Central Administrative Tribunal - Ernakulam
S Pulikeshy I P S vs Department Of Pension And Personers ... on 2 August, 2017
Author: P. Gopinath
Bench: P. Gopinath
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00569/2016
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Wed.n~dry , this the JP<L day of August, 2017
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
Hon'ble Ms. P. Gopinath, Administrative Member
S. Pulikeshy I.P.S.,
Retired Director General of Police,
Kerala State, Now residing at Rudra Villa,
Bhagavathy Nagar NCC Road,
Peroorkada, Trivandrum. Applicant
(By Advocate : Mr. N. Nandakumara Menon, Sr.
Mr. P.K. Manoj Kumar)
Versus
1. The Union of India, represented by the Secretary to Government,
Public Grievances and Pension, (Department of Personnel and
Training), Government oflndia, New Delhi- 110 001.
2. The State of Kerala, represented by the Chief Secretary,
General Administration Special © Department,
Government of Kerala, Secretariat,
Thiruvananthapuram - 690 001. Respondents
[By Advocates : Mr. N. Anilkumar, Sr. PCGC ® (Rl) &
Mr. M. Rajeev, GP (R2)]
This application having been heard on 26.07.2017, the. Tribunal on
delivered the following:
ORDER
Per Hon'ble Mr. U. Sarathchandran, Judicial Member-
The applicant is a retired Director General of Police. One of his grievances is that due to the pendency of a criminal case registered by CBI against him and on account of the disciplinary proceedings initiated by the State Government he was not granted DCRG and commutation of pension. • 2 The other relief he seeks in this OA are a direction to the respondent No. 2 to pass final orders on the disciplinary proceedings and to issue a copy of the inquiry report submitted by the inquiring authority.
2. When this OA was taken up for hearing learned counsel for the applicant submitted that the applicant is pressing only relief No. 1 i.e. a direction to respondent No. 2 to grant him DCRG amount and also the commutation of pension amount.
3. Respondents filed reply statement contending that during his tenure as Chairman and Managing Director ofKerala State Civil Supplies Corporation (Supplyco) the applicant entered into a criminal conspiracy with others to cheat the Supplyco by purchase of medicines at exorbitant rates and thereby causing pecuniary loss of Rs. 54,97,947/- to the Corporation. The CBI has registered a case RC 23(A)/2007/Ker. He has been proceeded against under Rule 8 of All India Services (Discipline & Appeal) Rules, 1969 also. Respondents state that it was in the above circumstances the State Government is not in a position to release his DCRG and other pensionary benefits to the applicant.
4. A rejoinder was filed by the applicant contending that the State Government has sanctioned only provisional pension and has withheld his other retirement benefits on the sole ground that criminal case has been registered by CBI and the same is pending before the court of Sub Judge (II) CBI as CC 10/2009.
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5. We have heard Sri P.K. Manoj Kumar learned counsel appearing for the applicant, Shri M. Rajeev, GP learned counsel appearing for respondent No. 2 and learned Sr. PCGC ® appearing for respondent No. 1. Perused the record.
6. Shri Manoj Kumar learned counsel for the applicant submitted that as per All India Services (Death cum Retirement Benefits) Rules, 1958 there is no provision for withholding the pensionary benefits including DCRG on account of the pendency of the disciplinary proceedings or pendency of criminal case. Nothing was pointed out by the learned State Government pleader to controvert this submission.
7. Shri Manoj Kumar referring to State of Jharkhand & Drs. v. Jitendra Kumar Srivastava & Anr. - (2013) 12 SCC 210 submitted that when the ruks do not provide for withholding pension or gratuity when departmental or judicial proceedings are pending, the right to receive pension and other retirement benefits cannot be denied. In that case the apex court has referred to Deokinandan Prasad v. State ofBihar - ( 1971) 2 SCC 330 wherein it was held:
"27. The last question to be considered, is, whether the right to receive pension by a Government servant is property, so as to attract Articles 19(1) (f}and31(1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Article 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same.
28. According to the petitioner the right to receive pension is property ana-the respondents by ari executive order dated June 12, 1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles 19(1)
(f) and 31 (1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order.passed on August 5, 1966. There is only a bald averment in the counter- affidavit that no question of any fundamental right arises for consideration. Mr. Jha, learned v 4 counsel for the respondents, was not prepared to take up the position that the right to receive pension cannot be considered to be property under any circumstances.
According to him, in this. case, no order has been passed by the State granting pension. We understood the learned counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be considered to affect the petitioner's right regarding property so as to attract Articles 19(1 )(f) and 31 (1) of the Constitution.
29. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the right of persons like the petitioner to receive pension under the circumstances mentioned therein.
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 oflndiaA.I.R. 1962 Pun 503. It was held that such a right constitutes "property" and any interference will be a breach of Article 31( I) 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. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh I.L.R. 1965 Pun 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.
The apex court in Jitendra Kumar Srivastava (supra) further held that pension is recognized as right to property coming within the meaning of Article 300A of the Constitution of India. Article 300A reads:
"300A-Persons not to be deprived of property save by authority of Jaw. - No person shall be deprived ofhis property save by authority of law."
g. In view of the above legal positions we are of the view that as the rules relating to the payment of pension and other retirement benefits to the members of All India Services do not contain any provision for withholding ~,w.--
the pension and gratuity a direction should be issued to the respondents to ~ /...
disburse the commutation of pension and gratuity as prayed for in this OA. • 5 We do so. However, by way of abundant caution we direct the applicant to execute a bond in favour of the Government of Kerala to pay any amount found to be due from him on account of the alleged loss caused to the Government, in the event a competent court decides so. Respondents are directed to implement this order within two months from the date of receipt of a copy of this order.
fl.. The Original Application is disposed of with the above directions. Parties shall suffer their own costs.
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(MS. P. GOPINATH)
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(U. SARATHCHANDRAN)
·ADMINISTRATIVE MEMBER JUDICIAL MEMBER
"SA"
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Original ApplicationA~o. 180/00569/2016
APPLICANT'S ANNEXURES
Annexure A1 - True copy of the articles of charges No. 4821/Spl.A3/2009/GAD,
dated 1.10.2009 issued by th~ Govt. to the applicant. Annexure A2 - True copy of the covering letter sent along with Annexure A 1 No. 4851/Spl.A3/2009/GAD dated 12.10.2009 issued by the Govt. to the applicant.
Annexure AJ - True copy of the reply statement dated 26.10.2009 submitted by the applicant to the Chief Secretary to Govt. TVM.
Annexure A4 - True copy of the representation dated February, 2014 submitted by the applicant to the Chief Secretary to Govt. TVM.
Annexure AS - True copy ofthe representation dated 17.3.2016 submitted by the applicant to the Hon'ble Chief Minister of Kerala, TVM. Annexure A6 - True copy of the communication No. 83409/Spl.C3/2014/GAD dated 26.11.2014, issued by the Under Secretary and State Public Information Officer, to the applicant.
Annexure A 7 - True copy ofthe communication No. DP/CHN/2016/20100 3/23(A)/2007/SPE/KER dated 9.3.2016 issued by the Head of Branch, CBI, ACB, Cochin, Chief Secretary to Govt. General Administration (Special C) Department, TVM.
RESPONDENTS' ANNEXURE Nil
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