Central Administrative Tribunal - Delhi
Mahendra Kumar Sharma, Legal Heir And ... vs The Superintendent Post Offices, ... on 26 September, 2007
ORDER Neena Ranjan, Member (A)
1. In this OA, applicant challenges order dated 29.9.2006 that was passed in view of the direction given by the Tribunal in OA No. 1193 of 2006. He seeks direction to respondents to consider payment of gratuity with interest of his late father Shri Ganga Saran Sharma, Sub Post Master (Ex. SPM) w.e.f. 20.11.2001.
2. Late Shri Ganga Saran Sharma was serving as Offg. SPM up to 24.9.1981 when he was placed under suspension. Applicant contends that his father was implicated in a false criminal case under Section 409/468 IPC and Section 5(2) read with Section 5-1 (c) of the Prevention of Corruption Act. He was held guilty by the Special Judge Anti-Corruption, Dehradun vide its judgment dated 4.12.1984 whereby he was convicted and the following sentence was imposed:
to undergo two years Regorous imprisonment and further to pay a fine of Rs. 1500/-. In default to payment of fine, he was further directed to undergo a simple imprisonment for a period of 4 months. The applicant was further convicted under Section 468 IPC to undergo 15 months rigorous imprisonment and to pay a fine of Rs. 1500/-. In default of payment of fine, he was directed to undergo 4 months simple imprisonment. He was also convicted and sentenced to undergo one year's rigorous imprisonment under Section 5-1 ( c) read with Section 5 (2) of the Prevention of Corruption Act and was ordered to pay a fine of Rs. 1500/-. In default of payment of fine, he was directed to undergo simple imprisonment of 4 months. All the sentences were directed to run concurrently.
3. His father had challenged above judgment before the Hon'ble High Court of Allahabad wherein the appeal was admitted, bail granted and fine stayed by order dated 21.12.1984 and matter was transferred to High Court of Uttaranchal. Unfortunately, his father expired on 20.11.2001. Then in order dated 2.9.2003 the Hon'ble High Court of Uttaranchal at Nainital declared the appeal filed by applicant to have abated.
4. A charge-sheet was issued by the department on 26.7.2000. The Inquiry Officer in his report on 21.9.2000 held Shri Ganga Saran Sharma guilty of the charge and department imposed a punishment of reduction to lower post of Postman in the scale of Rs. 3050-4590 w.e.f. 28.9.2000 in the scale of Rs. 4000-6000, i.e. from the cadre of Postal Assistant with clear stipulation that reduction would be permanent. Thereafter, suspension was revoked vide order dated 29.9.2000 and Late Shri Ganga Saran Sharma was allowed to join as Postman. The period of suspension was to be counted for pension and gratuity only and not for increment, leave or other benefits etc.
5. After superannuation on 30.9.2000, applicant's father was given provisional pension but gratuity was withheld till the conclusion of departmental/judicial proceedings. On Shri Ganga Saran Sharma's death on 20.11.2001, the report about his death was received from Chief Judicial Magistrate Bulandshahr by the Hon'ble High Court of Uttaranchal at Nainital and following order was passed:
The report about the death of appellant Ganga Saran Sharma has been received from the CJM Bulandsahar. The report was submitted after proper verification. Considering this the appeal stand abated and the record is consigned.
6. The facts as stated by applicant are that after a gap of about 18 years of suspension the applicant's father was proceeded under Article 14 of the disciplinary proceedings after suspension was revoked on 29.9.2000. He was down graded from Sub-Postmaster to Postman cadre and his pension was released but DCRG was withheld since department had to complete the departmental enquiries before finalizing the pending appeal. Superintendent of Post Offices, Bulandshahar Division had prepared an enquiry report vide letter dated 21.9.2000. In the enquiry report it was revealed that Shri Mahaveer Singh was the main offender and not Shri Ganga Saran Sharma and former had also returned Rs. 5700/- to the department. This fact was disclosed by the respondent in Para 6 (v) of order dated 29.9.2000, i.e. after punishment had been imposed on Shri Ganga Saran Sharma. Therefore, now with no disciplinary case pending against applicant's father and criminal case held as abated, respondents were duty bound to release gratuity due to his father.
7. Applicant also submitted that he is entitled to get the gratuity along with interest thereon for the period of delay beyond the period of three months from the date of death, i.e. 20.11.2001 in terms of GOI decision No. 2(I)(b) under CCS (Pension) Rules, 1968. Respondents are relying on the decision No. 1 of Pension Rule 8 and denying DCRG to the applicant. This decision contained the provisions regarding stoppage or reduction of pension for reasons other than misconduct not permissible. Hence, applicant has prayed for the following releifs:
(i) the Hon'ble Tribunal may graciously be pleased to pass an order of quashing impugned order dated 29.9.2006 declaring to the effect that the same is illegal and arbitrary and direct the respondents to consider the case of applicant for payment of gratuity of his late father Ganga Saran Sharma, Ex.Sub-Postmaster.
(ii) To issue direction to the respondents to pay the interest on account of delay in payment of gratuity which will be deemed to have fallen due on the date following the date of death, i.e., w.e.f. 20.11.2001 and as the payment has been delayed beyond three months.
8. Respondents by filing counter pleaded that Shri Ganga Saran Sharma, ex-Postman was found guilty under Section 409 and 468 IPC and Section 5 (2) read with Section 5 (1)) of Prevention of Corruption Act for having committed criminal breach of trust in respect of sum of Rs. 5700/- from Karora. He was awarded the punishment of 51 months imprisonment and fine of Rs. 4500/- vide order dated 4.12.1984
9. After formation of Uttranchal State, the said appeal was transferred to Hon'ble Nainital High Court. The official was under suspension prior to the decision of CBI Court, Dehradun. The father of applicant was proceeded under Rule 14 of CCS (CCA) Rules, 1965 and his suspension was revoked on 29.9.2000. After completion of the disciplinary proceedings, he was downgraded from Postal Assistant Cadre to Postman cadre. Accordingly, pension was sanctioned withhold DCRG. As the official passed away on 20.11.2001, the Hon'ble High Court had abated the appeal filed by him against the conviction by the CBI Court, Dehradun on 2.9.2003. According to Rule 8(2) and 69(1)( C) of CCS (Pension) Rules, the DCRG of the official was not payable due to pending criminal appeal in the court. Earlier also applicant had filed an OA 1193/2006 which was disposed of vide order dated 14.6.2006 with a direction to the respondent to pass a speaking and reasoned order as per rules.
10. I have heard both the learned Counsels and perused the record.
11. The applicant has argued that under the CCS (Pension) Rules, 68(2)(i)(b) gratuity is to be given in the case of his deceased father since the departmental enquiry was not proved. Rule 68(2)(i)(b) reads as under:
(b) In cases where the disciplinary/judicial proceedings are dropped on account of the death of the Government servant during the pendency of disciplinary/judicial proceedings, the payment of gratuity will be deemed to have fallen due on the date following the date of death and if the payment of gratuity has been delayed, interest may be allowed for the period of delay beyond three months from the date of death.
12. However, respondents have argued that in the instant case there has been a grave misconduct by the applicant and the conviction has been upheld in a court of law and not overturned by High Court of Nainital, where appeal had been preferred. His appeal has been rejected by a speaking order and the principle of estoppel is not applicable against orders which are passed under statutory rules governing a government servant. It is also to be noted that Rule 8 (2) of the Pension Rules reads as under:
(2) Where a pensioner is convicted of a serious crime by a Court of Law, action under Sub-rule (1) shall be taken in the light of the judgment of the court relating to such conviction.
13. The learned Counsel for applicant has quoted Back's Law Dictionary to show that the word 'abated' had been used in the High Court at Nainital order. The meaning 'quash' has been applied to 'abated' in the said dictionary. It is seen that 'quash' is one synonym. The more apt meaning would be 'to put an end to'. Since in this context abatement of action is referred to the meaning of the word 'abatement' may also be considered. This is explained as the suspension or cessation, in whole or in part, of a continuing charge.... This would be more apt since death of applicant led to cessation of a continuing charge or action etc. It could not reach finality and hence it was 'ceded' or 'put an end to'. He has also argued that since applicant is a Government employee so only the President can stop his pension and to that effect he has referred to Rule 68(2)(i)(b) of the Pension Rules. He has further argued that the applicant was not ultimately not held responsible for misappropriation in the departmental enquiry and the money was returned by one Shri Mahaveer Singh. Hence, Shri GAnga Saran Sharma is not guilty of the grave charge of misappropriation or misconduct either in DE or in court of appeal.
14. In reply to the above contentions, the respondents have argued that applicant's father had been clearly held guilty by the CBI and in the enquiry report of 28.9.2000 conducted by the Superintendent of Post Officers referred to above. The operative part of the order reads as under and clearly held him guilty of the charge of lack of supervision:
Order I, H.P. Singh, Superintendent of Post Offices, Bulandshahr Dn. Bulandshahr under the powers conferred upon me unde Rule 12 (2)(A) of CCS (CCA) Rules, 1965 hereby award the penalty of reduction lower post envisaged under Rule 11 (VI) of CCS (CCA) Rules, 1965 to Shri Ganga Saran Sharma, SPM, Karora (Under Suspension). Shri Sharma presently in the cadre of Postal Assistant in the scale of Rs. 4000-100-6000 is hereby ordered to be reduced to lower post of Postman (Held by him before) in the scale of Rs. 3050-75-3950-80-4590 with immediate effect with clear intention that the period of reduction should be permanent.
15. There would seem to have been grave misconduct by the applicant and his conviction had also been upheld by Sub Judge Anti Corruption whereby he was to undergo rigorous imprisonment of one year and a fine of Rs. 1500. In default of payment of fine, he was directed to undergo simple imprisonment of 4 months. As seen, this order was challenged in the High Court of Allahabad wherein the appeal was admitted, bail was granted and fine stayed by order dated 21.12.1984. Thereafter, the case dragged on for many years. Soon after the bifurcation of Uttar Pradesh, the case was transferred to the High Court of Uttaranchal. With the death of the concerned person, i.e., Ganga Saran Sharma, the case was abated by the High Court on 2.9.2003. However, in the departmental enquiry dated 28.9.2000, it was found that the applicant was certainly guilty of lack of supervision and has been reduced to a lower rank of Postman with permanent effect. It is admitted that since money of Rs. 5700 was returned Government did not suffer any loss.
16. In view of the peculiar circumstances of this case and the fact that though convicted at the lower court level Sub Judge CBI, against which appeal had been preferred in the High Court which could not be finalized and no order could be passed on merits, due to death of Shri Ganga Saran Sharma, this case is exceptional case. It is also noted that in the departmental enquiry of 28.9.2000 even though he was reduced from Postal Assistant to that of Postman, the offence was of lack of supervision but not of misappropriation of Government funds, mala fide intent or criminal charge. It was ultimately found that one Shri Mahaveer Singh was involved and he had returned the money to public exchequer and the Government did not suffer any loss.
17. Taking a sympathetic view of the entire proceedings and the fact that the deceased Shri Ganga Saran Sharma suffered for almost 18 years for delay of justice in the court of appeal and High Court and the fact that Government has not suffered any monetary loss it is felt that it would be just for the department to consider giving disbursement of gratuity due on the reduced post of Postman to the applicant, i.e., son of late Shri Ganga Saran Sharma.
18. The applicant in this case may make a representation to the department within one month accordingly, which may be acted upon within 3 months of its receipt. Keeping in view the special nature of the case it is felt that no interest need be given, if Postal Department decides to grant the gratuity amount. This may also not act as a precedent for future cases. Any such future cases of similar nature would be considered solely on merits and facts of each case.
19. With the above directions, OA is disposed off. No costs.