Central Administrative Tribunal - Lucknow
Narendra Kumar Agarwal vs Union Of India Ministry Of Railways ... on 31 May, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL, LUCKNOW BENCH, LUCKNOW. Original Application No. 440 of 2015 Reserved on 27.5.2016 Pronounced on 31.5.2016 Honble Ms. Jayati Chandra, Member-A Narendra Kumar Agarwal, aged about 76 years, S/o late Ram Saran Das, R/o 2/676 Vivek Khand, Gomti Nagar, Lucknow (lastly working as Chief Engineer (Construction) (East), NER, Gorakhpur) . Applicant By Advocate : Sri P.K. Singh Versus. 1. Union of India Ministry of Railways (Railway Board), New Delhi through its Secretary. 2. General Manager, NER, Gorakhpur. 3. Deputy Chief Personnel Officer (Gazetted), NER, Gorakhpur. 4. FAO & CAO (Pension), NER, Gorakhpur. .Respondents. By Advocate : Sri Rajendra Singh. O R D E R
The applicant has filed this O.A. under Section 19 of Administrative Tribunals Act, seeking following relief(s):-
(a) issuing/passing of an order or direction to the respondents to release the Gratuity and commutation of pension alongwith interest at the current market rate within a period of two months.
(b) issuing/passing of any other order or direction as this Honble Tribunal may deem fit in the circumstances of the case.
(c) allowing this Original Application with costs.
2. The facts of the case are that the applicant was initially appointed as Assistant Engineer in the Railways w.e.f. 25.5.1964. He was promoted to the post of Divisional Engineer, Deputy Chief Engineer and lastly as Chief Engineer (Construction) (East), N.E. Railway, Gorakhpur. The applicant retired from service on 30.11.1997 on attaining the age of superannuation. The applicant was granted pension vide PPO dated 16.1.1998. A penalty of 50% cut from the pension of the applicant was imposed vide order dated 26.12.2002, which was challenged by the applicant before this Tribunal by filing O.A. no. 30 of 2003 in which interim order was passed to the effect that no reduction/deduction be made from the pension of the applicant. The said O.A. was allowed by means of judgment and order dated 4.10.2004. The railway administration, however, filed Writ petition No. 66 (SB) of 2005 before the Honble High Court at Lucknow. A penalty of 20% cut in monthly pension of the applicant was again imposed vide Railway Boards order dated 5.9.2006. The applicant again filed Original Application No. 485 of 2006 in which an interim order was passed on 18.10.2006 and ultimately the said O.A. was allowed vide judgment and order dated 11.8.2011. Thereafter, the respondents filed writ petition No. 93 (SB) of 2012 before the Honble High Court against the order of this Tribunal dated 11.8.2011. The applicant filed O.A. no. 292 of 2010 for revision of Pension as per recommendations of 6th CPC, which was subsequently dismissed vide judgment and order dated 7.8.2015 as the pension of the applicant was revised and revised PPO was issued on 19.9.2014. Both the Writ petitions (Writ petition No. 66 (SB) of 2005 and 93 (SB) of 2012) were clubbed together and was decided by a common judgment and order dated 21.11.2012 by remanding the matter back to this Tribunal for decision afresh. The applicant also filed Review Petition No. 566 of 2012 and 567 of 2012 against the judgment and order dated 21.11.2012, which were partly allowed with certain modification in the judgment dated 21.11.2012. This Tribunal vide judgment and order dated 10.9.2014 had allowed both the O.As (O.A. no. 30/03 and 485/06) with all consequential benefits. The respondents, thereafter, filed Writ petition Nos. 1156 (SB) of 2015 and 1158 (SB) of 2015, which were pending and no interim stay has been granted staying the operation of the order of this Tribunal dated 10.9.2014.
3. The applicant submitted application dated 7.10.2014 alongwith the judgment and order of this Tribunal dated 10.9.2014 to the General Manager, NER, for release of Gratuity and commutation of pension followed by another representation dated 21.10.2014. However, the matter of the applicant was referred to Railway Board vide letter dated 12.11.2014. The applicant moved another representation dated 12.2.2015 with a request to take early action in the matter for releasing the amount of Gratuity and commutation of pension. Hence this O.A.
4. The respondents have contested the claim of the applicant by filing a detailed Counter Reply. They have stated that the applicant was retired from service on 30.11.1997 and at the time of superannuation of service, two charge-sheets under Rule 9 of Railway Servants (Discipline & Appeal) Rules, 1968 were pending against him, first one was concluded by imposing the penalty of 50% cut in monthly pension for 03 years vide order dated 26.12.2002 and another was concluded by imposing the penalty of 20% cut in monthly pension for 10 years vide order dated 5.9.2006. However, the penalty order dated 26.12.2002 has not yet been implemented on account of interim order of this Tribunal dated 25.3.2003 and 10.9.2014 passed in O.A. no. 30 of 2003 and another penalty order dated 5.9.2006 has also yet been implemented in view of the interim orders dated 18.10.2006, 8.2.2007. The judgment and orders passed by this Tribunal in the aforementioned two Original Applications have been challenged before the Honble High Court in Writ petition No. 1158 of 2005 and 1156 of 2015, which are still pending. The applicant is being paid provisional pension since 1.12.1997. The gratuity and commutation of pension of the applicant have been withheld in terms of Rule 9 and 10 of Part 1 and Rule 5 of Part II of the Railway Services (Pension) Rules, 1993 and Railways Boards circular dated 17.5.1998.
5. The applicant has filed Rejoinder Reply negating the contentions of the respondents made in the Counter Reply and reiterating the averments made already in the O.A.
6. During the course of hearing, learned counsel for the applicant has placed reliance the decision of Honble Supreme Court in the case of H. Gangahanume Gowda Vs. Karnataka Agro Industries Corpn. Ltd. Reported in AIR 2003 SC 1526
7. Heard the learned counsel for the parties and perused the pleadings available on record.
8. The facts of the case are not in dispute. The applicant has been superannuated from service on 30.11.1997 and at the time of superannuation of service, two charge-sheets under Rule 9 of Railway Servants (Discipline & Appeal) Rules, 1968 were pending against him, first chargesheet was concluded by imposing the penalty of 50% cut in pension for a period of three years vide order dated 26.12.2002 and another chargesheet was concluded by imposing the penalty of 20% cut in monthly pension for 10 years vide order dated 5.9.2006. However, the penalty orders, referred to above, have not yet been implemented on account of interim orders passed by this Tribunal. The gratuity and commutation of pension of the applicant have been withheld in terms of Rule 9 and 10 of Part 1 and Rule 5 of Part II of the Railway Services (Pension) Rules, 1993 and Railways Boards circular dated 17.5.1998. Now the only question which requires adjudication whether during the pendency of disciplinary proceedings, the Gratuity, final pension and commuted value of pension can be withheld or not. Learned counsel for the respondents has relied upon Rule 9 and 10 of Part 1 and Rule 5 of Part II of the Railway Services (Pension) Rules, 1993 and Railways Boards circular dated 17.5.1998 whereby it provides that the retiral benefits viz. Gratuity, commuted value of pension and regular pension shall be released only after conclusion of disciplinary/criminal proceedings pending before the competent court of law and also after receipt of vigilance clearance. On the other hand, learned counsel for the applicant contended that pursuant to aforesaid decision of Honble Supreme Court, the Gratuity of the applicant cannot be withheld. It is also contended that the Payment of Gratuity is governed by Payment of Gratuity Act, 1972 and Gratuity can only be withheld under sub Section (6) of Section 4 of the aforesaid Act. For ready reference Rule 10 of Railway Service (Pension) Rules, 1993 reads as follows:-
Provisional Pension where departmental or judicial proceedings may be pending.
(1) (a) In respect of a railway servant referred to in sub-rule (3) of Rule 9, the Accounts Officer shall authorise the provisional pension not exceeding the maximum pension which would have been admissible on the bases of qualifying service up to the date of retirement of the railway servant or if he was under suspension on the date of retirement, upto the date immediately preceding the date on which he was placed under suspension.
(b) The Provisional pension shall be authorised by the Accounts Officer during the period commencing from the date of retirement upto 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 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.
(2) Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such railway 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.
8. Rule 9 of the rules empowers the President only to withhold or withdraw pension permanently or for a specified period in whole or in part or to order recovery of pecuniary loss caused to the State in whole or in part subject to minimum. The employee's right to pension is a statutory right. The measure of deprivation therefore, must he correlative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to assistance at the evening of his life as assured under Article 41 of the Constitution. The right to gratuity is also a statutory right. The appellant was not charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment. No provision of law has been brought to our notice under which, the President is empowered to withhold gratuity as well, after his retirement as a measure of punishment. Therefore, the order to withhold the Gratuity by way of penalty is wholly illegal.
9. Relevant portion of Sub-section 1 of Section 4 of the Payment of Gratuity Act, 1972 (hereafter the Act) reads thus:-
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 on his superannuation, or on his retirement or resignation, or on his death or disablement due to accident or disease.
The Sub-Section 6 is the non obstante section:
(6) Notwithstanding anything contained in sub-section (1), - 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; the gratuity payable to an employee [may be wholly or partially forfeited]- 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 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.
10. In the instant case, there is a disciplinary case pending against the applicant, which culminated into the punishments as mentioned above, but the said punishment orders has been quashed by this Honble Tribunal, but no stay has been granted by Honble high Court. In the light of the above, it would be amply clear that only on the basis of the case pending against the applicant, pension cannot be withheld. It has to abide by the final decision in the criminal case against the applicant. Gratuity cannot, in any case, be withheld or withdrawn.
11. In the cited case, it has been held that right to receive pension is property under Article 31(1) and denying the petitioner to receive pension affects the fundamental right under Article 19(1)(f) and 31(1) of Constitution of India. Further, it is not the case of the respondents that on the basis of criminal case, there is an allegation of loss to the Government due to act on the part of the applicant, while discharging his duties when he was a Government servant.
12. For the aforesaid reasons, the OA is allowed. The Respondents are directed to release commuted value of pension and Gratuity to the applicant without any interest. The aforesaid exercise shall be completed within a period of four months from the date of receipt of certified copy of this order. There shall be no order as to costs.
(Ms. Jayati Chandra) MEMBER (A) Girish/-
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