Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through Its Secretary on 16 April, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(Reserved on 25.03.2015)
OA No. 1480/PB/2013 Date of decision- 16.04.2015
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
HONBLE MR. UDAY KUMAR VARMA, MEMBER (A)
Vijay Kumar Sharma, Senior Assistant (Retd), son of Sh. Munshi Ram Sharma, R/o Cooperative Societies, U.T. Chandigarh now resident of H.No. 152, 1st Floor, Block 5, Gulmohar Trands, Himatgarh, Zirakpur, Tehsil Derabassi, District Mohali (Pb).
APPLICANT
BY ADVOCATE : Sh. D.R. Sharma
VERSUS
1. Union of India through its Secretary, Cooperative Deluxe Building, Sector 9, Chandigarh.
2. The Registrar, Cooperative Societies, Sector 17, U.T. Chandigarh.
3. The Joint Registrar, Cooperative Societies, Sector 17, U.T. Chandigarh.
4. Accountant General (A& E), Sector 17, U.T. Chandigarh.
RESPONDENTS
BY ADVOCATE: Sh. Rohit Mittal, Advocate vice Sh. Rakesh Verma, counsel for respondents no. 1 to 3.
None for respondent no. 4.
ORDER
HONBLE MR. SANJEEV KAUSHIK, MEMBER (J):-
By means of the present Original Application, the applicant has sought intervention of this court for issuance of a direction to the respondents to release the pension and all pensionary benefits along with the interest @ 18% from the due date till its final payment.
2. Suffice to record herein that the applicant was retired after attaining the age superannuation on 31.08.2012. When the applicant was not paid retrial dues on his retirement, he submitted a representation on 17.01.2013 which was supplemented by another representation by his wife. For the first time on 27.05.2013, the respondents wrote a letter to the applicant directing him to hand over the registration Registers to one Sh. Lalit Kumar, Clerk of the respondent department which was replied to by applicant. Vide letter dated 27.09.2013, the respondents decided not to release the DCRG to him till further orders.
3. The respondents contested the claim of the applicant by filing a detailed reply wherein they have taken the sole ground that since the applicant has not handed over the record, therefore, the competent authority has decided to withhold the amount of DCRG. The respondents have also filed an additional reply wherein it is submitted that during the pendency of the O.A, the competent authority has accorded the sanction to withhold the payment of Gratuity and DCRG under rule 2.2(b) of the Punjab Civil Services Rules (Vol.II) and even they have also registered an FIR on 21.10.2014.
4. Sh. D.R. Sharma, learned counsel for the applicant vehemently argued that action of the respondents in withholding the amount of DCRG is totally against the rules, the action of the respondents be declared illegal & arbitrary and direction may be given to them to release the said amount. To elaborate his arguments he submitted that under 2.2(b) of the Punjab Civil Services Rules (Vol.II) (in short the PCS Rules), the respondents can withhold the amount, only if, any inquiry is pending against an employee. Since, initially there was nothing against the applicant or any pending inquiry against him on the date of retirement, therefore, they cannot withhold the amount. To buttress his submissions, he placed reliance upon the judgments passed by the Honble jurisdictional High Court in case of Atam Bodh Sharma Vs. State of Haryana & Ors. (CWP No. 3567/2006) decided on 09.10.2006, Rajinder Kumar Dania Vs. State of Punjab & Ors, (CWP No. 14185/2010) decided on 18.09.2012, L.R. Dhawan Vs. State of Haryana & Ors., 1996(3) SCT 11 and the judgment of the Honble Supreme Court in case of State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Anr. (Civil appeal no. 6770/2013) decided on 14.08.2013.
5. Per contra, Sh. Rohit Mittal, learned proxy counsel for respondents no. 1 to 3 reiterated what has been stated in the written statement and additional reply. In support of his contention he placed reliance upon the judgment passed by the Honble Delhi High Court in case of J.B. Chaudhry Vs. Indian overseas Bank & Ors., 2014(1) SLR 469.
6. We have given our thoughtful consideration to the entire matter and perused the pleadings as available on record with the able assistance of the learned counsel for the parties.
7. The solitary contention in the hands of the applicant, which is to be answered is, as to whether the respondents can withhold the amount of DCRG, in absence of any provision for doing so in the Rule or not. It is accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. Conceptually, it is so lucidly described in D.S. Nakara & Ors. Vs. Union of India, 1983(1) SCC 305, the relevant part reads as under;-
The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised ? Is the employer, which expression will include even the State, bound to pay pension ? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service ?
What is a pension ? What are the goals of pension ? What public interest or purpose, if any, it seeks to serve ? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date ? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.
The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar & Ors. (1) wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab & Anr. v. Iqbal Singh 1976 IILLJ 377SC.
8. It is, thus, hard earned benefit which accrues to an employee and is in the nature of property. This right to property cannot be taken away without the due process of law as per the provisions of Article 300 A of the Constitution of India. Right to receive pension was recognized as a right to property by the Constitution Bench of the Honble Supreme Court in the case of Deokinandan Prasad vs. State of Bihar; (1971) 2 SCC 330. After Forty-Fourth Amendment Act, 1978 w.e.f. 20th June, 1979, the right to property is no longer remains a fundamental right. It is still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property.
9. In the light of the above, we now examine the facts of the case. The relevant rule formulation which deals with case is 2.2(b) of the PCS Rules (Vol.II). For better appreciation, the same reads as under:-
2.2(b) The Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if, in a departmental or judicial proceeding, the pensioner is found guilty of grave mis- conduct or negligence during the period of his service, including service rendered upon re-employment after retirement :
provided that (1) Such departmental proceedings, if instituted while the officer was in service , whether before his retirement or during his re-employment , shall after the final retirement of the officer, be deemed to be a proceeding under this article and shall be continued and concluded by the authority by which it was commenced the same manner as if the officer had continued in service ;
(2) Such departmental proceedings, if not instituted while the officer was in service whether before his retirement or during his re-employment-
(i) shall not be instituted save with the sanction of the Government ; (ii) shall not be in respect of any event which took place more than four years before such institution ; and (iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service.
1. These rules may be called, the Punjab Civil Services (3rd Amendment ) Rules , Volume II , 1986.
2. In the Punjab Civil Services Rules, Volume II , to clause ( c ) ( 1 ) rule 2.2, the following proviso shall be added , namely:-
Provided that where Departmental Proceedings have been instituted under rule 10 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 for imposing any of the penalties specified in clauses (i) and ( ii ) & ( iv ) of rule 5 of the said rules , the payment of gratuity or death cum retirement gratuity, as the case may be, shall not be withheld.
10. A perusal of the above extraction makes it clear that the legislature has given power to the respondents to withhold the pension/DCRG of a retiree, if any pecuniary loss is caused to the government and in a departmental or judicial proceedings, it is established that the pensioner is found guilty of grave misconduct or negligence during his service including service rendered on re-employment after retirement. Therefore, it can safely be concluded that if on date of retirement, the inquiry is pending or he has already been held guilty of charges on a pecuniary loss to the department, then the respondents can withhold the amount of DCRG otherwise under the above rule, they are precluded from doing so. The above Rule 2.2 (b) of the PCS Rule, came for interpretation before the Honble High Court in case of L.R. Dhawans case (supra), wherein the Honble High Court in para 4 has recorded a categorical finding that if a departmental proceeding has been initiated, after retirement of employee, then in terms of 2.2(b) of the PCS Rules, the respondents cannot withhold the amount of DCRG as it is due on the date of retirement because on that date there was nothing against an employee. Following the above law, subsequently, in case of Rajinder Kumar Danias case (supra) action of the respondents therein was quashed and direction was issued to the department to release the amount as same had been withhold without there being pendency of any inquiry/judicial proceeding against the applicant on the date of retirement. The commencement of criminal proceeding or departmental proceeding has also been decided in case of Atma Bodh Sharmas case (supra) wherein the Honble Division Bench have laid down that in terms of 2.2(b) of the PCS Rules, the department can withhold the amount if the employee is found guilty of grave mis-conduct or guilty of causing pecuniary loss to the department during the service. Explanation of 2.2(b) of PCS Rules provides that departmental proceeding can be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner or the officer has been placed under suspension from an earlier date, on such date and a judicial proceedings shall deemed to be instituted (i) in the case of criminal proceedings on the date on which the complaint on which Magistrate takes cognizance, is made and (ii) in the case of civil proceeding, on the date of presentation of the plaint in the court.
11. In the light of the above legal proposition, we have considered the present case. It is clear that there was nothing against the applicant on date of his retirement i.e. 31.08.2012. After a period of nine months, for the first time, the respondents issued a letter asking the applicant to hand over the record. Subsequently, on 27.09.2013, the respondents passed the order to withhold the DCRG till further orders. During the pendency of the O.A, the competent authority accorded the sanction to withhold the gratuity and DCRG. Suffice to record that on date of retirement of applicant, there was nothing against him, therefore, in terms of 2.2(b) of the PCS Rules, the respondents could not withhold the amount of DCRG as held in case of L.R. Dhawans (supra) and subsequently, in case of Rajinder Kumar Dania(supra).
12. In view of the above, we are left with no other option but to allow the present Original Application. The respondents are directed to release the amount of DCRG to the applicant with an interest @ 9% from date when it becomes due till its final payment.
(UDAY KUMAR VARMA) (SANJEEV KAUSHIK)
MEMBER (A) MEMBER (J)
Dated: .04.2015
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OA No. 1480/PB/2013
( Vijay Kumar Sharma Vs. UOI & Ors.)