Central Administrative Tribunal - Delhi
Sh. I. Yesudanam vs Union Of India Through on 8 January, 2010
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2281/2009
New Delhi this the 8th day of January, 2010.
Honble Mr. N.D. Dayal, Member(A)
Sh. I. Yesudanam,
R/o Qtr. No. 571,
Sector-4, R.K. Puram,
New Delhi-22. .. Applicant
(through Sh. K.K. Patel, Advocate)
Versus
1. Union of India through
Secretary,
Ministry of Water Resources,
Swaram Shakti bhawan,
New Delhi-1.
2. Chairman,
Central Water Commission,
Govt. of India,
Ministry of Water Resources,
Sewa Bhawan, R.K. Puram,
New Delhi-66. .. Respondents
(through Sh. N.K. Saha, proxy for Sh. Krishan Kumar, Advocate)
O R D E R
The applicant has stated that he joined as Supervisor (JE) Group-III non-Gazetted in Central Water Commission (CWC) in Tamil Nadu and was promoted as Assistant Engineer (AE) in Gazetted Group-B on 18.11.1985 at Raipur, Madhya Pradesh. Thereafter, he was promoted as Assistant Director in a Gazetted Group-A post which he joined on 25.06.1997 at CWC, New Delhi. His duties related to water resources, theoretical designs, report, comments, evaluation and dam constructions. He retired on 30.06.2009.
2. In this O.A. the applicant is seeking direction upon respondents to pay the applicant the retrial benefits namely gratuity, commutation of pension, CGEIS, GPF, and leave encashment etc. with interest on the delayed payment of retrial benefits as well as costs. The respondents have opposed the prayer of the applicant by their counter affidavit to which no rejoinder has been filed. I have heard Sh. K.K. Patel, learned counsel for the applicant and Sh. N.K. Saha for Sh. Krishan Kumar, learned counsel for respondents. Since this matter has been listed for final disposal today, it has been taken up in terms of Rule-16 of the Central Administrative Tribunal (Procedure) Rules, 1987.
3. It is noticed that the applicant has enclosed with the OA three documents. The first is a representation to the Chairman, CWC, dated 14.07.2009 seeking retirement benefits of gratuity, commutation of pension, CGEIS, GPF and leave salary. The second is an order dated 21.11.2001 whereby in exercise of the powers conferred by sub-rule (1) of Rule 10 of the CCS(CCA) Rules, 1965 the applicant was placed under suspension with immediate effect. The third is an Office Order dated 25.06.2009 issued by the CWC stating that the applicant would retire from government service on 30.06.2009(AN) on attaining the age of superannuation.
4. According to the applicant there was a case of irregular withdrawal of pay and allowances in CWC by various officers, which was detected in November, 2000 and about 135 persons were found to be involved and nearly 30 employees were suspended. After the applicant was suspended he was granted subsistence and compensatory allowance as per Rules which was later increased to 75%. The suspension was extended from time to time and a representation for revocation of the same was rejected.
5. The applicant has submitted that he was placed under suspension under Rule 10(1)(b) which provides for placing a Government servant under suspension where a case against him in respect of any criminal offence is under investigation, inquiry or trial. It is contended that although such action is to be completed within 3-6 months, no chargesheet had been filed before any competent Criminal Court till 06.07.2006. The applicant retired after about 8 years of being under suspension but is aggrieved that his retiral dues have still not been paid because of which his family is suffering financial difficulties.
6. The applicant has relied upon Rule 9 of the CCS (Pension) Rules, 1972 and reproduced paras 1,2 and 6 thereof in the OA omitting other paras. He has argued that the provisions of the Rule are not satisfied to justify holding back of his retiral dues and draws attention to Article 41 of the Constitution which accords right to assistance in old age, sickness or disablement. He has cited the case of D.S. Nakara Vs. Union of India to contend that pension is an important social welfare measure and is necessary to provide economic security which has been denied to him. No finding of grave misconduct or negligence has been arrived at against him either in a departmental inquiry or in judicial proceedings and thus pension cannot be withheld in his case as a measure of punishment nor any recovery can be ordered. It is alleged that the act of the authorities is mala fide. Noticeably, nobody has been impleaded by name.
7. The applicant further relies upon a judgment of this Tribunal in OA-2154/2002 decided on 26.02.2003 in the case of J.P. Sharma Vs. UOI and Ors, who was a Deputy Director in CWC, and asserts that the Tribunal had directed payment of leave encashment and gratuity. In that case the leave encashment was paid and further relief given was challenged before the Honble High Court which had ordered release of the gratuity. The applicant has stated that leave encashment is not a part of retiral benefits and therefore could not be withheld on the ground of pending disciplinary or judicial proceedings. It is informed that a review has been filed by the respondents against the order of the Honble High Court for release of gratuity, which is pending.
8. The respondents by their counter affidavit have informed that a case was registered against the applicant in respect of a criminal offence (RC-8A1-2001-A-0016) dated 06.02.2001 under Section 120-B, 420, 468, 477-A IPC and 132) r/w 13(1) ) P.C. Act-1988) and a chargesheet was filed by the CBI in the Court of Law.
9. It is submitted that the applicant was entitled to provisional pension which was authorized, as per Rules from date following date of retirement, on 16.07.2009. This appears have been allowed in terms of the provisions of Rule 69 of the CCS (Pension) Rules, 1972. However, it is contended that gratuity and commutation of pension is not payable till conclusion of the judicial proceedings. A reference is also made to the Rule 16(1) in this regard. It is further clarified that as per Rule 69 of CCS (Pension) Rules, 1972, no gratuity shall be paid until conclusion of the departmental or judicial proceedings and issue of final orders thereon. It is submitted that the chargesheet was filed within the permissible period after suspension and Government instructions have been strictly followed in dealing with the applicants case. The judicial proceedings are still going on and as such commutation of pension and payment of gratuity is not possible at present. In terms of Rule 39(3) of CCS (Leave) Rules, the competent authority can withhold whole or part of cash equivalent of leave salary, if there is a possibility of some money becoming due from the employee on conclusion of such proceedings. The leave encashment is not permissible because of the applicants involvement in the criminal offence under the particular sections noticed above. The respondents have however stated that the question of payment of GPF, leave salary and CGEIS has been taken up with the authorities and the applicant would get payments in due course. It is argued that judgment in a particular case cannot be applied to another case unless the Government issues such orders.
10. The averments of the applicant in the OA are seen to be focused mainly on payment of leave encashment and gratuity and no specific argument appears to have been raised to project the case of the applicant in support of other claims, as was also noticeable during the hearing, perhaps because of the assurance given in the counter reply.
11. A perusal of the order passed by the Tribunal in OA-2154/2002, relied upon by the applicant, shows that Sh. J.P. Sharma was suspended on 26.02.2001 under Rule 10(1)(b) of the CCS(CCA) Rules, 1965 and superannuated on 31.03.2002 whereupon a provisional pension in terms of Rule 69 of CCS(Pension) Rules, 1972 was granted to him. He had sought payment of all retiral dues such as gratuity, leave encashment, full pension etc. with interest although he was involved in a case of embezzlement of government money and FIR was filed with respect to offences under Section 120-B, 420, 468, 477-A, IPC and 13(2) r/w 13(1)(c) of P.C. Act, 1988. Having considered the submissions made and provisions of the various Rules the Tribunal found that while no judicial proceedings could be said to have been instituted or deemed to be so, the applicant having been suspended, departmental proceedings would be deemed to have been instituted against him as per Rule (9)(6)(a) of CCS(Pension) Rules, 1972 and therefore only a provisional pension could be paid. Further by reference to Rule 9(4) and 3(o) of the CCS (Pension) Rules, 1972 and keeping in view the judgment of the Apex Court in D.V. Kapoor Vs. UOI and Ors., (1990) 4 SCC 314, the Tribunal noted that use of the term pension was in contradistinction to gratuity, and thus gratuity would be payable. Again by a reference to CCS (Leave) Rules, 1972, particularly Rule 39(3) thereof it was noted that the competent authority could withhold cash equivalent of earned leave in such a case if there was a possibility of some money becoming recoverable on conclusion of the criminal/disciplinary proceedings. It was held that in absence of such satisfaction of the concerned authority having been expressed by an order in writing, the leave encashment could not have been withheld. In this background the applicant was found to be entitled to leave encashment and gratuity and also to provisional pension only.
12. When this matter was taken to the Honble High Court of Delhi in CWP No. 6465/2003 the Court took note of Rule 10 of the CCS (CCA) Rules, 1965 and Rules 9 and 69 of the CCS (Pension) Rules, 1972. The question of leave encashment was not entertained and notice was issued limited to the question of release of gratuity. The Court referred to relevant citations and in particular noted that criminal proceedings start after the filing of the chargesheet before the Court. Having examined the matter from various angles the Court came to the conclusion that in the facts of the case it could not be said that departmental proceedings had been instituted against the applicant therein, as Rule 10(1)(b) relates to suspension in a case where criminal offence is under investigation, inquiry or trial and the suspension which was ordered could not be considered to be relevant to departmental proceedings. Further, the date of suspension viz. 26.02.2001, could not be treated as the date of institution of judicial proceedings either. Thus, to give only provisional pension was found to be unjustified. But, the validity of Rules 9(4) and 69(1) of CCS (Pension) Rules, 1972, was not found to be questionable. I am therefore not persuaded that these judgments would be of any assistance to the applicant in the facts of the present case, which are at variance, so far as claim for payment of gratuity is concerned.
13. In the present case the applicant admits that he was suspended under Rule 10(1)(b) of the CCS CCA Rules, 1965. Noticeably the order of suspension enclosed at Annexure A/1, page 22 of the paperbook, shows that powers had been exercised under Rule 10(1) to place the applicant under suspension which would therefore not exclude the applicability of sub clause (b) thereof. Besides, the respondents say in their counter reply that judicial proceedings stood instituted against the applicant as charge sheet had been filed by CBI in the Court and the requirement of Rule 9(6)(b) of CCS(Pension) Rules, 1972 was satisfied. Such contention has not been rebutted nor any rejoinder filed to the reply. However, reliance has been placed mainly on the judgments of the Tribunal and that of the Honble High Court noted above, which do not support the applicants case for release of gratuity.
14. In so far as the claim for commutation of pension is concerned, I am in agreement with the respondents that such commutation of provisional pension authorized under Rule 69, would not be admissible to a government servant against whom departmental or judicial proceedings, as referred to in Rule-9 of the Pension Rules, have been instituted before retirement or afterwards. This finds support from Rule-4 of the CCS(Commutation of Pension) Rules, 1981 at Appendix-I to Swamys Compilation of CCS (Pension) Rules, 1972.
15. The claim of the applicant for leave encashment on the other hand is found to be similar to the claim raised in the case of J.P. Sharma (supra) to which the applicant therein was found to be entitled in the light of the following observations in para-15 thereof:-
The learned counsel for the applicant has further stated that even leave encashment of the applicant is not being permitted. cHe relied upon sub-rule (3) to Rule 39 of the Central Civil Services (Leave) Rules, 1972. The said Rule unfolds itself in the following words:-
39. Leave/Cash payment in lieu of leave beyond the date of retirement, compulsory retirement or quitting of service.
(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 adjustment of Government dues, if any. One of the necessary condition to be satisfied in this regard is that the authority competent to grant leave can withhold whole or part of the cash equivalent of the earned leave if in the view of such authority, there is possibility of some money becoming recoverable from him on conclusion of the proceedings against him. This satisfaction of the concerned authority necessarily has to be in writing. Our attention has not been drawn that any such view has been expressed by the authority competent to grant the leave by passing an order to withhold the same for reasons referred to above. In the absence of any such opinion having been expressed, we are of the considered opinion that leave encashment could not have been withheld that was due to the applicant.
16. In the present case as well there is no material on record to show that any decision has been recorded by the competent authority expressing satisfaction that there were sufficient reasons for withholding the grant of leave encashment. As such I am of the view that the applicant would be entitled to the release of the amount admissible to him by way of leave encashment.
17. It is noticed from GOI decision (5) 2 (g) under Rule 68, CCS (Pension) Rules, 1972 that the Department of Pension and Pensioners Welfare by O.M. dated 05.10.1999 circulated the decision that payments under CGEGIS cannot be termed as terminal benefit and also that payment of the same cannot be withheld nor any government dues recovered therefrom except the amount claimed by financial institutions as due from the employees on account of loans taken for house building purpose. In so far as the claim for release of the GPF amount is concerned, the same enjoys protection in terms of the Provident Funds Act, 1925 as expressed therein and it is the duty of the authorities to release the same in accordance with the Rules.
18. The applicant is therefore found entitled to payment of leave encashment. Further, since the respondents have stated that the case for payment of CGEGIS amount as well as GPF amount has been taken up with the authorities, the same be finalized also keeping in view the above observations, and admissible amounts released. Since the applicant has retired on 30.06.2009, the interest shall be payable for delayed payment as admissible in accordance with law. This exercise be completed within three months from the date of receipt of a certified copy of this order and applicant informed by passing appropriate orders. The applicant is not entitled to payment of gratuity and to commutation of pension. Since it has been stated in Para 5.3 of the OA that a review has been filed by the respondents with regard to the orders of the Honble High Court of Delhi in the case of J.P. Sharma (supra), which has not been controverted by the respondents, the present directions shall be subject to the final outcome thereof.
19. The O.A. is disposed of as above. No costs.
(N.D. Dayal) Member(A) /vv/