Central Administrative Tribunal - Delhi
Ravindranath Narendranath Padukone vs Union Of India Through on 10 May, 2013
Central Administrative Tribunal Principal Bench OA No.2145/2012 Reserved on: 07.05.2013 Pronounced on:10.05.2013 Honble Dr. Birendra Kumar Sinha, Member (A) Ravindranath Narendranath Padukone, R/o D-2/95, West Kidwai Nagar, New Delhi. Applicant (By Advocate: Shri Rajeev Manglik) Versus Union of India through Secretary (Telecom), Ministry of Communications & IT, Sanchar Bhawan,20, Akbar Road, New Delhi 110 003. Respondent (By Advocate: Shri Rajeev Kumar) O R D E R
In the instant Original Application, the limited issue relates to the applicability of Rule 9(4) of CCS (Pension) Rules, 1972. The applicant superannuated from service as Principal General Manager, B.S.N.L. on 31.12.201 after having served for 34 years. Prior to his retirement, he was served with a Questionnaire dated 22.06.2010 regarding the testing of equipment and a Certificate issued by him dated 20.10.2008. The applicant replied to the aforementioned Questionnaire vide his communication dated 09.07.2010 but No communication was received on the subject thereafter. Following his superannuation, the applicant received a communicated dated 16.01.2012 wherein only provisional pension has been made to him under Rule 69 of CCS (Pension) Rules, 1972 [hereinafter referred to as Pension Rules, 1972] for a limited period of one year w.e.f. 01.01.2012 due to pendency of vigilance/disciplinary proceedings against him.
2. The applicant has filed the instant Original Application against the impugned order dated 16.01.2012 praying for the following items of relief:-
To direct the respondents to grant the regular pension of the applicant and commutation thereupon;
To direct the respondents to grant the retirement gratuity to the applicant taking his full qualifying service into account;
To direct the respondents to release and pay the leave encashment equal to cash equivalent of the leave salary as per his accumulation of leave;
To direct the respondents to release his CGEIS contribution;
To direct the respondents to pay the interest @ 18% on delayed payment of gratuity and other pensionary benefits including leave encashment and contribution towards CGEIS; and To award exemplary costs.
3. The case of the applicant, simply put, is that the provisions of Rule 69 of the Pension Rules, 1972 are only attracted in respect of such Government servants who are covered under Rule 9(4) of the Rules ibid or those who were under suspension on the date of retirement. The applicant is not covered by any of these provisions. Indeed, a Questionnaire has been circulated to him, which he had duly replied/filled up. However, under sub-clause (a) of Rule 9(6) of the Pension Rules, 1972, the same cannot be construed to be a chargesheet issued to the applicant. Therefore, the applicant was neither under suspension nor facing any departmental proceedings on the date of his retirement and is entitled to regular pension in addition to other post retiral dues.
4. The learned counsel for the respondents argued that a show cause notice had been issued to him and as such disciplinary proceedings would be said to have commenced. Though no regular charge sheet had been issued to the applicant before his retirement, the charges are so grave that the show cause could take the place of charge sheet. The learned counsel for the respondents vehemently argued that the provisional pension has been issued to the applicant and the same shall continue till the proceedings are finally decided.
5. The limited issue for consideration here is that whether under the facts and circumstances of the instant case, as narrated above, the case of the applicant is covered under Rule 69 read with Rule 9(4) and Rule 9(6)(a) of the Rules ibid. For clarity, one has to look to the provisions of Rule 69 which provide as hereunder:-
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.
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. Rule 9(4) of the Pension Rules, 1972 provides as under:-
(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 Rule 69 shall be sanctioned.
6. From the above provisions, it is amply clear that provisional pension is only to be resorted to where a Government employee was facing departmental proceedings on the date of his retirement and the same had not been concluded and has since been continued under the provisions of Rule 9(2)(a) of the Pension Rules. The question would now arise as to when the departmental proceedings are said to have commenced. In this regard, the position has been clarified by sub clause (a) of Rule 9(6) of the Pension Rules, 1972. Simply put, it can only be said to have commenced on the date when the charge sheet and/or the Statement of Articles of Charges is issued to the Government servant or to the pensioner as the case may be or when the Government servant is placed under suspension from an earlier date from that date.
7. It emerges abundantly clear that the date on which the applicant stood retired, no charge sheet had been served upon him nor was he under suspension. Hence, he is entitled to full pension and the provisions of Rule 69 of the Pension Rules cannot be resorted to in this case.
8. In this regard, the contention of the applicant is supported by two earlier decisions of this very Bench of this Tribunal namely in the matter of Santosh Verma versus National Capital Territory of Delhi, Deptt. of Training and Technical Education and Others [OA No.2592/1996 decided on 06.01.1997] and in the matter of Dr. Anil Mehra versus GNCT of Delhi & Others [OA No. 1818/2008 decided on 03.12.2008]. In Santosh Vermas case (supra), the applicant retired as Office Superintendent from Department of Training and Technical Education on 31.10.1995 but was denied post retiral dues on the ground of certain irregularities including shortage of cash, while he was in service. The issue for consideration before the Bench was whether the respondent could withhold the pension or other post retiral benefits when no disciplinary or judicial proceedings were pending against the applicant at the time of her retirement. After having considered the matter in some detail, the Tribunal held as under:-
I am in agreement with the learned proxy counsel for the applicant that Rule 69 of the Pension Rules does not cover a situation where action under Rule 9 is merely contemplated. Under Rule 69 when departmental/judicial proceedings are pending at the time of retirement and/or yet to reach a conclusion, in such a situation, pending the result of disciplinary proceedings, provisional pension has to be authorized. If there is no disciplinary proceedings initiated till the time of retirement, then there is no requirement to take recourse to Rule 69 because there is no charge against the retiring official. This is not to say that the respondents are barred from taking action against the applicant under Rule 9 but the effect on the pension must be consequent to the result of the disciplinary proceedings. In another case i.e. Dr. Anil Mehra versus GNCT of Delhi & Others (supra), the applicant had retired having attained the age of superannuation as Medical Superintendent on 31.01.2008. However, a vigilance report by the Director, Government of NCT of Delhi was issued on 01.02.2008 whereby it was informed that the CVC had advised for initiation of major penalty proceedings against the applicant in that case. Accordingly, a charge sheet was later issued to the applicant on 21.11.2008 alleging gross misconduct in violation of terms and conditions of NIT Guidelines issued by the CVC and GFR 160 without having obtained the prior approval of the Finance Department. The Principal Bench relied upon the decision of Honble Supreme Court in the matter of State of U.P. & another versus Shri Krishna Pandey [1996 SCC (L&S) 1250] wherein it was held that by not adhering to the time limit for initiating departmental enquiry and drawing up proceedings after four years referring to similar provision of Regulation 351-A of Civil Services Regulations, the appellants were barred from withholding the pension of the respondent by holding as under:-
6. It would thus be seen that proceedings are required to be instituted against a delinquent officer before retirement. There is no specific provision allowing the officer to continue in service nor any order passed to allow him to continue on re-employment till the enquiry is completed, without allowing him to retire from service. Equally, there is no provision that the proceedings be initiated as disciplinary measure and the action initiated earlier would remain unabated after retirement. If Rule 351-A is to be operative in respect of pending proceedings, by necessary implication, prior sanction of the Governor to continue the proceedings against him is required. On the other hand, the rule also would indicate that if the officer caused pecuniary loss or committed embezzlement etc. due to misconduct or negligence or dereliction of duty, then proceedings should also be instituted after retirement against the officer as expeditiously as possible. But the events of misconduct etc. which may have resulted in the loss the Government or embezzlement, i.e., the cause for the institution of proceedings, should not have taken place more than four years before the date of institution of proceedings. In other words, the departmental proceedings must be instituted before lapse of four years from the date on which the event of misconduct etc. had taken place. Admittedly, in this case the officer had retired on March 31, 1987 and the proceedings were initiated on Ari 21, 1991. Obviously, the event of embezzlement which caused pecuniary loss to the State took place prior to four years from the date of his retirement. Under these circumstances, the State had disabled itself by their deliberate omissions to take appropriate action against the respondent and allowed the officer to escape from the provisions of Rule 351-A of the Rules. This order does not preclude proceeding with the investigation into the offence and taking action thereon.
9. Here the admitted position is that on the date of retirement of the applicant, neither there was any departmental proceedings pending against him nor any charge sheet had been served upon him nor had the applicant was found guilty of grave misconduct. In this case, the Principal Bench relying upon the order in the matter of Santosh Verma versus National Capital Territory of Delhi, Deptt. of Training and Technical Education and Others, observed as under:-
21. In the light of above, I am satisfied that the applicant when superannuated on 31.01.2008, no disciplinary proceedings were instituted against him. As such, the grounds to withhold his retiral dues on a subsequent event, i.e., on 21.11.2008, cannot justify such withholding of the retiral dues.
10. In consideration of the facts and circumstances of the case, as enumerated above, it becomes clear that the action of the respondent in withholding the post retiral dues of the applicant and in granting him only provisional pension under Rule 69 of the Pension Rules, 1972 is clearly beyond what has been authorized by law. Resultantly, the instant Original Application is allowed with the following directives:-
The respondents shall grant regular pension and commutation thereupon to the applicant;
The respondents shall pay the retirement gratuity to the applicant taking his full qualifying service into account;
The respondents shall release and pay the leave encashment to the applicant equivalent of the leave salary as per his accumulation of leave;
The respondents shall release CGEIS contribution to the applicant;
The respondents are further directed to pay simple interest @ 9% on delayed payment of gratuity and contribution towards CGEIGS but not on leave encashment. It is clarified here that the payment of interest is only to compensate the aggrieved party for the injuries suffered by him and cannot be taken as a mode of income.
There shall be no order as to costs.
The exercise, as ordained above, shall be completed by the respondent within a period of three months from the date of receipt of a certified copy of this order.
(Dr. Birendra Kumar Sinha) Member (A) /naresh/