Central Administrative Tribunal - Delhi
Shri Ram Chander vs The Commissioner Of Police on 11 October, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2193/2012 Tuesday, this the 11th day of December 2012 Honble Shri A. K. Bhardwaj, Member (J) Shri Ram Chander, Retd. HC (Min.) s/o Shri Nihal Singh, age 63 years r/o 67-A, Hari Vihar Old Palam Vihar, Old Palam Vihar Road Kakrola, Dehi ..Applicant (By Advocate: Shri Sachin Chauhan) Versus 1. The Commissioner of Police Police Head Quarters IP Estate, MSO Building, New Delhi The Dy. Comm. of Police Special Branch, Turakman Gate Delhi-6 3. The Pay & Accounts Officer 4 (DP-I) Govt. of NCT of Delhi Tis Hazari, Delhi ..Respondents (By Advocate: Shri Vijay Pandita) O R D E R (ORAL)
The applicant has filed the present Original Application seeking issuance of directions to the respondents to pay him pensionary benefits, including gratuity, commuted pension and regular pension along with arrears and interest thereon @ 18%.
2. In the counter reply filed on behalf of the respondents, it is explained that since the criminal case vide FIR No.376/2006 dated 29.9.2006 was registered against the applicant at PS Bawana, Delhi for being involved in an offence under Sections 34/406/498-A IPC, he has been granted provisional pension vide order dated 24.3.2009 and in view of the provisions of Rule 9 (4) of CCS (Pension) Rules, 1972 read with Rule 69 thereof, the applicant is not entitled to the payment of gratuity, commuted pension and regular pension during the pendency of the judicial proceedings.
3. The short controversy involved in the present OA is whether during the pendency of the criminal proceedings for involvement in an office under Sections 498-A/406, the terminal benefits of a retiree can be withheld?
4. The said controversy came up for consideration before this Tribunal in Shri Dharamvir Singh v. The Commissioner of Police & others (OA-2353/2010) decided on 4.7.2011. Following the decisions in Retired Sub-Inspector Yad Ram v. Dy. Commissioner of Police & another (OA-870/2004) decided on 29.11.2004 and Shri Mam Chand v. Union of India & others (OA-1605/2005) decided on 4.1.2006, this Tribunal passed an order dated 4.7.2011 directing the respondents to release the pensionary benefits, namely, gratuity, commuted pension, leave encashment and full pension forthwith and in any case within a period of two months to Shri Dharamvir Singh.
4. In the case of Retired Sub-Inspector Yad Ram (supra), this Tribunal viewed that it would be quite unfair to make the applicant suffer for want of his retirement dues till grave misconduct is established. In the said case also, the applicant was implicated in a criminal case under Sections 498/406 IPC registered vide FIR No.304/1999 dated 22.2.1999. In the case of Mam Chand (supra), the applicant was implicated in three different criminal cases as follows:-
1. Case FIR No.135/1995 U/s 323/506/34 IPC. Police Station Narela Industrial Area.
2. Case FIR No.33 dated 24.1.2000 U/s 341/323/34 IPC. Police Station Narela Industrial Area.
3. Case FIR No.422/2002 U/s 323/325/34 IPC. Police Station Narela Industrial Area.
5. In the said case also, this Tribunal categorically viewed that even if found guilty for the offences alleged to have been committed by the applicant (retiree), it could not be viewed that he had committed grave misconduct when a final outcome of the criminal proceedings pending against the retiree is not known, his terminal benefits may not be withheld. The relevant excerpt of the aforesaid case reads as under:-.
24. It is clear that the criminal proceeding against the pensioner were gross misconduct, i.e., assets disproportionate to his known sources of income during the period of his Government service. The misconduct for which criminal proceedings were initiated against him had close nexus with his conduct as a Government servant. The Honble Supreme Court held that where a judicial proceedings is pending against a pensioner for grave misconduct the Government is entitled to withheld the gratuity amount and is also entitled to sanction provisional pension for the period of pendency of the said proceeding. In other words where the judicial proceedings were not for grave misconduct neither gratuity could be withheld nor could provisional pension be sanctioned. As a result before decision to withhold gratuity amount or sanctioning the provisional pension authorities per force are duty bound to apply their mind to consider whether the proceeding departmental/judicial proceedings may end in the pensioner being held guilty of grave misconduct and negligence during the period of his government service to enable to President of India to exercise one or the other power as provided in Rule 9 of Pension Rules. It will be impossible for the authorities to routinely issue provisional pension and withhold gratuity of a pensioner on a mere pendency of a judicial or departmental proceeding on the date of retirement.
25. The nature of the offences for which criminal cases are instituted against the applicant, is such that if the applicant is held guilty of committing these offence he may, be no logic be held guilty of grave misconduct and negligence during his government service within the purview of Rule 9 of Pension Rules. Consequently, there is no, even remote possibility of the President exercising powers under Rule 9 of the Pension Rules on the conclusion of these proceedings. It is unlike the facts of the case of State of Orissa and Others Vs. Kalicharan Mohapatra (Supra) before the Honble Supreme Court where the criminal case related to allegation of grave misconduct against the pensioners committed before his retirement.
6. It would not be out of context to extract the relevant excerpt of the order of this Tribunal in the case of Dharamvir Singh (supra), which reads as under:-
3. In Retired Sub Inspector Yad Rams case (supra), a criminal case under Section 498/406 IPC was initiated against Shi Yad Ram on the basis of a FIR dated 22.9.1995. He has also challenged the respondents action of withholding his pensionary benefits before this Tribunal. The relevant part of the Order dated 29.11.2004 in that case is as under:-
On the question of what constitutes grave misconduct under Rule 9 of the CCS (Pension) Rules, references have been made to the decisions of the Honble Supreme Court in Union of India and Others vs. B. Dev [(1998) 7 SCC 691)], in which, among other things, it has been held that definition of grave misconduct in Explanation (b) to Rule 8 is not exhaustive. However, it has been further observed by the Honble Apex Court in the said order that it is not correct to say that failure to follow these rules cannot be a grave misconduct. The gravity of misconduct would depend upon the nature of conduct. It was further held by the Honble Court that it was wrong on the part of the Tribunal to have held the respondents in the said Civil Appeal as decided on August 14, 1998, guilty of grave misconduct because the charge was limited against him under Rules 3 (i) (ii) and (iii) of the CCS (Conduct) Rules, 1964. It has been further held in the said order as under:-
It would not be correct to say that a government servant who is charged with not maintaining devotion to duty or with conduct unbecoming of a government servant cannot be held guilty of grave misconduct. The gravity of the misconduct would depend upon the nature of the conduct. The Tribunal has wrongly held that because the enquiry was initiated under Rules 3(1)(ii) and (iii) of the CCS Conduct Rules, the respondent cannot be held guilty of grave misconduct. It has been held that there can be many kinds of grave misconduct and that the explanation does not confine grave misconduct to only the type of misconduct described there. In the present case, however, I find that the criminal case, which has been pending against the applicant and about which the applicant has argued that it is not connected with his service, it is still not decided. It is also mentioned that the criminal case does not relate to any pecuniary loss caused to the Govt. As grave misconduct has not been established in the case of the applicant, and also as the FIR which was lodged in the year 1999 and the criminal proceedings started with that, which is still inconclusive/undecided, it will be quite unfair to make the applicant suffer for want of his retirement dues, namely, gratuity and regular pension. The objective of withholding his gratuity/normal pension because of the said criminal proceedings pending against him thus does not appear to be quite clear. It is also not known how much more time the criminal proceedings would take before the same are concluded. Under these circumstances, it dos not appear to be quite logical and rational to continue to deprive the applicant of normal pension and other retirement benefits. Having regard to the above, I am, therefore, of the considered opinion that the ends of justice shall be met if the applicant is paid his normal pension and other retirement dues pending decision in the criminal/proceedings against him. In any case, the relief thus granted to the applicant shall be subject to the outcome of the said criminal proceedings.
With this, the OA stands disposed of in terms of above observations/directions. The respondents are directed to release the pensionary benefits, namely, gratuity, commuted pension, leave encashment and full pension to the applicant forthwith, in any case, within a period of two months from the date of receipt of a copy of this order, which will be without any prejudice to the outcome of the criminal proceedings pending against him. No order as to costs.
4. Similarly, the case Shri Mam Chand (supra) was allowed by this Tribunal after considering the aforesaid order in OA 870/2004 (supra). The relevant part of the order reads as under:-
It is clear that the criminal proceeding against the pensioner were for gross misconduct, i.e., assets disproportionate to his known sources of income during the period of his Government service. The misconduct for which criminal proceedings were initiated against him had close nexus with his conduct as a Government servant. The Honble Supreme Court held that where a judicial proceeding is pending against a pensioner for grave misconduct the Government is entitled to withheld the gratuity amount and is also entitled to sanction provisional pension for the period of pendency of the said proceeding. In other words where the judicial proceedings were not for grave misconduct neither gratuity could be withheld nor could provisional pension be sanctioned. As a result before decision to withhold gratuity amount or sanctioning the provisional pension authorities per force are duty bound to apply their mind to consider whether the proceeding departmental/judicial proceedings may end in the pensioner being held guilty of grave misconduct and negligence during the period of his government service to enable the President of India to exercise one or the other power as provided in Rule 9 of Pension Rules. It will be impossible for the authorities to routinely issue provisional pension and withhold gratuity of a pensioner on a mere pendency of a judicial or departmental proceedings on the date of retirement.
The nature of the offences for which criminal cases are instituted against the applicant, is such that if the applicant is held guilty of committing these offence he may be no logic be held guilty of grave misconduct and negligence during his government service within the purview of Rule 9 of Pension Rules. Consequently, there is no, even remote possibility of the President exercising powers under Rule 9 of the Pension Rules on the conclusion of these proceedings. It is unlike the facts of the case of State of Orissa and Others Vs. Kalicharan Mohapatra (Supra) before the Honble Supreme Court where the criminal case related to allegation of grave misconduct against the pensioners committed before his retirement.
As a result it is held that the respondents have erroneously withheld the regular pension, gratuity and other retiral dues of the applicant on the pretext that three criminal judicial proceedings were pending against him. His view is supported by order of this Tribunal in Retired SI Yad Ram (supra) and Om Prakash (supra) copies of which are filed by the applicant as Annexure-2 to the OA.
The learned counsel for the applicant has cited an order of Chandigarh Bench of this Tribunal in R.P. Thakur Vs. Union of India and others 1996 (2) ATJ 3 but it deals with the claim of interest on delayed payment of retrial dues after the applicant was exonerated in departmental proceedings. In the present case facts are different. Indeed the respondents have delayed the payment of pensionary and retrial dues of the applicant erroneously for no fault of applicant. Therefore, they should be directed to pay interest at least @ 6% p.a. (which the Bank pay on fixed deposits) for the period of delay which in the present case will be from three months after the date of decision to the date of actual payment. It will meet the ends of justice.
Accordingly, the OA is allowed. The respondents are directed to issue regular pension and release gratuity, commuted pension etc. within two months from the date on which certified copy of the order is served on the respondents with interest @6% p.a. on the amount paid from 1.5.2005 to the date of actual payment. No costs.
5. The respondents in their reply have submitted that the applicant was suspended on 18.01.1994 for misconduct, indiscipline, unbecoming behaviour of a police officer and dereliction of duty vide order dated 19.01.1994. However, he was reinstated in service on 06.06.1994 vide letter dated 07.06.1994. Thereafter, a departmental inquiry was initiated against him. On conclusion of the same, he was awarded the punishment of forfeiture one year approved service temporarily for a period of one year entailing reduction in his pay from the stage of Rs.1150 to Rs.1125 in the pay scale of Rs.975-25-1150 EB 30-1660 from 31.1.1996. The applicant was again suspended w.e.f 27.11.1995 due to misconduct and gross indiscipline and dereliction of duty. He was reinstated on 23.02.1996 vide letter of the same date. In the departmental inquiry held subsequently, he was awarded a punishment of pay reduction by one increment from the stage of Rs.3710/- to Rs.3625/- per month in the scale of pay of Rs.3200-85-4900 for a period of one year we.f. 05.11.1997 and his suspension period from 27.11.1995 to 23.2.1996 was treated as NOTE SPENT ON DUTY vide order No. 8221-8300/HAP DCP/Comn. Dated 5.11.1997 and amendment order No. 22429-34/CR/Comn. dated 18.11.1997. Besides, he was also awarded three censures vide orders dated 25.02.1999, 30.06.1999 and 09.12.2003. He was arrested in FIR No 20/2003 dated 18.11.2003 u/s 498-A/406/506/323/34 IPC P.S. Sonepat Haryana and suspended from the date of his arrest i.e. 22.11.2003 vide order no. 3054-99/HAP (P-1)/Comn. dated 05.12.2003. He was reinstated from suspension w.e.f. 28.12.2006 without prejudice to the disciplinary action, if any, on the outcome of criminal case pending against him vide order No. 4174-4223/HAP (P-i) Comn. 28.12.2006.
8. Therefore, the applicants name for financial upgradation under the ACP Scheme was kept in a sealed cover vide order dated 27.01.2004. His name for promotion was also kept in sealed cover vide order dated 06.12.2007 due to criminal case pending against him and not to be opened till the finalisation of the criminal proceedings against him.
9. Applicant retired on superannuation on 31.03.2008 with the qualifying service of 20 years, 3 months and 16 days. Because of the pendency of the criminal case against him, he was granted only provisional pension w.e.f. 01.04.2008 in terms of Rule 69 of the CCS (Pension) Rules, 1972. However, his leave encashment was kept in abeyance as his suspension period from 22.11.2003 to 28.12.2008 has not been decided in view of the pendency of the criminal case. His GPF final payment, insurance and DPWs fund have already been released. In terms of the aforesaid Rule 69 of the CCS (Pension) Rules, 1972, his regular pension, gratuity and commutation can be decided only after conclusion of the criminal case pending against him.
10. We have heard the learned counsel for the applicant Shri Sachin Chauhan and the learned counsel for the respondents Mrs. Harvinder Oberoi. Admittedly, the applicant was denied his full pensionary benefits because of the pendency of the aforesaid criminal case against him. All other departmental proceedings and punishments awarded to him are things of past and the applicant has superannuated from service on 31.3.2008. In our view, the principle followed in the aforesaid Orders of the coordinate Bench of this Tribunal in OA 870/2004 (supra) and OA 1605/2005 (supra) will equally apply in this case also.
12. We, therefore, allow this OA. The respondents are directed to release the pensionary benefits, namely, gratuity, commuted pension, leave encashment and full pension to the applicant forthwith, in any case, within a period of two months from the date of receipt of a copy of this order without prejudice to the outcome of the criminal proceedings pending against him. There shall be no order as to costs.
7. Being bound by the aforementioned decisions of this Tribunal, I have no option but to allow the present OA. Thus, the respondents are directed to pay the withheld amount of gratuity, regular pension and commuted value of pension to the applicant within a period of two months from the date of receipt of a copy of this order. Though the prayer for interest on commuted value of pension and regular pension is rejected, the applicant would be entitled to interest @ 6% per annum on the amount of gratuity to be calculated from the date of expiry of three months from the date of retirement.
8. OA is disposed of. No costs.
( A.K. Bhardwaj ) Member (J) /sunil/