Central Administrative Tribunal - Delhi
Gopal Ram S/O Mol Ram vs Government Of Nct Of Delhi Through on 25 May, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.3304 of 2011 Order reserved on : 23rd May, 2012 Pronounced on : 25th May, 2012 HONBLE SHRI JUSTICE S. C. SHARMA, ACTING CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Gopal Ram S/o Mol Ram, R/o D-37, Jawahar Park, Khan Pur, New Delhi-110062. Applicant ( By Shri T. D. Yadav, Advocate ) Versus 1. Government of NCT of Delhi through Chief Secretary, Delhi Secretariat, IP Estate, New Delhi. 2. Lt. Governor of Delhi, Raj Niwas, Raj Niwas Road, Delhi-110054. 3. Commissioner, Trade & Taxes Department, Vyapar Bhawan, Government of NCT of Delhi, New Delhi. Respondents ( By Shri Vijay Pandita, Advocate ) O R D E R Justice S. C. Sharma, Acting Chairman:
Instant Original Application has been instituted for the following reliefs:
(a) To direct the respondents to release pensionary benefits like gratuity, leave encashment and commutation of pension to the applicant.
(b) To direct the respondents to grant 24% interest on delayed payment of all retirement benefits.
(c) To direct the respondents to give all consequential benefits to the applicant.
(d) To pass any other order/ as may be deemed fit and proper in the facts and circumstances of the case.
(e) Award costs.
2. Pleadings of the parties may be summarized as follows:
It has been alleged by the applicant that he joined as Grade IV DASS with the respondents on 27.08.1973, and that he got promotions in due course up to the level of Grade-III (DASS) in 1978, Grade-II (DASS) in 1983 and Grade-I (DASS) in 1997. Lastly, the applicant was promoted in April, 2010 as DANICS (ad hoc) and was posted in the Trade & Taxes Department where he was assigned the duties of VATO (CFC) Zone-VI. The applicant was to superannuate on 31.08.2010. It is the case of the applicant that on 24.08.2010 he started physical verification of the stock of statutory forms lying in the cupboard so that there may not be any delay in handing over of the charge at the time of his retirement from service. During checking, the applicant found that the stock of 250 F forms were missing, and he took up the matter with seniors on 26.08.2010, and also got the requisite notification issued and lodged an FIR with the police on 27.08.2010. He also got published the news item in newspaper Punjab Kesari. That the statutory forms, i.e., F forms are used by the registered dealers for inter-state transfer of their stocks from Delhi, and that this type of forms are used by the registered dealers of Delhi to transfer their stocks in Delhi from outside Delhi. The applicant was not required to collect sales tax and those stocks are not levied tax accordingly. It is pleaded that utilization of this type of forms does not involve any permanent loss of revenue to the Government. The applicant was placed under suspension with immediate effect vide order dated 31.08.2010, i.e., on the date of his retirement, for the missing statutory forms, and his retiral benefits like gratuity, leave encashment and commutation of pension were withheld. The applicant prays for a direction to be issued to the respondents to release his retiral benefits. That identical retiral benefits have been released to other persons, namely, Shri S. S. Gaur (ARCS), who retired in February, 2006, Shri Ramesh Chandra Madan, Shri Man Singh and Shri S. R. Goel, and hence the applicant cannot be discriminated. The applicant has also cited judgments of this Tribunal in OA Nos.1522/2007 and 1178/2008, wherein the respondents have already implemented the orders passed by the Tribunal. No disciplinary or criminal proceedings were pending against the applicant on the date of his retirement, and no charge-sheet had been served upon the applicant. Hence, the OA.
3. The respondents have contested the case and filed their counter reply. It has been alleged that the applicant was posted in the Centralized Forms Branch as VATO on 17.03.2009 and was due to retire on superannuation on 31.08.2010, and that as per his own admission, he physically verified the stock of statutory forms only on 24.08.2010, and it came to his notice that 250 forms from the stock of statutory forms were missing. These forms were in the custody of the applicant, and it shows that the applicant was not maintaining the balance of the forms in his custody through physical verification when the forms were distributed amongst dealers on regular and day-to-day basis, and that had the applicant checked the forms earlier, then this fact could have been noticed by him earlier. Necessary notification was issued in this connection. The VATO (HQ), CFC got the FIR registered with police station I.P. Estate, New Delhi on 27.08.2010 as per directions of Additional Commissioner, CFC. Notification was issued declaring these forms obsolete and invalid on 31.08.2010 by the Commissioner, Trade & Taxes. That it is wrong to allege that the applicant got the notification issued and the FIR lodged with police. The statutory forms are issued to registered dealers of Delhi for inward stock transfer to the dealers of outside Delhi, and dealers of Delhi collect the tax on the so called sales made against inward stock transfer and deposit the same with the Government. Since the claim of exemption or making of concessional stock transfer on strength of the lost forms cannot be detected at this stage, hence no quantifiable loss to the Government revenue can be assessed. However, these lost forms were declared obsolete and invalid in the interest of the Government. The blank forms were missing and misuse thereof cannot be ruled out. The following payments have been made to the applicant in view of the disciplinary proceedings:
GPF final payment amounting to Rs.8,82,404/-;
Savings Fund towards UTGEIS contribution amounting to Rs.33,398/-;
Provisional pension amounting to Rs.12,950/- +DR.
That the cases of Shri Dayanand Sharma and Shri S. R. Goel pertained to charges framed against them by CBI in connection with alleged irregularities committed during revival of defunct cooperative group housing societies during their tenure. That after considering the reply of the applicant and due approval of the HoD, it was forwarded to the Directorate of Vigilance for initiation of disciplinary proceedings against the applicant. The applicant belongs to ad hoc DANICS cadre and the Lt. Governor, Delhi is his disciplinary authority. That the applicant was put under suspension on 31.08.2010 and it was done in contemplation of the disciplinary proceedings. The charge was taken seriously, and hence disciplinary action was initiated. That the OA lacks merit and needs to be dismissed.
4. In response to the counter reply of the respondents, on behalf of the applicant rejoinder affidavit has also been filed, and in the rejoinder, he has reiterated the facts which have been alleged in the OA.
5. We have heard Shri T. D. Yadav, advocate for the applicant and Shri Vijay Pandita, advocate for the respondents and perused the entire facts of the case. It is an admitted fact that the applicant while posted in the Trade & Taxes Department and assigned the duties of VATO (CFC) Zone-VI, physically checked and verified the statutory forms lying in the cupboard, and during the checking it was detected that from the stock, 250 F forms were missing. It is also undisputed fact that regarding missing of these 250 F forms, a notification was issued by the respondents that these forms were invalid and obsolete henceforth. As these forms could have been misused, an FIR was also lodged with police on 27.08.2010. It has also been alleged by the respondents that the matter was brought to the notice of the vigilance branch on 27.08.2010, three days prior to the date of retirement of the applicant, i.e., 31.08.2010. 28th and 29th August, 2010 being Saturday and Sunday, the applicant was placed under suspension on 31.08.2010, i.e., on the date of his superannuation, and the applicant superannuated while he was under suspension. It has been argued by the learned counsel for the respondents that as these statutory forms could have been misused, hence some of the retiral benefits of the applicant were withheld. Admittedly, these F forms are issued to the registered dealers of Delhi for inward stock transfer to the dealers of outside Delhi, and dealers of Delhi collect the tax on the so called sales made against the inward stock transfer and deposit the same with the Government. It is alleged by the respondents that as the claim of exemption of making of concessional stock transfer on strength of the lost forms cannot be detected at this stage, hence no quantifiable loss to the Government revenue can be assessed at the moment. It has also been alleged that after placing the applicant under suspension, disciplinary proceedings were initiated, but certain formalities are required to be performed. That after considering the reply of the applicant and due approval of the HoD, the charge memo was forwarded to the Directorate of Vigilance for initiation of the disciplinary proceedings. Undisputedly, the applicant belonged to ad hoc DANICS cadre, and the Lt. Governor, Delhi is the disciplinary authority in the case of DANICS cadre. With this contention, it has been stated by the respondents that the matter is under examination for preparation of charge sheet by the Directorate of Vigilance, and that the said Directorate while examining the matter has sought several information/documents, which have been provided by the Trade & Taxes Department.
6. From all these contentions of the respondents, it is undisputed fact that the applicant superannuated on 31.08.2012, and on the same date he was put under suspension. It is also a fact that the factum of missing of 250 F forms, which were in the custody of the applicant, was noticed by the applicant himself on 24.08.2010, barely few days before his retirement. It cannot be said that the act for which the applicant has been put under suspension was of several years earlier, but it was during the last week before the retirement of the applicant. It was not at all possible to have served the charge memo on the applicant prior to the date of retirement on 31.08.2010, but after issuing the necessary notification for declaring the missing forms as invalid and obsolete and lodging the FIR on 27.08.2010, the applicant was put under suspension on 31.08.2010, 28th and 29th August, 2010 being Saturday and Sunday. The respondents have alleged that the charge memo is under preparation and that the same has been forwarded to the Directorate of Vigilance for initiation of departmental proceedings, because the applicant belongs to the DANICS cadre, and it is the Directorate of Vigilance who will have to examine the matter. It is the specific case of the respondents that the Directorate of Vigilance is in the process of examining the matter and that the said Directorate have also required several information/documents.
7. There can be no hesitation in saying that since the retirement of the applicant on 31.08.2010, no charge memo was served upon the applicant till filing of the OA, or even thereafter, but it has been alleged by the respondents that the process of preparing the charge memo is going on. We are conscious of the fact that the charge memo can only be served within a period of four years from the date of the event, and it can be said that the matter was detected on 24.08.2010. More than a year has elapsed and no charge-sheet has been served upon the applicant, but the respondents are well within their rights to serve the charge-sheet, and in the meanwhile some of the financial benefits cannot be released in favour of the applicant, as that may amount to loss of revenue to the Government. It has also been alleged by the respondents that some of the retiral benefits have also been released in favour of the applicant. GPF final payment of Rs.8,82,404/- has already been released, and this fact has not been disputed by the applicant. Further, savings fund towards UTGEIS contribution amounting to Rs.33,998/- has also been released. Provisional pension of Rs.12,950 + DR, has also been released, but the gratuity, leave encashment and commutation of pension have been withheld. It may be appropriate that the respondents may be directed to release some of the pensionary benefits of the applicant, like leave encashment. Moreover, commutation of pension depends upon final settlement of the pension, and it can only be done after finalization of the enquiry. It will not be justified for us to allow this OA and direct the respondents to release other pensionary benefits of the applicant, like gratuity and commutation of pension. We can only order for release of leave encashment at this stage to the applicant. However, the gratuity and commutation of pension shall be released only after finalization of the enquiry proceedings. Learned counsel for the applicant cited the judgments of this Tribunal in OA No.1522/2007 in the matter of Daya Nand Sharma v Government of NCT of Delhi, decided on 08.01.2008 and OA No.1178/2008 S. R. Goyal v Government of NCT of Delhi & others, decided on 03.12.2008. We have perused the judgments. In our opinion, the applicant is not entitled to the benefit of these judgments.
8. From perusal of the contents of the counter reply, it is evident that the respondents are contemplating disciplinary proceedings against the applicant, and till date the charge memo has not been served, but up to four years, the respondents would be within their rights to serve the charge memo. However, the matter cannot be allowed to be dragged on for an indefinite period. When a Government servant retires, then all his matters must be settled at the earliest. It may be justified that as the applicant belongs to DANICS cadre, hence certain formalities are required to be fulfilled prior to issuance of the charge memo. Undisputedly the matter has already been referred to the Vigilance Directorate for initiation of disciplinary proceedings, and the same is under examination for preparation of charge sheet by the Directorate, but there must be some time limit for finalization of the enquiry in case of a retired Government servant. Under these circumstances it will be just and proper to direct the respondents to conclude the disciplinary proceedings within stipulated period, and if the enquiry is not concluded within the stipulated period, then the applicant will be entitled for settlement of his retiral dues.
9. On the basis of the above discussion we are of the opinion that the OA deserves to be allowed partly regarding releasing the leave encashment amount to the applicant. As regards releasing of other benefits, i.e., gratuity and commutation of pension, the OA is liable to be dismissed. The respondents may be directed to conclude the enquiry within a stipulated period.
10. The OA is allowed partly for release of leave encashment amount in favour of the applicant within a period of one month from the date of communication of this order. The OA is, however, dismissed as regards release of other pensionary benefits, like gratuity and commutation of pension. The respondents are directed to conclude the enquiry within a period of six months from the date of communication of this order, and if the enquiry is not concluded within a period of six months, then the applicant will be entitled for settlement of his pensionary benefits like gratuity and commutation of pension. There shall, however, be no order as to costs.
( Dr. Ramesh Chandra Panda ) ( S. C. Sharma )
Member (A) Acting Chairman
/as/