Central Administrative Tribunal - Delhi
Ant Ram vs Delhi Transport Corporation (Dtc) on 13 December, 2024
(OA No.3552/2023)
(1)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.3552/2023
Reserved on: 08.11.2024
Pronounced on: 13.12.2024
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Ant Ram, Driver, B.No.19968,
RD-III, Group-'C'
Aged about 60 years,
S/o late Sh. Chandgi Ram,
R/o Village & P.O. Begum Pur,
Delhi-110086. ...Applicant
(By Advocate: Shri Anil Mittal)
Vs
Delhi Transport Corporation,
I.P.Estate, New Delhi-110001.
(through Chairman-Cum-Managing Director ...Respondent
(By Advocate: Shri S.M.Arif)
ORDER
By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s):-
"Direct the respondent to calculate the Retirement Gratuity, Leave Encashment, Pension and arrears of Pension after extending the benefit of 3rd MACP in the year 2022 and after fixing the annual increment of the applicant for the month of January, 2023 and to pay the same along with arrears and interest to the applicant."
2. The facts of the case, in brief, as indicated in the OA are that the applicant was appointed as Driver on regular basis (OA No.3552/2023) (2) with the respondents on 01.02.1992. He was granted the benefit of 1st Assured Career Progression (ACP) in the year 2004 followed by the benefit of 2nd Modified Assured Career Progression (MACP) on 12.09.2012 after completion of 20 years of service. However, the applicant was issued charge sheet on 11.04.2018 by the respondents alleging therein that he was involved in a police case in which he was arrested but he did not disclose the said fact to the respondents which amounted to misconduct.
3. It is submitted that a departmental proceeding was started resulting into the punishment of 'stoppage of next due one increment with cumulative effect' on the applicant vide order dated 27.07.2018. The applicant was informed by letter dated 17.08.2022 that he was going to retire from service on 31.01.2023 and he had opted for DTC pension. He became entitled for his 3rd MACP in September 2022 but he was not given the benefit of the same. Further based on the claim made in the rejoinder, drawing attention to the decision of the Screening Committee (at page 21 and 23 of counter reply), it is argued that the record of the applicant- was clear and there was no reason to deny the benefit of MACP to him. Further, the applicant who was drawing basic salary of Rs. 46, 800/- in the month of December, 2022, was entitled to one annual increment in the month of January, 2023 but the same was (OA No.3552/2023) (3) denied to him, whereas his colleagues of his seniority were given the benefit. The applicant retired from service of the respondents on 31.01.2023 after serving for 31 years. Though he was entitled to the benefits of Provident Fund, Gratuity, Leave Encashment, one annual increment and Pension, he was only given the benefits of his Provident Fund. He sent a representation dated 25.04.2023 to the respondents requesting for grant of unpaid post retirement benefits, but the respondents failed to release the unpaid dues of the applicant till date.
4. The respondents in their counter reply, on the other hand, have submitted that four criminal cases were pending against the applicant in the Rohini Court and as per Administration Circular No. Admn./Misc./2021/2130 dated 30.09.2021 the applicant is not entitled to any of the entitlements. Moreover, he is not entitled for one increment as he retired from the service of the Corporation before the increment is applicable in the month of July, 2023. It is also submitted that with regard to the claim of 3rd MACP in September 2022, vide decision of the Screening Committee of MACP dated 21.01.2023 and 25.07.2022, the same was not granted as four criminal cases were pending in the court against him. It is also submitted that that as per Administration Circular No. Admn./Misc./2021/2130 dated (OA No.3552/2023) (4) 30.09.2021 issued by the GNCTD, the Pension, Gratuity and other retiral dues of a Government official cannot be withheld unless judicial or departmental proceedings are pending against him. Therefore, in view of the pending criminal cases, the retiral dues could not be released though his Provident Fund has already been released. Due to same reasons, he is not entitled to any payment of 3rd MACP, Gratuity, Leave Encashment, Annual Increment and Pension as per the aforementioned Circular.
5. I have heard both the counsels and perused the relevant pleadings on record including counter reply and rejoinder.
6. Learned counsel for the applicant by placing reliance on the submissions made in the rejoinder states that a number of employees of the respondents who had criminal cases pending against them at the time of their retirement, were paid their Pension, Gratuity and other post retirement benefits. One Sh. Rajender Singh, Driver and Shri Jaipal, Driver who were also involved in criminal cases which were pending at the time of their retirement, were paid Pension, Gratuity and other benefits. He also draws attention to Rule 9 (4) of CCS Pension Rules 1972 stating that if judicial proceedings are pending against a retired Government servant, the said (OA No.3552/2023) (5) Government servant is entitled to receive Provisional Pension under Rule 69 of CCS Pension Rules, 1972.
7. The question is whether the CCS Pension Rules are applicable in the case of DTC employee or not. In this context, I have referred to Annexure R-7 which reads as follows:
"Circular In continuance to this office circular No.AdmnI/Misc/2012/264 dated 01.05.2012 and OM of Finance (Accounts) Department, GNCTD bearing No.F.12/9/2011-AC/DSIII/1163-1171 dated 29.8.2011 duly circulated by this office vide No.Adm1- 3(29)/2011/825 dated 15.9.2011, it is further reiterated that as has been provided in CCS (Pension) Rules, 1972 and also in accordance with the various orders issued by DOP&T (GOI), the pension, Gratuity and other retiral dues of a Government official cannot be withheld unless judicial or departmental proceedings are pending against him. The departmental proceedings are disciplinary proceedings instituted through charge sheet under DRTA (Conditions of Appointment and Service) Regulations, 1952 or CCS Pension Rules, 1972. Further, the judicial proceedings shall be deemed to be instituted:
"In the case of criminal proceedings, on the date on which the complaint or report of Police officer, of which the Magistrate takes Cognizance, is made".
These instructions shall be equally applicable to all the officials whether pension optee or not pension optee. These instructions/guidelines are being issued with the approval of the Competent Authority for information and necessary action by all concerned."
8. It is evident that the said Circular issued by the DTC stipulates that the provision of CCS Pension Rules, 1972 now amended as CCS Pension Rules, 2021 are taken into account (OA No.3552/2023) (6) for grant of pension, gratuity and other retiral dues and therefore their applicability in the instant case is not in doubt. The same has also been confirmed by the learned counsels from both the sides.
9. I have gone through relevant portion of Rule 9 (4) and 69 of the CCS Pension Rules, 1972 which read as follows:
"9. Right of President to withhold or withdraw pension (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 :
Provided that the Union Public Service Commission shall be consulted before any final orders are passed: Provided further that where a part of pension is withheld or withdrawn the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five per mensem.] (2) (a) The departmental proceedings referred to in sub-
rule (1), if instituted while the Government servant was in service whether before his retirement or during his re- employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service:
Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President.
(OA No.3552/2023) (7)
(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment, -
(i) shall not be instituted save with the sanction of the President,
(ii) shall not be in respect of any event which took place more than four years before such institution, and
(iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. (3) Deleted.
(4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in 2 [Rule 69] shall be sanctioned. (5) Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.
69. Provisional pension where departmental or judicial proceedings may be pending (1) (a) In respect of a Government servant referred to in sub-rule (4) of Rule 9, the Accounts Officer shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension.
(b) The provisional pension shall be authorized by the Accounts Officer during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.
(OA No.3552/2023) (8)
(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon :
Provided that where departmental proceedings have been instituted under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for imposing any of the penalties specified in Clauses (i), (ii) and (iv) of Rule 11 of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant.
(2) Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period."
10. Further relevant section of CCS (Pension) Rules, 2021 which has been issued amending the CCS (Pension) Rules, 1972 reads as follows:
"8 (4) (a) In respect of a Government servant referred to in sub-rule (4) of Rule 9, the Accounts Officer shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension.
(b) The provisional pension shall be authorized by the Accounts Officer during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.
(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon.
(OA No.3552/2023) (9)
(d) The provisions of this sub-rule shall not be applicable where allegations of misconduct are under investigation against a Government servant or where departmental or judicial proceedings are contemplated against a Government servant but have not actually been instituted or deemed to have been instituted in accordance with sub rule (9) till the date of retirement of the Government servant. The pension and gratuity in such cases shall be authorized to be paid to the Government servant on his retirement in accordance with rule 63:
Provided that any departmental proceedings instituted after retirement of the Government servant shall be subject to the provisions of sub-rule (2). (5) Payment of provisional pension made under sub-rule (4) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period."
11. Learned counsel for the applicant submits that even provisional pension is not being paid to the applicant which is in violation of the aforementioned relevant rules, particularly Rule 8(4) (b) of CCS (Pension) Rules, 2021. It is also reiterated that similarly placed two employees have been paid all retiral benefits including pension, gratuity and entitlement flowing out of MACP etc, which is a clear act of discrimination.
12. Learned counsel for the respondents does not deny that in the two cases retiral benefits have been given but submits that his case may be different from the above two cases as the applicant had given the undertaking that no criminal case (OA No.3552/2023) (10) is pending against him in any court of law and thus he had mislead the authority unlike the stated two cases.
13. Learned counsel for the respondents, on the other hand, draws attention to letter dated 23.07.2018 addressed to Depot Manager by the applicant (Annexure A-5) wherein the applicant had submitted that he had no knowledge of the pending cases against him and he was not aware that he had to inform the Department about pending cases against him and consequently he did not communicate to the Department about the same. Learned counsel for the respondents contends that it is evident from the said application that the applicant had suppressed the fact of his involvement in criminal case and the plea of ignorance taken is not tenable as this cannot be taken as a justification to defend suppression of information about pendency of criminal cases. Rebutting this, the learned counsel for the applicant draws attention to the undertaking furnished by him on 25.01.2022 wherein he had clearly stated that the criminal cases are pending against him in Rohini Court.
14. I have gone through the said undertaking which reads as follows:
"Undertaking It is to inform that as on date, no criminal proceedings are pending against him in any Court of Law. Further, I hereby undertake that in case a criminal case is found (OA No.3552/2023) (11) registered or come to the notice of the management at a later stage, after giving an undertaking, necessary disciplinary action as deemed fit, will be taken against me as per rules.
This information is being given by me without any pressure."
15. It is evident from the above that the applicant at a later date had furnished information regarding pendency of criminal case against him to the respondents. Learned counsel for the respondents after going through the same does not press this point further. However, he reiterates that in the light of circular dated 30.09.2021 his claim for retiral benefits cannot be considered. I have gone through the relevant circular dated 30.09.2021 (Annexure-R/7), which is as follows:-
"In continuance to this office circular No. Admi/ Misc/2012/264 dated 01.5.2012 and O.M. of Finance (Accounts) Department, GNCTD bearing No. F. 12/9/2011-AC/DSIII/1163-1171 dated 29.8.2011 duly circulated by this office vide No. Admi-3(29)/2011/825 dated 15.9.2011, it is further reiterated that as has been provided in CCS (Pension) Rules, 1972 and also in accordance with the various orders issued by DOPET (GOl), the Pension, Gratuity and other retiral dues of a Government official cannot be withheld unless judicial or departmental proceedings are pending against him. The departmental proceedings are disciplinary proceedings instituted through charge-sheet under DRTA (Conditions of Appointment and Service) Regulations, 1952 or CCS Pension Rules, 1972. Further, the judicial proceedings shall be deemed to be instituted:
"in the case of criminal proceedings, on the date on which the complaint or report ọf Police officer, of which the Magistrate takes Cognizance, is made".
These instructions shall be equally applicable to all the officials whether pension optee or not pension optee.
(OA No.3552/2023) (12) These instructions/guidelines are being issued with the approval of the Competent Authority for information and necessary action by all concerned."
16. The limited question before the Bench is whether the respondents are justified in withholding the pension and other retiral benefits on the ground of pending criminal proceeding, in the light of order dated 30.09.2021 cited above. In this connection, it is necessary to travel to Rule 8 of CCS (Pension) Rules, 2021 which is reproduced for reference:
"8. Power to withhold or withdraw pension (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."
(4) (a) In respect of a Government servant referred to in sub-rule (3), the Accounts Officer shall authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant, or if he was under suspension on the date of retirement, up to the date immediately preceding the date on which he was placed under suspension."
17. From the rule position, it is clear that the respondent has power to withhold or withdraw the pension or any part of it when the pensioner is found to be guilty of grave misconduct either in a departmental or judicial proceeding but this (OA No.3552/2023) (13) provision does not empower the State to invoke the said power while the departmental proceeding or judicial proceeding are pending. Such power can be invoked only when the proceedings are concluded finding guilty and not before. Reading of Rule 8 [Rule 9(4)] and Rule 69 of CCS Pension Rules, 1972 makes it abundantly clear that withholding of pension can happen only when the finding is recorded either in departmental enquiry or judicial proceeding that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the rules for withholding of the pension/gratuity when such departmental proceedings or judicial proceedings are still pending.
18. Learned counsel for the applicant places reliance on the decision of the Hon'ble Supreme Court in Hira Lal vs. The State of Bihar AIR 2020 SC 1027 wherein following was held:
"13.4 It is well settled that the right to pension cannot be taken away by a mere executive fiat or administrative instruction. Pension and gratuity are not mere bounties, or given out of generosity by the employer. An employee earns these benefits by virtue of his long, continuous, faithful and un-blemished service.4 The right to receive pension of a public servant has been held to be covered under the "right to property" under Article 31(1) of the (2013) 12 SCC 210 Constitution by a Constitution bench of this Court in Deokinandan Prasad v. State of Bihar 5, which ruled that:
"30. The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India [AIR (OA No.3552/2023) (14) 1962 Punj 503] . It was held that such a right constitutes "property" and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in letters patent appeal by the Union of India. Letters Patent Bench in its decision in Union of India v. Bhagwant Singh [ILR 1965 Punj 1] approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is "property" within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority.
31. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. State of Punjab [ILR 1967 Punj & Har 278] . The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a government servant. It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show-cause in that regard must be given to the officer. This view regarding the giving of further (1971) 2 SCC 330 opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not (OA No.3552/2023) (15) prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show-cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.
33. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that the order, dated June 12, 1968, denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Article 32 is maintainable..."
[emphasis supplied] 13.5 The aforesaid judgment was followed in D.S. Nakara and Ors. v. Union of India6 by another Constitution bench of this Court, which held that:
"20. The antiquated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar and Ors7.:
(OA No.3552/2023) (16) wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab and Anr. v. Iqbal Singh.8
29. Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-
economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service.
15. With respect to withholding of the full amount of gratuity, we find that as per Rule 27 of the Bihar Pension Rules, "pension" includes "gratuity". With the insertion of Rule 43 (c) in the statute book w.e.f. 19.07.2012, it is clear that gratuity also could not have been withheld under administrative circulars dated 22.08.1974 and 31.10.1974, and Government Resolution No. 3104 dated 31.07.1980."
19. However, I find that the aforesaid judgment is distinguishable as Rule 43 (b) of Bihar Pension Rules, 1950 did not provide for withholding of the pension/gratuity when such departmental or judicial proceedings were pending and the (OA No.3552/2023) (17) decision was taken based on executive instructions which were having no statutory character and, therefore, they could not be termed as "law" within the meaning of Article 300A. Also Para-7 of the said rule stipulated that pension includes gratuity whereas Rule 8 of CCS (Pension) Rules deals with pension and gratuity separately.
20. Rule 8 (4) (a) of CCS (Pension) Rules, 2021 provides that a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted will be entitled to provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant. Further Rule 8 (4) (c) of the said rules clearly indicates that no gratuity shall be paid to Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon and Rule 8 (5) of the said rules also provides that payment of provisional pension made under sub-rule (4) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.
(OA No.3552/2023) (18)
21. So far the claim that two other similarly placed persons have been given the benefit of 3rd MACP and other retiral benefits, including pension and gratuity, I find that the two employees in question have not been impleaded. More important, it may also be mentioned here that the Hon'ble Supreme Court in R. Muthukumar & Ors. vs. The Chairman and Managing Director TANGEDCO & Ors. vide Civil Appeal No.1144 of 2022 decided on 07.02.2022 has held as follows:
"24. A principle, axiomatic in this country's constitutional lore is that there is no negative equality. In other words, if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality. In Basawaraj & Anr. v. Special Land Acquisition Officer14, this court ruled that:
"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated." Other decisions have enunciated or applied this principle (Ref: Chandigarh Admn. v. Jagjit Singh15, Anand Buttons Ltd. v State of Haryana 16, K.K. Bhalla v. State of M.P.17; Fuljit Kaur v. State of Punjab 18, and Chaman Lal v. State of Punjab 19. Recently, in The State of Odisha v. Anup Kumar Senapati 20 this court observed as follows:
"If an illegality and irregularity has been committed in favour of an individual or a group (OA No.3552/2023) (19) of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision."
22. Therefore, the rule in this regard is very clear and claiming parity with such similarly placed persons in violation of the extant rules tantamount to negative parity, which is not admissible.
23. In such view of the matter, I am of the view that the respondents were not justified in withholding the pension of the applicant and it is wrong to do so by an executive order, which is contrary to the rules. However, he is not entitled to other retiral benefits as per extant rule, grant of 3rd MACP in September, 2022, as decided by the Screening Committee, in view of pending criminal cases against him. Since the applicant had retired from the service on 31.01.2023 before the increment due in July, 2023, he is not entitled for increment. Similarly, the applicant cannot claim gratuity given the pending criminal cases against him.
24. So far the applicant's claim for leave encashment is concerned the learned counsel for the applicant during the course of argument has contended that there was no reasoned and speaking order passed by the competent authority under (OA No.3552/2023) (20) the relevant leave rules for withholding the leave encashment dues of the applicant. Attention is drawn to Rule 39 (3) of CCS (Leave) Rules empowers the competent authority to withhold the payment of the leave encashment but it is to be carried out following the due process of law and principle of natural justice. Hon'ble Delhi High Court in Government of Delhi and Another vs. Premnath Manchanda in WP(C) No.9394 of 2017, specifically in Para 6 of the said judgment held as follows:
"It is undisputed that the respondent retired from service on 31.08.2010 on attaining the age of superannuation and that at the time of his retirement, or immediately thereafter, leave encashment was not released to him. There is also no dispute on the proposition that leave encashment can be withheld under Rule 39 (3) of CCS (Leave) Rules, 1972, if at the time of retirement, an employee is under suspension or disciplinary or criminal proceedings are pending against him. However, a reading of the said provision clearly shows that in order to withhold the leave encashment in whole or in part, the authority competent to grant leave has to pass an order specifically withholding the encashment, if in its view there is a possibility of some money becoming recoverable from the employee on conclusion of the proceedings against him."
25. Rule 39 (3) of CCS (Leave) Rules, 1972, which is reproduced below:
"Rule 39: Leave/Cash payment in lieu of leave beyond the date of retirement, compulsory retirement or quitting of service (3) The authority competent to grant leave may withhold whole or Court No.6 (item No.28) in part of cash equivalent of earned leave in the case of a Government servant who retires from service on (OA No.3552/2023) (21) attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Government dues, if any."
26. There is nothing in the pleadings to suggest that any such order specifically withholding the encashment in view of possibility of some money becoming recoverable from the employee on conclusion of the proceedings against him is passed. Therefore, the applicant is also entitled for leave encashment, as prayed for.
27. Accordingly, the OA is partly allowed with direction to the respondents to release his provisional pension and leave encashment from the date of his retirement. The above exercise will be completed as expeditiously as possible and preferably within a period of 6 weeks from the date of receipt of a copy of this order. However, he will not be entitled for payment of gratuity or MACP. No costs.
(Sanjeeva Kumar) Member (A) /kdr/