Central Administrative Tribunal - Allahabad
Bansh Bahadur Singh vs General Manager, N E Rly on 24 November, 2022
OPEN COURT
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 24th of November 2022
PRESENT:
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Original Application No. 330/00254/2021
Bansh Bahadur Singh aged about 62 years, son of Shri
Ramashankar Singh, resident of Village & Post Bhaluani District
Deoria (retired from the post of Loco Pilot Mail, North Eastern
Railway, Izzatnagar, Bareilly.
. . . Applicant
By Adv: Shri Vinod Kumar
VERSUS
1. Union of India through General Manager, North Eastern
Railway, Gorakhpur.
2. Divisional Railway Manager (P), North Eastern Railway,
Izzat Nagar, Bareilly.
3. Senior Divisional Mechanical Engineer (O&F), North
Eastern Railway, Izzat Nagar, Bareilly.
4. Senior Divisional Finance Manager, North Eastern Railway,
Izzat Nagar, Bareilly.
. . .Respondents
By Adv: Shri Bablu Singh
ORDER
The present O.A has been filed by the applicant under section 19 of Administrative Tribunal Act, 1985 seeking following reliefs:-
"i To issue an order or direction in the suitable nature, quashing the orders impugned dated 14.10.2019, passed by the respondent NO.2 and the order dated 14.01.2020, Page 2 of 9 passed by respondent NO.2 under the confirmation of office order made by the respondent No. 3.
ii. To issue an order or direction in the suitable nature, directing the respondent department to release the entire withheld amount of gratuity of the applicant with 18% interest within stipulated period which may specified by this Hon'ble Tribunal.
iii. To issue any other order or direction which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
iv. To award costs".
2. The brief facts of the case are that the applicant was initially appointed as Helper/Khalasi on 07.12.1981. Thereafter, he was lastly promoted as Loco Pilot Mail. He was superannuated on 30.09.2019. After his superannuation, respondents without prior notice withheld the amount of DCRG/gratuity of the applicant. Feeling aggrieved, applicant had submitted an application on 09.10.2019. The aforesaid application was replied by the respondents vide letter dated 14.10.2019 stating therein that as per report of Divisional Security Commissioner, Railway Protection Force, Izzat Nagar, Bareilly a criminal case is pending against the applicant before the court of Additional Chief Judicial Magistrate, NE Railway, Haldwani and due to that reason, the amount of DCRG/gratuity could not be released. Against the letter dated 14.10.2019, applicant again submitted another representation before the concerned authority on 14.10.2019, which was rejected on 14.01.2020. Applicant has challenged this order dated 14.01.2020 in this OA.
3. Per contra, learned counsel for the respondents filed counter affidavit stating therein that as per report of Divisional Security Commissioner, Railway Protection Force, Izzat Nagar, Bareilly a criminal case is pending against the applicant before the court of Additional Chief Judicial Magistrate, NE Railway, Page 3 of 9 Haldwani and due to that reason, the amount of DCRG/gratuity could not be released. As per Railway Service Pension Rules 1993, if any railway servant retired on superannuation and against whom any departmental or judicial proceedings is pending under Sub Rule 2, a provisional pension as provided in rule 96 shall be sanctioned and the respondents had granted provisional pension and withheld his gratuity and DCRG. It is further submitted that respondents will release DCRG and gratuity on disposal of the said criminal case.
4. Rejoinder affidavit has also been filed in which the applicant has reiterated the facts as stated in the OA and denied the contents of the counter affidavit. It is stated that no charges are being established against the applicant since the FIR was lodged against the mob of particular section of the employee. In fact applicant is not responsible for stopping the train as Dharna Pradarshan was made by the Union whereas as per information of the applicant, he was not present at the time and place of occurrence.
5. Heard Shri Vinod Kumar, learned counsel for the applicant and Shri Bablu Singh, learned counsel for the respondents and perused the record as well as written submissions filed by respondents.
6. The submission of the learned counsel for the applicant is that the criminal case pending against the applicant is petty in nature. He further submits that if the pleas taken by the respondents in the counter is taken into consideration then also there is no chance for recovery of any amount from the applicant. Thus the retiral dues cannot be withheld by the department. To substantiate his arguments, learned counsel for the applicant has placed reliance on the judgments of Hon'ble High Court, Allahabad dated 09.12.2020 passed in WRIT A No. 4818/2020 - Mohammad Majhar Vs. State of U.P and 2 others and dated Page 4 of 9 06.10.2021 passed in WRIT A No. 9154/2021- Gambhir Singh Vs. State of U.P. and 3 others. Learned counsel for the applicant further submits that it is well established from the perusal of Gratuity of Payment Act, 1972 that payment of gratuity cannot be withheld by the employer unless and until it has found proved that certain loss caused by the employee to the department but in the present case no kind of loss alleged to have been caused by the applicant.
7. In rebuttal, learned counsel for the respondents submits that since a criminal case is pending against the applicant, as per Rule 10 (c) of Railway Service (Pension) Rules, 1993, the gratuity and other retiral dues can be withheld. In support of his arguments, learned counsel for the respondents has placed reliance on the Full Bench judgment of Hon'ble High Court, Allahabad in the case of Shivgopal and others Vs. State of U.P and 4 others - 2019 Law Suit (All) 867 and submitted that in case of pendency of departmental / judicial (civil / criminal) proceeding, the death cum retiral gratuity can be withheld. Learned counsel for the respondents argued that except gratuity and commutation of pension, all retiral dues including provisional pension have been paid to the applicant.
8. I have considered the rival submissions and have gone through the record carefully.
9. In the instant case, the criminal proceedings pending against the applicant has nothing to do with his official duties and the applicant had not committed any misconduct in his official duties and no disciplinary proceeding is pending against the applicant.
10. In the case of State of Jharkhand and others Vs. Jitendra Kumar Srivastava and another reported in 2013 (3) UPLBEC, 2369, the Hon'ble Apex Court has held that terminal benefits such Page 5 of 9 as pension and gratuity are not bounty and they cannot be taken away as per Article 300-A of the Constitution of India without following the due process of law. The Apex Court has further held that merely because a criminal case or departmental proceedings are pending against employee, his terminal benefits cannot be withheld, unless he is found guilty of the same.
11. In the case of D.S. Nakara Vs. Union of India reported in (1983) 1 SCC page 305, the Apex Court has observed as under:-
"From the discussion three things emerge: (1) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to article 309 and clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch...."
12. In the case of State of Punjab and another Vs. Iqbal Singh reported in 1976 SCC (2) 1, Hon'ble Supreme Court has held that since the cut of pension and gratuity adversely affects the retired employee, as such order cannot be passed without giving reasonable opportunity of making his defence. It is an admitted fact that no notice was issued to the applicant before withholding the gratuity and not sanctioning the regular pension.
13. In the case of Shiv Sewak Prasad Mishra Vs. State of U.P and Ors. reported in 2015 (2) ADJ 393, the Hon'ble Allahabad Page 6 of 9 High Court has held that final pension cannot be withheld if there is no allegation of loss to the Government. Para 8 of said judgment reads as follows:-
"8. It is also not the case of respondents that in the criminal case, there is any allegation of loss to the Government and there is recovery to be made from the petitioner, which is the only exception recognized by this Court in the above mentioned authorities where final pension etc. may not be paid and respondents may withhold the same".
14. I have also perused the judgment of Mohammad Majhar (supra) and Gambhir Singh (supra). In these cases, gratuity/pension was withheld due to pendency of criminal case against the employee and the said criminal case had nothing to do with the discharge of his public duties in the office. In the said case, while referring the different provisions of CCS (Pension) Rules 1972, it has been held that if criminal case pending against the employee had nothing to do with his official duties, his gratuity cannot be withheld.
15. According to respondents, provisional pension has been sanctioned to the applicant under Rule 9 (4) and his gratuity has been withheld in terms of Rule 10 (b)of Railway Services (Pension) Rules, 1993. As per Rule 10 (c), "no gratuity shall be paid to the railway 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 the provisions of the Railway Servants (Discipline and Appeal) Rules, 1968 for imposing any of the penalties specified in clauses (i), (ii), (iii-a) and (iv) of rule 6 of the said rules, the payment of gratuity shall be authorised to be paid to the railway servant.
Page 7 of 916. Acceptance of contentions of respondents will mean that if any Criminal or Civil case is pending against any employee, even though it is not related with his official duties, the employer has full right to withhold the pension and gratuity of his retiring employee. Provision of Section 4 (1) and Section 4 (6) of Payment of Gratuity Act, 1972 reads as under:-
"4.Payment of gratuity.-
(1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years,-
(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease;
Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement :
Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to the heirs.
Explanation.- For the purposes of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement".
4. (6) Notwithstanding anything contained in sub-
section (1),-
Page 8 of 9(a) the gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused;
(b) the gratuity payable to an employee shall be wholly forfeited,-
(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or
(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment".
17. The bare reading of Section 4 (1) and (6) of Payment of Gratuity Act, 1972 shows that 'gratuity' cannot be forfeited unless the services of such employee have been terminated for his rioters or disorderly conduct or any other act of violence on his part or for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment. Thus, I am of the considered view that gratuity can be forfeited only if the offence is committed in the course of his employment but not otherwise.
18. Considering the entire circumstances of the case and comparing the same with the law laid by the Hon'ble Apex Court and Hon'ble Allahabad High Court in the above cited case laws and provision of Section 4 (1) and (6) of Payment of Gratuity Act, 1972 and Rule 69 (c) of CCS (Pension) Rules 1972, it is clear that gratuity admissible to the employee concerned can be withheld Page 9 of 9 only in the circumstance of pendency of judicial or criminal proceeding against him and the enquiry going on against the employee concerned is related to his official duty and some losses has occurred to the department due to act/conduct of the employee concerned. In the present matter, nature of criminal case said to be pending against the employee concerned is not of such nature which entail that some loss has occurred to the government exchequer. If such is the position merely on the basis of pendency of criminal case withholding of gratuity amount is not sustainable. It is an admitted fact that in the instant case, criminal proceedings pending against the applicant had nothing to do with his official duties. Neither any disciplinary proceeding is pending against him nor any loss has been caused to the department by the applicant. Thus, in these circumstances, the impugned orders dated 14.10.2019 and 14.01.2020 are liable to be quashed and applicant is entitled to receive the entire gratuity amount along with statutory interest without any further delay.
19. Accordingly, O.A. is allowed and impugned orders dated 14.10.2019 and 14.01.2020 are hereby quashed. The respondents are directed to release the entire gratuity. Besides the gratuity, if any, other retiral benefits have also not been paid, same also be paid to the applicant within a period of two months along with interest @ 6% per annum till the date of actual payment. No order as to costs.
(Justice Om Prakash) Member (J) Manish