Central Administrative Tribunal - Kolkata
Subhas Saha vs Eastern Railway on 15 December, 2023
SN > 1 / QA. No. 350/408/2023 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA O.A. No. 350/408/2023 - ~ M.A. No. 350/632/2023 Heard on: 29/11/2023 Date of Order: |] .\}, 'L023 Coram: Hon'ble Mr. Anindo Majumdar, Administrative Member Subhas Saha, son'of Late Lalu Saha, aged about 63 years, worked as Ex-Sr. Tech(mech) /" TRS/NKG/T/No.1974 Eastern Railway, .Sealdah Division, Kolkata residing at 9, Kabi Sukanta Sarani, Post Office- K.G. Sarani, Police Station- Narkeldanga, Kolkata 700085. Mobile No.74394214164, Email ID: biswastimirkantil 964@gmail. com vewees Applicant -Versus- 1. Union of India, through the General Manager, Fastern Railway, 17, N.S. Road, Fairly Place, 'Kolkata - 700001. © 2. The Divisional Railway Manager, Eastern Railway, DRM _ Building Sealdah Division, -Kolkata - 700014. 3 The Senior Divisional Personnel Officer, Eastern Railway, Sealdah Division, Kolkata 700014. 4, FA&CAO, Eastern Railway, Sealdah Division, Sealdah, Kolkata 0 700014. beseees Respondents For The Applicant(s): Mr. T. K. Biswas; Counsel For The Respondent(s): Mr. S. Paul; Counsel a) OA. No. 350/408/2023 ORDER Per: Mr. Anindo Majumdar, Member (A)
1. This matter is taken up by the Single Bench for disposal . with the consent of both the parties in view of the | revised list dated 04.04.2000 issued under Sub-Section | (6) of Section 5 of the 'Administrative Tribunals Act, 1985, and, since no complicated question of law is involved. | 2 M.A. /350/632/2023 has been filed by the applicant under Rule 4(5) of the CAT (Procedure) Rules, 1987, for joint prosecution is allowed on being satisfied with the grounds therein. The applicant is accordingly allowed to pursue the remedy jointly. M.A/350/632/2023 accordingly.stands allowed.
3. The applicants have filed this O.A. under Section 19 of . the Administrative Tribunals Act, 1985, seeking the following relief(s): -- | ") An order do issue directing the respondents to release leave encashment amount, gratuity, full pension, suspension period all service benefits and medical . railway pass along with interest for delay payment. fi) Any other order or further order as Your Lordships @ may deem fit and proper."
4. The submissions made by the applicant in this Original . Application are summarized below:
a) He is a retired Railway employee. He retired from service on 31.01.2021 upon attaining the age of superannuation.3 O.A. No. 350/408/2023
b) He: was arrested on 28.07.2018. He was subsequently c} granted bail.
He was placed under suspension. On the 'basis of his representation did.03.07.2019, his suspension was revoked -- w.ef. 25.09.2019 and he joined duty and continued to serve till his retirement on 31.01.2021.
d) After retirement his Death-cum-Retirement gratuity (DCRG}
e)
f), and leave encashment was withheld by the respondents » and he has been granted only Provisional Pension on the ground that a judicial proceeding was pending against him. No disciplinary case is pending against him. A judicial proceeding is pending against him. However, the said judicial proceeding was in respect.of a matter which is not connected with the discharge of his official duties. He has cited the order of the Hon'ble High Court of Delhi dtd. 25.01.2010 in WP(C) No. 383/2010 wherein it has been held that Pension or gratuity in case of an employee who is neither facing departmental proceedings nor judicial proceedings having anything to it with his official functions cannot be withheld. He also cited the order of the Hon'ble Supreme Court of India dtd. 07.08.1990 in the case of D. V. , Kapoor Vs. Union Of India, wherein it was, inter alia, held as under:
i) As seen the exercise of the power by the President is hedged |.
with a-condition precedent that a finding should be recorded:
either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the 4 7°, O.A. No. 350/408/2023 discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment either in whole or in part permanenily or for a specified period, order recovery of the pecuniary loss in whole or in part or to from the pension of the employee, subject to 'minimum of Rs.60. ~
ii). Rule 9 of the rules empowers the President only to with-
hold or withdraw pension permanently or for period in whole or in part or to order recovery of pecuniary a specified loss caused to the State in whole or in part 'subject to minimum. The employee's right to pension is statutory fight. The measure 'of deprivation therefore, must be correlative to or misconduct commensurate with the gravity of the grave or irregularity as it offends the right to assistance at the evening of his life as assured under Art. 41 of the Constitution. The impugned order discloses that the President withheld on permanent basis the payment of gratuity in addition to pension. The fight to gratuity is also a statutory right. The appellant was not charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment. No provision of law .has been brought to our notice under which, the President is empowered to withhold gratuity as well, after his retirement as a measure of punishment. Therefore, the order to withhold the gratuity as a measure of penalty is obviously illegal and 18 devoid of jurisdiction.
iii), In view of the above facts and law that there is no finding that appellant did commit grave misconduct as: charged for, the exercise of the power is clearly illegal and in excess of jurisdiction as the condition precedent, grave misconduct was not proved. Accordingly the appeal is allowed and the impugned order dated November 24, 1981 is quashed but in f the circumstances parties-are directed to bear their own costs.
g) The judicial proceeding which is pending against him is not concerning any misconduct by them in the discharge of his official duties.
5. 'The submissions of the respondents made in the reply to this Original Application are summarized as below:
a) The applicant, while he was in service was arrested by the Anti-Human Traffic Unit, CID, West Bengal vide Memo No, 162/AHTU/CID/WB dtd. 07.09.2018 vide Bidhannagar P.S., Case No. 52 of 2018 under Section 366A/368/370/370A/372/373/506/109/120B/34 of ie ¥ 5 0.A. No. 350/408/2023 the Indian Penal Code read with Section 3/4/5/6/7/9 of Immoral Traffic (Prevention Act) Act, 1956 and also under Section 4/6/17/29 of POSCO Act for criminal offence.
b) The applicant was granted subsistence allowance for the period during which he has been suspended vide order dtd. 30.06.2020.
c) 'The applicant had- prayed for regularization of the ' suspension period. However, the competent: authority rejected the prayer on the grourid that the 'suspension period cannot be 'regularized until the official order pertaining to the judicial proceeding pending against him is issued.
dy No disciplinary case is pending against the applicant.
e) Provisional Pension, GPF and GIS have been disbursed to' the applicant. However, Death-cum-~-Retirement Gratuity (DCRG), Regular Pension and Leave Salary have not been released to the applicant. However, in the -
t meantime leave salary amounting to Rs. 5,25,197/ - was disbursed to the applicant and he has also been issued a complementary pass on 30.07.2023.
f) 'The Judicial Proceeding against the applicant has commenced in the Court.of Sessions.
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g) The applicant has submitted, that the Principal Bench of 'this Tribunal as 'in O.A./264/2009 in the matter of' Prabhu Lal Vs. Union of India as held as under:
"(i) Action. cannot be taken against the Applicant under Rule 9 of the CCS (Pension) Rules.in view of the ratio laid down by the ~ Honourable Supreme Court that the misconduct has to be in the discharge of public duty in office. In this matter, the criminal case against the Applicant has not been filed in the discharge of his duty in the office.
(ii) In view of decision 23 under Rule 3 of the CCS (Conduct) . Rules, 1964, conviction by a criminal court would amount to misconduct. If the Applicant is convicted in the criminal case, which is pending against him, it would amount to misconduct.
(iif) The Applicant would be covered under Rule 8 of CCS (Pension) Rules, which has been quoted in full in the preceding paragraph. Under this rule, the appointing authority has been .
given the authority to withhold or withdraw pension or a part _ thereof. if the petitioner is convicted of a serious crime er is found guilty of grave misconduct. Sub-rule (2) of Rule 8 further elucidates that action will be taken against the petitioner in the light of the judgment of the Court relating to such conviction.
(iv) Gratuity cannot be withheld under Rule 8 of CCS (Pension) Rules, 1972 unlike the provision in Rule 9 ibid. Otherwise also as per the provision in Section 4 of the Payment of Gratuity Act, 1972, gratuity cannot be withheld.
(v) lf is clear, therefore, that pension can be withheld or withdrawn only after conviction in a serious crime and that too
- on the basis of the judgment of the Court relating to such conviction." . .
'The applicant has further submitted, that the Principal Bench of this Tribunal has allowed the said O.A. with the following directions.
"to release the regular pension, commuted amount of pension and gratuity fo the Applicant with 8 per cent simple interest per annun from the date the payment was due, within. - eight weeks from the receipt of a copy of this order. The Respondents, however, would be free to take action against the Applicant subject.to the provisions of Rule 8 of CCS (Pension) Rules, 1972, as discussed above. No costs."
The said order of this Tribunal has been affirmed by the Hon'ble High Court at New Delhi in Writ Petition, W.P. > (C.) No. 383/2010.
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h) In terms of Rule' 9(3) and 10(C) of Railway services (Pension Rules 1993), a Railway servant who is retiring upon attaining the age of superannuation or otherwise, against: whom Departmental or Judicial proceedings (including criminal and civil proceedings) are instituted or ate continuing under Rule 9(2) of the said rules shall be sanctioned provisional pension and his/her gratuity shall be withheld. Sanction of the regular pension and 'release of gratuity can be made only upon issue of the 'official order issued on conclusion of the Depattmental or Judicial proceedings. Whatever amount is permissible under the aforesaid rules has been released to the applicant and the rest cannot be disbursed to him till the conclusion. of the judicial proceeding.
The interim order passed: by this Tribunal dtd. 31.07.23 has been fully complied with.
f . * I have heard the Ld. Counsel 'for both the parties and have considered the material on record. . The applicant, after he retired from service, has received most of his retirement benefits. However, he has not yet
- received Death-cum-Retirement Gratuity (DCRG) amount and is not in receipt of regular pension.
"Rule 9(3) of the Railway Services ( Pension Rules, 1993) provides "in the case of Railway servant who was retired upon 'attaining the age of superannuation or otherwise and against whom. any departmental or judicial
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proceedings are instituted or were continued under Sub- Rule (2) as Provisional Pension as provided in Rule 10 shall be sanctioned. Further, under Rule 10 (C) of the said rules no gratuity shall be paid to the Railway servant until the conclusion of the Departmental or Judicial Proceedings and issue of final order The applicant has contended that the Judicial Proceeding pending against him is not related to the discharge of his official duties and has relied on certain judicial pronouncements in support of his contention.
Rule 3 (iii) of the Railway (Service) Conduct Rules states . that, "Every Railway Servant shall at all times do nothing which is unbecoming of a Government Servant". Rule 3(i) states that, "Every Railway Servant is required to maintain absolute integrity". The applicant is facing trial before a Court of Sessions and is charged with serious 'criminal offences. Although, the offences alleged to be have been committed by the applicant do not have a direct bearing on the discharge of his official functions, they are very serious in nature and attracts exemplary . punishment under the law. I am of the view that it is highly unbecoming of a Government Servant to face criminal charges of this nature. Hence, until and unless:
the applicant herein is acquitted of these charges by a competent Court of Law, Death-cum-Retirement Gratuity Luh)
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SK .* 9 O.A. No. 350/408/2023 (DCRG) amount cannot be disbursed to him and nor can Provisional Pension be paid.to him.
In view of the above discussion, I am. of the view that the respondents are justified in withholding the DCRG of the applicant and also in not. releasing his final 1 pension. I 'am therefore, of the view that this O.A. lacks merit. It is therefore dismissed. There will be no order as to costs.
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Loe gua © TE (Anindo Majumdar) Member (A)