Bombay High Court
Dilip Chintaman Nandankar vs The Union Of India Thr. Secy. Ministry Of ... on 10 January, 2023
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.2540/2021
Dilip Chintaman Nandankar,
Aged about 60 yrs., Occ. : Retired,
R/o. Forest Colony Behind M.L.A. Hostel,
Civil Lines, Nagpur - 440001. PETITIONER
VERSUS
1. The Union of India Through
Its Secretary Ministry of Personnel,
Public Grievances and Pensions Department of
Personnel and Training North Block,
New Delhi.
2. The Chairman Cum Managing Director
The New India Assurance Company Ltd.,
Registered Head Office New India Assurance,
Building 87, M.G. Road Fort Mumbai 400001.
3. The Chief Regional Manager Regional Office
New India Assurance Co. Ltd. Riian Building
Kasturchand Park Near King's way, Nagpur. RESPONDENTS
Ms. Rashi Deshpande, Advocate for the Petitioner.
Mr. B. P. Bhatt, Advocate, for respondent Nos.2 and 3.
CORAM : A. S. CHANDURKAR AND
MRS.VRUSHALI V. JOSHI,JJ.
DATED : JANUARY 10, 2023
JUDGMENT :[PER : MRS. VRUSHALI V. JOSHI, J.]
1. Heard.
2. Rule. Rule made returnable forthwith and heard finally with the consent of the learned Counsel for the parties. ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 21:15:39 :::
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3. The petitioner is aggrieved by withholding of his retirement benefits pursuant to his superannuation on 31.03.2020. By communication dated 20.03.2020, the petitioner was informed that in view of (Department of Personnel and Training) DOPT Circular dated 08.04.2019 his retirement benefits were being withheld. Being aggrieved the petitioner by this writ petition seeks release of retirement and other benefits.
4. The petitioner was appointed as Development Officer on 20.05.1987 in S.T. Category and was promoted from time to time and got retired as a Manager on 31.03.2020. Just before retirement the petitioner was communicated vide letter 20.03.2020 which was received on 15.10.2020. In receipt of DOPT Circular No.3601/12/2013 dated 08.04.2019 giving reference of the Hon'ble Supreme Court Judgment dated 11.10.2018 in Civil Appeal No.10396/2018 arising out of S.L.P. No.13011/2018 Gajanan Marotrao Nimje and Others Vs. RBI and Others, wherein it is mentioned that the appellants (who are from Halba Koshti/Halba Communities) shall be placed below the list of general category candidates as on 28.11.2000 and will continue as such till their superannuation. All the benefits which the appellants earned as reserved category candidates after 28.11.2000 will be surrendered/recovered. It was further communicated to the petitioner that the Head Quarter is ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 21:15:39 ::: 3/13 wp.2540.21.odt re-working on the promotion given to him as per above judgment and at this stage, they will be releasing his own contributions of Provident Fund.
5. Thereafter, again he was informed that the Office Memorandum dated 08.04.2019 which was relied on by the respondents for withholding the retiral benefit and regular pension of the petitioner is withdrawn by respondent No.1. The petitioner moved complaint to the Director Department of Pension and pensioners welfare (DOP & PW) (Nodal Department for Pensioners Welfare), however till the date of filing of petition he has not received any reply.
6. Though the petitioner got retired from his services on 31.03.2020, all his pensionary benefits like Gratuity, Leave Encashment etc. have been withheld by the respondents illegally. Hence, he has filed this petition.
7. The learned Counsel for the petitioner has stated that the retired/superannuated employees of the New India Assurance Company Limited are governed by General Insurance (Employees) Pensions Rules Scheme 1995 and this Pension Scheme is applicable to the petitioner. Rule 3(a) read with Rule 29 of General Insurance (Employees) Pension Scheme 1995 is applicable for the purpose of settlement of retiral dues and also regular monthly pension. The Rule 55 of the said Scheme provides that ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 21:15:39 ::: 4/13 wp.2540.21.odt the matters relating to pension and other benefits in respect of which no express provision has been made shall be governed by corresponding provisions of Central Civil Service (Pension) Rules 1972. As per the aforesaid provision and relevant provisions of law the petitioner is entitled for all pensionary benefits and emoluments contained in Scheme available to him.
8. The petitioner is entitled for superannuation pension. However the respondent for no bonafide and legal reason is giving the provisional pension though he is entitled for regular pension. He has quoted Rule 45 of the Pension Scheme and stated that provisional pension can be paid only in the event of there being departmental or judicial proceedings pending against the employee on the date of his retirement. However, there was no departmental enquiry or judicial proceedings against the petitioner at the time of his retirement. It is contended by the learned Counsel for the petitioner that the pension payable after superannuation is not at the whims and fancies of the respondents. It is his right and it does not depend upon the discretion of the respondents, but it is governed by the Rules and the employee coming within those Rules is entitled to claim the pension.
9. He has further stated that the Office Memorandum dated 08.04.2019 is not having any statutory character and therefore cannot be ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 21:15:39 ::: 5/13 wp.2540.21.odt termed as law. Therefore, on the basis of such Office Memorandum which do not have any force of law pension, gratuity and leave encashment cannot be withheld. The said Office Memorandum was withdrawn on 24.07.2020.
10. The pension includes gratuity and pension and gratuity can be withheld or forfeited only if the employee is found guilty of grave misconduct or is convicted of serious crime. Withholding of pension and gratuity is not permissible. Hence, has prayed to declare that pension, gratuity, leave encashment, group linked insurance cannot be withheld illegally in absence of any provision of law.
11. Respondent Nos.2 and 3 appeared and stated that the appointment of the petitioner was under Scheduled Tribes Quota. At the time of his appointment, he claimed to belong to Halba Tribe. The promotion and postings of the petitioner were subject to outcome of Writ Petition No.195/1995 before the Hon'ble Madras High Court. From time to time he was promoted up to the post of Manager subject to decision of the said petition. On attaining the age of superannuation, he got retired from the service of respondent Company on 31.03.2020. The letter dated 20.03.2020 which is being impugned, due to Covid Pandemic, he received it on 15.10.2020 along with his relieving letter. DOPT Office Memorandum dated 10.08.2010 was issued and it was withdrawn on ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 21:15:39 ::: 6/13 wp.2540.21.odt 30.08.2018. Accordingly, the respondent Company issued guidelines to all Offices for verification of community certificates of ST Employees pursuant to Office Memorandum dated 30.08.2018 and accordingly, requested the petitioner to obtain his community verification from the Competent Authority and submit it by 31.03.2019. The Hon'ble Supreme Court by judgment dated 11.10.2018 in Civil Appeal No.10396/2018 (Gajanan Marotrao Nimje and Others Vs. RBI and Others) has held as under :
"....all appellants (who are from Halba Koshti/Koshti/Halba communities) shall be placed below the list of the general category candidates as on 28.11.2000 and will be continued as such till their superannuation. All the benefits which the appellants earned as reserved category candidates after 28.11.2000 will be surrendered/recovered. After 28.11.2000 the benefits available to the reserved category candidates will be given to the members of the reserved category regarding whom there is no dispute. There shall be no recovery of any benefits from the employees who are already superannuated....."
12. Office Memorandum dated 08.04.2019 further directed all the departments to furnish action taken in the light of the above judgment. Pursuant to the Office Memorandum, the respondents informed the petitioner that by following DOPT Circular dated 08.04.2019, the Head Office is reworking his promotions as per the judgment and, therefore, at this stage, the company is releasing his own contribution of Provident Fund only. Pursuant to the order of the Hon'ble Supreme Court, all the ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 21:15:39 ::: 7/13 wp.2540.21.odt benefits which the appellants earned as reserved category candidates after 28.11.2000 will be surrendered or recovered.
13. In view of the above, on perusal of record, the respondents found that Mr. Nandankar, the petitioner had got three promotions after 28.11.2000 and that too under protection clause as such they have re- worked his promotions considering him as General Candidate after 28.11.2000. In view of this, he would have got only two promotions and he would have retired as Deputy Manager as on his date of retirement i.e. 31.03.2020 and his last drawn basic salary in Deputy Manager cadre would have been Rs.75,005/-. It was beyond the domain of the respondents to pay other dues such as gratuity, leave encashment and regular pension because the petitioner has not submitted Caste Validity Certificate from the Caste Scrutiny Committee as requested by email dated 11.01.2019. Hence, submitted that the respondents are working on it.
14. The grievance of the petitioner is that though no departmental enquiry was initiated or was pending against him on his superannuation on 31.03.2020 by DOPT Circular dated 08.04.2019, his retirement benefits were withheld and he has received only the provisional pension instead of regular pension. According to the petitioner, he is governed by the Central Civil Service (Pension) Rules 1972 and as per the aforesaid provisions, the petitioner is immediately entitled for all ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 21:15:39 ::: 8/13 wp.2540.21.odt pensionary benefits and emoluments available to him as per Rules contained of this Scheme. Rule 45 of the Pension Scheme States, which reads as under :
" 45 Provisional Pension -
1) An employee who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued, a provisional pension equal to the maximum pension which would have been admissible to him would be allowed subject to adjustment against final retirement benefits sanctioned to him, upon conclusion of the proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld etc, either permanently or for a specified period.
2) In such cases the gratuity shall not be paid to such an employees until the conclusion of the proceedings against him. The gratuity shall be paid to him on conclusion of the proceedings subject to the decision of the proceedings. Any recoveries to be made from an employee shall be adjusted against the amount of gratuity payable.
Explanation - In this Chapter
a) The expression 'serious crime' includes a crime involving an offence under the Official Secrets Act, 1923 (19 of 1923).
b) The expression "grave Misconduct" includes the communication or disclosure of any secret, official code or password or any sketch plan, model, article, note document or information such as is mentioned in section 5 of the Official Secrets Act, 1923 (19 of 1923) (which was obtained while holding office in the Corporation or the Company concerned) so as to prejudicially affect the interest of the general Public or the Security of the State".
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15. On plain reading of this Rule, it reveals that the gratuity and pensionary benefits can be withheld only if the departmental or judicial proceedings are instituted against the said person. The petitioner is superannuated and he was promoted from time to time, there was no departmental equiry against him. As per Rule 45, the provisional pension can be withheld only in the event of there being departmental/judicial proceedings are pending against the employee on the date of his retirement. However, there is no departmental or judicial proceedings pending against the petitioner, therefore, the question of payment of provisional pension and withholding the benefits does not arise.
16. The learned Counsel for the petitioner has also relied on Rule 64(6)(a) of the Central Civil Services (Pension) Rules 1972 that the provisional pension shall not continue beyond the period of six months from the date of retirement of the Government servant. The extract of the same is as under :
"64(6)(a) :- The payment of provisional pension shall not continue beyond the period of six months from the date of retirement of the Government servant. If the amount of final pension and the amount of final gratuity had been determined by the Head of Office in consultation with the Accounts Officer before the expiry of the said period of six months, the Accounts Officer shall -
issue the pension payment order,
(i) direct the Head of Office to draw and disburse the difference between the final amount of gratuity and the ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 21:15:39 ::: 10/13 wp.2540.21.odt amount of provisional gratuity paid under sub-clause
(ii) of Clause (b) of sub-rule (4) after adjusting the Government dues, if any, which may have come to notice after the payment of provisional gratuity"
Since superannuation of petitioner i.e. from 30.03.2021, he has received provisional pension only which is against the Rule 64(6)(a) of the Central Civil Services (Pension) Rules 1972.
17. Our attention is drawn to the Hon'ble Supreme Court's judgment dated 11.10.2018 in Civil Appeal No.10396/2018 arising out of SLP No.13011/2018 Gajanan Marotrao Nimje & Others Vs. RBI & Others in which the Apex Court has, inter-alia, passed the following order :-
"....all appellants (who are from Halba Koshti/Koshti/Halba communities) shall be placed below the list of the general category candidates as on 28.11.2000 and will be continued as such till their superannuation. All the benefits which the appellants earned as reserved category candidates after 28.11.2000 will be surrendered/recovered. After 28.11.2000 the benefits available to the reserved category candidates will be given to the members of the reserved category regarding whom there is no dispute. There shall be no recovery of any benefits from the employees who are already superannuated....."
18. On careful perusal of the order of the Hon'ble Supreme Court, it is mentioned that there shall be no recovery of any benefits from the employees who are already superannuated. The petitioner was already superannuated.
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19. The learned Counsel for the respondent Nos.2 and 3 has specifically stated that in the light of DOPT Office Memorandum dated 08.04.2019 and law evolved after the landmark decision of the Hon'ble Supreme Court in Chief Regional Officer, Oriented Insurance Company Vs. Pradip and another [2020) 11 SCC 144] pertaining to public employment of Scheduled Caste and Scheduled Tribes candidates, who initially obtained public employment on the basis of Caste/Tribe Certificate but later on after verification claim is found to be false or invalid, the employment is liable to be terminated and all the service benefits would be withdrawn. In the case of the petitioner, he has filed his Caste Certificate belonging to Halba Community at the time of his appointment i.e. on 19.05.1987. It was not got verified by the Competent Authority despite communication dated 07.01.2019 and therefore he informed about it to respondents on 28.03.2019. There is no order passed by the Scrutiny Committee invalidating the petitioner's tribe claim. The employer did not take any action against the petitioner for failure to submit his validity certificate. In the absence of any steps being taken by the employer the pensionary benefits of the petitioner cannot be withheld. Moreover, the DOPT Office Memorandum dated 08.04.2019 has been withdrawn vide Office Memorandum dated 24.07.2020.
20. In accordance with Rule 45 and Rule 64(6)(a) of the Central Civil Services (Pension) Rules, 1972, a provisional pension may be ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 21:15:39 ::: 12/13 wp.2540.21.odt sanctioned to an employee against whom any departmental or judicial proceedings are pending at the time of retirement. In that case, no gratuity shall be paid till the conclusion of the departmental or judicial proceedings and issue of final orders thereon. The Central Civil Services (Pension) Rules, 1972 or instructions/guidelines issued by this Department, however, do not provide for withholding of the retirement benefits under any other circumstances, including on account of pending verification of caste status of the employee.
21. There is no departmental enquiry pending against this petitioner. As per Rules, the department cannot withhold the retirement benefits. Considering this memorandum and as no departmental enquiry is initiated or pending against the petitioner, the petitioner is entitled for the retirement benefits and regular pension.
22. In the result, we pass the following order :
I] The petition is allowed.
II] The communication dated 20.03.2020 issued by the
respondent No.3 is hereby quashed and set aside.
III] Respondent Nos.2 and 3 are directed to release the retiral benefits of the petitioner within a period of three months from receiving copy of the judgment. Failure to ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 21:15:39 ::: 13/13 wp.2540.21.odt make payment of the retiral benefits within the aforesaid period would render such payment to be made with interest @6% per annum from the date of the judgment till realization.
23. Rule is made absolute in aforesaid terms. No costs.
24. Pending Civil Application(s), if any, stand(s) disposed of.
(MRS. VRUSHALI V. JOSHI, J.) (A. S. CHANDURKAR, J.) RGurnule.
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