Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through The Secretary on 6 October, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH
ORIGINAL APPLICATION NO.1353/PB/2013
Order Reserved on 18.09.2015
Pronounced on 06.10.2015
CORAM: HON'BLE MRS. RAJWANT SANDHU, MEMBER (A)
HON'BLE DR. BRAHM A. AGRAWAL, MEMBER (J)
Sohan Singh (deceased), UDC (Retd.) through his Widow/LR Jaspal Kaur widow of late Sohan Singh S/o Sh. Harnam Singh, R/o H. No.32, Street No.2-C, Anand Nagar-B, Patiala.
Applicant
Versus
1. Union of India through the Secretary, Ministry of Finance (Revenue), North Block, New Delhi.
2. The Central Board of Direct Taxes, New Delhi through its Chairman.
3. The Chief Commissioner of Income Tax, North-Western Region, Chandigarh.
4. Joint Commissioner of Income Tax, Patiala Range, Patiala.
5. Deputy Commissioner of Income Tax, Head Quarters (Vigilance), Chandigarh.
6. Assistant Commissioner of Income Tax, Circle-II Range, Patiala.
Respondents
Present: Sh. A.K. Walia, counsel for the applicant.
Sh. K.K. Thakur, counsel for the respondents.
O R D E R
BY HON'BLE MRS. RAJWANT SANDHU, MEMBER (A)
1. This O.A. has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
8(i) Direct the respondents to condone the break in service for the period 11.05.1991 to 19.07.1992 on the grounds mentioned in the petition and on the basis of Rule-27 and 28 of CCS (Pension) Rules, 1972 and instructions issued there under.
(ii) To quash the impugned letters Annexures A-6 to A-9 on the grounds mentioned in the petition.
(iii) To direct/declare that the applicant is entitled to count his entire service for the purposes of pay and pension and to direct the respondents to fix the pay/pensionary benefits of the applicant accordingly.
(iv) A further direction that the applicant will be entitled to interest @18% per annum on all the arrears of pay and allowances, pension and other retiral benefits from the dues dates till the date of actual payment.
(v) Direction to grant the benefits of proficiency step ups, time bound higher pay scale to the applicant and also to consider his case for time bound promotions.
2. Averment has been made in the O.A. that the applicant retired as UDC on 31.05.2005 after rendering 34 years of service. An FIR was filed against the applicant for offences under Section 5(1) (e) read with Section 5 (2) read with Section 13 (2) of the Prevention of Corruption Act 1988 and the applicant was convicted vide judgment and order dated 05.05.1997 by the Sub Judge CBI, Patiala. The applicant filed criminal appeal No.401-SB of 1997 in the Honble Punjab and Haryana High Court and vide order dated 17.08.2010 the applicant was acquitted of all charges. However, immediately after his conviction by the trial Court, the respondent department vide order dated 12.11.1997 (Annexure A-2) reduced pay of the applicant to Rs.1530/- in the time scale of Rs.1200-2040 for a period of 5 years with cumulative effect. The pay of the applicant was further fixed vide order dated 04.10.2004. He filed appeal to the department but in the meantime, the applicant retired on attaining the age of superannuation in May 2005. At the time of retirement, the applicant was allowed only provisional pension.
3. It is further stated that due to mental stress and anxiety in the year 1991 due to registration of FIR against him, the applicant could not attend his office from 09.04.1991 to 19.07.1992. Order dated 21.08.1991 was passed by the department treating some part of this period as break in service and it was further ordered that the applicant would not be entitled for any pay and allowances for the said period as dies non. The second spell of absence of the applicant was from 22.08.1991 to 19.07.1992 and show cause notice dated 22.03.2006 was issued to the applicant in this regard after his retirement. Thereafter vide order dated 22.03.2006 (Annexure A-3) the period from 22.08.1991 to 19.07.1992 was treated as dies non under FR 17-A.
4. The respondents had issued a charge sheet dated 10.12.1991 alleging that the applicant had falsely declared himself as belonging to SC and in this way he got undue benefit in his appointment as LDC. Through this very charge sheet, the applicant was also chargesheeted regarding absence from duties without permission from 09.04.1991 till date. The departmental inquiry remained pending till the retirement of the applicant on 31.05.2005. After retirement the applicant submitted representation dated 04.05.2012 followed by another representation for the release of pension and retiral benefits but no action was taken. He then filed O.A. No.353/PB/2013 and the departmental inquiry was finally dropped against the applicant vide order dated 14.11.2013 (Annexure A-5).
5. After the order dated 14.11.2013 was issued, respondent no.4 moved respondent No.1 to regularize the two periods of service of the applicant which were treated as dies-non i.e. 09.04.1991 to 10.05.1991 and the second period was from 11.05.1991 to 19.07.1992. The competent authority regularized first period whereas second period was not regularized. Due to this, the following impugned letters were issued:-
(i) Order No.JCIT/PTA-RNG/PTA/2014-15 dated 04.08.2014 (Annexure A-6) issued by respondent No.4 ordering that the period of service of the applicant for the period 24.02.1971 to 19.07.1992 cannot be treated as qualifying service.
(ii) Order No.JCIT/PTA-RNG/PTA/2014-15 dated 04.08.2014 (Annexure A-7) issued by respondent No.3, whereby after illegally treating the past service from 24.02.1971 to 19.07.1992 as lapsed for all purposes without conducting any fresh inquiry, the applicant was treated as a fresh appointee w.e.f. 20.07.1992 and his pay was drastically reduced without any inquiry or show cause notice and his pay was fixed at the minimum of the pay scale of UDC, which amounts to a major punishment of reduction in the time scale.
(iii) Order No.JCIT/RANGE/PTA/2014-15 dated 11/12.08.2014 (Annexure A-8) conveying similar decision and treating the service from 24.02.1971 to 08.04.1991 as lapsed and treating the applicant as fresh appointee w.e.f. 20.07.1992.
(iv) Letter dated 19.08.2014 (Annexure A-9) wherein admissible amount of retirement gratuity on the basis of service from 20.07.1992 to 31.05.2005 has been shown as Rs.55900, but even that amount has not been paid and the net amount payable has been shown as NIL.
6. In the grounds for relief it has, inter alia, been stated as follows:
1. The action of the respondents refusing to regularize the period of service from 11.05.1991 to 19.07.1992 for the purpose of pension is totally wrong, unjust and illegal. The Govt. of India issued instructions under Rule 27 of the Central Civil Services (Pension) Rules, 1972, which are reproduced as under:-
It has also been laid down that while the break in service may be condoned for counting the previous services under Rule 27 of C.C.S. (Pension) Rules by the appointing authority, the proposals or relaxation of other disabilities may be sent together with the recommendations of Heads of Circles/Districts to P&T Board for their consideration (since delegated to the appointing authority vide Explanation 2 below F.R. 17-A). It has been noticed that in few cases of unauthorized absence as a result of concerned action a few appointing authorities did not condone the break under Rule 27 of the Pension rules for counting the previous service which adversely affected the pension of the officials. In this connection it needs to be pointed out that the principles to be adopted for condonation of break in service for purpose of pension and that for purpose other disabilities enumerated in F.R. 17-A are different. The fact that break in service has not been condoned for purpose of Leave Travel Concession, quasi-permanency and eligibility to appear at departmental examinations should and need not influence the appointing authority adversely in deciding the question of condonation of break for counting the past service of the official for purposes of pension. It is not the intention of Government to deny pensionary benefits to the employees in all case of break of service. If necessary, the appointing authority may, in its discretion, not condone the break in service on account of unauthorized absence for purposes of pension only in exceptional and grave circumstances and not as a matter of course. The question of condonation of break in service for the purpose of pension may be considered suo moto without waiting for a representation from the affected officials and orders issued so that the retired employees are not put to financial hardship. It is requested that these instructions be brought to the notice of all the appointing authorities for their information and guidance [DGP&T Letter No.14/12/82-Vig.III, dated 23rd September, 1982].
Non condonation of break in service for concomitant disabilities should not be the guiding factor for non condonation of break in service for purpose of pension under Rule 27 of the Pension Rules.
[DGP&T Letter No.14/12/82-Vig.III, dated 23rd April, 1983]. Further, the provisions of Rule 27 and 28 of CCS (Pension), rules 1972 are reproduced as under:-
27. Effect of interruption in service:-
(1) An interruption in the service of a Government servant entails forfeiture of his past service, except in the following cases:-
(a) authorized leave of absence;
(b) unauthorized absence in continuation of authorized leave of absence so long as the post of absentee is not filled substantively;
(c) suspension, where it is immediately followed by reinstatement, whether in the same or a different post, or where the Government servant dies or is permitted to retire or is retired on attaining the age of compulsory retirement while under suspension;
(d) transfer to non-qualifying service in an establishment under the control of the Government if such transfer has been ordered by a competent authority in the public interest ;
(e) joining time while on transfer from one post to another.
(2) Notwithstanding anything contained in sub-rule (1), the [appointing authority] may, by order, commute retrospectively the periods of absence without leave as extraordinary leave.
28. Condonation of interruption in service:-
(a) In the absence of a specific indication to the contrary in the service book, an interruption between two spells of civil service rendered by a Government servant under Government including civil service rendered and paid out of Defence Services Estimates or Railway Estimates shall be treated as automatically condoned and the pre-interruption service treated as qualifying service.
(b) Nothing in Clause (a) shall apply to interruption caused by resignation, dismissal or removal from service or for participation in a strike.
(c) The period of interruption referred to in Clause (a) shall not count as qualifying service.
2. There are no exceptional or grave circumstances in the case of the applicant for not condoning the break in service for the purpose of pension, because it is not disputed that the applicant had submitted leave applications for the period from 08.04.1991 to 19.07.1992, but the respondents had rejected the leave applications as is clear from the order dated 22.03.2006. Further, the break in service from 08.04.1991 to 10.05.1991 has been condoned for the purpose of pension, but the same has not been condoned in respect of the period 11.05.1991 to 19.07.1992, which is in continuation of the earlier period and the receipt of leave applications for this period is also not disputed.
3. In the charge sheet dated 10.04.1991, the applicant was charged with absence from duty from 09.04.1991 till date and this charge sheet has been finally been dropped vide orders dated 14.11.2013 (Annexure A-5). Therefore, the order dated 22.03.2006 passed by respondent No.4 treating the period as dies non and break in service was naturally required to be reviewed/reconsidered, after the inquiry was finally dropped vide orders dated 14.111.2013, although O.A. No.3/PB/2007 filed by the applicant to challenge the order dated 22.03.2006 was dismissed at that stage. At that time, departmental inquiry was pending and respondent no.4 was not considering the issue of release of pension. Therefore, the question of condonation of break in service for the purpose of pension was not under consideration at that time.
4. In the departmental inquiry there was no charge of willful absence from duty, it was only alleged that the applicant absented from duties without permission. In the order dated 22.03.2006 also, it was alleged that the applicant remained absent from duty without prior permission.
7. In the counter reply filed on behalf of the respondents it has been stated that Honble President of India had dropped disciplinary proceedings only for 32 days i.e. only the period from 09.04.1991 to 10.05.1991 has been regularized and treated as dies non with break in service vide CBDT, New Delhis No.C-14011/25/2013 V&L dated 14.11.2013 (Annexure R-5). The total absent period of the applicant was 09.04.1991 to 19.07.1992 i.e. 468 days. The balance period of absence of 436 days has been treated as dies non with break in service for all purposes under FR 17-A (Annexure R-6). As the break in service has not been condoned by the competent authority so the past service from 21.02.1971 to 08.04.1991 has been treated as lapsed. The official has been treated as fresh appointee and his pay has been fixed at minimum in the scale of UDC of Rs.1200/-(1200-30-1560 EB-40-2010) (Annexure R-7). Besides, all the pensionary benefits had already been released. Only regular pension was been released. by this office through ZAO Office, Patiala on 15.08.2014 (Annexure A-8) so there is no question of paying any interest or penal interest in this regard to the applicant. Another letter (Annexure R-12) received from the Office of DGIT (Vigilance), New Delhi vide F. No.DGIT/DP/294/08/5 dated 24.02.2014 which stated that the rest of the period beyond 11.05.1991 had not been considered in the Order U/r 9 as it was not part of the article in the charge sheet. So, the decision of the competent authority regarding this period will remain as such. The disciplinary proceedings were dropped by the Honble President of India for 32 days only whereas order under Rule FR-17A was passed by the Deputy Commissioner of Income Tax, Patiala Range, Patiala on 21.08.1991. Hence, the balance period of 436 days had been treated as dies non with break in service. The charged official (applicant) was retired on 31.05.2005 on superannuation when the CBI case was pending against him in the High Court which was decided in his favour on 17.08.2010 and copy of the same was received in the respondent office on 06.07.2012. Therefore, provisional pension was released from next day of the retirement i.e. 01.06.2005 to the official upto 31.07.2014. All the pensionary benefits i.e. balance of GPF of Rs.47,536/- on 08.08.2005, leave encashment of Rs.87,750/- on 24.03.2006 and CGEIS of Rs.21,654/- on 29.03.2006 (Annexure R-9) have been released well in time. Only regular pension has been released on 15.08.2014 accordingly by respondents office through ZAO office, Patiala.
8. The applicant had remained absent from duty without permission for the period 22.08.1991 to 19.07.1992. The Joint Commissioner of Income Tax, Patiala Range, Patiala, the disciplinary authority, issued notice to applicant on 23.02.2006 which was served upon him on 27.02.2006. By this notice, the applicant was directed to explain on or before 03.03.2006 as to why the above said period may not be treated as unauthorized absence from duty under Rule FR 17-A. The order after completion of process was passed on 22.03.2006 (Annexure R-10). Any kind of leave was not granted by the competent authority. All the actions were taken after completion of inquiry.
9. No rejoinder has been filed by the applicant.
10. Arguments advanced by learned counsel for the parties were heard when learned counsel for the applicant reiterated the content of the O.A. He stated that since absence for the period beyond 12.05.1991 had not been condoned, the previous service of the applicant from 1971 to 1991 had been washed out and the applicant was paid much less pension than he was entitled to. He stated that FR 17 A and Rule 27 and 28 of the CCS (Pension) Rules, 1972 had to be referred in the case of the applicant. For pensionary benefits Rules 27 and 28 were relevant and the break in service for the period of absence treated as dies non could be condoned so that the applicant was able to get the pensionary benefits for his whole service. He cited judgment dated 30.05.2008 Lashker Ram Vs. UOI, 2008 (3) S.C.T. 796 in this regard. Learned counsel also stated that respondents had reduced the pay of the applicant after he was convicted by the Trial Court but since he had been acquitted as per the decision of the Honble High Court, the order by which his pay had been reduced ought to have been reviewed while the respondents had not taken any action in this regard. Learned counsel also stated that during the pendency of the O.A. the applicant had expired and now the matter was being pursued by his widow.
11. Learned counsel for the respondents reiterated the content of the written statement. He stated that the previous service of the applicant had been forfeited as per order under FR 17-A passed by the competent authority and hence the applicant was not entitled to any relief.
12. We have carefully considered the pleadings on the parties and arguments advanced by learned counsel. It appears that the case of the applicant has not been dealt with in accordance with policy, law and rules. Since the applicant was acquitted in the case filed against him under Prevention of Corruption Act, 1988 by the Honble High Court, the order of the respondent Department dated 12.11.1997 (Annexure A-2) reducing the pay of the applicant to Rs.1530/- in the time scale of Rs.1200-2010 for a period of 5 years with cumulative effect was required to be reviewed as this penalty was imposed by the respondent department not on the basis of any independent departmental inquiry but on account of the conviction of the applicant vide judgment dated 05.05.1997 by the Sub Judge, Patiala.
13. It is also seen that vide order dated 22.03.2006, the Jt. Commissioner for Income Tax issued order under FR 17-A regarding absence from duty without prior permission by Sh. Sohan Singh, UDC for the period 22.08.1991 to 19.07.1992. The period was treated as break in service for all purposes under FR 17-A. The applicant filed O.A. No.03/PB/2007 impugning this order and the same was dismissed vide order dated 02.04.2008. However, the respondent department while preparing the pension case of the applicant on his retirement from service on 31.05.2005 ignored the provisions of Rules 27 and 28 of CCS (Pension) Rules, 1972. DGP&T letter dated 23.04.1993 quoted in para 5 of this order is very relevant to the matter as this is based on the guidance of DoPT. While it is accepted that the applicant was unauthorizedly absent during the period from 09.04.1991 to 19.07.1992 and the period from 22.08.1991 to 19.07.1992 had been treated as break in service under FR 17-A vide order dated 22.03.2006 but this FR has limited application since under this FR the break in service relates to leave travel concession, quasi permanency and eligibility for appearing in departmental examination for computing the minimum period of continuous service as required. For the purpose of qualifying service of pension, the appointing authority may in its discretion not condone break in service on account of unauthorized absence for purpose of pension only in exceptional and grave circumstances and not as a matter of course. In the case of the applicant no such exceptional and grave circumstances have been cited in the written statement that need to be taken into account if the break in service is to impact the qualifying service for pensionary benefits also.
14. We could have referred the matter to the respondent Department for reconsideration of this aspect. However, we note that Sh. Sohan Singh, ex. employee died in December 2014 and this matter is now being pursued by his widow. Taking a sympathetic view of the matter, absence during the period from 22.08.1991 to 19.07.1992 is directed to be condoned for the purpose of pension and hence the impugned orders (Annexure A-6 to A-9) are quashed. The respondents are directed to take action first to review the penalty imposed on the applicant vide order dated 12.11.1997 (Annexure A-2) reducing his pay on account of his conviction in the case under Prevention of Corruption Act 1988 by the Sub Judge, Patiala, in view of the fact that Honble High Court vide order dated 17.08.2010 acquitted the applicant of the charges. Thereafter, the pay of the deceased employee may be revised as applicable from time to time up to the date of his superannuation. Revision of pension may be effected counting his service after excluding the period treated as dies non and arrears on account of revision of pay, the revised pension and retiral benefits may be paid to the widow of the deceased employee. Action in this regard may be completed within a period of four months from the date of a certified copy of this order being served upon the respondents. No costs.
(DR. BRAHM A. AGRAWAL) (RAJWANT SANDHU) MEMBER (J) MEMBER (A) Place: Chandigarh. Dated: KR* 8 14 O.A. No.1353/PB/2013 1