Central Administrative Tribunal - Hyderabad
S.A.Khaliq Pasha vs Union Of India on 1 October, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL: HYDERABAD BENCH: HYDERABAD
O.A.No.480 of 2008
Date of Order:01.10.2008
Between:
S.A.Khaliq Pasha, s/o late Syed Khasim Ali,
occ:Asst. Central Intelligence Officer-II(Retd.),
Adilabad, r/o H.No.4-4-120/8/10, Sanjay Nagar,
Adilabad, District Adilabad, A.P. ..Applicant
a n d
1. Union of India, rep., by its
Assistant Director/G, Intelligence Bureau,
M/o Home Affairs, Govt. of India, New Delhi.
2. Deputy Director/G, Subsidiary Intelligence
Bureau, Government of India, Sultan Bazar,
Hyderabad.
3. Assistant Director/G, Subsidiary Intelligence
Bureau, Government of India, Sultan Bazar,
Hyderabad. ..Respondents
Counsel for the Applicant : Mr.K.Sudhakar Reddy
Counsel for the Respondents : Mr.G.Jayaprakash Babu, Sr.CGSC
CORAM:
THE HON'BLE MR.JUSTICE P.LAKSHMANA REDDY , VICE CHAIRMAN
: ORAL ORDER :
(As per Hon'ble Mr.Justice.P.Lakshmana Reddy, Vice Chairman) Heard Mr.K.Sudhakar Reddy, the learned Counsel for the Applicant and Mr.G.Jayaprakash Babu, the learned Sr. Central Govt. Standing Counsel for the Respondents.
2. This application is filed seeking to set aside the impugned order No.2/Est/PC/2007/(27)-110, dated 8.1.2008 issued by the Respondent no.1 as illegal and arbitrary, and for a consequential direction to the respondents to pay retirement dues of the applicant such as DCRG, leave encashment, commutated value of pension etc., with a penal interest of 24% per annum from the date of retirement to the date of actual payment.
3. The relevant facts in brief are as follows:
The applicant was originally appointed by the AP State as a Police Constable. Later he was promoted as Head Constable. While the applicant was working as Head Constable in the AP State Police Force in Adilabad District, the Ministry of Home Affairs, Intelligence Bureau, took the applicant on deputation on 9.3.1992 for a period of 5 years. When the applicant was working in Intelligence Bureau, he was promoted to the higher post of Assistant Central Intelligence Officer-II. After completion of 5 years, the matter was moved for his absorption and the applicant was asked to give his consent for which the applicant gave his consent immediately. The DG of Police of Andhra Pradesh State has also intimated that he has no objection for absorption of the applicant in the Intelligence Bureau. But, later the State Government sent another memo dated 7.3.2002 stating that there is no provision in F.Rs for permanent absorption on the Government of India. When the applicant approached this Tribunal by filing OA.No.234/2004 challenging the order dated 17.4.2003 and memo dated 11.6.2003 and seeking for a direction to the respondent-authorities to treat the applicant as permanently absorbed employee of intelligence Bureau, Government of India, and to continue the applicant in service up to 30.4.2006 by giving all his promotions due with all consequential benefits, this Tribunal passed an interim order directing the respondents to continue the applicant with the Intelligence Bureau pending disposal of the OA. Later on 31.8.2004, this Tribunal disposed of the OA with a direction to the respondents to permit absorption of the applicant with the Intelligence Bureau with retrospective effect and made the interim orders absolute and further directed the respondents to absorb the applicant into Intelligence Bureau on continued basis and his salary should be paid by the Central Government. Thereafter, the Union of India filed a review application in RA.No.760/2004 and the said application was dismissed by this Tribunal on 6.1.2005. Aggrieved by those two orders dated 31.8.2004 and 6.1.2005, the Union of India filed two separate Writ Petitions bearing W.P.Nos.18518/2004 and 3814/2005 respectively, impleading the present applicant as first respondent and the DG of Police, A.P.State, Hyderabad, as 2nd respondent. The Hon'ble A.P.High Court dismissed both the Writ Petitions on 17.3.2005 by a Common Order and directed that the first respondent shall be continued in service of the Intelligence Bureau until he attains the age of 60 years. Accordingly, the applicant was continued in service till he attained the age of 60 years ie., till 30.4.2006. Subsequently, the Union of India filed SLP with delay condonation petition before the Hon'ble Supreme Court and the Hon'ble Supreme Court condoned the delay and ordered notice, and also granted interim stay in the meanwhile on 23.9.2005. Thereafter, pending the SLP, the applicant attained superannuation on 30.4.2006 and retired. But the Union of India refused to pay the retiral benefits to the applicant on the ground that the matter relating to absorption of the applicant is pending before the Hon'ble Apex Court in SLP. On 6.10.2006, the Subsidiary Intelligence Bureau, Government of India, Hyderabad, issued a memorandum to the applicant stating that the applicant retired from service on superannuation with effect from the afternoon of 30.4.2006, and therefore, he may submit the following documents (in triplicate) for processing his pensionary benefits:
(i) Details of Family in Form-3;
(ii) Particulars in Form-5;
(iii) Nomination for commutation of pension in Form-5;
(iv) Part-I for commutation of pension (40%);
(v) 3-Specimen signatures on a separate sheet of paper duly attested by gazetted officer.
(iv) Particulars of Height and personal identification marks duly attested by gazetted officer.
(vii) Four copies of passport size joint photograph with his wife.
Accordingly, the applicant submitted the above said documents as required by Union of India on the same day. Thereafter, the applicant received a letter dated 27.6.2007 from the Ministry of Home Affairs, Government of India, wherein the Assistant Director, Intelligence Bureau, stated that the DCRG, Commuted Value of Pension etc., cannot be paid in terms of Rule 69 of CCS (Pension) Rules, 1972 till the final outcome of the SLP filed by the Department in the Hon'ble Supreme Court. On 22.11.2007, the applicant submitted a representation stating that the litigation in the Supreme Court is not relating to any offence neither any penalty nor any punishment would be imposed by the Hon'ble Supreme Court and that if the Hon'ble Supreme Court decides the matter in favour of the Union of India, the applicant will be deprived of the benefits of two years i.e., 60 years of age and that the issue of two years service benefit is causing loss of his entire retirement benefit and that as a retired Government servant, he is facing lot of problems and that he paid 30% amount for L.I.G. House No.42 at C.C.C. Naspur Colony of Adilabad District in Andhra Pradesh State and the Housing Board authority gave him last chance for final payment of remaining 70% amount failing which he will loose the 30% amount, which he already paid and he has no house to stay with his family and he has to fix the amount on the name of his three daughters as he may not be surviving long time as he is undergoing treatment. Thereafter, the Assistant Director, Intelligence Bureau, M/o Home Affairs, Govt. of India, New Delhi, passed the impugned order dated 8.1.2008 stating as under:
"Please refer to your letter dated 22.11.2007 to Assistant Director, IB, New Delhi, regarding request for payment of gratuity and all other retirement benefits.
2. Judicial Proceedings are pending in the Apex Court, against the orders of CAT, Hyderabad and High Court, Andhra Pradesh, directing the department to absorb Shri Pasha in the IB. The case is still subjudice. There is no provision under Rule 69 of CCS (Pension) Rules to pay gratuity when judicial proceeding is pending, concerning the retired Government employee. Therefore, gratuity and other retirement benefits cannot be paid to you, until conclusion of judicial proceedings and issue of final order thereon."
Aggrieved by the same, the present application is filed contending that the denial of retirement benefits to the applicant is illegal and arbitrary. The respondents ought to have seen that withholding of pensionary benefits can be resorted to only in case of any criminal or departmental misconduct committed by the Government servant during his service and the department/criminal proceedings continues after his retirement. The respondents ought to have seen that they cannot invoke the provisions of Rule No.69 of CCS (Pension) Rules for withholding the pensionary benefits to the applicant. The respondents ought to have seen that the applicant has been facing innumerable sufferings on account of non-payment of his retiral benefits. The marriage of his grown up daughters has been delayed due to non-payment of his retiral benefits. Besides the above, the applicant and his wife are not doing well and are undergoing medical treatment for their ill-health. The applicant has no other source of income except his pension and his savings in the form of PF, DCRG etc., which are withheld by the respondents. The respondents ought to have seen that there is no stay on the Orders of the Hon'ble High Court and the respondents have allowed the applicant to continue in service until the age of his superannuation upto 30.4.2006, the date on which the applicant was declared to have been retired from service. The respondents ought to have seen that this Tribunal as well as the Hon'ble High Court of A.P. had also considered the case on merits and had held that the action of the respondents is irregular and illegal. The applicant prayed for setting aside the impugned letter dated 8.1.2008 issued by the respondent no.1 and for a direction to the respondents to pay retirement benefits of the applicant such as DCRG, Leave Encashment, Commuted Value of Pension etc., with a penal interest of 24% per annum from the date of retirement to the date of actual payment.
4. The respondents 1 to 3 contested the application and filed common reply statement stating that the Apex Court granted interim stay, vide its order dated 23.9.2005 and the applicant was sanctioned provisional pension with effect from 1.5.2006 till the final outcome of the SLP pending before the Hon'ble Supreme Court of India. The absorption of a deputationist in the borrowing department is subject to a tripartite agreement among the lending department, borrowing department and concerned individual. The absence of the consent of anyone of the three that cannot be entered into. In the instant case, the lending department failed to provide the NOC for absorption of the applicant. The respondents further stated that Rule 69 of CCS (Pension) Rules clearly provides that no gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders. In the instant case, the proceedings are still pending in the Hon'ble Supreme Court and the matter is subjudice. In other words, it is to be decided whether the applicant is to be absorbed in the Intelligence Bureau even without the NOC from the lending department. This will ultimately decide the quantum of the retirement benefits and the authority who would pay the retirement benefits to the applicant. Therefore, there is no arbitrariness in denying the retirement benefits to the applicant and the said denial is in accordance with the provisions of CCS (Pension) Rules.
The respondents further stated that no departmental proceedings are pending against the applicant and only judicial proceedings are pending against him and that the provisions of Rule 69 of CCS (Pension) Rules do not differentiate between different types of judicial proceedings. Rule 69 only states that when judicial proceedings are pending against a Government employee, no gratuity shall be paid to the Government employee. As regards the payment of commuted value of pension, as per the CCS (Pension) Rules, 1972, the provisional pension cannot be fixed till the final out come of the SLP before the Hon'ble Supreme Court. Hence, there are no merits in this application and the application is liable to be dismissed.
5. During the course of hearing, the learned Counsel for the Applicant contended that the applicant is now seriously ill and he is unable to meet his medical expenses with his provisional pension and that he has to perform the marriage of his three daughters and he is in financial miserable condition and that his retiral benefits have been illegally withheld on account of a dispute between the two Governments viz., State and the Central Government, and that for no fault of the applicant, he has been unjustly denied the retiral benefits and that even if ultimately the Union of India wins the case in the Hon'ble Supreme Court, it does not in any way effect the pensionary benefits of the applicant and that Rule 69 does not at all come into play in this case and the judicial proceedings referred to therein relate only to the criminal cases, if any, which may have bearing on the retiral benefits and that in the instant case, the litigation before the Hon'ble Supreme Court is not in respect of the issue relating to the entitlement or otherwise of the applicant for his retirement benefits. He further submitted that admittedly, the applicant served for 15 years in the Union of India till his date of retirement and that the pension papers were also processed by the Union of India and further the provisional pension is being paid only by Union of India, and therefore, there is absolutely no justification for not paying the DCRG, Leave Encashment and Commuted Value of Pension etc., to him. He further submitted that if ultimately the Union of India succeeds and the Hon'ble Supreme Court holds that the applicant cannot be absorbed, the retiral benefits of the applicant cannot be denied and that it only determines as to who has to pay the retiral benefits whether State Government or Central Government. On account of pendency of such a proceeding, the applicant cannot be penalized by withholding his retiral benefits and causing irreparable loss to the applicant.
6. The learned Counsel for the Central Government reiterated the contentions raised in the reply. He submitted that Rule 69 of the CCS (Pension) Rules clearly provides that no gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders, and therefore, the respondents are justified in withholding the retiral benefits other than provisional pension pending disposal of the SLP before the Hon'ble Supreme Court. He submitted that the SLP pending before the Hon'ble Supreme Court comes under the judicial proceedings mentioned in Rule 69 of CCS (Pension) Rules.
7. The points that arise for consideration in this application is -
(i) Whether the applicant is entitled for DCRG, Leave Encashment and Commutation of Pension irrespective of the pendency of the SLP ?
(ii) Whether the impugned order is sustainable in law ? and
(iii) To what result ?
8. Points (i) and (ii):
As the respondents rejected the representation of the applicant placing reliance on Rule 69 of CCS (Pension) Rules, it is useful to extract Rule 69 of the CCS (Pension) Rules for better appreciation, which is as under:
"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 that 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 benefit 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."
9. The respondents mainly relied on the word "judicial proceedings" mentioned in Rule 69 (c).
10. The learned Counsel for the Applicant contended that the judicial proceedings referred to therein relate to the criminal cases pending against the employee. While, according to the learned Counsel for the Respondents, there is no such differentiation between criminal proceedings and the proceedings before the Hon'ble Supreme Court. Clause (c) of Rule 69 of CCS (Pension) Rules, shall be read along with the proviso and also along with Rule 69 (2). If they are read together, it is clear that the judicial proceedings referred to therein relate to the disciplinary proceedings or criminal proceedings, which are likely to affect the retiral benefits of the employee.
11. Here, in the instant case, the respondents have admitted in the reply that there are no disciplinary proceedings either minor penalty proceedings or major penalty proceedings against the applicant. As seen from Rule 69(c), if any minor penalty proceedings are pending against the applicant, his gratuity amount shall not be withheld and that only in case where major penalty proceedings are pending, the DCRG amount can be withheld.
12. From this, it is clear that only in case where the applicant's retiral benefits are likely to be affected, the DCRG amount can be withheld. Here, in the instant case, irrespective of the result in the SLP, the applicant is entitled for all his retiral benefits. But, at the most, the quantum of retiral benefits may vary to some extent in case the applicant is found not an employee of the Central Govt. and similarly the authority by whom is to be paid may vary. So far as the applicant is concerned, he has to get his retiral benefits either from the Central Government or the State Government. In other words, the judicial proceedings before the Hon'ble Supreme Court is only between Union of India and the A.P. State Government. The dispute is mainly between the State Govt. and the Union of India. On account of pendency of such dispute, the applicant cannot be denied the retiral benefits. But, for no fault of the applicant, he is denied the retiral benefits. It is most unfortunate that an employee, who has got three unmarried daughters and who has got no house of his own, has been unnecessarily denied the retiral benefits and has been put to undue hardship. Further, it is not disputed that the respondents themselves issued a memorandum directing the applicant to furnish the required particulars and the pension papers for processing his pension as long back as on 6.10.2006. By then, admittedly, the SLP was pending. Inspite of the pendency of the SLP, the applicant was asked to furnish the details of his family particulars in From-5, nomination of commutation of pension etc.,. In fact, it is the Union Government, which is paying the provisional pension as the applicant retired while he was serving Union of India. After the applicant furnishing the required documents, the respondents have illegally applied Rule 69 to deny the retiral benefits on the ground that the judicial proceedings are pending before the Hon'ble Supreme Court.
13. In my considered view, a belated stand taken by the respondents herein is not in accordance with the law, and therefore, the impugned orders of denial of retiral benefits to the applicant on the ground that judicial proceedings are pending before the Hon'ble Supreme Court is liable to be set aside and the respondents are to be directed to pay all the retiral benefits duly taking his date of retirement as 30.4.2006. Admittedly, it is the respondents who are paying provisional pension subject to the result of the SLP. Therefore, all the retirement benefits also ought to have been paid subject to the same condition. In case it is found that the applicant is paid excess quantum of benefits, the respondents are entitled to recover the same after the disposal of SLP. But there is no justification to deny the retiral benefits in a case like this. Thus, both the points are found in favour of the applicant.
14. In the result, the OA is allowed and the impugned order dated 8.1.2008 is set aside and the respondents are directed to pay all the retiral benefits as prayed for in the application subject to the same condition under which the provisional pension is being granted. The applicant is entitled for interest in accordance with the CCS (Pension) Rules. The payment of retiral benefits shall be implemented within three months. The 3/4th of the retiral benefits shall be paid within One month as the applicant is said to be suffering from ill-health and unable to meet his medical expenses. The balance shall be paid within two months thereafter.
( P.LAKSHMANA REDDY ) Vice-Chairman Dated:this the 1st day of October, 2008 Dictated in the Open Court ******