Central Administrative Tribunal - Ernakulam
C Ramakrishnan vs The General Manager Southern Railway Hq ... on 18 May, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 180/00436/2020
Thursday, this the 18th day of May, 2023
CORAM:
HON'BLE Mr. JUSTICE K. HARIPAL, JUDICIAL MEMBER
Sri. C.Ramakrishnan, S/o Late P.S.Krishnan Nair
Aged 60 yrs, Rtd. Track Maintainer
Southern Railway, Trivandrum Division
Residing at Chembath House
P.O.Mullurkkara, Trissur District - Applicant
[By Advocate: Mrs.Shameena Salahudheen]
Versus
1. Union of India represented by
The General Manager, Southern Railway
Chennai-600003.
2. Divisional Railway Manager
Southern Railway, Trivandrum Division
Trivandrum-695014
3. Senior Divisional Personnel Officer
Divisional Office, Southern Railway
Trivandrum Division, Trivandrum-695014
4. Senior Divisional Engineer, Divisional Office
Southern Railway, Trivandrum Division
Trivandrum-695014
5. Senior Section Engineer, Permanent Way
Southern Railway, Trissur-680021. - Respondents
[By Advocate : Mrs. O.M.Shalina, SCGSC]
The applications having been heard on 06.03.2023, the Tribunal
on 18.05.2023 passed the following:
O.A No.436/2020 2
ORDER
The applicant is a Railway pensioner. He retired from service on 31.03.2020. According to him, he started his service as casual labourer in 1980 and was regularised on 15.05.1989 as Track Maintainer. After putting in 40 years of service, he retired on superannuation on 31.03.2020. The grievance of the applicant is that despite the fact that he had retired from service on 31.03.2020, even after lapse of more than 6 months he has not been granted any amount towards pensionary benefits. As per the statute, such pensionary benefits should be granted immediately after retirement. But there is negligence on the part of the respondents in granting him retiral benefits. Such a conduct is illegal, unjust, unreasonable and against all norms and statutory mandates. Therefore, he has sought for a declaration that he should be granted all the pensionary benefits including full pension immediately, that he is entitled for full pensionary benefits with effect from the date of his retirement and to grant him interest on the delayed payment.
2. According to the applicant, in 2011 a false case was registered against him as Crime 885/2011 of Mannuthy Police Station. He alleges that his name was included among the names of the accused on a trade union rivalry in which trade union he was a part earlier. Thus the respondents, on the influence of the trade union leaders, placed him under suspension for 310 days, later he was reinstated in service, so far O.A No.436/2020 3 no disciplinary action has been taken against him and thus for the mere reason that his name happened to be arrayed in the final report, his pension has been illegally withheld, which is sought to be undone by the intervention of this Tribunal.
3. The respondents have filed reply statement denying the contentions in the application. According to them, a final report has been laid in Crime 885/2011 of Mannuthy Police Station by the Crime Branch before the Additional Chief Judicial Magistrate, Thrissur as CC No.14/2018 alleging offence under Sections 120B, 406, 420, 418 read with Section 34 IPC and Sections 4,5 and 6 of the Price Chits and Money Circulation Schemes (Banning) Act, 1978. The alleged offences were committed while the applicant was in service and therefore the applicant is clearly guilty under Rule 16 of the Railway Service (Conduct) Rules and thus he was placed under suspension on 17.07.2011 invoking Rule 5(1) of the Railway Servants (Discipline and Appeal) Rules, 1968. Later, the suspension was recalled and he was reinstated in service on 17.05.2012. In the light of the pendency of CC 14/2018, as provided under Rules 9(3) and 10(1)(a) and Rule 10(1)(c) of the Railway Service (Pension) Rules, he is not entitled to get full pension and gratuity. During the pendency of the petition, by order dated 15.06.2020, he has been granted provisional pension. The basic pay of the applicant at the time of retirement was Rs.41,000/- and his provisional pension is Rs.20,500/- with dearness O.A No.436/2020 4 relief. Similarly, he has been granted an amount of Rs.21,777/- on 31.03.2020 under the Group Insurance Scheme, Rs.70,709/- on 31.03.2020 under the Provident Fund, leave salary of Rs.4,59,713/- on 01.07.2020 and Rs.10,000/- as Social Security Scheme, on 13.04.2020. So, according to the respondents, except gratuity, entire pensionary benefits have been released to him from the month of April 2020. As provided under Rules 8(1)(a) and(b) of Pension Rules, he is not entitled to get full pension. Similarly, under Rule 8(1)(c) he is not entitled to get gratuity also, during the pendency of the judicial proceedings. Thus the O.A. is sought to be dismissed.
4. I heard Smt. Shameena Salahudeen for the applicant and Smt. O.M.Shalina, SCGSC, for the respondents.
5. According to Smt. Shameena, even though the applicant is accused No.18 in Annexure-A1 charge sheet, his name was not in the FIR. When his name was incorporated he was placed under suspension on 12.07.2011. But till his date of superannuation on 31.03.2020 no disciplinary action has been contemplated or initiated against him, which is evident from the documents produced by the applicant. Similarly, according to the learned counsel, the respondents have no case that he has caused any damage to the Railway property; the pendency of the judicial proceedings in no way will affect his future conduct. Merely for the reason that judicial proceedings is pending, amounts legitimately due O.A No.436/2020 5 to him cannot be denied.
6. Referring to Rule 9(3) of the Railway Service (Pension) Rules, she pointed out that pension can be withheld only if disciplinary proceedings are continuing. Similarly, learned counsel pointed out that the applicant has not committed any offence in relation to Railway property, no amount is recoverable from him and therefore, it is illegal and unjust to withhold such amounts. The pensionary benefits are the amounts due to him under Article 300A of the Constitution and therefore it is illegal to withhold such benefits.
7. The learned counsel also relied on the decisions of the Supreme Court in Dr.Hira Lal v. State of Bihar and others [Civil Appeal Nos.1677-1678 of 2020], State of Jharkhand and others v. Jitendra Kumar Srivastava and another [Civil Appeal No. 6770 of 2013], judgment of the Madhya Pradesh High Court in M.L.Mittal v. State of Madhya Pradesh and another [WP(C) No.13798/2013], Mohan Nair v. Omallur Service Co- operative Bank Ltd. [2022(3) KLT OnLine 1055], Selvaraj v. C.B.M.College [2022(2) KLT OnLine 1103(SC), Viswanathan v. Fertilizers and Chemicals Travancore Ltd.[2021(2) KLT 899], to buttress her contentions.
8. On the other hand, the Senior Central Government Standing Counsel strongly opposed releasing gratuity as he is guilty of serious acts of misconduct committed during the period when he was in service of the Railways. The learned Standing Counsel highlighted Rules 12 and 15 O.A No.436/2020 6 of the Railway Service (Conduct) Rules, 1966. According to her, Rule 10(c) of the Pension Rules prohibits releasing of gratuity so long as departmental/judicial proceedings are pending against the applicant. Even though departmental proceeding was not initiated, so long as CC 14/2018 is pending before the Additional Chief Judicial Magistrate Court, the amount cannot be released.
9. At the time of instituting the application, none of the pensionary benefits were released to the applicant. During the pendency of the petition, he was granted provisional pension besides amounts under the Group Insurance Scheme, Provident Fund, leave salary and Social Security Scheme. Even though it is termed as provisional pension, it is as good as full pension. The basic pay of the applicant at the time of retirement was Rs.41000 and he has been granted Rs.20,500/- as pension, which is full pension and therefore there cannot be any dispute on the pension payable to him. Amounts under the other counts were also released and the only question survived for consideration is whether there is justification in withholding gratuity which according to the applicant comes to Rs.7,91,505/-. The applicant has also highlighted various financial constraints, that he has difficulties due to the debts incurred on account of the marriage of two daughters and that if the amount is not released, it is infringement of the Constitutional right under Article 300A of the Constitution; the learned counsel says that it is O.A No.436/2020 7 clearly an illegality, which is sought to be undone by this Tribunal. The learned counsel also pressed for granting interest as provided under the Payment of Gratuity Act.
10. After going through the various authorities relied on by the learned counsel for the applicant, I have no doubt that, on facts, those authorities are not applicable here. In Dr.Hira Lal, quoted supra, the Hon'ble Supreme Court was dealing with a case under the Bihar Pension Rules, where there is no prohibition in withholding pension to an employee in the Bihar service. Same is the case in State of Jharkhand and others v. Jitendra Kumar, where Bihar Pension Rules have been made applicable to the pensioners. The other decisions also have turned up on its own facts.
11. All the same, atleast for three reasons I am of the view that there is no justification in withholding the gratuity amount despite the fact that there is a statutory injunction in the Railway Service (Pension) Rules in releasing gratuity as long as disciplinary/judicial proceedings are pending against the applicant.
12. Firstly, Section 4 of the Payment of Gratuity Act is very relevant, which reads thus:
"4. Payment of gratuity. (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, -
(a) on his superannuation, or
(b) on his retirement or resignation, or O.A No.436/2020 8
(c) on his death or disablement due to accident or disease."
Ofcourse, Section 4(6) of the Payment of Gratuity Act is an exception, where gratuity can be withheld in respect of employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, the extent of the damage or loss so caused. Similarly, sub section 6(b) also is not applicable so long as the applicant had retired a natural retirement on completion of his service despite the fact that for about 310 days he had been placed under suspension. Out of the 310 days, except 90 days the remaining 220 days were treated as on duty and entire benefits were granted. Thus after allowing to retire on superannuation on 31.03.2020, he has been denied gratuity of about Rs.7 lakhs.
13. Similarly, Section 7(3) of the Payment of Gratuity Act mandates that the employer shall arrange to pay amount of gratuity within thirty days from the date it becomes payable. Section 7(3A) enjoins the employee to seek interest on delayed payment. In other words, it is the responsibility of the employer to pay gratuity within 30 days of retirement, failing which employee is entitled to get interest at appropriate rates.
14. Secondly and more importantly, even though the crime was registered way back in 2011 and the applicant was suspended from O.A No.436/2020 9 service in 2011 itself and later reinstated after 310 days, so far, no disciplinary action has been initiated against him alleging commission of any misconduct in service, prior to his retirement on 31.03.2020. Even though it was stated in the Annexure-A2 suspension order that 'disciplinary proceedings is contemplated pending' from the documents produced by the applicant it is very clear that no such disciplinary action was initiated against him despite the fact that Annexure-A1 final report was laid on 20.03.2018.
15. That means, the applicant was allowed to retire from service on superannuation honourably, after more than two years of laying the final report indicting him alleging offences under various provisions of the IPC and Price Chits and Money Circulation Schemes (Banning) Act.The allegations against him are serious. There are prima facie reasons to believe that he had violated the Railway Service (Conduct) Rules. But the respondents were shy in initiating disciplinary action against him. It requires to be pointed out that the applicant was placed under suspension on 12.07.2011 stating that disciplinary proceedings is contemplated/pending against him. But till 31.03.2020 nothing had happened. In Annexure-A5 when his period of suspension was regularised on 17.08.2017, it is stated that 'in future, if any charges are framed by the police in the above case, suitable DAR action will be initiated'. As observed earlier, even after two years of laying the charge O.A No.436/2020 10 sheet in the crime, no disciplinary action was taken. The respondents have no case that any disciplinary action was contemplated against him during the currency of service.
16. Now more than 3 years have elapsed after his retirement and initiation of any disciplinary proceedings against a person who already retired from service is impossible. That means, even though the crime was registered in 2011 and there were sufficient materials for initiating disciplinary proceedings, nothing of that sort was contemplated or put in action. Therefore, the moot question is whether there is any meaning in withholding the gratuity amount on account of the provision in Rule 10(c) of the Railway Service (Pension) Rules.
17. It is a settled proposition that an employee need be suspended from service if his continuance will prejudice the enquiry, investigation or trial. But he was suspended on a proposed departmental action which never happened. After some time, order of suspension was revoked, that too without stating any reason. Equally fallacious is the Annexure-A5 order regularising a part of the period of suspension, which also does not contain details. Respondents are under a misconception that disciplinary proceedings can be initiated against such an employee only if a charge sheet is filed by the police. It is not necessary to dilate upon this position. Suffice it to say that the respondents did not contemplate any action under the DAR Rules against the applicant. O.A No.436/2020 11
18. True that there is a statutory injunction in the Railway Service (Pension) Rules in releasing the amount if disciplinary/judicial proceedings are pending. But when it is juxtaposed with Section 4 of the Payment of Gratuity Act, having regard to the facts of the case, I am of the view that Section 4 should prevail. As seen from the charge sheet, the allegations against the applicant have nothing to do with his discharge of function as the Track Maintainer under the Railway. The offences are under Sections 120B, 406, 420 read with 34 of the IPC and under Sections 4 to 6 of the Price Chits and Money Circulation Schemes (Banning) Act. It may be true that he might have violated the provisions of the Railway Service (Conduct) Rules. At the same time, it is not even remotely suggested that he had caused any damage or loss or destruction to the Railway property or committed any disorderly conduct during the course of his employment. In the circumstances, let us assume to the extreme and think that the charges would prove against the applicant and he will be convicted. Is it a ground for withholding the gratuity amount due to the applicant? The answer is certainly in the negative. As rightly pointed out by the learned counsel, he has not committed any offence touching the Railway property or something affecting the interest of the Railway nor has caused any loss or damage to the Railways. The allegation is that he has committed misconduct and violated provisions of the Conduct Rules. For that reason, without O.A No.436/2020 12 contemplating disciplinary proceedings, which ought to have been done, there is little meaning in clinging on Rule 10(c) of the Pension rules.
19. Even otherwise, there must be some purpose in withholding substantial money of a pensioner which he earned after putting in nearly 40 years of service. It would be idle to deny him the benefits indefinitely, on account of the prohibition in the Rules, which in the given circumstance is a luxury to the respondents, but a hardship to the pensioner. On a purposive interpretation of the provisions also, I feel that the gratuity is liable to be paid.
20. Even if the applicant is found guilty and convicted in the criminal proceedings, that would not, in the given circumstances, justify forfeiting the amounts payable to the applicant under the Gratuity Act. During the course of argument, I had enquired about the present stage of the criminal case. According to the learned counsel, the police could not yet apprehend all the accused, so that the applicant could not yet file even an application for discharge under Section 239 of the Cr.P.C. Therefore, it is idle to keep such an amount without being disbursed to the applicant indefinitely, for no purpose. In the circumstances, the respondents are directed to release the gratuity amount to the applicant within a period of 90 days from the date of receipt of a copy of this order.
21. There are prima facie reasons to think that the applicant had committed acts of misconduct violating the provisions of the Railway O.A No.436/2020 13 Service (Conduct) Rules. Therefore, he is not justified in seeking interest for the delayed payment.
The Original Application is disposed of as above. No costs.
(Dated, this the 18th May, 2023) JUSTICE K. HARIPAL JUDICIAL MEMBER ds O.A No.436/2020 14 List of Annexures Annexure A1: A true copy of the Relevant pages of the Final Report and FIR in Crime No.885/2011 of Mannuthy Police Station Annexure A2: A true copy of the Suspension Order No. D/5/CP dated 12.07.2011 Annexure A3: A true copy of the Suspension Revocation Order No. D/5/CP dated 17.5.2012 Annexure A4: A true copy of the Request made by the Applicant dated 22.03.2017 Annexure A5: A true copy of the Order No. 20 V/P443/I/Misc/Vol-VIII dated 17/08/2017 Annexure A6: A true copy of the Communication No.TCR/6 dated 2.3.2020 Annexure A7: A true copy of the Representation submitted by the Applicant dated 20.04.2020 Annexure A8: A true copy of the communication no.
V/P.626/Engg/58/2020 dated 11.05.2020 Annexure A9: A true copy of the Request made by the Applicant dated 13.5.2020 Annexure A10: A true copy of the Communication issued under No. V/W/349/GD dated 22.06.2020 **********************