Central Administrative Tribunal - Delhi
Kanwar Singh vs Comm. Of Police on 16 November, 2022
1
OA No. 1583/2019
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.1583/2019
Order reserved on: 07.11.2022
Order pronounced on: 16.11.2022
Hon'ble Mr. Manish Garg, Member (J)
Kanwar Singh
(Aged about 61 years) Group „C‟,
E-ASI No.5562/PCR,
S/o Late Sh. Dhara Singh,
R/o I-Block, Pocket-9,
Plot No.30, 31, Sector-16,
Rohini, Delhi-9.
...Applicant
(By Advocate: Mr. Manish Aggarwal)
Versus
1. Delhi Police through its
Commissioner,
Police HQ, I.P.Estate,
ITO, New Delhi.
2. The Deputy Commissioner of Police,
PCR, Delhi Police,
New Delhi.
3. The Pay and Accounts Officer,
Office of Pay & Accounts,
IV DPI, Tis Hazari.
... Respondents
(By Advocate : Mr. Siddharth Panda)
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OA No. 1583/2019
ORDER
This Original Application has been filed by the applicant under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s):
"a) Quash and set aside the order No.3998/WF/(P-
1)/PCR dt. 25.2.2019
b) grant full pension, gratuity, entire pensionary benefits etc. w.e.f. Aug., 2013 with interest to the applicant.
c) Pass any other order/order which this Hon‟ble Tribunal may deem fit and proper in the facts and circumstances of the case."
2. Brief facts:
2.1 The applicant retired as Assistant Sub-
Inspector (ASI) on superannuation on 31.07.2013. 2.2 On 19.12.2012 an FIR was registered vide FIR No.210/2012, P.S. Civil Line, Delhi u/s 279/337 IPC and the same is pending before this Tribunal. 2.3 On 12.08.2013, applicant was granted only provisional pension Rs.8975/- + RIP w.e.f. 01.08.2013 under Rule 69(2) of CCS Pension Rules.
3OA No. 1583/2019 2.4 The applicant gave a representation on 24.12.2018 and requested for grant of full pension but no decision has been taken by the respondents till date.
2.5 Learned counsel for applicant relies upon decision of Hon‟ble High Court in the case titled Union of India vs. Prabhu Lal decided on 25.01.2010 wherein it is very categorically held that mere pendency of the criminal case lodged by the CBI shall not disentitle the petitioner from receiving gratuity and pensionary benefits nor shall empower the respondents not to release the gratuity to the petitioner as the petitioner‟s right came to an end on his attaining superannuation simplicitor.
3. On the other hand, learned counsel for respondents contended that at the time of retirement of applicant, the department obtained a report from Punishment Branch/PCR who intimated that a criminal case FIR No.210 dated 19.12.2012 u/s 279/337 IPC P.S. Civil Lines, Delhi 4 OA No. 1583/2019 is pending against him. Therefore, provisional pension was granted to him from the date of retirement. It is submitted that respondents examined the representation of the applicant but it was not found convincing to release his pensionary benefits as the said criminal case was still pending against him. Further, in pursuance of order dated 30.01.2019 passed by this Tribunal in OA No.330/2019, his representation for releasing of his pensionary benefits was re-examined, but not found justified and thus rejected by a speaking order dated 25.02.2019.
4. Learned counsel further relied upon the ratio of the decision rendered in Lakminder Singh Brar vs. UOI & ors., 173 (2010) Delhi Law Times 421 wherein it is held as under:
"7. It would be appropriate to take note of Rule 69 of the Pension Rules which reads as under:
"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 5 OA No. 1583/2019 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 :
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.
8. At this juncture it would also be relevant to take note of Rule 9(1) and 9(4) of the Pension Rules which read as under:
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..
(2) & (3). xxxxx 6 OA No. 1583/2019 (4) In 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.
9. It is not in dispute that provisional pension has been granted to the petitioner inasmuch as a criminal appeal filed by the respondents against the order of acquittal is pending.
10. As regards the gratuity Rule 69(c) of the Pension Rules provides that:
"(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."
11. Moreover, Rule 69(2) of the Pension Rules reads as under:
"(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."
12. Taking note of the aforesaid provisions, the Tribunal rightly observed that in a case where any departmental or judicial proceedings are pending against a Government servant, he would be entitled to provisional pension only to be adjusted under sub-Rule (2) of the Rule 69. The competent authority is required to pass order for regular pension only upon conclusion of these proceedings. It is, no doubt, true that the order of acquittal is final unless it is reversed in appeal. Nevertheless, an appeal against the order of acquittal would be in continuation of the judicial proceedings pending against the Government servant within the contemplation of Rule 9 of 7 OA No. 1583/2019 Pension Rules. It cannot be said that the pendency of the criminal appeal against the order of acquittal of the petitioner would not amount to judicial proceeding under Rule 69 read with Rule 9 of Pension Rules, notwithstanding the fact that an order of acquittal is effective and final until it is reversed in appeal. The consideration that matter in the case of suspension are different from those that may be relevant in the matter of grant of pension, be it provisional or a regular one. Grant of pension is regulated by relevant rules. As such, the cases relating to suspension as are relied upon by the petitioner‟s counsel are distinguishable and are not of any help in so far grant of pension is concerned."
5. On perusal of the aforesaid decision in Lakhminder Singh Brar (supra), the facts are entirely distinguishable so far as the present case is concerned, wherein in the said case the petitioner therein superannuated from service on 30.09.2007. It is submitted that an FIR was lodged against him qua possession and ownership of some land by the Economic Offences Wing of Delhi and was arrested. Thereafter, he was released on bail on 09.04.2004 and resumed his duties but was placed under suspension. He faced full-fledged trial and was ultimately acquitted by the learned Metropolitan Magistrate. The respondent issued 8 OA No. 1583/2019 order dated 05.04.2006 for continuation of his suspension on the ground that Criminal Misc. Appeal was preferred against the order of acquittal. Applicant therein assailed the aforesaid order before this Tribunal which was allowed and respondent therein had stated that they were not contemplating any departmental enquiry after his acquittal in the criminal case. Thereafter, he was reinstated in service and no departmental proceedings were initiated against him but his period of suspension was not regularized.
6. Learned counsel for applicant submitted that the decision rendered in Lakhminder Singh Brar's case is similar to the facts of the present case inasmuch as the applicant was neither facing any disciplinary proceeding nor was involved in judicial proceedings in relation to any misconduct in discharging official duties. Moreover, FIR registered against the applicant was under Section 279/337 IPC. It has nowhere brought to notice of the Tribunal that the same pertained and related to 9 OA No. 1583/2019 any misconduct committed by him while discharging his official duties.
7. Learned counsel for applicant also relied on the decision of Hon‟ble High Court of Delhi in the case of Union of India vs. Prabhu Lal, WP(C) No.383/2010 dated 25.01.2010 wherein it is held as under:
"8. Taking note of the aforementioned findings, the Tribunal held that in the present case, there was no reason or ground for withholding the pension or gratuity fund as the respondent herein was neither facing any enquiry nor any allegation of pecuniary mis-conduct nor anything was proved against him. There was no occasion for withholding the gratuity of the respondent on account of any grave mis- conduct/irregularity committed by him during the course of his employment with the petitioners.
xxx xxx xxx
10. It is thus apparent that in the present case the judicial proceedings which are pending against the respondent are not the judicial proceedings relating to any misconduct done by the respondent in the discharge of his official duties. He is not facing any departmental proceedings. Nor there is anything which requires withholding of pension or any part of pension or gratuity for the purpose of compensating the department.
11. It was in these circumstances, the Tribunal rightly drew the following conclusions :-
(i) Action cannot be taken against the Applicant under Rule 9 of the CCS (Pension) Rules in view of the ratio laid down by the Honourable Supreme Court that the 10 OA No. 1583/2019 misconduct has to be in the discharge of public duty in office. In this matter, the criminal case against the Applicant has not been filed in the discharge of his duty in the office.
(ii) In view of decision 23 under Rule 3 of the CCS (Conduct) Rules, 1964, conviction by a criminal court would amount to misconduct. If the Applicant is convicted in the criminal case, which is pending against him, it would amount to misconduct.
(iii) The Applicant would be covered under Rule 8 of CCS (Pension) Rules, which has been quoted in full in the preceding paragraph.
Under this rule, the appointing authority has been given the authority to withhold or withdraw pension or a part thereof, if the petitioner is convicted of a serious crime or is found guilty of grave misconduct. Sub-rule (2) of Rule 8 further elucidates that action will be taken against the petitioner in the light of the judgment of the Court relating to such conviction.
(iv) Gratuity cannot be withheld under Rule 8 of CCS (Pension) Rules, 1972 ulike the provision in Rule 9 ibid. Otherwise also as per the provision in Section 4 of the Payment of Gratuity Act, 1972, gratuity cannot be withheld.
(v) It is clear, therefore, that pension can be withheld or withdrawn only after conviction in a serious crime and that too on the basis of the judgment of the Court relating to such conviction."
12. The Tribunal was pleased to allow OA No.264/2009 and MA No. 1681/2009 and gave the following directions:-
"....to release the regular pension, commuted amount of pension and gratuity to the Applicant with 8 per cent simple interest per annum from the date the payment was due, within eight weeks from the receipt of a copy of this order. The Respondents, however, would be free to take action against the Applicant subject to the 11 OA No. 1583/2019 provisions of Rule 8 of CCS (Pension) Rules, 1972, as discussed above. No costs."
8. Conclusion:
In view of the facts and circumstances of the case and in view of the decisions referred herein above, the instant OA is allowed. The impugned order dated 25.02.2019, is quashed and set aside and the respondents are directed to grant full pension, gratuity and entire pensionary benefits to the applicant w.e.f. August 2013. The applicant shall also be entitled to arrears of pensionary benefits flowing therefrom. The above exercise shall be completed by the respondents within a period of 8 weeks from the date of receipt of certified copy of this order.
9. Needless to say that the respondents shall release the retiral benefits within the stipulated period and in case the same is not released, in that event, the applicant would also be entitled to interest at GPF rate on such amount after expiry of 8 weeks till the date of actual payment. 12 OA No. 1583/2019
10. It is made clear that the respondents would be at liberty to take action against the applicant, if any, subject to provisions of Rule 8 of CCS (Pension) Rules, 1972 in accordance with law.
There shall be no order as to costs.
(Manish Garg) Member (J) /sd/