Central Administrative Tribunal - Delhi
P.K.Mehra vs Chief Secretary on 16 December, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.1663 OF 2013 New Delhi, this the 16th day of December, 2014 CORAM: HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER .. P.K.Mehra, Suptd./CPDO (Retd.), Department of Social Welfare, R/o Vill & PO-Kaganheri, Near BSF Cantt. Chawla, New Delhi 110071 . Applicant (By Advocate: Mr. P.C.Mishra) Vs. 1. Chief Secretary, Govt. of NCT of Delhi, 5th Level, Delhi Secretariat, I.P.Estate, New Delhi 2. Director, Social Welfare, Govt. of NCT of Delhi, GLNS Complex, Feroz Shah Kotla, Delhi Gate, Delhi .. Respondents (By Advocate: Mr.Anmol Pandita for Mr.Vijaya Pandita) . ORDER
In this Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for a direction to the respondents to sanction and pay him leave encashment with interest @ 12% per annum till the date of payment.
2. Brief facts: The applicant, while working as Superintendent/CDPO in the Social Welfare Department, Government of NCT of Delhi, retired on 31.5.2008 on attaining the age of superannuation. As the respondent-Department failed to pay him leave encashment, the applicant made a representation dated 18.4.2012 (Annexure 1) to the respondent-Department for payment of leave encashment as per the provisions of Rule 39(2)(a) of the CCS (Leave) Rules,1972 and also for payment of interest thereon @ 12% per annum. There being no response, he had filed OA No.1507 of 2012. The Tribunal, vide order dated 8.5.2012(Annexure A/2), directed the respondents to take a decision on the applicants representation dated 18.4.2012 within a period of four weeks. Thereafter, the respondent-Department sanctioned Rs.2, 86, 830/- towards leave encashment, vide order dated 14.9.2012 (AnnexureA/4), without any interest thereon. Hence the applicant has filed the present O.A.
3. In support of his claim for interest on delayed payment of leave encashment, the applicant has relied on the decision of the Tribunal in Rajeshwari Chauhan v. Chief Secretary, Govt. of NCT of Delhi and others, OA No. 3322 of 2011, decided on 31.1.2012 (Annexure A/5).
4. Opposing the claim of the applicant, the respondents filed a counter reply on 20.12.2013. Subsequently, the respondents filed MA No.1585 of 2014 praying for permission to amend the counter reply filed on 20.12.2013. The said MA No.1585 of 2014 was allowed by the Tribunal, vide order dated 23.9.2014, and the amended counter reply filed along with the MA No.1585 of 2014 was taken on record.
5. In the amended counter reply filed on 16.5.2014, the respondents have stated that in criminal case FIR No.40/2004, the Special Judge(ACB), Tis Hazari Court, found the applicant guilty and convicted him. Charge memo dated 26.5.2008 for imposition of major penalty was issued to the applicant. The Ministry of Home Affairs issued Memo dated 10.5.2013 proposing to impose on applicant the penalty of withholding 100% pension as well as forfeiture of his full gratuity in terms of Rule 9 of the CCS (Pension) Rules and giving an opportunity to the applicant of making representation on the proposed penalty within ten days of receipt of the said Memo. Thereafter, the order dated 5.12.2013 imposing the said penalty on the applicant was issued by virtue of power vested under Rule 9 of the CCS (Pension) Rules. Leave encashment was not allowed on the presumption that the penalty of cut in earned leave encashment might also be imposed on the applicant. However, in compliance with the Tribunals order dated 8.5.2012, speaking order was passed for release of earned leave encashment of the applicant was sanctioned and paid, vide sanction order dated 14.9.2012.
5.1 The applicant was facing two enquiry proceedings under Rule 14 of the CCS (CCA) Rules, 1965, vide charge sheets dated 10.6.2004 and 26.5.2008 for committing irregularities in financial matters. In the charge sheet dated 26.5.2008 the applicant was charged for misappropriation of Government funds amounting to Rs.10,66,959/- by forging documents. In connection with the incident, FIR No.40 of 2004 was also filed against the applicant under Section 15 of the P.C.Act and Sections 120B, 420 and 511 of the Indian Penal Code, at the PS ACB, GNCT of Delhi. The applicant was convicted by the Special Judge (ACB), Tis Hazari Courts, Deli, vide order dated 11.9.2012 sentencing him to undergo R.I. and pay fine. Since the applicant had retired from Government service on 31.5.2008, the Government of India imposed penalty of 100% cut in both pension and gratuity under Rule 9 of CCS (Pension) Rules. In the charge sheet dated 10.6.2004, the charge against the applicant was that while he was working as DDO/HOO in ICDS, Sultanpuri, he did not disburse an amount of Rs.6,95,321/- on the same day of its drawal from the Reserve Bank of India, in clear violation of Rules 11(3) and 100(2) of the Central Government Accounts (R&P) Rules. In view of the above, there was a possibility of some money becoming recoverable from him on the conclusion of the aforesaid two disciplinary proceedings and hence the leave encashment was withheld on the date of retirement, i.e., 31.5.2008. It is, therefore, prayed by the respondents that the O.A. be dismissed with costs.
6. Refuting the stand taken by the respondents, the applicant has filed a rejoinder reply wherein it is, inter alia, stated that in the absence of any order being issued by the competent authority withholding the leave encashment amount, the applicant is entitled to interest on delayed payment of the leave encashment. The penalty imposed by the respondents, vide order dated 16.7.2013 is under challenge by the applicant in OA No. 648 of 2014 which is sub judice. The penalty order dated 5.12.2013 is under challenge vide O.A.No.1602 of 2014 and sub judice before the Tribunal.
6.1 In support of his claim for interest on delayed payment of encashment, the applicant has placed reliance on the decision of the Honble Supreme Court in State of Jharkhand v. Jitender Kr.Srivastava, AIR 2013 SC 3383; and the decision of the Honble High Court of Delhi in W.P. (C ) No. 1227 of 2012, Delhi Police v. Balwant Singh upholding the Tribunals order passed in OA No.3933 of 2010. In the said case, the Honble High Court also relied on the decision of the Honble Supreme Court in Vijay Mehrotra v. State of U.P, JT 2000(5) SC 171 wherein the Honble Court awarded 18% interest per annum on leave encashment and other pensionary benefits.
6.2 In view of the above, the applicant has prayed that the Tribunal may graciously be pleased to allow the O.A. and award interest 12% per annum on the delayed payment of leave encashment.
7. Before proceeding further, I would like to deal with the decisions cited by the applicant.
7.1 In Vijay L.Mehrotra v. State of U.P.& ors, JT 2000(5) SC 171, the Honble Apex Court passed the following order:
ORDER
1. Special leave granted limited to the question of granting interest.
2. The appellant retired from service on 31st August 1997. From the response filed by the respondent, it is clear that most of the payments of the retiral benefits to her were made long after she retired on 31st August,1997. The details of the payments so made are as under:
Sl.No. Particulars Amount paid Date
i) GPF 90% Rs.1,80,899.00 27.11.1997
ii) GPF 10% Rs.20,751.00 25.04.1998
iii) GIS Rs.13,179.00 27.02.1998
iv) Encashment of Leave Rs.41,358.00 27.09.1998
v) Arrears of pay Rs.15,496.00 27.09.1998
vi) Gratuity Rs.1,09,753.00 05.12.1998
vii) Commuted Pension Rs.20,484.00 05.12.1998
viii) Detained amount Rs.45,000.00 05.11.1999
3. In case of an employee retiring after having rendered service, it is expected that all the payment of the retiral benefits should be paid on the date of retirement or soon thereafter if for some unforeseen circumstances the payments could not be made on the date of retirement.
4. In this case, there is absolutely no reason or justification for not making the payments for months together. We, therefore, direct the respondent to pay the appellant within 12 weeks from today simple interest at the rate of 18% per cent with effect from the date of her retirement i.e. 31st August, 1997 till the date of payments.
5. The appeal is allowed to the above extent. 7.2 In State of Jharkhand & ors v. Jitendra Kumar Srivastava & another, AIR 2013 SC 3383, the respondent in SLP (Civil) No.1427 of 2009 was working in the Department of Animal Husbandry and Fisheries. He joined the said Department in the Government of Bihar on 2.11.1966. On 16.4.1996, two cases were registered against him under various Sections of the Indian Penal Code as well as Prevention of Corruption Act, alleging serious financial irregularities during the years 1990-91 and 1991-92 when he was posted as Artificial Insemination Officer, Ranchi. On promulgation of the Bihar Reorganization Act, 2000, State of Jharkhand came into existence and the respondent became the employee of the appellant-State. Prosecutions in respect of the two criminal cases against the respondent were pending. On 30.1.2002, the appellant-State also ordered initiation of disciplinary action against him. While these proceedings were still pending, on attaining the age of superannuation, the respondent retired from the post of Artificial Insemination Officer, Ranchi, on 31.8.2002. The appellant-State sanctioned the release and payment of GPF on 25.5.2003. Thereafter, on 18.3.2004, the appellant sanctioned 90 per cent provisional pension to the respondent. Remaining 10 percent pension and salary of his suspension period (30.1.2002 to 30.8.2002) was withheld pending outcome of the criminal cases/departmental inquiry against him. He was also not paid leave encashment and gratuity. Feeling aggrieved with this action of the withholding of his 10 percent of the pension and non-release of other retirement dues, the respondent preferred the writ petition before the Honble High Court of Jharkhand. This writ petition was disposed of by the High Court by remitting the case back to the Department to decide the claim of the petitioner for payment of provisional pension, gratuity, etc., in terms of Resolution No.3014 dated 31.7.1980. The appellant-State, thereafter considered the representation of the respondent but rejected the same vide order dated 16.3.2006. The respondent challenged the rejection by filing another writ petition. The said petition was dismissed by the learned Single Judge. The respondent filed Intra Court Appeal which was allowed by the Division Bench vide the impugned order dated 31.10.2007. The Division Bench has held that the question is squarely covered by the Full Bench decision of that Court in the case of Dr.Dudh Nath Pandey v. State of Jharkhand and Ors, 2007(4) JCR 1: (2008 (1) AIR Jhar R 353). In the said Full Bench Judgment, after a detailed discussion on the various nuances of the subject matter, the Honble High Court held:
To sum up the answer for the two questions are as follows:
(i) Under Rule 43(a) and 43(b) of Bihar Pension Rules, there is no power for the Government to withhold Gratuity and Pension during the pendency of the departmental proceeding or criminal proceeding. It does not give any power to withhold Leave Encashment at any stage either prior to the proceeding or after conclusion of the Proceeding.
(ii) The circular, issued by the Finance Department, referring to the withholding of the leave encashment would not apply to the present facts of the case as it has no sanctity of law.
In Paragraph 9 of the judgment, the Honble Supreme Court held thus:
(i) The state Government has the power to withhold or withdraw pension or any part of it when the petitioner is found to be guilty of grave misconduct either in a departmental proceeding or judicial proceeding.
(ii) This provision does not empower the State to invoke the said power while the departmental proceeding or judicial proceeding are pending.
(iii) The power of withholding leave encashment is not provided under this rule to the State irrespective of the result of the above proceedings.
(iv) This power can be invoked only when the proceedings are concluded finding guilty and not before. In Paragraphs 14 and 15 of the judgment, the Honble Supreme Court held thus:
14. Article 300A of the Constitution of India reads as under:
300A. Persons not to be deprived of property save by authority of law.-No person shall be deprived of his property save by authority of law. Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instructions cannot be countenanced.
15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as law within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different. 7.3 In Balwant Singh v. Delhi Police, OA No.3933 of 2010, decided on 19.5.2011, the applicants claim for interest on delayed payment of leave encashment was rejected by the respondent on the ground that there was no provision in the leave rules for grant of interest. This plea of the respondent was rejected by the Tribunal and the respondent was directed to pay interest on leave encashment. W.P. ( C ) No.1227 of 2012 filed by Delhi Police against the Tribunals order dated 19.5.2011 was dismissed by the Honble High Court of Delhi upholding the view taken by the Tribunal.
7.4 In Rajeshwari Chauhan v. Chief Secretary, Government of NCT Delhi & others, OA No.3322 of 2011, decided on 31.1.2012, the applicant retired from service on 30.4.2010. The leave encashment payable to him was withheld by the respondents because of registration of two FIRs by the Anti Corruption Branch against the applicant on 24.6.2008 and 2.2.2009. It was held by the Tribunal that judicial proceedings are not deemed to have been initiated against the applicant by mere filing of FIR and that withholding of leave encashment benefits which became due and payable to the applicant on retirement on 30.4.2010 does not satisfy the requirement of Rule 39 of the CCS (Leave) Rules, 1972.
8. From the perusal of the records, the following admitted facts emerge:
(1) On 10.6.2004, Charge memo was issued to the applicant on the allegations that while working as DDO/HOO in ICDS-Sultanpuri, he withdrew amount of Rs.6,95,324/- from Reserve Bank of India without ensuring its actual disbursement on the same day, which was in violation of the provisions of Rules 11(3) and 100(2) of the Central Government Accounts (R&P) Rules, 1983; that he did not sign the cash book on day to day basis as required under the rules; that he got the cash book written from a person other than the cashier in violation of rules; and that he did not take adequate measures for security of cash.
(2) On 5.8.2004, FIR No.40/04 was registered by the Anti Corruption Branch P.S., GNCT of Delhi, against the applicant and others alleging commission of offences under Section 15 of the Prevention of Corruption Act, 1988 and Sections 120-B, 420 and 511 of the Indian Penal Code.
(3) On 26.5.2008, Charge memo was issued to the applicant on the allegation that while functioning as Superintendent, Children Home for Boys, Home for Aged & Infirm Persons and After Care Home for Boys, Narela, Delhi 110040 during the year 2003-04, he committed gross misconduct inasmuch as he had maliciously abused his official position in connivance with a private contractor, attempted to cheat and misappropriate the Government funds to the tune of Rs.10,66,959.50 for pecuniary gains by using forged documents in the matter of award of work for white washing and paints of the rented complexes; that he had awarded the contract for white washing and paints to a private contractor without the approval of the competent authority thereby transgressing his jurisdiction; and that he did not follow the prescribed procedure for the said work and violated the provisions of the GFR.
(4) On 12.1.2007, CC No.04/07 (arising out of FIR No.40/04) was registered in the court of the Special Judge (ACB), Delhi, against the applicant and another for alleged commission of offences under Section 15 of the Prevention of Corruption Act, 1988 and Sections 120-B, 420 and 511 of the Indian Penal Code.
(5) On 31.5.2008, the applicant retired from service on attaining the age of superannuation.
(6) On 8.5.2012 the Tribunal, vide order dated 8.5.2012 passed in OA No.1507 of 2012, directed the respondents to take decision on the applicants representation dated 18.4.2012 for releasing leave encashment.
(7) On 11.9.2012 the Special Judge (ACB), Delhi, passed judgment finding the applicant guilty and convicting him for committing offences under Section 15 of the Prevention of Corruption Act, 1988 read with Sections 120-B/420/511 IPC. Accordingly, the Special Judge sentenced the applicant to undergo RI for a period of one year and to pay fine of Rs.4000/- under Section 15 of the Prevention of Corruption Act, 1988 and in default of payment of fine, to undergo SI for a period of four months. The applicant was further sentenced to undergo RI for a period of one year and to pay fine of Rs.4000/- under Section 120-B IPC and in default of payment of fine, to undergo SI for a period of four months. The applicant was further sentenced to undergo RI for a period of one year and to pay fine of Rs.4000/- under Section 420 IPC read with Section 511 IPC and in default of payment of fine, to undergo SI for a period of four months.
(8) On 14.9.2012, the respondent-Department, vide sanction order dated 14.9.2012, sanctioned leave encashment for Rs.2,86,830/- in favour of the applicant.
(7) On 16.7.2013 order was issued in the name of the President imposing on applicant the penalty of 20% cut in monthly pension for a period of two years and a 10% cut in gratuity. This penalty was imposed on the applicant upon conclusion of the enquiry initiated against the applicant under Rule 14 of the CCS (CCA)Rules, vide charge memo dated 10.6.2004, and continued under Rule 9 of the CCS (Pension) Rules, 1972.
(8) On 5.12.2013 order was issued in the name of the President imposing on applicant the penalty of withholding of 100% of monthly pension and further 100% of gratuity admissible to him. This penalty was imposed on the applicant in view of the judgment of conviction passed by the Special Judge (ACB), Delhi, as referred to earlier.
9. Rule 39(3) of the CCS (Leave) Rules, 1972 reads thus:
(3) The authority competent to grant leave may withhold whole or part of cash equivalent of earned leave in the case of a Government servant who retires from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion of the proceedings, he will become eligible to the amount so withheld after adjust of Government dues, if any.
10. Admittedly, prior to the date of retirement of the applicant on attaining the age of superannuation, i.e., 31.5.2008, two disciplinary proceedings pursuant to the charge memorandums dated 10.6.2004 and 26.5.2008 were not only pending against the applicant for imposition of major penalty, but also criminal proceedings vide CC No.04/2007 corresponding to FIR No.40/04 dated 5.8.2004 were pending against him. Considering the nature of accusations levelled against the applicant in both the disciplinary proceedings as well as the criminal proceedings, it could safely be concluded that there was possibility of some money becoming recoverable from the applicant on conclusion of the said disciplinary proceedings as well as criminal proceedings. Therefore, the provisions contained in Rule 39(3) of the CCS (Leave) Rules, 1972 were clearly attracted to the case of the applicant, and the authority competent to grant cash equivalent to earned leave in the case of the applicant could withhold the leave encashment payable to the applicant under the said provisions. It is not stipulated in Rule 39(3) of the CCS (Leave) Rules, 1972 that the competent authority has to withhold the leave encashment only after passing an order to that effect. On the facts and in the circumstances of the present case, it has to be inferred that the competent authority being of the view that there is a possibility of some money becoming recoverable from the applicant withheld the leave encashment of the applicant until conclusion of the disciplinary and criminal proceedings, which were pending on the date of retirement of the applicant. Although the competent authority did not pass an order, which, as pointed out above, is not explicitly prescribed in Rule 39(3) of the CCS (Leave) Rules, 1972, yet, in my considered view, the withholding of the leave encashment of the applicant, in the facts and circumstances of the present case, cannot be said to be vitiated. Hence, the leave encashment of the applicant having been withheld under Rule 39(2) of the CCS (Leave) Rules, 1972 until conclusion of the disciplinary proceedings, as well as criminal proceedings, in which the judgment of conviction and sentence was passed by the Special Judge (ACB), Delhi, on 11.9.2012, and the leave encashment amount having been paid to the applicant on 14.9.2012, I am of the firm view that the applicant is not entitled to interest on leave encashment amount from the date of his retirement till the actual date of appointment. Consequently, I do not find any substance in the contention of the applicant that in the absence of any order being issued by the competent authority withholding the leave encashment, the applicant cannot be denied interest on leave encashment from the date of his retirement till the date of its actual payment.
11. In Vijay L.Mehrotras case (supra), there were no disciplinary and criminal proceedings pending against him on the date of his retirement. In Jitendra Kumar Srivastavas case (supra), though two criminal proceedings were pending against him for alleged commission of offences under the Indian Penal Code as well as Prevention of Corruption Act on the date of his retirement, yet the respondent was governed by the Bihar Pension Rules, in which there was no provision empowering the authority to withhold leave encashment, and the appellant-State withheld his leave encashment on the basis of administrative instruction, and the Honble Supreme Court held that withholding of the leave encashment without any statutory provision and under the umbrage of administrative instructions could not be countenanced. In Balwant Singhs case (supra), the applicants claim for interest on delayed payment of leave encashment was rejected by the respondent on the ground that there was no provision in the leave rules for grant of interest. The Tribunal rejecting the said plea directed the respondent to pay interest. The writ petition filed against the Tribunals order was dismissed by the Honble High Court of Delhi. In Rajeshwari Chauhans case (supra), the respondent withheld the leave encashment of the applicant as an FIR was lodged against her. The Tribunal held that mere filing of an FIR against the applicant prior to the date of her retirement did not satisfy the requirement of Rule 39 of the CCS (Leave)Rules, 1972, inasmuch as no criminal case could be said to be pending against the applicant on the basis of filing of the said FIR in the absence of any charge sheet being filed by the police or any charge being framed by the court against the applicant. As noted in the preceding paragraphs, the facts and circumstances of the instant case are totally different from those of the cases cited by the learned counsel appearing for the applicant and, therefore, those decisions are of no help to the case of the applicant.
12. In the light of the above discussions, I hold that the applicant has not been able to make out a case for the relief claimed by him in the O.A. Accordingly, the OA being devoid of merit is dismissed. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER AN