Central Administrative Tribunal - Ernakulam
Marykutty K V @ Laly George vs The Regional Provident Fund ... on 14 December, 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 180/0069/2020
Wednesday, this the 14th day of December, 2022.
CORAM:
HON'BLE Mr. JUSTICE K. HARIPAL, JUDICIAL MEMBER
Marykutty K.V. @ Laly George
Aged 60 years, W/o. late George
Retired Lower Division Clerk
Employees Provident Fund Organization
Regional Office, Kottayam
Residing at Kollelil House
Kumaranalloor P.O.
Perumbaikadu Village
Kottayam District, PIN-686016 - Applicant
[By Advocate: Mr. Raju Vadakkekara]
Versus
1. Union Of India, represented by the
Regional Provident Fund Commissioner
Employees Provident Fund Organization
Regional Office, Bhavishyanidhi Bhavan
Pattam, Thiruvananthapuram PIN-690040.
2. The Assistant Provident Commissioner OIC
Employees Provident Fund Organization
Regional Office, Kottayam, PIN-686001. - Respondents
[By Advocate : Mr.A.Rajasimhan]
The application having been heard on 14.11.2022, the Tribunal
on 14.12.2022 delivered the following:
O.A No. 180/0069/2020 2
ORDER
The applicant is a retired Lower Division Clerk from the Employees Provident Fund Organisation, hereinafter referred to as EPF Organisation, under the 2nd respondent. She retired from service on superannuation on 31.10.2019. She had commenced service as Last Grade Servant on 28.05.1998. According to her, she retired after putting in 21 years 5 months and 3 days unblemished service. At the instance of the daughter-in-law of the applicant, Crime No.1247/2019 of Gandhi Nagar Police Station was registered against her son and herself alleging offence under Section 498A read with Section 34 IPC. She moved the Sessions Court, Kottayam and obtained anticipatory bail under Section 438 Cr.P.C. That order dated 23.07.2019 is produced as Annexure-A1. Later, the defacto complainant, Nimmi George, the daughter-in-law, filed Annexure-A2 complaint before the 1st respondent contending that at her instance such a crime was registered alleging offences under Sections 498A and 323 IPC against the applicant, who is the 2 nd accused. A copy of the FIR was also produced before the 1 st respondent. There are other imputations also against the applicant, in Annexure-A2. In Annexure-A2 the defacto complainant requested to take immediate O.A No. 180/0069/2020 3 action to realise the amount of Rs.10,00,000/- and 15 sovereigns of gold given to her at the time of marriage and 8 sovereigns of gold given to her child by her parents, from the pensionary benefits of the applicant. The 1st respondent sent Annexure-A3 communication with a memorandum to the 2nd respondent directing to convey the genuineness of the complaint and intimate whether she was taken into custody by the police/filed FIR. In Annexure-A4 it is stated that as per Rule 19 of the CCS (CCA Rules), it is the duty of the Government servant to inform his/her higher authorities in the event of detention by the police authorities/filing FIR in connection with a criminal offence. The applicant filed Annexure-A5 reply stating her version that led to the registration of the crime at the instance of the daughter-in-law. It is also stated that on 19.06.2019 the daughter-in- law along with the child had left the matrimonial home and went to her paternal home without their knowledge and consent, and thereafter went to hospital after two days on 21.06.2019 and preferred the complaint for registering the crime etc. According to her, even though a crime was registered and thereafter she had obtained anticipatory bail, due to her dismay and disadvantaged situation she could not intimate the matter to her official superiors, O.A No. 180/0069/2020 4 for which she requested to condone the delay. Later, stating that she had not intimated her arrest to the office as per Rule 19 of the CCS (CCA Rules) (sic.), she was directed to explain why the matter was not intimated to the higher officials. She gave Annexure-A7 reply stating that she never intended to violate the provisions of CCS (CCA Rules)(sic.). Thereafter, disciplinary proceedings were initiated and two articles of charge were served on the applicant as per Annexure- A8, on 21.10.2019. Within a couple of days she retired from service on 31.10.2019. Before that she gave Annexure-A9 reply.
2. Annexure-A10 is the impugned order, where though she was granted pension, retirement gratuity payable has been withheld as Vigilance clearance has not been granted consequent to pending disciplinary proceedings initiated against her under Rule 10 of the EPF(CC&A) Rules. The applicant challenges the same. According to her, such an act of the respondents is illegal, arbitrary and unjust. She prays to quash Annexure-A10 and to direct the 1st respondent to disburse the gratuity to her with immediate effect.
3. Learned counsel for the respondents filed a statement followed by the reply statement by the 2nd respondent. According to O.A No. 180/0069/2020 5 him, the applicant has already been given provisional pension. But following Rule 69(1)(c) of the CCS(Pension) Rules, since departmental proceedings are pending, her gratuity has been withheld, that gratuity can be disbursed only on exoneration of the applicant in the departmental proceedings initiated against her. Sri.John Samuel, APFC, Regional Office, Thiruvananthapuram has already appointed as Inquiry Officer, who has filed a report finding the applicant guilty. The report has been sent to the Zonal Office to place before the appropriate authority. Gratuity was denied since disciplinary proceedings were pending.
4. I heard the learned counsel on both sides. According to the learned counsel, for an omission happened on the side of the applicant, which is not very serious, her gratuity has been illegally withheld. On the other hand, the learned Standing Counsel has submitted that after finding her guilty of the misconduct alleged, the report has been sent to the Head Office, Delhi, from where the remarks of the disciplinary authority has been called. He also pointed out that the disciplinary proceedings or the enquiry report are not under challenge. He contended that the Ministry of Labour O.A No. 180/0069/2020 6 and Employment or the appointing authority are not parties to the proceedings. The allegations of dowry demand and cruelty meted out to the daughter-in-law are serious allegations.
5. The respondents have no case that all necessary parties are not impleaded or that the application is bad for non-joinder of necessary parties. In fact there is nothing in the O.A., which could not be disposed of owing to non-joinder of parties. No relief is sought against Ministry of Labour and Employment and the appointing authority.
6. I have no doubt that the alleged criminal offences are serious. But the Sessions Judge considered the bail application and granted anticipatory bail on conditions. Still it is not known as to why there was scope for enquiry whether she was arrested, kept in custody etc. Such enquiries are the outcome of total lack of understanding of the criminal proceedings of this nature.
7. It is a known fact that even though the offence under Section 498A IPC is a non-bailable offence with warrant-trial proceedings, the Apex Court as well as the High Courts have held that it being an O.A No. 180/0069/2020 7 offence between the parties to the marriage, granting bail is the rule. That was why the Sessions Judge had readily granted bail on her application. Annexure-A6(2) report of the Inspector of Police indicates that both the accused were arrested on 29.07.2019 and on conclusion of investigation, the case was charged on 29.07.2019. In other words, such an arrest was recorded as a formality only, on the date of filing the charge sheet. It seems that the respondents are under a false notion that she was detained in police custody after arrest etc.
8. After all, the misconduct alleged is violation of the Conduct Rules, whereby she failed to intimate the registration of the crime. I do not want to make further comments on this.
9. Annexure-A8 indicates that she had violated Rule 20 of the CCS(Conduct) Rules read with Regulation 22 of the Employees' Provident Fund (Officers and Employees' Conditions of Services) Regulations, 2008. Rule 20 of the Conduct Rules says that 'no Government servant shall bring or attempt to bring any political or other outside influence to bear upon any superior authority to further his interests in respect of matters pertaining to his service O.A No. 180/0069/2020 8 under Government'. I do not know how this Rule will be applicable in this case. Similarly, Rule 3(1)(i) and 3(1)(iii) of the CCS(Conduct) Rules says that 'every Government servant shall at all times maintain absolute integrity and do nothing which is unbecoming of a Government servant'. Still, Rule 10 of the EPF(CC&A) Rules for the purpose of imposing major penalties has been invoked. Here also, I abstain from making any comment.
10. We are concerned about the correctness of withholding of the gratuity amount. In F.R.Jesuratnamm v. Union of India and others [(1990) SCC (L&S) 370], the Apex Court has held that gratuity is not a bounty and the amount cannot be forfeited. In D.V.Kapoor v. Union of India and others [(1990) 4 SCC 314], the Apex Court held that right to gratuity is a statutory right and that the amount cannot be withheld as a measure of punishment without giving an opportunity to the employee. In Bakshish Sing v. M/s.Darshan Engineering Works and others [(1994) 1 SCC 9), the Hon'ble Supreme Court has held that it could not be denied to the employee on account of his misconduct. He could be denied gratuity only to the extent of the financial loss caused by his misconduct, and no more. Here, the O.A No. 180/0069/2020 9 respondents have no case that the applicant had caused any financial loss to the organisation. The allegation is that she had failed to report the registration of the crime, her arrest etc. to the official superior.
11. Whatever it may be, Rule 69(1)(c) of the CCS(Pension) Rules has been highlighted. Here, proviso to Rule 69(1)(c) cannot be lost sight of, which says 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 authorised to be paid to the Government servant. Any how, here Rule 10 of the EPF (CC&A) Rules has been invoked.
12. The applicant had retired from service on 31.10.2019. There is no reason as to why the disciplinary proceedings shall be kept pending for long. Therefore, the respondents are directed to conclude the disciplinary proceedings within a period of one month from the date of receipt of a copy of this order and disburse the gratuity payable to the applicant.
O.A No. 180/0069/2020 10The Original Application is disposed of. No costs. A copy of this order shall be forwarded to the 1st respondent forthwith.
(Dated, this the 14th December, 2022.) JUSTICE K. HARIPAL JUDICIAL MEMBER ds O.A No. 180/0069/2020 11 Applicant's Annexures Annexure-A1 True copy of the order dated 23/07/2019 in Crl. MP. No.2003/2019 of the Hon'ble Sessions Court, Kottayam, granting anticipatory bail to the petitioner Annexure-A2 True copy of the complaint dated 29/07/2019 submitted by the daughter-in-law of the applicant, Nimmy George to the 1st respondent.
Annexure-A3 True copy of the Confidential letter No.KR/TVM/RC's Sectt/Vig(MK)/2019-20 dated 09/08/2019 sent by the 1st respondent to the 2nd respondent.
Annexure-A4 True copy of the communication (Memorandum) letter No. KR/KTM/Admin.l (3)/Genl/2019 dated 29/08/2019 issued by the 2nd respondent to the applicant.
Annexure-A5 True copy of the reply submitted by the applicant to the 2nd respondent dated 02/09/2019.
Annexure-A6 True copy of the communication Letter No.KR/KTM/Admin-I(3) /Marykutty.K.V/2019, dated 12/09/2019.
Annexure-A7 True copy of the explanation submitted by the applicant to the 2nd respondent dated 17/09/2019. Annexure-A8 True copy of the memorandum No.KR/TVM/RC's Sectt/Vig.(MK)/F.16/2019-20 dated 21/10/2019. Annexure-A9 True copy of the written statement submitted by the applicant to the 2nd respondent dated 30/10/2019. Annexure-A10 True copy of the office order No.KR/TVM/Adm-I (4)/Staff Pension/2019/4368 dated 05/11/2019 issued by the 1st respondent to the applicant.
Respondents' Annexures NIL **********