rules 1978 of Coal India Limited. Hon'ble Supreme Court defined the issue in the appeal as whether the provisions of the Payment of Gratuity Act shall prevail over the Rules framed by the Coal India Limited and held that the Rules framed by the Coal India Limited are not statutory rules and therefore the provisions of the Payment of Gratuity Act must prevail over the Rules.
14. During the hearing,it was inquired from Ld. Counsel for applicant that if applicant was entitled for gratuity am amount ount under the Payment of Gratuity Act,1972 and the employer was not making the payment, whether he had made representation before the 'Controlling Officer' as required Section 8 of the Payment of Gratuity Act 1972 1972. Ld. Counsel for applicant responded in negative. It is important to note that the appellant in Jaswant Singh Gill case supra had approached the Additional Labour Commissioner i.e. the Controlling Authority and the competent authority had decided
-12- OA/051/00771/2019 against th the e forfeiture of gratuity ordered by the Disciplinary Authority.
15. Ld. Counsel for applicant has also put reliance on the judgement of Chandigarh Bench of CAT in OA No. 777/2017 in which the Tribunal had set aside the order of withholding of gratuity. TThe he gratuity had been withheld in view of a criminal case pending against the public servant under provisions of the Indian Penal Code at the time of retirement. The Tribunal, relying on the judgement of Delhi High Court in the case of Union of India Vs. J.P. Sharma [WP (Civil) 6465 of 2003] held that gratuity of a Government servant could not be withheld if there was no charge of pecuniary loss to the government. In the instant case, the trial in criminal case pending before the Special CBI Court is for o offences ffences under the provisions of IPC and the Prevention of Corruption Act. The amount of Rs. 35,010.23/ 35,010.23/- was withheld from the leave encashment amount because of the tentative loss caused to the government. In view of these facts, the ratio of the judgement of the Chandigarh Bench of the Tribunal cannot render assistance in the instant case.
16. Respondents have argued that the gratuity amount has been withheld in accordance with Rule 69 (1) (c) of the CCS Pension Rules 1972 and part of the leave encashmen encashment amount (Rs. 35110.23) has been withheld in terms of Rule 39(3) the CCS (Leave) Rules. Rule 69
-13- OA/051/00771/2019 (1) (c) of CCS (Pension) Rules, 197
197.. Relevant portion of the said rules reads as under.
"69. Provisional pension where departmental or judicial proceedings may be pending (1) ...
(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."
17. Rule 39 (3) of CCS(Leave) Rues is reproduced as under:-
under:
" The authority competent to grant leave may withhold whole or part of cash equivalent of earned leave in the case of a Government servant who retires from service on attaining the age of retirement retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Government dues, if any."
Since adoption and application of these rules in CSIR-CMIFR CMIFR has been upheld held as legal by Hon'ble Supreme Court in Prahlad Sharma case supra and Jharkhand High Court in Shankar Prasad (supra), as discussed above above,, we find the respondents' decision in accordance with the rules rules. The applicant has not challenged the vires of CCS (Pension) Rules and the CCS (Leave) Rules in this OA .
18. Regarding the prevailing of the Payment of Gratuity Act, 1972 over other R Rules as averred by learned counsel for applicant, applicant, Hon'ble Supreme Court's observation in the case of Jaswant Singh Gill (supra), was with respect to the the Discipline, Control and Appeal Rules of Coal India Limited Limited.. It cannot be accepted that the Payment
-14- OA/051/00771/2019 of Gratuity Act will prevail over all the Rules ules irrespective of their objective and content.
19. The applicant has admitted that he was sanctioned pension at the time of retirement and has been receiving the pension on monthly basis. The authorization, quantum and other issues relating pension for Central Government employees are governed under CCS(Pension) Rules. CSIR has adopted these rules and made applicable cable to its employees. The CCS (Pension) Rules also deals with the authorization, quantum and other issues relating the gratuity for Central Government employees. As CSIR has adopted these rules, the gratuity payment to CSIR/CIMFR employees is also dealt in accordance with the CCS (Pension) Rules. Rule 69 (1)) (c) provides for withholding of provision if the disciplinary or criminal proceeding is under process at the time of retirement. The applicant has availed the pension benefit under these rules but claims that he cannot be covered under the CCS(Pension) Rules for the purpose of gratuity gratuity,, and invokes the Payment of Gratuity Actagainst Actagainst the order of withholding.
20. The Payment of Gratuity Act was promulgated in 1972 for the employees working in mines, factories actories, oilfields, plantations, ports, railway companies, shops or other establishments establishments. The Payment ayment of Gratuity ratuity Act ct makes no provision for pension for those employees. The applicant is thusrelying relying on the CCS(Pension) Rules, 1972 for grant of pension but looking to the Payment of Gratuity Act to avoid the
-15- OA/051/00771/2019 withholding of gratuity under the CCS(Pension) Rules. Obviously, the applicant is travelling in two boats which cannot be acceptable.
acceptable
21. Even otherwise the applicant did not approach the 'Controlling ontrolling Officer fficer'ss defined under Section 3 of the Payment of Gratuity Act for redressal of his grievances relating non non-payment payment of gratuity. The applicant has approached the Tribunal without raising the issue before the appropriate authority under the Act while claiming the protection provided under the Act. If the applicant really felt that his gratuity cannot be withheld in accordance with the provisions of PG G Act he should have raised his grievances be before fore the 'Controlling Officer' first under the provisions of that Act. In the case of Jaswant Singh Gill cited supra the app appellant had raised the issue of denial of gratuity before the competent authority under the PG Act. The applicant's conduct is thus deemed as misuse of process provided under the A Administrative dministrative Tribunal Act, 1985.
22. In view of legal and factual scenario discussed discusse above, we are of the considered view that the applicant's case is devoid of merit and is reflecting misuse of the process and therefore deserves to be dismissed with cost. Accordingly, OA is dismissed with a cost of Rs. 5000/-- (Five thousand only).
[ Sunil unil Kumar Sinha] [ M.C. Verma ] Administrative Member Judicial Member Srk.