Central Administrative Tribunal - Lucknow
Mohd. Abrahim Aged About 65 Years Son Of ... vs Union Of India Through The Chief Post ... on 29 February, 2012
Central Administrative Tribunal, Lucknow Bench, Lucknow Original Application No. 160/2011 This the 29th day of February, 2012 Honble Sri Justice Alok Kumar Singh, Member (J) Mohd. Abrahim aged about 65 years son of late Sri Amzad Ali resident of Village Sarkhelpur, Police Station Kandhai District- Pratapgarh. Applicant By Advocate: Sri Praveen Kumar Versus 1. Union of India through the Chief Post Master General, U.P. Circle, Lucknow. 2. The Senior Superintendent of Post Offices, Pratapgarh Division, Pratapgarh. Respondents By Advocate: Sri S.L.Mishra. ORDER (ORAL)
HONBLE SHRI JUSTICE ALOK KUMAR SINGH, MEMBER (J) This O.A. has been filed for the following reliefs:-
i. To quash the impugned order dated 30.8.2010 contained as Annexure No. A-1A to this O.A. with all consequential benefits.
ii. To release the payment of the pension admissible to the applicant on retirement regularly (monthwise) with update revision in the light of 6th Pay Commission Report.
iii. To release arrears of pension for the period it was withheld from March 2007 onwards till the actual date of payment along with interest @ 12% PA.
iv. To release other pensionary benefits including Gratuity, PF etc. with interest @ 12%.
v. Any other relief, which this Honble Tribunal may deem fit, just and proper under the circumstances of the case, may also be passed.
vi. Cost of the present case.
2. The case of the applicant is that while working as Sub Post Master at Oraiyadeeh Post office and Sheetalganj Post Office , the applicant was falsely implicated in a case relating to embezzlement /misappropriation of public money from the pass book of account holders. An FIR was also lodged u/s 409 of IPC and initially the learned Magistrate convicted the applicant against which a criminal appeal was filed . The Additional Session Judge allowed the criminal appeal and acquitted the applicant from the charges. On the other hand, immediately after the conviction of the applicant the respondents had stopped the payment of Provisional Pension which should not have been done in view of pending criminal appeal at that time. But even after the acquittal of the applicant in criminal appeal, his provisional pension has not been restored. The applicant, therefore, filed an O.A. No. 494/95 which was dismissed as withdrawn. Thereafter, he filed fresh O.A. No. 268/2010 for payment of his pension and retiral benefits. That O.A. was allowed on7.7.2010 with a direction to decide the claim of the applicant but the respondents rejected that representation. Hence this O.A.
3. The claim of the applicant has been contested mainly on the ground that against the acquittal of the applicant, a criminal (Misc.) appeal is already pending in the High Court and therefore, in view of Provision of Rule 69 of CCS (Pension ) Rules, 1972, it has not been released.
4. In the Rejoinder Reply, the pleadings have been reiterated.
5. I have heard the learned counsel for the parties and perused the material on record.
6. At the outset , it may be mentioned that on 9.9.2011, after making a preliminary hearing, an interim order was passed running into three pages. The relevant extract of that order is as under:-
The background facts of this case in short are that for some alleged acts of the applicant, departmental enquiry was conducted which ended in his removal but in the revision, the order of removal was reduced to that of compulsory retirement. There is no quarrel on this point.
On the other hand, three criminal cases were proceeded against the applicant in which he was convicted by the Court concerned. However, in the appeals filed before the Session Judge, he was acquitted in all the three cases. Meanwhile, the provisional pension was being paid to the applicant up to March, 2007. But , after his conviction in January, 2007, when it came to the knowledge of the respondents, the provisional pension was stopped. After his acquittal, the applicant filed O.A. No. 266/2010 which was finally disposed of with a direction to the respondents to decide the comprehensive representation made by the applicant in respect of pensionary benefits.
In furtherance of that order, the respondents passed an order on 30.8.2010, rejecting the representation saying that on account of pendency of the criminal appeals before the Honble High Court no decision can be taken. A mention was also made in respect of Writ Petition No. 6929 (MB) of 2009.
The perusal of an order passed in the aforesaid writ petition by the Honble High Court dated 16.9.2009 shows that a recovery for Rs. 1,39,018/- was issued against the applicant under the Public Account and Defaulters Act. The applicant therefore, rushed to the Central Administrative Tribunal by filing O.A. No. 28/2009 , which was decided and the applicant was directed to seek remedy before proper forum. A reference has also been made about this O.A. No. 28/2009 in the impugned order. Then, the applicant filed the aforesaid writ petition before the Honble High Court wherein an interim order was passed in favour of the applicant. However, the respondents were given liberty to recover the amount in question from post retiral benefits of the applicant. This writ petition is still pending for final disposal.
In the above backdrop, the contention of the applicant is that there is no impediment whatsoever, in granting at least the provisional pension after the acquittal of the applicant in all the three criminal cases particularly because no interim order have been passed in any of the criminal appeals, which have been filed against the acquittal.
At this stage, learned counsel for respondents concedes that there is no legal impleadment in releasing the provisional pension. Therefore, having regard to the facts and circumstances of the case particularly the fact that for the last about four years the provisional pension is not being paid, as an interim measure, the respondents are directed to immediately release the provisional pension along with arrears of the provisional pension, if any, in favour of the applicant preferably before the next date. It is also brought to the notice of the Tribunal that out of retiral benefit an amount of Rs. 1,39,018/- has already been realized by the respondents.
7. In furtherance of the aforesaid order, the official respondents have considered the matter and thereafter, released the provisional pension which was stopped after 31.1.2007 with immediate effect alongwith arrears in favour of the applicant vide order dated 4.10.2011 (Annexure 1 to M.P. No.2558/2011).
8. In view of the facts and circumstances of the case, the impugned order dated 30.8.2010 therefore, deserves to be quashed by means of which the request for releasing provisional pension in favour of the applicant was rejected.
9. The only residual point , according to the applicant, is that a direction maybe accorded to the respondents for payment of interest on the amount of arrears w.e.f. March 2007, or after 31.1.2007, from whatever date the provisional pension was wrongly stopped. Though there is also relief No. 4 for releasing other pensionary benefits including Gratuity, PF etc. but concededly, except gratuity, all the pensionary benefits have been adjusted. As far as gratuity is concerned, that would be subject to out come of the Criminal proceedings which are still pending on account of pending criminal appeals.
10. As far as above interest is concerned, the applicant is entitled to it because without any justification , the payment of provisional pension was stopped as has already been discussed above. Now , the question is as to what should be the rate of interest. In my view, it should be not less than the market rate or at least the rate of interest which is given to an employee in respect of provident fund which is said to be around 8 or 8.50%. Therefore, it would meet the ends of justice if interest is paid at the same rate i.e. at least at the rate which is applicable in the case of Provident Fund or 8% whichever is higher w.e.f. the date it was stopped i.e. 31.1.2007 as mentioned in the order dated 4.10.2011 passed by respondents itself or March 2007 as mentioned at another place, which ever is correct according to record.
11. An application for correction of interim order dated 9.9.2011 has also been moved on behalf of the respondents saying that the amounts of Rs. 139018/- has been wrongly mentioned as to have been realized by the respondents, whereas the fact is that the correct amount is of 1,35001.50/- which is still outstanding against the applicant. The learned counsel for the applicant has nothing to say against this submission. Therefore, the aforesaid interim relief order dated 9.9.2011, so far it relates to the above clarification, may be read accordingly.
12. Finally, therefore, the O.A. is party allowed. The impugned order dated 30.8.2010 is hereby quashed. The provisional pension shall be continued to be paid in accordance with relevant rules as discussed above. An interest at the rate which is applicable in respect of Provident Fund or 8% whichever is higher shall be paid w.e.f. the date the payment of provisional pension was stopped. Rest of the reliefs are hereby declined. No order as to costs.
Justice Alok Kumar Singh) Member (J) HLS/-