Central Administrative Tribunal - Delhi
Shri Ram vs M/O Urban Development on 14 November, 2017
1 OA No.3517/13
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.3517 OF 2013
New Delhi, this the 14th day of November, 2017
CORAM:
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
...........
Shri Shri Ram,
Ex-Executive Engineer (Civil),
Under PWD Zone M-I,
Government of NCT of Delhi,
R/o D-127, Krishna Park,
Khanpur, New Delhi-62 .......... Applicant
(By Advocate: Ms. Meenu Mainee)
Vs.
Union of India through
1. Secretary,
Ministry of Urban Development,
Nirman Bhawan, New Delhi 110011
2. Director General CPWD,
Nirman Bhawan, New Delhi 110011
3. Pay & Accounts Officer,
No.12, Government of NCT,
MSO Building, IP Estate, New Delhi ....Respondents
(By Advocate: Shri R.N.Singh with Shri Amit Sinha)
.......
Page 1 of 12
2 OA No.3517/13
ORDER
This Original Application under Section 19 of the Administrative Tribunals Act, 1985 (hereinafter referred to as „the Act‟), was filed by the applicant on 26.9.2013 seeking the following reliefs:
"8.1 That the Hon‟ble Tribunal may graciously be pleased to allow this application and direct the respondents to release the amount of gratuity as also regular pension as also amount of commutation of pension to the applicant without any further delay whatsoever. 8.2 That this Hon‟ble Tribunal may further be graciously pleased to direct the respondents to pay interest on the aforesaid amount of gratuity and commutation at the rate of 12% per annum from the date from which the amount was due till the date of actual payments.
8.3 Pass any other or further orders which this Hon‟ble Tribunal may deem fit and proper in the circumstances of the case.
8.4 That the cost of the proceedings may kindly granted in favour of the applicant and against the Respondents."
2. Brief facts of the applicant‟s case are that he had initially joined the service in the respondent-Department as a Junior Engineer on 19.2.1977. He was promoted to the rank of Assistant Engineer on 1.7.1988, and to the rank of Executive Engineer in May 2005. He retired from service on 31.1.2010 on attaining the age of superannuation. On retirement, the respondent-Department made payments of GPF, leave encashment, insurance money, and provisional pension to him. Although on the date of his retirement from service, no departmental or judicial proceedings were pending against him, the respondent-Department withheld the payment of gratuity and did not release final pension as well as commuted value of Page 2 of 12 3 OA No.3517/13 pension. The respondent-departmental authorities also did not pay any heed to his representations made on 12.4.2010 and 25.8.2010 for payment of gratuity and final pension as well as commuted value of pension. Thus, the present O.A. was filed by him on 26.9.2013.
2.1 It is stated by the applicant that he subsequently came to know that an FIR was registered by the CBI against him in the year 2004. After investigation, the CBI filed a Closure Report in the CBI Court on 30.5.2005. 2.2 Thus, it is submitted by the applicant that the respondent- departmental authorities have acted arbitrarily and illegally in withholding the payment of gratuity and final pension as well as commuted value of pension.
3. Resisting the O.A., the respondents have filed a counter reply. The respondents have stated, inter alia, that the CBI, SPE, Gandhinagar, conducted a surprise check at Palanpur Railway Station and found that the applicant was in possession of Rs.1,07,000/- in cash, for which the applicant could not offer satisfactory explanation. The CBI registered case No.RC- 9(A)/2004-GNR, dated 15.4.2004, under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988, against the applicant. In the said criminal case, the CBI submitted a Closure Report under Section 173 Cr.P.C. in the court of the learned Special Judge, Court No.3, Ahmedabad, on 30.5.2005. The Superintendent of Police, CBI, SPE, Gandhinagar(Gujarat), vide his letter dated 28.9.2010 (Annexure R-I), Page 3 of 12 4 OA No.3517/13 informed the Chief Vigilance Officer, CPWD, New Delhi, that the learned Special Judge did not accept the closure report filed by the CBI and, on 22.8.2010, ordered the CBI to carry out further investigation in the case under Section 173(8) Cr.P.C. and to submit a fresh report. It was also informed by the Superintendent of Police, CBI, SPE, Gandhinagar (Gujarat), vide his letter dated 30.7.2012 (Annexure R-2) that the criminal case against the applicant was at the stage of framing of charge. In the above view of the matter, the respondents have submitted that due to pendency of criminal proceedings against the applicant on the date of his retirement from service, the payment of gratuity and final pension as well as commuted value of pension has been withheld by them until conclusion of the said judicial proceedings and issue of final orders thereon in accordance with Rules 9 and 69 of the CCS (Pension) Rules, 1972, and Rule 4 of the CCS (Commutation of Pension) Rules, 1981.
4. The applicant has filed a rejoinder reply refuting the stand taken by the respondents.
5. We have heard Ms.Meenu Mainee, the learned counsel appearing for the applicant, and Shri R.N.Singh with Shri Amit Sinha, the learned counsel appearing for the respondents. We have also carefully perused the materials available on record.
6. The only point, which arises for consideration in this case, is whether judicial proceedings were instituted/pending against the applicant Page 4 of 12 5 OA No.3517/13 on the date of his retirement on attaining the age of superannuation on 31.1.2010, and the respondents were justified in withholding payment of gratuity and final pension as well as commuted value of pension.
7. For deciding the point in issue, it would be apposite to refer to the relevant provisions of Rule 9 and Rule 69 of the CCS (Pension) Rules, 1972 and Rule 4 of the CCS (Commutation of Pension) Rules,1981. 7.1 Rule 9(4) & (6) of the CCS (Pension) Rules, 1972 reads thus:
"9(4). In the 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.
xx xx
(6) For the purpose of this rule -
(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and
(b) judicial proceedings shall be deemed to be instituted -
(i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made, and
(ii) in the case of civil proceedings, on the date the plaint is presented in the Court."
7.2 Rule 69 of the CCS (Pension) Rules, 1972, reads thus:Page 5 of 12 6 OA No.3517/13
"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 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 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.
(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."
Page 6 of 12 7 OA No.3517/13 7.3 Rule 4 of the CCS (Commutation of Pension) Rules,1981, reads thus:
"4. Restriction on commutation of pension-No Government servant against whom departmental or judicial proceedings, as referred to in Rule 9 of the Pension Rules, have been instituted before the date of his retirement, or the pensioner against whom such proceedings are instituted after the date of his retirement, shall be eligible to commute a fraction of his provisional pension authorized under Rule 69 of the Pension Rules or the pension, as the case may be, during the pendency of such proceedings."
8. Under Rule 9(6)(b)(i) of the CCS (Pension) Rules, 1972, criminal proceedings shall be deemed to be instituted against a Government servant on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made. Undoubtedly, „report‟ of a Police Officer, referred to in Rule 9(6)(b)(i) ibid, of which the Magistrate takes cognizance, is the report of the Police Officer under Section 173(2) of the Code of Criminal Procedure, 1973, made to the Magistrate. The said report is commonly known as „charge sheet‟. In the instant case, admittedly, the CBI had registered the FIR against the applicant on 15.4.2004 and had filed Closure Report before the learned Special Judge on 30.5.2005. It is also the case of the respondents that the learned Special Judge had not accepted the Closure Report and had, vide order dated 23.8.2010, directed the C.B.I. to carry out further investigation in the case under Section 173(8) Cr.P.C. and to submit a fresh report, which fact had been intimated by the S.P., C.B.I., SPE, Gandhinagar, to the Chief Vigilance Officer, C.P.W.D., New Page 7 of 12 8 OA No.3517/13 Delhi, vide his letter dated 28.9.2010, i.e., after about eight months of the date of retirement of the applicant on attaining the age of superannuation. Apparently, thereafter the CBI had further investigated the case and submitted the charge sheet before the learned Special Judge much after 31.1.2010, i.e., the date of retirement of the applicant on attaining the age of superannuation. Thus, it is clear that the report/charge sheet was filed by the CBI in the criminal case and the learned Special Judge took cognizance of the said report/charge sheet against the applicant much after the date of retirement of the applicant on attaining the age of superannuation. Therefore, it cannot be said that judicial proceedings were instituted or pending against the applicant on the date of his retirement, i.e., 31.1.2010. 7.2 From the foregoing, it is clear that no „judicial proceedings‟ were instituted/pending against the applicant on the date of his retirement, i.e., 31.1.2010, and, therefore, the provisions of Rules 9 and 69 of the CCS (Pension) Rules, 1972 and Rule 4 of the CCS (Commutation of Pension) Rules, 1981, as regards payment of provisional pension, and withholding of payment of gratuity and final pension as well as commuted value pension, are not attracted in the case of the applicant. The respondent-departmental authorities have misread and/or misunderstood the relevant provisions of Rules 9 and 69 of the CCS (Pension) Rules, 1972 and Rule 4 of the CCS (Commutation of Pension) Rules, 1981, and have withheld the payment of gratuity, final pension and commuted value of pension. Thus, the Page 8 of 12 9 OA No.3517/13 respondents cannot be held to be justified in withholding the applicant‟s gratuity and in not making payment of final pension as well as commuted value of pension to the applicant.
8. The applicant has not rebutted the statement made by the respondent-departmental authorities that in compliance with the order dated 23.8.2010 passed by the learned Special Judge, the CBI had further investigated the case and submitted charge sheet against the applicant before the learned Special Judge, and that the criminal case was at the stage of framing of charge as on 30.7.2012. It also transpires from the letter dated 30.7.2012 issued by the S.P., C.B.I., SPE, Gandhinagar, that the criminal case was posted to 14.8.2012. Although the present O.A. was filed by the applicant on 26.9.2013, the applicant did not whisper about the submission of charge-sheet by the CBI and taking of cognizance by the learned Special Judge in the criminal case against him as well as the progress of the said criminal case. During the course of hearing on 8.11.2017, the learned counsels for the parties were also unable to apprise this Tribunal of the present stage of the criminal proceedings in the court of the learned Special Judge. The other aspect of the matter is that it is the case of the applicant that he had made representations on 12.4.2010 and 25.8.2010 requesting the respondent-departmental authorities to release in his favour the gratuity and final pension as well as commuted value of pension. If at all no decision was taken by the respondent-departmental authorities on his representation Page 9 of 12 10 OA No.3517/13 dated 12.4.2010, the applicant, instead of making the second representation dated 25.8.2010, ought to have approached the Tribunal within the period of limitation prescribed under the Act. Section 20(1) of the Act, 1985, stipulates that a Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. Sub-section(2) of Section 20 of the Act stipulates, inter alia, that for the purposes of sub- section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances, where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired. It is, thus, clear that in the present case, the cause of action arose on 12.10.2010, when the period of six months from 12.4.2010, i.e., date on which the applicant claimed to have made the representation to the respondent-departmental authorities for redressal of his grievance as regards release of gratuity and final pension as well as commuted value of pension. Section 21(1)(b) of the Act stipulates, inter alia, that a Tribunal shall not admit an application in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of Section 20 has been made and a period of six months had expired thereafter Page 10 of 12 11 OA No.3517/13 without such final order having been made, within one year from the date of expiry of the said period of six months. In view of the provisions contained in Section 20(2)(b) and Section 21(1)(b) of the Act, the applicant ought to have approached the Tribunal within one year from 12.10.2010 when the cause of action arose. That is to say, the period of limitation for filing the O.A. by the applicant expired on 12.10.2011. But the present O.A. was filed by him on 26.9.2013, i.e., after a delay of one year eleven months and fourteen days, the reason of which has not been explained by the applicant. Considering the fact that the present O.A. was filed by the applicant challenging the legality and validity of the action of the respondent- departmental authorities in withholding his retirement gratuity and in not making payment of final pension as well as commuted value of pension, and in view of the findings recorded in the preceding paragraphs that no judicial proceedings were instituted/pending against the applicant on the date of his retirement, and that the respondent-departmental authorities were not justified in withholding the retirement gratuity and in not making payment of final pension as well as commuted value of pension, this Tribunal refrains from rejecting the O.A. as being barred by limitation, and feels that it would meet the ends of justice if the applicant‟s prayer for payment of interest @ 12% per annum on the entire dues for the period from the date following the date of his retirement till the date of actual payment is disallowed, and the respondents are directed to make payment of gratuity, final pension, and Page 11 of 12 12 OA No.3517/13 commuted value of pension, along with interest at GPF rate on the gratuity amount alone for the period from 26.9.2013, i.e., the date of filing of the present O.A., till the date of actual payment thereof.
9. In the light of what has been discussed above, the respondents are directed to pay to the applicant gratuity, final pension, and commuted value of pension, along with interest at GPF rate on the gratuity amount alone for the period from 26.9.2013, i.e., the date of filing of the present O.A., till the date of actual payment thereof, within a period of three months from today.
10. In the result, the O.A. is partly allowed to the extent indicated above. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER AN Page 12 of 12