Central Administrative Tribunal - Allahabad
Ajay Kumar Singh vs North Eastern Railway on 8 August, 2024
(Reserved on 29.7.2024)
Central Administrative Tribunal, Allahabad Bench
Allahabad
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Original Application No. 330/00895 of 2023
Pronounced on 08th day of August, 2024.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Ajay Kumar a/a 60 years, son of C.D. Singh, Lo999 R/o Defence
Colony (near Shiv Partvati Mandir), Izzatnagar, District Bareilly
(Ret. Chief Depot Material Superintendent
............Applicant
By Advocate: Shri Avadhesh Kumar Upadhyay
Versus
1. General Manager North Eastern Railway, Gorakhpur.
2. Principal Chief Material Manager, North Eastern Railway
Gorakhpur.
3. Deputy Chief Material Manager, North Eastern Railway
Izzatnagar, Bareilly.
4. Chief Workshop Manager, Carriage and Wagon Workshop,
Izzatnagar, Bareilly.
Respondents
By Advocate: Sri K.K. Ojha
ORDER
Justice Om Prakash VII, Member (J) This O.A. has been filed by the applicant under section 19 of the Administrative Tribunals Act, 1985 with the following reliefs:-
"(i) To issue a suitable order or direction to the respondents to pay entire retiral dues to the applicant since retirement i.e. 31.08.2023 and to pay Rs. 5400/- grade pay and after re-fixation of salary with interest to the applicant by upgrading CDMS Level 8 from CDMS level 7.
(ii) To issue any other suitable order or direction as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
(iii) To award cost of the petition in favour of the applicant".
MANISH KUMAR SRIVASTAVA Page 1 of 8
2. The brief facts of the case are that applicant superannuated w.e.f. 31.08.2023 as DSK-III C.B.J Scrap Depot Izzatnagar, Bareilly. While posted as DSK-III in C.B.J Scrap Depot Izzatnagar, Bareilly, two complaints were made against the applicant, which were registered as Case No. 1685 of 2002 State Vs. Rajendra Yadav and others under sections 3 U.P (R.P) Act, P.S. RPF Post N.E.R. Izzatnagar, Bareilly and another case No. 1686 of 2002 State Vs. Irfan and others U/s 3 U.P (R.P) Act, P.S. RPF Post N.E.R. Izzatnagar, Bareilly. Against the cognizance and summoning order dated 26.09.2002 in case NO. 1686 of 2002, the applicant preferred a criminal revision No. 661 of 2002, which was allowed by the Additional District and Session Judge Court NO.2 Bareilly vide order dated 12.07.2005 and summoning order was quashed. Likewise, applicant preferred a criminal revision No. 662 of 2002 against the summoning order dated 26.09.2002 which was allowed by the Additional District and Session Judge Court NO.2 Bareilly vide order dated 12.07.2005 and summoning order was quashed. Against the order of revisional court, State of UP preferred criminal revision before the Hon'ble High Court, Allahabad being Criminal Revision Defective No. 387 of 2006, which is pending before the Hon'ble High Court and till date, defect has not been removed.
3. Counter Reply filed by respondents merely says that applicant could not be paid his terminal benefits barring provisional pension on account of criminal revision pending before the Hon'ble High Court.
4. Learned counsel for the applicant has filed rejoinder affidavit basically reiterating the facts as stated in the O.A.
5. We have heard Shri Avadhesh Kumar Upadhyay, learned counsel for the applicants and Shri K.K Ojha, learned counsel for the respondents and perused the records as well as written submissions filed by both the parties.
6. Submission of learned counsel for the applicant is that when MANISH KUMAR SRIVASTAVA the applicant was posted as DSK-III Bareilly, two complaints were Page 2 of 8 made against him, which were registered as Case No. 1685/2002 and Case No. 1686/2002 under section 3 UP (R.P) Act. Against the summoning order dated 26.09.2002, applicant preferred a Criminal Revision No. 661 of 2002, which was allowed by the Additional District and Session Judge Court No.2 Bareilly vide order dated 12.07.2005. Learned counsel for the applicant further submitted that against the order passed by the revisional Court, State of U.P preferred criminal revision before the Hon'ble High Court, Allahabad being Criminal Revision Defective No. 387 of 2006, which is still pending and till date, defect has not been removed. Learned counsel for the applicant also submitted that after the judgment and order in criminal revisions, the applicant was given promotion on the post of DSK-II in Grade Pay of Rs. 5500-9000/- by order dated 05.09.2005 and again applicant was promoted as CDMS in Grade Pay Rs. 9300- 34800/- by order dated 09.07.2023. Learned counsel for the applicant contended that co-accused Gulab Singh has been retired and after his retirement, he has been given entire retiral benefits and now applicant has also been retired, thus, he is also entitled for entire retiral benefits.
7. Learned counsel for the respondents vehemently submitted that since criminal revision is still pending before the Hon'ble Allahabad High Court, as such without finalization of aforesaid criminal revision, the departmental authority is unable to release the entire benefits to the applicant. In support of his submission, learned counsel for the applicant relied upon the case of Jagdhari Vs. State of U.P and another in Writ A No. 17533 of 2023 decided on 29.04.2024 by Hon'ble High Court of Allahabad.
8. We have considered the rival submissions advanced by the learned counsel for the parties and gone through the pleadings carefully.
9. In the case of Jagdhari (supra), the Hon'ble High Court, Allahabad has held as under:-
MANISH KUMAR SRIVASTAVA Page 3 of 8 "17. The State preferred an appeal against the judgment of acquittal, which was admitted to hearing. The Department never initiated disciplinary proceedings, but he was placed under suspension vide order dated 24.07.1996 with reference to the crime. The suspension was, later on, revoked. The petitioner, on retirement, had moved this Court asking for full pension and retiral benefits, when his representations to the Department failed. The petitioner had claimed full pension and other retiral benefits, not only under the rules, but also on ground of parity because other similarly circumstanced employees were given full pension despite pendency of the State's appeal against judgments of acquittal in their cases as well. The learned Single Judge, before whom the writ petition came, ordered payment of all retiral benefits along with 8% interest on delayed payment. There were a number of other questions decided by the Bench in Mahanand Pandey (supra). In Mahanand Pandey, it was held so far as the issue here is concerned:
"15.........In view of the discussion made above and the finding recorded by us, pending criminal appeal would fall in the definition of "judicial proceeding" and thereby, Regulation 351-AA read with Regulation 919-A(3) would be applicable. The non-appellant would be entitled to the provisional pension. As per Regulation 919, the provisional pension now is the full pension though one would not be entitled to the gratuity till disposal of the appeal. The non- appellant/petitioner can, accordingly, pursue pending criminal appeal against him."
18. It has not been argued in the least by the learned Counsel for the petitioner that the provisions of Regulation 351-A of the Civil Service Regulations, or Regulation 919-A thereof, are not applicable to the Corporation.
19. No other point was pressed.
20. In the circumstances, this Court is of opinion that the petitioner is not entitled to full pension and gratuity pending conclusion of the criminal trial that he is facing.
21. In the circumstances of the case, it is directed that the pending criminal trial shall be expedited and concluded early without granting any unnecessary adjournments. This direction has been issued by this Court ex debito justitiae in exercise of our powers of superintendence under Article 227 of the Constitution.
22. This writ petition is disposed of in terms of the aforesaid order.
23. There shall be no order as to costs.
10. From the perusal of aforesaid case law relied upon by the respondents, it is clear that if any criminal case is pending against the applicant, no retiral benefits and gratuity could be released but in the MANISH KUMAR instant case State has filed defective criminal revision before the SRIVASTAVA Page 4 of 8 Hon'ble High Court, Allahabad in the year 2006 and the respondents have not bother to remove the defect in the criminal revision. We are of the view that respondents are trying to adopt delaying tactics. Thus, case law relied upon by the respondents does not helpful to the respondents.
11. Admittedly, in the present case, no departmental proceedings are pending against the applicant. It is also evident that no judgment in criminal revision has been passed against the applicant. Pension Rule also do not permit department to withheld retiral benefits of applicant. In the instant case, the criminal proceedings pending against the applicant has nothing to do with his official duties and the applicant has not committed any misconduct in his official duties.
12. In the case of State of Jharkhand and others Vs. Jitendra Kumar Srivastava and another reported in 2013 (3) UPLBEC, 2369, the Hon'ble Apex Court has held that terminal benefits such as pension and gratuity are not bounty and they cannot be taken away as per Article 300 A of the Constitution of India without following the due process of law. The Apex Court has further held that merely because a criminal case or departmental proceedings are pending against employee, his terminal benefits cannot be withheld, unless he is found guilty of the same.
13. In the case of D.S. Nakara Vs. Union of India reported in (1983) 1 SCC page 305, the Apex Court has observed as under:-
"From the discussion three things emerge: (1) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to article 309 and clause (5) of Article 148 of the Constitution;
(ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch...."
14. In the case of Mahesh Bal Bhardwaj Vs. U.P. Co-operative MANISH KUMAR Federation Ltd. and anothers passed in Writ Petition No. 1395 (SB) SRIVASTAVA of 2006 decided on 21/11/2007, the Division Bench of Allahabad Page 5 of 8 High Court has held that gratuity and other post retiral dues, to which petitioner otherwise entitled under the Rules, could not have been withheld either on the pretext that criminal proceedings were pending against the petitioner or for the reason that on the outcome of criminal trial, some more punishment was intended to be awarded.
15. In the case of State of Punjab and another Vs. Iqbal Singh reported in 1976 SCC (2) 1, Hon'ble Supreme Court has held that since the cut of pension and gratuity adversely affects the retired employee, as such order cannot be passed without giving reasonable opportunity of making his defence. It is an admitted fact that in the instant case no notice was issued to the applicant before withholding the gratuity and not sanctioning the regular pension.
16. We have also perused the judgment dated 22.9.2011 passed by CAT Principal Bench in O.A. No. 2517/2010. In this case, gratuity was withheld due to pendency of criminal case against the employee and the said criminal case had nothing to do with the discharge of his public duties in the office. In the said case, while referring the different provisions of CCS (Pension) Rules 1972, it has been held that if the criminal case pending against the employee had nothing to do with his official duties, his gratuity cannot be withheld. The CAT Principal Bench relied upon a decision dated 24.11.2009 given in O.A. No. 264/09 Shri Prabhu Lal Vs. Union of India and Ors. which was upheld by Hon'ble Delhi High Court in Writ Petition (C) No. 383/2010. The Hon'ble Delhi High Court has held as follows:-
"13. We are satisfied that while exercising power under Rule 69/9 of the CCS Pension Rules, the President has to be satisfied, that the pensioner committed grave misconduct in discharge of his duties. In absence of any such finding, the President cannot hold the pension or withhold gratuity. In the present case also there is no finding against the respondent warranting withholding of any part of pension or gratuity by the President as the respondent was neither facing any departmental proceedings nor the judicial proceedings having anything to do with his official functions. There is nothing on record that any loss has been caused to the Government by any act/omission of the respondent".
17. According to respondents, provisional pension has been sanctioned to the applicant under Rule 9 (4) and his gratuity has been MANISH KUMAR withheld in terms of Rule 69 (c) of CCS (Pension) Rules, 1972 SRIVASTAVA because a judicial proceeding is pending against him. Acceptance of Page 6 of 8 contentions of respondents will mean that if any Criminal, Civil, Revenue or Tax case is pending against any employee, even though it is not related with his official duties, the employer has full right to withhold the pension and gratuity of his retiring employee. we cannot agree to this proposition and the provision of Section 4 (1) and Section 4 (6) of Payment of Gratuity Act, 1972 further strengthens our view, which reads as under:-
"4.Payment of gratuity.-
(1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years,-
(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease;
Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement :
Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to the heirs.
Explanation.- For the purposes of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement".
4. (6) Notwithstanding anything contained in sub-section (1),-
(a) the gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused;
(b) the gratuity payable to an employee shall be wholly forfeited,-
(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or
(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment".
18. The bare reading of Section 4 (1) and (6) of Payment of Gratuity Act, 1972 shows that 'gratuity' cannot be forfeited unless the services of such employee have been terminated for his rioters or MANISH KUMAR SRIVASTAVA disorderly conduct or any other act of violence on his part or for any Page 7 of 8 act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment. Thus, we are of the considered view that gratuity can be forfeited only if the offence is committed in the course of his employment but not otherwise. It is pertinent to mention here that only a criminal revision (defective) said to have been filed in the year 2006 is pending against the applicant. Defective criminal revision cannot construed as a criminal revision. Hence, action taken by the respondents is illegal and arbitrary.
19. Considering the view expressed by Hon'ble Apex Court in the case of D.S. Nakara (supra), Jitendra Kumar Srivastava (supra), and provision of Section 4 (1) and (6) of Payment of Gratuity Act, 1972, we are of the definite opinion that gratuity or pension cannot be withheld on the aforesaid ground. It is an admitted fact that in the instant case, criminal proceedings pending against the applicant had nothing to do with his official duties. Neither any disciplinary proceeding is pending against him nor any loss has been caused to the department by the applicant.
20 Accordingly, O.A. deserves to be allowed and is allowed. The respondents are directed to make payment of all retiral dues including gratuity, commutation amount, remaining pension amount etc. to the applicant within a period of three months from today with a simple interest of 6% per annum from the date of receipt of certified copy of this order. No costs. All associated MAs are disposed of.
(Mohan Pyare) (Justice Om Prakash-VII)
Member (A) Member (J)
Manish/-
MANISH KUMAR
SRIVASTAVA
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