Central Administrative Tribunal - Delhi
Dr B A Vaid vs Home Affairs on 28 November, 2024
1
(C4, Item -61) OA No. 3015/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Gentra
A
O.A. No. 3015/ 2023
M.A. No. 3497/2023
Reserved on: 07.11.2024
Pronounced on 2024
Hon'ble Mr. Manish Garg, Member (J)
Dr. B.A. Vaid Former Deputy Director &% Scientist "D"
CFSL, Unit/GEOD, Railway Board, Building, Shimla
presently residing at #103, Promise Apartment, "F" Block,
Vikaspuri, New Delhi- 110018.
....Applicant
(Applicant in person)
VERSUS
1. Union of India through the Secretary, Ministry of
Home Affairs, Government of India, New Delhi. 01
2. The Director-cum-Chief Forensic Scientist,
Directorate of Forensic Science Services, Ministry of
Home Affairs, Government of India, Block No9, 8th
Floor, CGO Conmplex, Lodhi Road, New Delhi
110003.
3. The Director, Central Forensic Science Laboratory,
Directorate of Forensic Science Services, Ministry of
Home Affairs, Government of India, Sector 36-A,
Chandigarh. 160036
4. Pay and Account Officer DCPW, MHA, Government
of India, Block No. 9, 5th Floor, CGO Complex,
Lodhi Road, New Delhi- 110003.
5. Joint Secretary (P.M), Ministry of Home Affairs,
Government of India, New Delhi. 01
Respondents
(By AdvOcate: Mr. SN Verma)
2
OA No. 3015/2023
(C4Item-61)
ORDER
Horn'ble Mr. Manish Garg, Member (J):
In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant seeks the following reliefs:
"a) Issue suitable irection to the Respondents for issuance of Pension Payment Order, Gratuity with interest at the rate 18% per annum and subsequent 7h Pay Commission benefits extended to serving and retired Government officers/offcials.
Hon'ble
b) Pass any appropriate further order(s) as this Court may deem fit and proper in the interest of justice."
drawn
2. The Applicant who appeared in person had attention to the Order dated 20.01.2023 issued by Govt.
of India, M/o Home Affairs, Women Safety Division, which reads as under:
"WHEREAS, a complaint had been filed by Smt. Guninde Kaut. Gllin the March 2011, against Dr. B. A. Vaid, Retd. Government Examiner Questioned Document (GEQD). Shimla under DFSS, alleged that while submitting their report no reason had been provided by the expert in her case No. CX-81/2010, WHEREAS, an Internal Complaint Committee constituted by the DFSS, had Investigated the matter and vide its report submitted that the NABL guidelines were not followed by the experts and also recommended that the case may be considered for re-examination by two documernt experts thoroughly, independently and the same may be got checked by the third document expert before releasing the report. Show cause notices were issued to the officer on 08.12.2011.
WHEREAS, an inquiry against Dr. B. A. Vaid, Retd. GEQD, Shimla under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and Rule 9 of CCS (Pension) Rules, 1972 was instituted with the approval of Disciplinary Authority. The charge sheet dated 28.06.2013 was Issued to Dr. B. A. Vaid.3
(C-4, Item -61) OA No. 3015/2023 AND WHEREAS, the charged officer was directed to submit his written statement, accordingly, the charged officer submitted his written statement of defence vide letter dated 05/01/2018 on charge sheet and the report nistrati of the committee, denied allcharges leveled against him.
AND WHEREAS, in accordance with the report of committee and written statement of defense, the disciplinary authority appointed an Inquiry Officer under Rule 14 (2) of CCS (CCA) Rules, 1965, to inquire into the charges against Dr. B. A. Vaid.
AND WHEREAS, the Inquiry Officer submitted its report dated 03.06.2 022 to the Disciplinary Authority and held that the charges leveled against Dr. B. A. Vaid are not proved.
AND WHEREAS, in accordance with Rule 15(2) of CCS (CCA) Rules, 1965, the report of Inquiry Officer was shared with Dr. B. A. Vaid vide letter dated 08.08.2022 for submission of his written statement, if any, within 15 days of the receipt of that communication.
AND WHEREAS. Dr. B. A. Vaid, Retd. GEQD, Shimla under DFSS vide his letter dated 14.09.2022 accepted the inguiry report of Inquiry Officer and submitted his written statement on the report of Inquiry Officer. AND NOW THEREFORE, the Disciplinary Authority considering the report of Inquiry Officer that held the charges leveled against Dr. B.A. Vaid are not proved, the written statement of defence and representation submitted by the Charged Officer on the report of the inquiry Authority, has decided to exonerate the charged officer i.e. Dr. B.A. Vaid, Retd. GEQD, Shimla under DESS of all the charges leveled against him vide charge Sheet dated 28.06.2013.
The receipt of the Order may be acknowledged, (By order and in the name of the President)"
3. Highlighting the afore-quoted order, the applicant submitted that in view of his exoneration, he submitted his pension papers in the month of May, 2023 and though the said paperswere processed, however, no PPO has been issued by the respondents till date. Further, the applicant submitted that he retired in June 2013, but C-4, Item -61) OA No, 3015/2023 neither PPO nor the gratuity with interest along with dminisrative benefits of subsequent revision of 7h pay commission is centra granted to him till date. The applicant did not dispute that he is receiving provisional pension.
4. Per contra, learned counsel for the respondents had drawn attention to the short reply filed on behalf of the respondent Nos. 1 to 3 and 5. Relevant paragraphs of the same read as under:
"2. That the Central Forernsic Science Laboratory is functioning under the administrative control of Directorate of Forensic Science Services, Ministry of Home Affairs, Government of India. It is an NABL (National Accreditation Board for Testing and Calibration Laboratories) accredited laboratory in accordance with Standard ISOIEC 17025:2005 in the field of Forensic Testing. There are seven divisions in the laboratory viz. Ballistics, Biology, Chemistry, Document (Chandigarh & Shimla), Explosives, Physics and Toxicology having examination facilities like Firearms and Bullet proof/ resistant material testing, Serological Testing and DNA Profiling, Narcotics, Arson, Liquor, Questioned Documents, Post Blast explosives,. Forensic Physics, Computer Forensics, Audio-Video and Speaker Identification etc. Besides examination of crime-exhibits, the laboratory is also involved in crime scene visits, forensic awareness programmes, R&D projects and training to Forernsic Scierntists, Judicial Officers, Police Officers, Investigating agencies of the Centre and State Governments, students of various Universities, The Vision of CFSL Chandigarh is "High Quality, On Timeand Credible Forensic Services to Criminal Justice Delivery System of India".
3. That the applicant has filed the present OA for release of pensionary benefits viz Pension Payment Order and gratuity with interest.
4. That it is submitted that the applicant is already getting provisional pension from the date of his retirement.
Mrs.
5. That on the basis of () complainant by one Guninder Kaur against the applicant in March 2011 alleging that while submitting their report no reason had C-4,Item -61) OA No. 3015/2023 been provided by the experts (including applicant) in her case No. CX-81/2010 and (ü) report of the Internal Complaint Committee constituted by the submitted that centralA, atiy the NABL guidelines were not followed by the experts, an inquiry against the applicant under Rule 14 of the CCS/CC&A) Rules 1965 and Rule 9 of CCS (Pernsion) Rules, 1972 was instituted. The charge sheet dated 28.6.2013 was issued to the charged officer (applicant). The charged officer (applicant) submitted his written statement of defence vide letter dated 5. 1.2018 on charge sheet and the report of the Committee, denying all thecharges leveled against him.
6. That in accordance with the report of the committee and written statement of the defence, the Disciplinary Authority appointed anlnquiry Officer under rule 14(2) of CCS (CCA) Rule 1965 to enquire into the charges against the applicant.
7. That the Inquiry Officer submitted its report dated 3.6.2022 to the Disciplinary authority. The report of the Inquiry Officer was shared to the applicant, who accepted the same and submitted his written statement on the report of Inquiry Officer vide letter dated 14.9.2022.
8. That the Disciplinary Authority vide order dated 20th January 2023, after considering the report of Inquiry Officer where in it was held that the charges leveled against the applicant are not proved; the written statement of the defence and representation submitted by the applicant on the report of the Inquiry Officer, exonerated the charged officer (applicant) of all the charges level against him vide charge sheet dated 28.6.2013.
9. That the respondent No. 3 vide letter dated 18th April 2023 forwarded the requisite documents to applicant for filling the details and signatures thereon so that the case of pensionary benefits to him is processed at the earliest.
10. That after receipt of the pension papers from the applicant, the said documents were sent to the respondent No. 4 i.e. Pay and AccountsOfficer, DCPW MHA, Govt, of India, New Delhi by Respondent No.and3 vide letter dated 9th June 2023 for issue of PPO retirement gratuity i.e. Rs. 10,00,000/-, copy of which is attached as Annexure R-3/1.
dated
11. That the respondent No. 3 vide letter 27.7.2023 and 5.12.2023 also sent reminders to the PAO, DCPW, MHA, New Delhi (Respondent No. 4), copy of which is annexed as Annexure R-3/2 (Colly).
PAO vide letter No.
12. That the
PAO/DCPW/MHA/ Pension/2023-34/1375 dated
6
(C-4, Item -61) OA No. 3015/2023
9.1.2024 returned the pension papers and sought certain clarifications, copy of which is annexed as Annexure R-3/3.
dm Acbunal 13. That the respondent No. 3 vide letter No. CFSL/17/3/2013/Estt/ Pt. 11/8549-50 dated 23.1.2024 clarified the queries raised by the PAO (Respondent No. 4) and the pension papers in respect of applicant were again submitted as per the checklist suggested by the PAO, copy of which is annexed as Annexure R-3/4.
14. That the answering respondents are making all efforts to get issued PPO by PAO (Respondent No. 4) and release the gratuityat an early date.'
5. In support of his case, the applicant relied upon the following case laws and orders:
() Y.K. Singla Vs. Punjab Nation Bank (2012) 8& ors. of the Hon'ble Supreme Court.
(ü) Md. Farid vs. Union of India & ors. dated 21.03.2024 of the Hon'ble Calcutta High Court.
(ti) The Govt. of India Order No. 28/91/2022 P&PW(B)/8331 dated 11. 10.2022.
6. Heard learned counsel for both the parties and perused the material available on record.
7. Analysis :
7.1 In Union Of India & Anr vs Tarsem Singh decided on 13 August, 2008 reported in AIR ONLINE 2008 SC 68, it was observed as urnder :
"The principles underlying continuing wrongs and recurring/ successive wrongs have been applied to service law disputes. A continuing wrong' refers to 7 C-4, Item -61) OA No. 3015/2023 single wrongful act which causes a continuing injury. Recuring/ successive wrongs' are those which occur periodically, each wrong giving rise to a istinct and Administrati entra) separate cause of action. This Court in Balakrishna S.P. Waghmare vs. Shree Dhyaneshwar Maharaj Sansthan -
[AIR 1959 sC 798), explained the concept of continuing wrong (in the context of section 23 of Limitation Act, 1908 corresponding to section 22 of Limitation Act, 1963) :
"It is the veryessence ofa continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw adistinction between the injury caused by the wrongful act and what may be described as the effect of the said injury."
7.2 The issue to be resolved in the present matter is as to' whether, the delay in making payment of retiral dues by the respondents was deliberate or not. It is also to be looked into as to whether the applicant is entitled to interest on delayed payments or not.
7.3 The applicant in the present case is claiming interest from date of his superannuation. The fact of matter is that departmental proceedings were pending for a long period. The applicant was exonerated from charges only in the year 2023. Till conclusion of departmental proceedings, occasions to submit the pension papers and other procedural formalities had not arisen. Admittedly, 8 C-4, Item -61) OA No. 3015/2023 the applicant submitted the papers only in the month of istr May, 2023. Thereafter, the payments were released. siunal 7.4 It is well settled that only after conclusion of the departmental or judicial proceedings and issue of final order thereof, the competent authority authorizing the release of gratuity; it will be presumed that the gratuity is deemed to have been fallen due on the date immediately following date of retirement for the purpose of interest. It is thus clear that if disbursing the payment of gratuity is delayed, not due to the administrative lapses but due to the pendency of disciplinary enquiry against an employee on the date of superannuation, then he is not entitled to claim interest on the delayed paymnent of gratuity Marotirao Dalal Vs. State of (Prabhakar s/o Maharashtra and another, 2009(1) Mh LJ 209).
7.5 The case law relied upon by the applicant in person in are relatable to where the applicant was acquitted criminal proceedings and no departmental proceedings terms states were initiated. Rule 69(1) (c) in no uncertain Government servant that no gratuity shall be paid to the judicial until the conchusion of the departmental or in proceedings and issue of final orders thereon, except, are for caseS where the departmental proceedings C4, Item-61) OA No. 3015/2023 imposition of minor penalties specified in clauses (i), (6) & Aminis
(iv) of the CCS (CCA) Rules. This means that where the Centra ati departmental proceedings are for imposition of a major penalty or for imposition of minor penalties specified under clauses (ii) and (iil(a) of Rule 11 of the CCS (CCA) Rules, or the retired government servant is subjected to judicial proceedings, he would not be entitled to payment of gratuity until the conclusion of such proceedings and issue of final orders thereon. The reason for denying the the conclusion of such payment of gratuity till noted departmental or judicial proceedings is simple. As President, the hereinabove, Rule 9(1) reserves to the or both, either in power to withhold pension or gratuity pension in full or in part full or in part, or to withdraw the period, and to even whether permanently or for a specified gratuity of the whole order recovery from the pension or caused to the government, or part of any pecuniary loss found guilty of gross in a case where the pensioner is pecuniary misconduct or negligence which has resulted in finding could be arrived at loss to the government. Such a proceedings. This Rule either in departmental or judicial the said Rule, the term clearly shows that for purposes of contradistinction with the 'Gratuity' has been used in gratuity has not been released term 'Pension'. Therefore, if 10 C-4, Item-61) OA No. 3015/2023 to the retired Government servant to whom Rule 9 (4) of the Pension Rule applies, the same cannot be released, Centra strative except, in accordance with Rules 69(1)(c) thereof. We may note that the provisions with regard to the fixation of provisional pension and withholding of gratuity are only in the nature of interim arrangements since the final decision with regard to the payment of pension and gratuity would depend On the Outcome of the departmental proceedings or judicial proceedings as the case may be.
7.6 The pension of a government servant, who is due to.retirement, is required to be fixed well in advance, so that there is no delay in payment of pension to him immediately upon his retirement. Reference may be made to the provisions contained in Chapter VIII and in Rules 83 & 85 of the Pension Rules. Consequently, it follows that in respect of a government servant to whom Rule 9(4) of the Pension Rule does not apply, the Government is obliged to fix and pay the full pension and continue to pay the same, until a situation arises (with the institution of valid proceedings) as contemplated in Rule 9(4). Once a situation covered by Rule 9(4) arises, the government would become entitled to henceforth fix the provisional pension and continue to pay the same until the 11 4 ,Item-61) OA No. 3015/2023 conclusion of the proceedings, and subject to the final outcome of the proceedings. While the right to inistraj receive monthly pension accrues immediately upon retirement, and the same is to be paid vide Rule 85(2) "monthly on or after the last working day of the month to which the pension relates. SO far as gratuity is concerned, there is no specific Rule with regard to disbursement thereof. Rule 85(1) states "Except as otherwise provided in these Rules, a gratuity shall be paid in lump sum". While in respect of pension a statutory right exists, to receive pension immediately upon retirement month by month. There is no time bound prescription with regard to release of gratuity to the retired government servant. This also appears to be the scheme as evident from Rule 9(1) of the Pension Rules. The question of withholding pension or gratuity or both either in full or in part by the President can arise only in a situation where the same has in fact not been paid to the retired government servant. The facutal martix of the present case it is observed that departmental or judicial proceedings are instituted validly after the retirement of the Government servant, but within the time permissible under Rule 9(2)(b) (i) or otherwise within the period of limitation, the government would becomne entitled to fix 12 c4, Item -61) OA No. 3015/2023 provisional pension to be paid conclusion of the proceedings (as henceforth till the Adm inistrati Gentr has been done in present case) and would abide by the final decision arrived at in the proceedings in relation to the payment of the pension. Even though while a Government servant does become entitled to receive gratuity upon retirement (when proceedings as contemplated by Rule 9(6) are not in existence on the date of his retirenent), there is no rule that the same is payable immediately upon retirement. If proceedings are validly instituted after the date of retirenent of the Government servant, but prior to the disbursement of the gratuity to him, the Government servant cannot claim release of gratuity till so long as the proceedings are not concluded, and the final decision with regard to disbursement of gratuity would abide by the outcome of the proceedings.
7.7 Hence, disbursement of gratuity so long as the proceedings have not attained finality cannot be construed to be a continuous wrong.
7.8 The applicant submitted the papers in May, 2023. In normal circumstance the payment and retiral dues ought to have been made within a period of three months from date of submissions of pension papers.
However, the fact 13 (C4, Item -61) OA No. 3015/2023 of the matter is that payments have been released in A d m is nt r a t i parts as highlighted above. aibunal n
8. Conclusion :
The OA is partly allowed to the limited extent that the applicant shall be entitled to interest at the GPF rate on the delayed payments fron 01.01.2024 till the date of actual payment respectively. The said payment of interest shall be made within a period of two months from date of receipt of the certified copy of this order. Any further delay beyond the stipulated period would entail interest @ 12 % per annum till the actual date of payment. Pending MAs, if any, shall also stand disposed of accordingly. No COsts.
(Manish Garg) Member (J) /sm/