Rajasthan High Court - Jaipur
Union Of India (Uoi) And Ors. vs Amritlal Borana And Ors. on 13 April, 2001
Equivalent citations: 2007(3)WLN414
JUDGMENT Rajesh Balia, J.
1. The petitioner Union of India is aggrieved with the order passed by the Central Administrative Tribunal, Jodhpur dated 22nd March, 1999 in the Original Application No. 263/97 filed by respondent Amritlal Borana.
2. The facts which are not in dispute are that the said respondent employee who was serving in the office of the Dy. Controller of Stores, Northern Railway superannuated on 31st Oct., 1998. However, before he superannuated, he was served with a chargesheet Under Rule 9 of the Railway Servants (D & A) Rules, 1968 proposing to impose a major penalty. During the pendency of that enquiry, Original Application No. 469/94 was moved before the Central Administrative Tribunal for quashing that enquiry and releasing the retiral benefits in the form of gratuity to the applicant. The respondent applicant was being paid a provisional pension and there is no dispute about that. Since he was subjected to departmental enquiry at the time of his superannation, he was denied the benefit of commutation of pension at the time on superannation which he could opt only after culmination of those proceedings. So also the amount of gratuity which was otherwise payable to the petitioner on retirement was withheld.
3. The Original Application No. 469/94 was decided by the Central Administrative Tribunal on 25.8.1995 directing the disciplinary authority to complete the total disciplinary proceedings including passing of the order by the disciplinary authority within a period of six months from the date of receipt of copy of the said order failing which the enquiry proceedings against the applicant were to be deemed to have been quashed with all consequential benefits.
4. It transpires that in pursuance of this order the enquiry was completed by the enquiry officer and a report was submitted to the disciplinary authority on 18.1.1996 well before the expiry of six months from the date of the communication of the order passed by the Central Administrative Tribunal holding that no charge against the delinquent officer has been proved. But, the disciplinary authority was not inclined to agree with the findings. He, therefore, issued a notice to the delinquent containing the reasons for his disagreement with the report of the disciplinary officer along with supplying him a copy of the enquiry report. Despite making repeated efforts including sending the notices with the enquiry report through acknowledgment post the same could not be served. The acknowledgment receipt of registered post sent at last known address of the delinquent was returned by the postal authorities. In these circumstances, the disciplinary authority after recording his disagreement with the finding of the enquiry officer and holding that charges against the delinquent are proved, referred the case to the Railway Board whose President after carefully considering the report of the disciplinary authority agreed with the finding recorded by the disciplinary authority and imposed a penalty of withholding 10% of the monthly pension otherwise admissible to Mr. Amritlal for a period of one year. That order recording all these facts chronologically was passed on 11.7.1997. Apparently, making of this order fell beyond the six months limit fixed by the Central Administrative Tribunal and the application for extension of the deadline for making an order having failed, the delinquent officer moved an application for review of the order dated 11.7.1997 in the light of peremptory order made by the CAT in O.A. No. 469/94. This prayer was considered favourable by the President and the order imposing penalty was recalled on 31.8.1998.
5. This led to fresh bout of litigation. It may be noticed here that before the President had made the order recalling punishment on 21.8.1998, the amount of gratuity and interest thereon w.e.f. 21.11.1995 to 12.8.1996 for 8 months and 18 days was paid to the incumbent on 20th Sept., 1996. The interest was computed with effect from expiry of three months from the date of the order of Tribunal dated 25.8.1995 within which the employer was directed to pay the other retiral benefits namely the Group Insurance and leave encashment. About these facts also there is no dispute.
6. In the aforesaid background, the grievance raised by the retired officer in his original Application No. 263/97, out of which present proceedings arise, relates to commutation of pension with the following prayers:
(i) That by an appropriate writ, order of directions, the respondents be directed to make payment of commutation amount of pension of Rs. 57,990/- along with bank rate of interest @ 18% per annum with effect from 1.11.1988, till the final payment is made to the applicant.
(ii) That by an appropriate writ, order or directions, the respondents be directed to release and pay bank rate of interest @ 18% per annum of DCRG Rs. 46,613/-, leave encashment Rs. 27,800/- and Group Insurance Rs. 2,022/- with effect from 1.11.1988 to 13.8.1996 on DCRG and leave encashment and 27.8.1996 on Group Insurance and thereafter further interest thereof till the final payment is made to the applicant.
(ii-A) That the respondents be directed to make payments on account of commutation amount of pension, DCGR, which comes to Rs. 1,34,425/- as on 1.11.1988 along with bank rate of interest @ 18% per annum after deducting the payments which have already been made by the respondents to the applicant from time to time, till the final payment is made.
(iii) That by an appropriate writ, order or direction, respondents be directed to pay compensation of Rs. 3,00,000/- to the applicant for causing undue harassment, humiliation and mental agony to the applicant and his family for last about 9 years.
(iii-A) That by an appropriate writ, order or direction, impugned order No. E/141/680/Viz. E (D & A) of 24.7.1997 Annexure R/2 complete and other consequential orders thereto be declared illegal and be quashed and set aside as if the same were never passed against the applicant with all consequential benefits.
(iv) That the respondents be directed to make payment of final pension instead of provisional pension.
(v) The exemplary cost may be awarded against the respondents for causing harassment to the applicant.
7. The Tribunal after hearing the parties has allowed the Original Application with the following directions:
(i) The respondents would pay the interest @ 12 per annum compounding annually on the amount of D.C.R.G. from 1.11.1988 till the date of payment. The interest already paid on D.C.R.G. may be adjusted in the interest payable now in terms of this order of the Tribunal.
(ii) The respondents would issue final Pension Payment Order in lieu of Provisional order for pension.
(iii) The applicant will be entitled t6 commutation of a part of his pension, if he submits application for the same before 23.8.1999, without medical examination.
(iv) For the harassment and mental agony suffered by the applicant during the past 11 years, I consider it just and proper to award a cost of Rs. 5000/- to the applicant.
8. We have heard learned Counsel for the parties and perused the record and relevant rules made available to us.
9. The first contention raised by Mr. Vyas, learned Counsel for the petitioners, relates to the allowing of interest on the amount of gratuity w.e.f. 1.11.1988, the date of retirement until the date of payment which was made in the year 1996 @ 1246 per annum. It is contended by the learned Counsel for the petitioner Union of India that since gratuity has been paid before it became due under the rules, no Interest as such was payable on the amount of gratuity yet the amount of gratuity along with interest for 8 months and 18 days has been paid to the officer on 12th August, 1996, therefore, no further interest could be allowed by the Tribunal on the amount of Rs. 46,613/- which was paid to the incumbent by way of gratuity.
10. Learned Counsel for the respondent urged that since the officer was fully exonerated by the enquiry officer and the period of imposition of punishment having already expired, it must be deemed that the officer was fully exonerated and therefore, he was entitled to interest with effect from the date the gradually became payable to the date of retirement and not any date thereafter. He, for that reason, supported the order passed by the Tribunal accepting his claim on account of interest. It is common ground that Rule 10-C and the orders issued by the Railway Board as quoted in the order of the Central Administrative Tribunal governs the field of payment of interest on the gratuity, which reads as under:
Interest on delayed payment of D.C.R.G.: An interest @ 10% per annum may be allowed on the delayed payment of gratuity for the period beyond three months after it becomes due and would be payable till the end of the month preceding the month in which the payment is actually made, G.O.I., M.O.H. (DPAR) Office Memorandum dated 28.7.1984. The interest will be allowed only where it is clearly established that the payment of D.C.R.G. was delayed on account of administrative lapse or for the reason beyond the control of the Railway Servant concerned. In all cases where interest has to be paid action should be taken by the Railway Administration to fix up responsibility for the delay and disciplinary action should be taken against the staff responsible for it. (R.B.'s No. F(E) III-79-EN-1/15 dated 3.9.1979 (N.R., S.N. 7400). With a view to simplify the procedure, the Railway Board has delegated the powers of payment of interest on delayed payment of gratuity to the General Managers in respect of the staff working under them. These powers will not be further delegated by the General Managers to any lower authority. (R. Bs. No. F(E) III79/PNI/15 dated 23.1.1987 (N.R., S. No. 9168).
11. A careful reading of the above goes to show that interest is payable in such cases where it is clearly established that the payment of D.C.R.G. was delayed on account of administrative lapse or for the reason beyond the control of the railway servant concerned. It is also not in dispute that no gratuity was payable to the railway servant who was subjected to a departmental enquiry at the time of superannuation proposing a major penalty until the conclusion of the departmental proceedings and the issue of final orders thereon. These provisions read together makes it clear that in the first instance gratuity does not become payable at all unless pending departmental enquiry proposing major penalty is finally concluded. In this case, there is no dispute that at the time of retirement the incumbent was already subjected to a departmental enquiry proposing a major penalty and the gratuity was not payable immediately at the time of retirement nor it was payable under the rules before the conclusion of the departmental proceedings which ultimately concluded on 21st August, 1998 only whereas the amount of gratuity was already paid to the incumbent on 12th August, 1996 or 13th August, 1996 as admitted by the incumbent.
12. Be that as it may, since the amount of gratuity was paid to the incumbent before the date it became payable under the Rules, no question of payment of any interest thereon would have arisen. In these circumstances, notwithstanding that the interest for 8 months and 18 days having been allowed under the order of the Tribunal dated 25.8.1995, no claim for further interest could be entertained.
13. In the context in which the administrative delay in payment of gratuity is to be considered in the cases where payment of gratuity is suspended due to the pendency of the departmental enquiry can only refer to the administrative delay after the payment of gratuity becomes due. In these circumstances, the Tribunal was not justified in holding the department responsible for administrative delays in making payment of gratuity when it became due. The allowance of interest on the amount of gratuity w.e.f. 1.11.1988 was not justified. Moreover, it cannot be said to be a case of complete exoneration in view of the finding recorded by the disciplinary authority and President agreeing with that. The fact that the proceedings have ultimately infructuated because pf the peremptory order passed by the Tribunal resulting in no penalty imposable on the incumbent, it cannot be equivalent to exoneration from the charges honorably on conclusion of an enquiry. It was not a case in which no enquiry at all was held or was dropped after initiating the same, which could be considered as exoneration. It is a case in which the delinquent though found guilty, but could not be subjected to penalty by operation of the orders of the Tribunal.
14. The second contention raised by the learned Counsel for the petitioners relates to the question what ought to be the basic amount of pension on which the Commutation of pension should take place? While the incumbent claims that because commutation of pension could take place only after the culmination of the pending proceedings against him and until then he was entitled to draw only the provisional pension, no artificial amount of pension payable to the incumbent as on the date of the retirement could be treated as basic pension with reference to which commutation of part of pension could take place by ignoring the actual pension which is permissible to the incumbent as on the date he became entitled to commute a fraction of his pension in absolute.
15. On principle, there is no dispute on this aspect of the matter. However, Mr. Vyas contends that in all cases the rate of commuted pension becomes absolute on the date of retirement or at best within one year from the date of retirement Under Rule 7 and therefore, it is only that amount of pension which becomes payable at the time of retirement, which can form the basis of commutation of pension irrespective of the basic pension on the date when it is so actually commuted.
16. In this connection, the rules which require attention are general conditions No. 5, 7, 12, 13 and 14. A perusal of the Scheme of these Conditions goes to show that classification for the purpose of commutation of pension has been made on the basis whether the incumbent is entitled to commuted pension after a medical examination or without a medical examination. In case an incumbent is entitled to commute fraction of his pension without medical examination, he is governed by conditions mentioned in Chapter-III whereas an incumbent entitled to commute his pension after medical examination is governed by the conditions mentioned in Chapter-TV. Conditions No. 12, 13 & 14 reference to above are part of Chapter-III and relates to commutation, of pension without medical examination. Condition No.5 inter-alia envisages that no railway servant against whom any departmental or judicial proceeding as referred to in Rule 9 has been instituted before the date of retirement shall be eligible to commute a fraction of his pension within the pendency of such proceedings. Condition No.7 provides when commutation of pension becomes absolute in different cases referred to in Rule 14. The candidates to whom Sub-Rule (1) of Rule 14 applies, the commutation of pension becomes absolute on the date on which the Form No. 1 is received by the Head of Office. Sub-Rule (5) of Condition No. 13 which identifies class of persons eligible for pension without medical examination includes an applicant who is authorised to pension in whole or in part on the finalisation of the departmental or judicial proceedings referred to in Rule 9 of the Railway Pension Rules and issue of final orders thereon, subject to the limit in Rule 6, is eligible to commute a fraction of his pension without medical examination provided that he applies for commutation of pension in Form 1 or Form 2 in accordance with the provisions of Rule 14. Proviso (b) to Condition No. 14 reads that in the case of an applicant referred to in Clause (v) of Rule 13, the period of one year referred shall reckon from the date of the issue of the orders consequent on the finalization of the departmental or judicial proceedings.
17. These provisions read together leaves no room of doubt that in case of a person who is subjected to a departmental enquiry proposing a major punishment referred to in Rule 9 of the Rules, is entitled to 4 commute fraction of his pension without medical examination and he is entitled to make an application only within a period of one year from the date of the issue of order consequent on finalisation of the departmental proceedings. Thus in such cases right to commute the fraction of pension becomes absolute on finalisation of pending departmental or judicial proceedings and issue of orders thereon.
18. In the present case, in pursuance of the departmental proceedings final order has been issued on 21st August, 1998, the incumbent's right to commute fraction of his pension arose only on that date and his right to commute fraction of pension became absolute only on the date of the receipt of the form after culmination of such enquiry proceedings. That being the position, the only basis on which commutation of pension could take place was the pension receivable by him as on the date such right became absolute and not prior to that date.
19. In these circumstances, we have no hesitation in holding that no error is found in the order of the Tribunal allowing claim of the respondent to commute the pension as per the basic pension withdrawn by him as on the date the order in pursuance of the finalisation of the departmental enquiry was issued that is on 21st August, 1998 and not earlier thereto.
20. We are further of the opinion that in the facts and circumstances of the present case, when the incumbent on merit was not wholly exonerated from the charges levelled against him but he was successful on account of peremptory order made by the Central Administrative Tribunal in its order dt. 25.8.1995 in OA No. 469/94 because of which notwithstanding finding the petitioner guilty of charges levelled and imposing a penalty, the order imposing penalty was reviewed by the President. There was no occasion to allow the compensatory cost of Rs. 5,000 in favour of the respondent. The same deserves to be set aside.
21. Accordingly, this petition partly succeeds. The impugned order of CAT to the extent it directs the payment of interest and the compensatory cost of Rs. 5000, said directions are set aside. The order in relation to the commutation of pension is affirmed.
22. There shall be no orders as to costs.