Central Administrative Tribunal - Ernakulam
Omana B vs Union Of India Represented By Its ... on 5 December, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. NO.1073/2011
Dated this the 5th day of December, 2012
C O R A M
HON'BLE Mrs K. NOORJEHAN, ADMINISTRATIVE MEMBER
Omana B, Staff Code No.24218, Retired Sr.Technician A,
(Superannuated from QID, VSSC, Trivandrum)
R/o Divya Bhavan, Chembakassery Nagar,
Kesavadasapuram, Trivandrum - 695004.
Applicant
(By Advocate Mr S.Narayanan Nair)
Vs
1 Union of India represented by its Secretary
Department of Space, Anthariksha Bhavan
New Bell Road, Bangalore - 560231.
2 Indian Space Research Organisation
.Department of Space, Anthariksha Bhavan
New Bell Road, Bangalore - 560231 represented
by its Chairman.
3 Vikram Sarabhai Space Centre, ISRO P.O,
Trivandrum, represented by its Director.
Respondents.
(By Advocate Mr Sunil Jacob Jose, SCGSC)
The Application having been heard on 5th December 2012, the Tribunal
delivered the following:
O R D E R
HON'BLE Mrs. K.NOORJEHAN, ADMINISTRATIVE MEMBER The applicant, a retired Senior Technician, is aggrieved by the non- grant of her retiral benefits even after issuance of the Pension Payment Order on 1.8.2011.
2 Brief facts of the case as stated by the applicant are that she commenced her service in the Printed Circuit Facility of the respondent department from 7th August 1985. On 30.9.2011 she superannuated from service as Sr.Technician"A". It is submitted that her Pension Payment Order, Annx.A1 dated 1.8.2011 shows that the applicant is eligible for Rs.426361/- as DCRG and Rs. 427137/- as commuted value of pension. It is alleged that despite her repeated written representations and oral requests with the authorities the respondents are not bothered to release her legitimate retiral benefits. She further stated that while in service she was considered for promotion to the post of Sr.Technician-B which was kept in sealed cover alleging the existence of a Criminal Case No.CC 2/2009 against her before the Court of Judicial First Class Magistrate-I at Nedumangadu. She further averred that a Civil Suit No.OS 163/2010 is pending before the Court of Subordinate Judge, Nedumangadu for settlement of property. All these cases are unnecessarily filed by the then wife of the deceased and divorced husband of the applicant for settlement of the property of her late husband. She alleged that the pendency of a private criminal case should not be a bar for her legitimate promotion. It is further averred that the applicant filed a discharge petition before the Hon'ble High Court of Kerala vide Crl.MC No.3147/2009. In compliance of the Hon'ble High Court direction, an application under Sec 239 CrPC was moved before the Judicial First Class Magistrate-I, Nedumangadu. She alleged that all other retiral benefits are released except gratuity and commuted value of pension and the retention of the same is illegal.
3 The respondents have contested the O.A by filing reply statement. They justified the action of the respondents under the CCS (Pension) Rules, 1972 which stipulates that in the case of Govt servant who has retired on superannuation or otherwise and against whom departmental or judicial proceedings are instituted or continued, the authority shall authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement. No gratuity shall be paid until the conclusion of the proceedings and issue of final orders thereon. The provisional pension will be adjusted against the final retirement benefits sanctioned upon conclusion of the proceedings. According to the respondents, one V.S.Omana has filed a case under Section 464, 465 and 420 red with Section 34 of IPC in Crime No.261/08 at Arynadu Police Station against the applicant for transferring 54 cents of land in the name of her deceased and divorced husband to her daughter. They conceded that the applicant had completed 26 years qualifying service with the respondents. After forwarding the Pension Payment Order to the Central Pension Accounting Office, New Delhi, it was noticed that the criminal case is pending against the applicant before a Court Law. It is further submitted that as per Rule 9(4) and Rule 69 of CCS(Pension) Rules, 1972, in case of a Govt servant against whom a departmental or judicial proceeding is pending, provisional pension only can be granted and no gratuity shall be paid and final orders shall be issued only after conclusion of the departmental or judicial proceedings. They further pointed out that as per Rule 4 of CCS (Commutation of Pension) Rules, 1981, no Govt servant against whom departmental or judicial proceedings have been instituted before the date of retirement shall be eligible to commute a fraction of his provisional pension authorised under Rule 69 of CCS (Pension) Rules during the pendency of such proceedings. Thus the respondents revised the Pension Payment Order by granting pension on provisional basis. This was intimated to the applicant orally.
4 The applicant filed a rejoinder reiterating that all judicial proceedings will not come under the purview of Rule 4 and 69 of the CCS (Pension) Rules and only in case of departmental or judicial proceedings for misconduct in employment instituted by the respondent or Court, DCRG and commuted value of pension can be withheld. She averred that she has executed a settlement deed in respect of property owned and possessed by her in favour of her daughter. Moreover she further added that no written intimation was issued to the applicant regarding with-holding of her gratuity and commuted value of pension. 5 Heard learned counsel for the parties and perused the documents. 6 The issue which comes up for consideration in this O.A. is whether the applicant is entitled for payment of gratuity and commuted value of pension during the pendency of a criminal case pending against her.
7 During the final argument, the learned counsel for the applicant has brought to my notice the order dated 29.11.2009 of the Principal Bench of the Tribunal in the case of Prabhu Lal Vs. Union of India wherein an identical issue was dealt with. He argued that the applicant in the present OA is similarly situated like the applicant in the OA supra and submitted that the applicant's case is squarely covered by the order supra. He further cited a recent decision of a coordinate Bench of this Tribunal in OA No.134/2010, T.Ayyappan Vs. Commissioner of Customs & Ors, decided on 29.10.2010 and argued that the applicant herein is also entitled for the benefit granted in that O.A. 8 I. have gone through the orders of the Principal Bench, New Delhi and this Tribunal. In these cases the Applicant in the O.As (supra) are similarly placed like the present applicant. This case is squarely covered by the decision of the Division Bench in which I am one of the Members. The relevant portion of the Principal Bench, New Delhi is extracted below:
"In the case of the applicant, there is a criminal case pending against him in the Court of Law. However, so far as there has been no decision in the case pending against the applicant. In the light of the above, it would be amply clear that only on the basis of the case pending against the applicant, pension cannot be withheld under Rule 8 of CCS (Pension) Rules, 1972. It has to abide by the final decision in the criminal case against the applicant. Gratuity cannot, in any case, be withheld or withdrawn under the provisions of Rule 8 ibid".
9 An exactly identical case came up for consideration of the High court of Kerala in Krishnan Kutty Vs. Senior Superintendent of Post Offices, Ernakulam (1975 KLT 503). In that case the High Court held as follows:
"10 Article 311 (2) of the Constitution enshrines a valuable right to a Government servant. Rules 14 and 18 of the Rules which lay down the procedure for imposing penalties upon a government servant are there because of the protection contained in Article 311 (2) of the Constitution. Proviso (a) to Article 311(2) of the Constitution and the special procedure prescribed in rule 19 of the Rules are really exceptions. Rule 19 (i) can be invoked only in cases where it is strictly applicable. A conduct not in the course of employment cannot be a misconduct. Similarly, a conduct which is not a misconduct as per the conduct rules also cannot be the subject matter of disciplinary action against a Government servant. In that case, the conviction on a criminal charge for a conduct which is not a misconduct as per the conduct rules cannot be a reason for taking action against a government servant under rule 19(i) of the Rules. A domestic quarrel which has nothing to do with the employment of the Government servant cannot be a misconduct. Moreover, if the same occurs at a place far away from the place of employment, that cannot in any way be made a subject matter of a disciplinary action against the Government servant. In this case a scuffle between the petitioner Government servant and his step brother at the place where they live resulted in the criminal charge and the conviction thereon. If the conduct of the petitioner cannot be subject matter for taking disciplinary action against him under rules 14 to 18 of the Rules, the mere fact that he was convicted on a criminal charge on the ground of that conduct cannot be a reason for invoking rule 19(i) of the Rules...."
10 In another identical case in WP(C) No.383/2010, the High Court of Delhi considered an identical issue and held as follows:
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 the absence of any such finding, the President cannot hold the pension or withhold gratuity. In the present case there is no finding against the respondent warranting withholding 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 Govt by any act/omission of the respondent.
11 The gist of the above judgments is that the retiral benefits of an employee under the CCS CCA Rules cannot be withheld when judicial proceedings are pending for alleged misconduct not emanating in the course of employment. In this case, it is not in dispute that there was any failure in the discharge of duty on the part of the applicant leading to any departmental or judicial proceedings. The pending criminal case relates to a domestic quarrel which according to the Hon'ble High Court of Kerala cannot be construed as misconduct in the course of employment.
12 In the result, in my considered view the action of the respondents in withholding the retiral benefits of the applicant is bad in law. Accordingly, I allow the O.A and direct the respondents to issue revised PPO and release the retiral benefits as per Annx.A1 with interest at 6% per annum from 1.1.2012 to the date of payment. This shall be done within a period of two months from the date of receipt of this order. No costs.
(Dated 05th December 2012) K. NOORJEHAN ADMINISTRATIVE MEMBER kkj