Madras High Court
The Union Of India Through The vs Dr.M.Dominic Savio Jegam on 5 August, 2015
Author: M.Venugopal
Bench: S.Manikumar, M.Venugopal
In the High Court of Judicature at Madras
Dated: 05.08.2015
Coram:
The Hon'ble Mr.Justice S.MANIKUMAR
and
The Hon'ble Mr.Justice M.VENUGOPAL
W.P.No.14965 of 2015 and
M.P.Nos.1 and 2 of 2015
1. The Union of India through the
Government of Puducherry,
Rep. By Chief Secretary, Chief Secretariat,
Puducherry.
2. The Secretary to Government,
Animal Husbandry and Animal
Welfare Department,
Chief Secretariat, Puducherry ..Petitioners
Vs.
1. Dr.M.Dominic Savio Jegam
2. The Registrar, Central
Administrative Tribunal
Madras Bench. ..Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorari calling for the records of the 2nd Respondent in its Order in Original Application No.349 of 2013 dated 16.02.2015 and to set aside the same by dismissing the Original Application.
For Petitioners : Mr.R.Syed Mustafa
For Respondent
No.1 : Mr.Menon Karthik
No.2 : Tribunal
O R D E R
[Order of the Court was delivered by M.VENUGOPAL, J.] The Petitioners have preferred the instant Writ Petition praying for passing of an Order by this Court in calling for the Original Records of the 2nd Respondent in O.A.No.349 of 2013 dated 16.02.2015.
2.The 2nd Respondent/Central Administrative Tribunal, Madras Bench, while passing the Impugned Order on 16.02.2015 in O.A.No.349 of 2013, filed by the 1st Respondent/Petitioner in Paragraph No.8 had observed that In the instant case also, at the time of his retirement, no charge sheet has been served on the applicant nor he was placed under suspension and no disciplinary proceedings were initiated against him. In such circumstances, I am of the view that the Order of the Principal Bench cited supra squarely covers the case of the Applicant and resultantly quashed the Impugned Order bearing No. 000090/CS(AH)/2013 passed by the Government of Puducherry, Chief Secretariat, (Animal Husbandry).
3.According to the Learned Counsel for the 1st Respondent, the 1st Respondent had filed O.A.No.349 of 2013 challenging the Order of Rejection of his request for the grant of retirement benefits and consequently sought for direction to sanction and disburse all the retirement benefits in full which included and not limited to Commutation of Pension, Gratuity, Encashment of Leave, LIC, NIC, UTGEGIS, T.A and Pension with effect from the date of his superannuation, ie., 31.12.2010 with arrears and also interest on such amount at the rate of 24% from the date of retirement till the date of actual payment.
4.The Learned Counsel for the Petitioners urges before this Court that the 2nd Respondent/Tribunal through its Order dated 16.02.2015 in O.A.No.349 of 2013 by placing reliance in order of the Principal Bench in O.A.No.2145 of 2012 dated 10.05.2013 on the ground that only in the event where a Government Employee was facing Departmental Proceedings or Criminal Case, Provisional Pension can be granted and as such, not granting the Vigilance Clearance is not a bar for pensionary benefits and directed disbursal of the same within a period of three months with interest at 9% from the date of filing of the Original Application till the actual date of disbursement.
5.The Learned Counsel for the Petitioners contends that the 2nd Respondent/Tribunal while passing the Impugned Order in O.A.No.349 of 2015 on 16.02.2015 had totally ignored the basic legal criteria adopted while examining the pension proposal followed by the Department.
6.Advancing his arguments, the Learned Counsel appearing for the Petitioners submits that the Government of Puducherry, being an Union Territory has to seek necessary approval from the Government of India through the Ministry of Home Affairs and Central Vigilance Clearance in so far as Disciplinary Proceedings are concerned and as such, the delay in that process could not be attributed on the part of the Government of Puducherry, more so when the necessary Competent Authorities were not impleaded in the main Original Proceedings.
7. Expatiating his contention, the Learned Counsel for the Petitioners brings it to the notice of this Court that the 2nd Respondent/Tribunal had failed to take into account the proceedings in and by which the Department had taken its best effort to initiate major penalty proceedings:-
1.Receipt of complaint from Central Vigilance Commission, New Delhi 02.11.2010;
2.Forwarding of complaint to Superintendent of Police V & AC, Puducherry 23.11.2010;
3.Receipt of enquiry report from V&AC, Puducherry 28.12.2010
4.Submission of report by CVO, Puducherry to Central Vigilance Commission, New Delhi for advice 14.02.2011;
5.Non receipt of disciplinary authority views as communicated by Central Vigilance Commission 22.02.2012;
6.Receipt of views of Disciplinary Authority (LG, Puducherry) 16.04.2012.
7.Submission of Disciplinary Authority views to Central Vigilance Commission 22.05.2012;
8.Date of receipt of advice of Central Vigilance Commission 08.08.2012;
9.Communication of Central Vigilance Commission advise to AH Secretariat, Puducherry 12.09.2012;
10.President approval requested for initiating Disciplinary proceedings by AH Secretariat, Puducherry 06.12.2013;
11.Reminder letter sent for President approval 30.12.2014;
12.MHA letter received stating non-receipt of report 16.02.2015;
13.President approval again requested for initiating Disciplinary Proceedings by AH Secretariat, Puducherry 05.05.2015;
8.The Learned Counsel for the Petitioners projects an argument that the case of the 1st Respondent/Applicant requires to be considered in terms of the Central Vigilance Commission Guidelines as streamlined by the Government of India. Therefore, the case of the 1st Respondent could not be considered at this stage, without approval from the 1st Petitioner/ Government of India.
9.It comes to be known that based on the Order of the 2nd Respondent/Tribunal in O.A.Nos.423 and 424 of 2008, the 1st Respondent/Applicant was placed with an additional charge of Director of Animal Husbandry and Animal Welfare Department on 10.02.2009. Later, he was placed with an additional charge as Dean of Rajiv Gandhi College of Veterinary and Animal Science by virtue of an Order dated 05.08.2010. He attained superannuation on 31.12.2010, when he was holding the post of Director of Animal Husbandry and Animal Welfare on ad-hoc basis.
10.It transpires that the 1st Respondent/Applicant was not provided with the retirement benefits based on the reason that some Vigilance Enquiry was pending pending him.
11.The plea of the 1st Respondent/Applicant is that he was not under suspension and further no Criminal or Departmental Proceedings were pending against him on the date of his attaining the age of superannuation. Further, there was no reply to the numerous representations made by him. Since he was not paid the provisional benefits, he was perforced to project O.A.No.443 of 2012 on the file of the 2nd Respondent/Tribunal and a direction was issued by the Tribunal to consider and dispose of the Representation of the 1st Respondent/Applicant pertaining to his plea.
12.Indeed, the Department of Accounts and Treasures issued a Provisional Pension Order dated 18.08.2012 only based on the Representation of the 1st Respondent/Applicant. Finally, the 1st Respondent/Applicant's request for grant of Retirement Benefits was not acceded to by the Government of Puducherry, Chief Secretariat (Animal Husbandry) through an Order dated 14.02.2013 based on the reason that Vigilance Clearance was not issued.
13.At this juncture, this Court aptly refers to Rule 9 of Central Civil Services Pension Rules, 1972 under the caption Right of President to withhold or withdraw Pension and the same enjoins as follows:-
(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement.
14.As a matter of fact, the words of Withholding or Withdrawing a Pension clearly envisages that the President is competent to withhold or withdraw the full pension.
15.Also this Court worth recall and recollects the decision of Hon'ble Supreme Court at Page 161, (Union of India and others V. Anil Kumar Sarkar) reported in (2013) 4 Supreme Court Cases at Page 161 whereby and whereunder it is held that Departmental Proceedings commence only when charge sheet is issued to a delinquent employee.
16.That apart, this Court cites the decision of Hon'ble Supreme Court, Punjab National Bank and Others V. Kunj Behari Misra reported in (1998) 7 Supreme Court Cases at Page 84 wherein it is held that Departmental Enquiry is concluded when the Disciplinary Authority passes an Order .
17. In the decision of Hon'ble Supreme Court in Coal India Limited V. Saroj Kumar Mishra reported in AIR 2007 Supreme Court at Page 1706 at Paragraph No.22 , it is held 'that a Departmental proceeding is originally said to be initiated only when a Charge Sheet is issued.
18.Furthermore, in the Division Bench Judgment of this Court dated 17.12.2008 in Writ Appeal No.886 of 2007, between The Government of Tamil Nadu rep. by the Secretary to Government, Revenue Department, Fort St. George, Chennai -9 and Another V. M.Deivasigamani reported in 2009 (3) MLJ at Page 1 (in which one of us S.Manikumar, J., was a Member and delivered the Judgment) had held as follows:-
An employee is entitled to claim interest on belated payment of pension and other retiral benefits, even in the absence of statutory rules/administrative instructions or guidelines, under Part III of the Constitution of India relying on Articles, 14,19 and 21 of the Constitution of India (1950).
19.As far as the present case is concerned, when the 1st Respondent/Applicant attained superannuation, admittedly, no charge sheet was served on him and further he was not placed under suspension. Added further, no Departmental / Disciplinary proceedings were initiated against him. As such, the 1st Respondent/Applicant is entitled to receive retirement benefits and in this regard the Petitioners are bound to sanction and disburse the same, in the considered opinion of this Court.
20.It appears that the 1st Respondent/Applicant had received the benefits, (i) Encashment of Earned Leave (ii) Savings amount accumulated under under LIC Scheme (iii) UTGEGIS Payment (iv) Transfer TA, which fact was admitted by the Appellants in their reply statement before the Tribunal in O.A.No.349 of 2013. As such, the Appellants are duty bound to sanction and disburse the Regular Pension, Commutation Pension, Gratuity payable to the 1st Respondent/Applicant and in this regard the view taken by the 2nd Respondent/Central Administrative Tribunal, Madras Bench is flawless. Indeed, the 2nd Respondent/Tribunal had directed the Appellants to sanction and disburse the retirement benefits like Regular Pension, Commutation Pension, Gratuity within a period of three months from the date of receipt of copy of the order with interest at 9% from the date of filing of Original Application till the actual payment of disbursement of the aforesaid three payments and in this regard, this Court is in complete agreement with the view taken by the Tribunal. Consequently, the Writ Petition sans merits.
In the result, the Writ Petition is dismissed leaving the parties to bear their own costs. Resultantly the Order dated 16.02.2015 in O.A.No.349 of 2013 passed by the 2nd Respondent/Central Administrative Tribunal is affirmed by this Court for the reasons assigned in the Writ Petition. Connected Miscellaneous Petitions are closed.
[S.M.K., J.] [M.V., J.]
05.08.2015
Index:Yes/No
Internet:Yes/No.
ssd
S.MANIKUMAR, J.
and
M.VENUGOPAL, J.
ssd
To
1. The Union of India through the
Government of Puducherry,
Rep. By Chief Secretary, Chief Secretariat,
Puducherry.
2. The Secretary to Government,
Animal Husbandry and Animal
Welfare Department,
Chief Secretariat, Puducherry
3. The Registrar, Central
Administrative Tribunal
Madras Bench.
W.P.No.14965 of 2015 and
M.P.Nos.1 and 2 of 2015
05.08.2015