Central Administrative Tribunal - Delhi
Kamal Ram Meena vs Union Of India on 21 November, 2013
Central Administrative Tribunal
Principal Bench
Reserved on : 19.09.2013
Pronounced on : 21.11.2013
OA No.4109/2012
Honble Mr. Justice Syed Rafat Alam, Chairman
Kamal Ram Meena
S/o Late Ganga Sahay Meena
R/o DA-101-C, DDA Flats,
Hari Nagar,
New Delhi-64. Applicant.
(By Advocate : Sh. S. C. Sagar)
versus
1. Union of India
Through Secretary
Ministry of Home Affairs,
Government of India,
O/o Pay & Account officer-II,
Delhi Police, Man Singh Road,
New Delhi.
2. Government of NCT of Delhi
Players Building, Delhi Secretariat,
New Delhi 110 002.
(Through its Chief Secretary).
3. The Commissioner of Police
Delhi Police, PHQ,
New Delhi 110 002. . Respondents.
(By Advocate : Sh. Vijay Pandita)
: O R D E R :
The applicant, a retired Police Officer, by means of this Application has invoked the jurisdiction of this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, for issuance of a direction commanding the respondents to release his full pension, gratuity and other retiral benefits with interest @18% per annum w.e.f. 31.12.2010, the date of his retirement.
2. I have heard Sh. S. C. Sagar, learned counsel for the applicant and Sh. Vijay Padita, learned counsel for the respondents.
3. It appears that the applicant after rendering long satisfactory service was allowed to retire on attaining the age of superannuation w.e.f. 31.12.2010 from the post of Assistant Commissioner of Police (Security Unit)/DANICS. It further appears that because of his involvement in a criminal case vide FIR No.669/09 dated 28.10.2009 u/s 402/323/342/504 IPC, PS Gangapur City, Distt. Sawai Madhopur, Rajasthan, he was not allowed to get regular pension and other retiral benefits in view of the provisions contained in Rule 69 of CCS (Pension) Rules, 1972. However, provisional pension was sanctioned vide order dated 29.12.2010 w.e.f. 1.01.2011. The Respondent No.3 informed Respondent No.1 about the pendency of aforesaid case vide letter dated 11.01.2011 (Annexure-C). Respondent No.3 further informed Respondent No.2 that though no departmental enquiry or PE/Vigilance Enquiry is pending against the applicant nor his name exist on D.I. list of Officers, but he is involved in the aforesaid criminal case and, therefore, requested that vigilance clearance report be obtained in respect of the applicant and be sent immediately to Respondent No.3 in order to forward the same to the concerned Pay & Accounts Officer. The Respondent No.2 informed Respondent No.3 vide letter dated 25.03.2011 (Annexure-D) that as per information received from MHA vigilance clearance had been accorded for the purpose of applicants pension on retirement on superannuation w.e.f. 31.12.2010. However, Respondent No.3 sought fresh vigilance clearance report from the Vigilance Department vide letter dated 22.02.2012 (Annexure-F) for the reason that one Mohan Lal made a complaint on 22.11.2011 in respect of three complaints and one criminal case pending against the applicant. Therefore, to ensure the authenticity of the complaint made by the aforesaid Mohan Lal, fresh grant of vigilance clearance report was asked for. The Deputy Commissioner of Police, Security: HQ, New Delhi informed the Addl. Commissioner of Police, Vigilance, Delhi reiterating the vigilance clearance given in favour of the applicant vide letter dated 25.03.2011. It appears that in between various correspondences were made between the officers of the respondents but the fact remains that no decision was taken in respect of payment of full pension payable to the applicant besides other retiral dues such as Gratuity etc. The aggrieved applicant thereafter appears to have made representation on 2.01.2012 (Annexure-L) with the request to the Joint Commissioner of Police (Security) to release his pensionary benefits as the aforesaid criminal case vide FIR No.669/09 u/s 452/323/342/504 IPC, PS Gangapur City, Distt. Sawai Madhopur (Raj.) was decided by the Addl. Chief Judicial Magistrate/Gangapur City, vide which he was not found to be involved in the alleged offence, yet the pensionary benefits have been withheld without any justifiable reasons, which was followed by another representation dated 19.03.2012 (Annexure-M) addressed to the Commissioner of Police, Delhi. The applicant again reiterated the request for grant of full pension and gratuity. It was also indicated through the aforesaid representation that in the other criminal case vide FIR No.55/10 u/s 193/196/199/200/466/469/ 471/120B IPC & 65 IT Act P.S. Special Cell Delhi, the Court has not framed charge against him and the matter is sub judice before the High Court. It has also been informed that another similarly placed officer N. S. Rana, Special C.P., Delhi has been given full pension and other retiral benefits despite the pendency of criminal case against him. It appears that the respondents did not heed to the request of the applicant and without making proper enquiry into the matter as to whether those cases are still continuing against the applicant or whether those allegations are in respect of the offence alleged to have been committed in discharge of the official duties and whether due to the alleged act of the applicant, any financial loss is caused to the public exchequer, have not finalized the payment of regular pension. Therefore, the applicant being left with no other option, approached the Tribunal by means of this Original Application with the following prayers:-
(a) Direct the Respondents to release the pensionary benefits w.e.f. 31.12.2010 viz. gratuity, retirement benefits on or before or any other subsequent pensionary benefits if so;
(b) Direct the Respondents to award the penal interest @18% on his pensionary benefits w.e.f. 31.12.2010 till disposal of the present Application;
(c) pass any order/relief/direction(s) may deem fit and proper in the interest of justice in favour of the Applicant.
3. Mr. S. C. Sagar, Learned counsel for the applicant, vehemently contended that pension and other retiral benefits having been held to be a property by various pronouncements of the Apex Court and different High Courts, the same cannot be withheld except in accordance with law. He further placed reliance on the recent judgment of the Apex Court rendered in the case of State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Anr. [(2013) 10 SCALE 310] and submitted that in the absence of any provision in the Pension Rules to withhold pension or a part thereof or gratuity during the pendency of departmental/criminal proceeding, the same cannot be accepted.
4. On the other hand, Mr. Vijay Pandita, learned counsel appearing on behalf of the respondents opposed the prayer and submitted that because of involvement of the applicant in various criminal cases, which he did not inform the department, his regular pension has not been finalized. He further submits that during the pendency of those criminal cases he has been given provisional pension as required under the provisions contained in Rule 69 of CCS (Pension) Rules, 1972. He took me to the various paragraphs of the counter affidavit and submitted that the applicant is involved in the following cases:-
Sl. No. Case No./FIR No. 1. C.C. No.131/2010
2. C.C. No.5976/II/2010 u/s 454,383,506, 511 IPC
3. C.C. No.1694/1/2008.
4. FIR No.55/2010 u/s 193,196,199,200,466,469,471, 120B IPC 65 IT P.S. Special Cell, New Delhi.
5. Appeal u/s 454,383,506,511 IPC.
Learned counsel for the respondents has submitted that the applicant was required to intimate the department about his involvement in the aforesaid cases as per CCS (Conduct) Rules, 1964, as the same were pending prior to his retirement. Hence, he is guilty of concealing the relevant facts from the department and, therefore, there is no fault on the part of the respondents in not finalizing the pension.
5. In view of the submissions made and also looking to the pleadings of the parties, in my view, two questions arise for consideration, viz., (i) whether the respondents, in the facts of the case, are justified in not granting full pension, gratuity and other retiral dues to the applicant immediately after his superannuation; and (ii) whether the applicant is entitled to get any interest for the delayed payment of full pension and other retiral dues, including gratuity.
6. It is well settled proposition of law that pension and retiral dues are not a charity or bounty, but a legal right of an employee to get the same after rendering a long service as prescribed in accordance with rules. In the case of Deokinandan Prasad Vs. The State of Bihar and Others (1971) 2 SCC 330, the Constitution Bench of the Apex Court repelled the contention made on behalf of the respondents that Fundamental Rights of the petitioner are affected by the impugned order dated 12.06.1968 withholding the pension and has opined that the right to get pension is property and by withholding the same, the petitioners fundamental rights guaranteed under Articles 19 (1) (f) and 31(1) are affected. The Constitution Bench thereafter having noticed various authoritative pronouncements of the High Courts and the Supreme Court and also keeping in view the provisions contained in Article 19 (1) (f) (as it stood then) in para 33 of the judgment has held as under:-
33. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19 (1) (f) and it is not saved by Sub-article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19 (1) (f) and 31 (1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law. However, vide Forty-Fourth Constitutional Amendment Act, 1978, Clause (f) of Article 19 (1) and Article 31 (1) being deleted and the validity of the same having been approved, it is no longer a Fundamental Right, yet it is a Constitutional Right in view of insertion of Article 300A in the Constitution under Chapter-IV (Right to Property) whereby no person can be deprived of his property save by authority of law.
7. Another Constitution Bench of the Apex Court in the matter of D. S. Nakara and Others Vs. Union of India (1983) 1 SCC 305 while endorsing its earlier view expressed in Deokinandan Prasads case (supra) held as under:-
20. The antiquated notion of pension being a bounty a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar and Ors wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any ones discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh.
8. Recently, the Apex Court in the matter of State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Anr. (supra) having regard to its earlier pronouncements in Deokinandan Prasads case (supra), D. S. Nakara (supra) and others has held that gratuity and pension are not bounties and an employee earns these benefits by dint of his long, continuous, faithful and unblemished service and the same being hard earned benefit in the nature of property, cannot be taken away without due process of law as provided under Article 300A of the Constitution of India. Their Lordships again having considered the provisions of CCS (Pension) Rules, 1972, in para 11 of the judgment observed as under:-
11. Reading of Rule 43 (b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension etc. Only when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the rules for withholding of the pension/gratuity when such departmental proceedings or judicial proceedings are still pending.
9. The effect of repeal of Article 19 (1) (f) and Article 31 (1) of the Constitution w.e.f. 20.06.1979 vide Forty-Fourth Constitutional Amendment Act, 1978 has already been considered by the Apex Court in State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651 and held that even after deletion of the aforesaid provisions from the Constitution it remained a constitutional right by virtue of endorsing the provisions contained in Article 300A of the Constitution. This aspect has also been dealt in the case of State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Anr. (supra), wherein, in para 13 of the judgment, their Lordships have observed that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in property.
10. In the instant case, it is not in dispute that the applicant having rendered long service was allowed to superannuate after attaining the age of retirement. It is also not in dispute that by virtue of service rendered by him he has earned pension and other retiral benefits which are legally payable to him. The only impediment in fixation of final pension and payment of gratuity found by the respondents is pendency of criminal cases. It is not the case of the respondents that the applicant has so far been held guilty or convicted in any criminal case, nor the case of the respondents is that any departmental proceeding had been initiated against the applicant on account of his involvement in the aforesaid criminal cases when he was in service. Even as per the additional affidavit filed by the respondents themselves on 30.07.2013, either no charge has been framed or no challan has been filed till date in any of the criminal proceedings against the applicant. Therefore, I am of the considered view that in view of the enunciation of law on the question of payment of pension and retiral dues, the action of the respondents in not making payment of full pension and the gratuity or other retiral dues cannot be approved. I, therefore, hold that there is no justification or any lawful reason for the respondents in not granting full and final pension to the applicant, besides gratuity and other retiral dues. This question is, therefore, answered against the respondents.
11. Now coming to the second question as to whether the applicant is entitled to get any interest for the delayed payment of full pension and other retiral dues including gratuity, I am of the view that in the absence of any justifiable reason for withholding pension and retirement benefits for a considerable long period, the applicant is entitled to get interest. In the case of R. Kapur vs. Director of Inspection (1994) 6 SCC 589, the Apex Court having noticed the delay in making the payment of retiral dues awarded interest @ 18% per annum. In the instant case also, looking to all aspects of the matter, I am of the view that the applicant is entitled to get interest @ 9% per annum. This issue is also answered in favour of the applicant and against the respondents.
12. In the result, the Original Application succeeds and is hereby allowed with the direction to the respondents that they shall fix the final pension of the applicant and make payment thereof expeditiously within two months from the date of receipt of certified copy of this order along with simple interest @ 9% per annum on the amount due since the date of his retirement. In the event, the respondents commit default in making the payment within the time stipulated in this order, they shall further be liable to pay interest @18% per annum on the due amount with effect from the date of judgment till the date of payment, besides cost of Rs.15000/-. However, in the event, the entire payments with interest @ 9% is made within the time stipulated in the order i.e. within two months, no cost or enhanced rate of interest would be liable to be paid by the respondents.
(Syed Rafat Alam) Chairman /pj/