Central Administrative Tribunal - Delhi
Coram vs South Delhi Municipal Corporation on 23 April, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A.NO.3327 OF 2014 This, the 23rd day of April, 2015 CORAM: HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER . Narender Parkash Kaushik, Retired Head Clerk, Aged about 61 years, S/o late Sh.Munshi Ram, R/o H.No.A-284, 2nd Floor, Shivalik Apartment, Malviya Nagar, New Delhi . Applicant (By Advocate: Mr.M.K.Bhardwaj) Vs. 1. South Delhi Municipal Corporation, Through its Commissioner, 9th Floor, Dr.SPM Civic Centre, New Delhi 2. North Delhi Municipal Corporation, Through its Commissioner, Dr.SPM Civic Centre, New Delhi 3. The Dy. A & C, Central Zone, South Delhi Municipal Corporation, MC Primary School, Sanwal Nagar, New Delhi .. Respondents (By Advocate: Mr.R.K.Jain) .. ORDER Raj Vir Sharma, Member(J):
In this Original Application, the applicant has prayed for the following reliefs:
(a) To quash and set aside the impugned order dated 31.1.2014 and direct the respondents to release leave encashment, gratuity, commutation, original pension with interest @12%.
(b) To declare the action of the respondents in withholding the retirement dues of the applicant as illegal and arbitrary and issue directions to release the same @12%.
(c) To allow the OA with exemplary costs.
(d) To pass any further or other orders as this Honble Tribunal deem fit and proper in the facts and circumstances narrated herein above may also be passed in favour of applicant and against the respondent.
2. The applicant, while working as a Head Clerk in the South Delhi Municipal Corporation (SDMC), was due to retire from service on attaining the age of superannuation on 31.1.2014.
2.1 It is stated by the applicant that the Assistant Assessor & Collector/Central Zone, vide office order dated 2.1.2014 (Annexure A/2), directed him to return all used/unused G-8 Slips, SIM Card and TATA Photon, etc., otherwise he himself would be responsible for any kind of delay in payment of his terminal benefits. The Dy. Assessor & Collector/CNZ (respondent no.3), vide his letter dated 15.1.2014 (Annexure A/3), also directed him to return some G-8 slips lying with him till that date. In response thereto, the applicant, vide his letter dated 21.1.2014 (Annexure A/4) addressed to respondent no.3, stated that G-8 Slips bearing Nos.647601 to 647650 issued to him in the year 2012 were handed over to Shri Rajender Kumar, Cashier, under verbal orders of the then Assistant Assessor & Collector. He also states that the said Shri Rajender Kumar has since expired. Along with the said letter, the applicant enclosed photocopy of the acknowledgement granted by the said Shri Rajender Kumar on 30.1.2012.
2.2 It is also stated by the applicant that the Assistant Assessor & Collector/Admn./CNZ, vide his letter dated 31.1.2014 (Annexure A/1), informed him that the Deputy Commissioner/Central Zone, vide his order dated 30.1.2014, withheld the payments of leave encashment, gratuity, commutation and pension till the matter of G-8 slips is settled and ordered to release GPF, GIS and provisional pension. In response thereto, the applicant, vide his letter dated 31.1.2014, while reiterating his statements as in his letter dated 21.1.2014 (ibid), requested respondent no.3 to reconsider his case and arrange payment of his retiral benefits.
2.3 Thereafter, the applicant, vide his representations dated 2.5.2014 (Annexure A/6), dated 26.5.2014 (Annexure A/7), dated 21.7.2014 (Annexure A/8), also requested respondent no.1 to consider his case and release his terminal benefits, in the light of the decision of the Honble Supreme Court. In spite of all this, his retirement benefits having not been paid, except provisional pension, the applicant has filed the present O.A. seeking the reliefs, as aforesaid.
3. Opposing the O.A. the respondents have filed a counter reply wherein it has, inter alia, been stated that GPF amounting to Rs.10,88,725/- and GIS amounting to Rs.12,146/- have already been paid to the applicant. The applicant having failed to return the G-8 Slips, the payment of his final pension, gratuity, leave encashment, and commutation of pension has been withheld. In spite of specific directions issued to the applicant prior to the date of his retirement to return the said G-8 Slips, he not only returned the said G-8 Slips, but also made false statement that he had returned the same to one Rajender Kumar Sharma, LDC, on 30.1.2012, who was relieved from the concerned office on 11.1.2012, vide office order dated 11.1.2012 (Annexure R/2). It has also been stated by the respondents that the non-return of G-8 Slips may lead to the same being misused even by the applicant. In view of this, FIR dated 19.9.2014 (Annexure R/1) has already been lodged with the SHO, Defence Colony Police Station, New Delhi, against the applicant and the investigation is going on, and a disciplinary proceeding against the applicant has also been contemplated. The respondents, therefore, pray for dismissal of the O.A.
4. The applicant has filed a rejoinder reply wherein, besides reiterating more or less the same averments and contentions as in the OA, he has stated that the respondents have made false statement in their counter reply that Sh.Rajinder, LDC, was relieved from A & C Department, Central Zone, vide order dated 11.1.2012. Along with his rejoinder reply, the applicant has filed photocopy of the challan deposited by the said Shri Rajinder, LDC, with the Cashier of the Central Zone on 30.1.2012. The applicant has also stated that as he was working as Head Clerk, the Dy. Commissioner, Central Zone, was not his disciplinary authority and, therefore, the order passed by the said Dy. Commissioner, withholding the payment of his terminal benefits was illegal and void. Therefore, he is entitled to get all his retirement benefits.
5. I have perused the pleadings and have heard Mr.M.K.Bhardwaj, learned counsel appearing for the applicant, and Mr.R.K.Jain, learned counsel appearing for the respondents. I have also perused the written note of submissions filed by Mr.Bhardwaj.
6. Mr.M.K.Bhardwaj, learned counsel appearing for the applicant, submitted that on the date of retirement of the applicant from service, i.e., on 31.1.2014, neither any departmental proceeding nor criminal proceeding was pending against him, and therefore, withholding of payment of the applicants retirement benefits on the basis of an order passed by an incompetent officer is illegal, and, therefore, appropriate direction should be issued by the Tribunal to the respondents to release the same in favour of the applicant with interest @ 12% per annum. In support of his contention, Mr.Bhardwaj invited my attention to the decisions of the Honble Supreme Court in Gorakhpur University and others v. Dr.Shitla Prasad Nagendra and others, (2001) 6 SCC 591; and Vijay L.Malhotra v. State of U.P., (2001) 9 SCC 687.
6.1 In Gorakhpur University and others v. Dr.Shitla Prasad Nagendra and others (supra), the payment of pension and other retiral benefits of the respondent-employee was withheld or adjusted or appropriated for the satisfaction of any other dues outstanding against him on account of his not vacating the official quarters after their retirement. The Honble High Court of Allahabad held the said action to be illegal and directed the appellant-University to pay the entire pension and provident fund amount, etc., due to the respondent-employee, with penal interest @ 18% . The Honble Supreme Court dismissed the respondent-Universitys appeal and upheld the Honble High Courts judgment.
6.2 In Vijay L.Malhotra v. State of U.P. (supra), the Honble Supreme Court has held that there was absolutely no reason or justification for not making the payments for months together and, accordingly, directed the respondent-State to pay to the appellant simple interest at the rate of 18% per annum with effect from the date of her retirement till the date of payments.
7. On the other hand, Shri R.K.Jain, learned counsel appearing for the respondents, submitted that under Rule 8 of the CCS (Pension) Rules, 1972, the payment of the retirement benefits of the applicant has been withheld.
8. Rule 8 of the CCS (Pension)Rules, 1972, inter alia, stipulates that future good conduct shall be an implied condition of every grant of pension and its continuance under the rules, and that the appointing authority may, by order in writing, withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, if the petitioner is convicted of a serious crime or is found guilty of grave misconduct. It is also stipulated that before passing an order for withholding or withdrawing a pension, the appointing authority has to serve a notice on the pensioner and consider the pensioners representation. In the instant case, the applicant was not subjected to any departmental enquiry or criminal case by the date of his retirement from service on 31.1.2014. No notice under Rule 8 (ibid) was also served on the applicant. The respondents have also not stated either in any of their communications made to the applicant or in their counter reply that payment of his retiral benefits has been withheld under Rule 8 (ibid). Therefore, we find substantial force in the contention of Mr.M.K.Bhardwaj, learned counsel appearing for the applicant that Rule 8(ibid) is not attracted in the case of the applicant.
9. Having given my anxious consideration to the facts and circumstances of the case, I have found that on the date of retirement of the applicant from service, i.e., on 31.1.2014, neither any departmental proceeding nor criminal proceeding was pending against him. In their counter reply filed on 10.2.2015, the respondents have stated that the FIR was lodged against the applicant only on 19.9.2014 and the disciplinary proceeding was only contemplated. If at all the G-8 Slips issued to the applicant in the year 2012 were not returned by him and the said fact came to light prior to the date of retirement of the applicant on 31.1.2014, the disciplinary authority was free to initiate appropriate disciplinary proceedings when the explanation given by the applicant, vide his letter dated 21.1.2014, was not found convincing. Instead of doing so, the concerned authority issued an order withholding the payment of terminal benefits of the applicant. The respondent-departmental authorities have not produced before this Tribunal any rule, or executive instructions, laying down that payment of the retirement benefits of a retired employee can be withheld in a case where no criminal or departmental proceeding is pending against the employee on the date of his retirement. In the above view of the matter, I hold that the order/letter dated 31.1.2004 (Annexure A/1) is unsustainable and liable to be set aside, and that the applicant is entitled to be paid the retirement benefits.
10. In view of the fact that FIR has already been lodged and departmental proceeding has also been contemplated against the applicant for his allegedly not returning the G-8 Slips, and that the respondents have withheld the payment of the aforesaid retirement benefits because of his allegedly not returning the aforesaid G-8 Slips, it cannot be said that the respondents have deliberately withheld the retirement benefits of the applicant without any rhyme or reason.
10.1 As discussed in paragraphs 6.1 and 6.2 above, the facts and circumstances of Gorakhpur University and others v. Dr.Shitla Prasad Nagendra and otherss case (supra) and Vijay L.Malhotra v. State of U.P.s case (supra) are different from that of the present case. In the instant case, the respondent-departmental authorities have prima facie found that the G-8 Slips were not returned by the applicant, and that the possibility of those G-8 Slips being misused could not be ruled out. They have, therefore, lodged the FIR with the concerned police station and are also contemplating to initiate disciplinary proceedings against the applicant. In this view of the matter, the said decisions are of no help to the claim of the applicant for payment of interest on the withheld amounts of retirement benefits.
10.2 Considering the facts and circumstances of the present case, this Tribunal is not inclined to accede to the applicants claim for payment of interest on the withheld amounts of his retirement benefits.
11. In the light of the above discussions, the O.A. is partly allowed. Accordingly, the order/letter dated 31.1.2014 (Annexure A/1) is quashed. The respondents are directed to release leave encashment, gratuity, commuted value of pension, and original pension, etc., in favour of the applicant within a period of two months from the date of receipt of copy of this order. The prayer for payment of interest on the aforesaid retirement benefits is disallowed. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER AN