Central Administrative Tribunal - Delhi
Daya Nand Sharma, Retired Danic Officer ... vs Government Of N.C.T. Of Delhi, Through ... on 8 January, 2008
ORDER Meera Chhibber, Member (J)
1. By this O.A., applicant has sought a direction to the respondents to release his retiral benefits including gratuity and leave encashment with interest after quashing order dated 21.5.2007.
2. It is stated by the applicant that he was working as Assistant Registrar (NW-II) in the Office of Registrar of Cooperative Society. In the year 2005, CBI registered a case/FIR in connection with alleged illegal irregularities in revival of defunct Co-op. Group Housing Societies in Delhi against a number of persons including the applicant. Applicant was due to retire on superannuation on 31.03.2006 and accordingly cheques for a sum of Rs. 6,06,959/- towards his pensionary benefits were issued to him on 29.2.2006.
3. On 29.03.2006, prosecution sanction was issued by the Directorate of Vigilance, Govt. of NCT of Delhi, against the applicant and same day he was put under suspension vide order dated 28.03.2006 (page 12). Vide letter dated 31.03.2006, he was directed to return the cheques and the same were returned on 3.4.2006. He preferred an appeal to the President of India against his suspension, but the same has been rejected. The charge sheet was finally submitted by the CBI before the Court on 10.4.2006, i.e. after his retirement. However, till date neither his leave encashment nor gratuity has been paid and he has been sanctioned only the provisional pension. Since the charge sheet has been filed against 6 persons only till date, even though cases have been registered against 12 persons, it is bound to take a long time, therefore, applicant had submitted a representation for releasing his retiral benefits, but the same has been rejected on the ground that CBI has filed charge sheet against him.
4. Counsel for the applicant submitted that in identical situation, retirement benefits had been released to other persons viz. Shri S.S. Gaur, who retired in February 2006, Sh. Ramesh Chandra Madan, Shri Man Singh etc and therefore, applicant cannot be discriminated against. Moreover, there is no provision under the CCS (Pension) Rules to withhold the retiral benefits including leave encashment of a Government servant. In any case, no finance is involved in the present case, therefore, there is no question of any recovery from the retirement benefits of the applicant. In such circumstances, there is no justification in withholding the gratuity or leave encashment of the applicant.
5. Respondents, on the other hand, have submitted that the applicant was placed under suspension vide order dated 28.03.2006. Further, Directorate of Vigilance vide letter dated 22.2.2007 had intimated that the CBI has registered 4 cases against the applicant and prosecution sanction has been issued on 28.3.2006. Therefore, as per rule 69 of CCS (Pension) Rules, provisional pension alone could have been sanctioned. Rule 69 (1) (c) specifically states that no gratuity shall be paid to the Govt. servant until conclusion of the departmental/judicial proceedings and issuance of final order thereon, therefore, applicant is entitled for grant of provisional pension only. They have thus prayed that the O.A. may be dismissed.
6. Counsel for applicant placed reliance on 2004 (2) ATJ 63 [Bangali Babu Misra v. State of U.P. and Ors.] 2002 (3) ATJ 491 [Shri Ashok Kumar Mukherjee v. Union of India and Ors.] and 2003 (2) ATJ 647 [G. Kumararaj v. Union of India]
7. I have heard both the counsel and perused the pleadings as well as relied upon judgments.
8. Counsel for applicant fairly submitted that he is not disputing that applicant could only be given provisional pension. However, his gratuity and leave encashment could not have been withheld because the CBI had filed chargesheet against him only on 10.4.2006 i.e. after the date of his retirement. The relevant provision in this case would be Rule 69(1)(a) read with Rules 9(4) and 9(6) of CCS (Pension) Rules. Rule 69(1)(a) states, in respect of a Government servant referred 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. Therefore, we would have to see what is the implication of Rule 9(4) of CCS (Pension) Rules. Rule 9(4) states, in the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 69 shall be sanctioned. When can a proceeding be said to be instituted is further explained under Rule 9(6)(b). We are not concerned with Rule 9(6)(a) because admittedly no departmental proceedings have been initiated against the applicant. The only submission made by the respondents is that four criminal cases were registered by CBI against the applicant. However, whether mere registering the cases against a person is sufficient to withhold his gratuity or not is clear after reading Rule 9(6)(b), which for ready reference reads as under:
(b) judicial proceedings shall be deemed to be instituted
(i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made
9. Perusal of above would show that criminal proceedings can be said to be instituted only if report of a Police Officer had been filed, of which the Magistrate had taken cognizance. Let us examine what is the meaning of 'report of a Police Officer' and 'Magistrate takes cognizance'. Rule 173 of Code of Criminal Procedure, 1973 stipulates that the report of Police Officer shall be filed on completion of investigation. Rule 204 under Chapter 16 deals with commencement of proceedings before Magistrates, which for ready reference reads as under:
204. Issue of process - (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-
(a) A summons-case, he shall issue his summons for the attendance of the accused, or
(b) A warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under Sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of Section 87.
10. From above it is clear that the report to be filed by a Police Officer referred to in Rule 173 is when the officer in charge of Police Station or in the instant case CBI files the final report after completing its investigation and the cognizance is taken by the Magistrate only after the said report is filed and if in the opinion of Magistrate, he is satisfied that there is sufficient ground for proceedings in the matter. Therefore, mere registering the case would not get covered under Rule 9(6)(b) because it specifically states that judicial proceedings shall be deemed to be instituted in the case of criminal proceedings on the date when report of a Police Officer is made of which the Magistrate takes cognizance. Therefore, there are two ingredients, which are required to be fulfilled before this Rule can be given effect to. In view of above, if the facts of present case are seen, it is noticed that even though criminal cases were registered by the CBI against the applicant as back as in the years 2005 and 2006 and there may be serious charges against the applicant but the fact remains that chargesheet / report of Police Officer was finally filed by CBI only on 10.4.2006 whereas applicant had already retired on superannuation on 31.3.2006, therefore, by no stretch of imagination can it be said that judicial proceedings were instituted against the applicant on the date when he retired. In this view of the matter, I would agree with the counsel for applicant that applicant's gratuity could not have been withheld by the respondents.
11. As far as leave encashment is concerned, the same is not a pensionary benefit in as much as it is a benefit granted in the CCS (Leave) Rules, that is why it finds no mention under Rule 69 of CCS (Pension) Rules. For the purposes of leave encashment, the relevant provision would be Rule 39(3) of CCS (Leave) Rules, which for ready reference reads as under:
(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.
12. Perusal of above shows that even leave encashment can be withheld only if in the view of Competent Authority there is possibility of some money becoming recoverable from the employee on conclusion of proceedings against him, meaning-thereby that for withholding leave encashment Competent Authority is required to apply his mind to the facts and then pass proper order. In the instant case, no such order has been passed by the authority, on the contrary in Para-5(e) of OA applicant has specifically stated that there is no finance involved, therefore, there is no question of recovery from the retirement benefits of applicant. In counter affidavit, neither respondents have specifically rebutted this aspect nor have they dealt with Rule 39(3) at all. Therefore, it has to be presumed that no money is recoverable from the applicant in the given case. Therefore, it is also to be held that respondents could not have withheld leave encashment also of the applicant.
13. As far as provisional pension is concerned, counsel for applicant did not raise any objection, therefore, that part is not being dealt with. However, since I have come to the conclusion that respondents could not have withheld gratuity or leave encashment of the applicant, respondents are directed to release the gratuity and leave encashment of applicant within a period of two months from the date of receipt of a copy of this order. Accordingly, OA is allowed. No order as to costs.