Central Administrative Tribunal - Mumbai
B B Rajendra Prasad vs M/O Finance on 5 August, 2022
1 OA No.81/2021 CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, MUMBATL. ORIGINAL APPLICATION No.81/2021 Dated this Friday the 5 of August, 2022 CORAM: Ms. Harvinder Kaur Oberoi, Member (J) B.B. Rajendra Prasad Commissioner of Income Tax (Retd.) Aged 58 years R/o B-902, 9th Floor, Azmeera Zion, Bhakti Park, Near Carnival I-MAx Mumbai -- 400 037. Email: [email protected] Mobile - 9182290599 wee Applicant ( By Advocate Shri Rajeev Kumar ) VERSUS 1. The Union of India Through the Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi - 110 001. 2. The Chairman, Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, North Block, New Delhi - 110 001. .. Respondents (By Advocate Shri Hanu Bhaskar) ORDER
This OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
2 OA _No.81/2021without any further delay.
8(b) This Hon'ble Tribunal may graciously be pleased to direct the respondents to release arrears of the retirement benefits including regular pension, commutation of pension, leave encashment and gratuity with appropriate interest @9% for the duration (due date i.e. with effect from 12 June,
19) to actual disbursement date.
8(c) Cost of the application be provided for.
8(d) Such other and further reliefs as this Hon'ble Tribunal deems fit in the nature and circumstances of the case.
2. The brief facts, as narrated in the OA, are as follows:-
2.1 The present OA is filed challenging the Order dated 15.06.2020 (Annexure A-1), whereby a provisional pension of Rs.91,350/- and DA as admissible was sanctioned to the applicant in terms of Rule 69(1)(a) of CCS (Pension) Rules, 1972. It is submitted that the above order has been issued subsequent to the order dated 10.06.2019, whereby invoking the FR 56(j), the applicant has been retired from service.
2.2 The applicant submits that he belongs to 1992 batch of the Indian Revenue Service, having joined on 05.01.1993 as Assistant Commissioner of Tnrome Tax. Pea waa nromotedqd to the Gaealection Cradae 3 OA No.81/2021 Commissioner of Income Tax in 2005, and as Commissioner in September 2015. In May 2019, the applicant was posted at CIT(DR), ITAT, Rajkot, where he was compulsorily retired from service under FR 56(j) w.e.f. 11-06-2019.
2.3 It is submitted that throughout his career, the applicant had an excellent performance and track record; and to the utter shock and surprise of the applicant, he has been issued the impugned order dated 10.06.2019 by the respondents directing that he shall compulsorily retire from service under FR 56(j) with effect from afternoon of 11.06.2019.
2.4 The applicant submitted that on being retired under Rule FR 56(j), he is eligible for full retirement benefits, including regular pension, commutation of pension, gratuity and leave encashment etc., and, therefore, he submitted his claim papers seeking regular pension and other benefits but there was no response to the same for one year. However, on 24.06.2019, he received a mail enclosing the impugned order dated 15.06.2020, whereby under Rule 69 (1) (a) of the CCS (Pension) Rules, 1972, a provisional pension of Rs.91,350/- and DA as admissible was sanctioned to him. The said order was effective from 4 OA _No.81/2021 judicial proceeding, final orders are passed by the competent authority.
2.5 Though no reason was given for grant of provisional pension, it is submitted that an FIR came to be registered by CBI ACB Visakhapatnam vide RC 08 (A) /2017-CBI/VSP on 01.05.2017 on an allegation of demand of illegal gratification punishable under Section 120 B of IPC and Section 7, 12 of Prevention of Corruption Act (PoC), 1988. Subsequent to the said FIR, the applicant was arrested and later granted bail. An order of suspension was passed by respondents and the order was quashed by the Principal Bench of this Tribunal through order dated 29.05.2018 and the applicant was reinstated and joined duty on 18.07.2018. On 31.07.2017, another FIR No.RC 12(A)/2017 under Section 13(2) read with Section 13(1)(e) of PoC Act, 1988 was registered against the applicant for having assets disproportionate to his known source of income by CBI ACB. Though both the FIRS were registered way back in May and July 2017 respectively, nothing is known about the course of action for the last more than three and half years. It is submitted that no disciplinary proceedings were instituted against him 5 OA _No.81/2021 registered case. As such, the applicant is entitled as per rules, to be sanctioned regular pension along with the other retirement benefits, like commutation of pension, leave salary encashment, gratuity. The invocation of Section 69(1)(a) under CCS (Pension) Rules, 1972 for granting provisional pension is, therefore, dehors the settled procedure.
3. On the other hand, the respondents filed their reply affidavit and have stated that' the applicant was retired from service in accordance with the provisions of FR 56(j) vide order dated 10.06.2019 passed by the competent authority. Thus, once the employee is retired, he is entitled to all the service benefits, including pension, gratuity etc. However, the said benefits cannot be granted to the applicant, as he is under the clouds of disciplinary as well as criminal proceedings, which are pending disposal against him. Although the applicant stands retired w.e.f. 10.06.2019 as per FR 56(j), it is submitted that a departmental Charge Memo dated 26.04.2021 has been issued against the applicant for the alleged misconducts as per the articles of charge.
3.1 It has been submitted that as per articles 6 OA _No.81/2021 lieu of passing a favourable Appellate Order in favour of the Trust for assessment year 2013-14. He decided the appeal in favour of the Trust on the basis of inadmissible additional evidences, nullifying the tax demand of Rs.719.13 crore. The CBI caught the applicant red handed on 02.05.2017 while receiving/accepting Rs.19.34 lacs (being part of illegal gratification of Rs.2 crores) at his residence at Visakhapatnam. The CBI has registered a case against the applicant based on search action conducted on 01.05.2017 for allegedly accepting illegal gratification for passing favourable order in favour of M/s Balaji Trust, Mumbai. Subsequently, the CBI registered a Disproportionate Asset case on 31.07.2017 under Section 13(2) r/w 13(1)(e) of the PoC Act against the applicant, the then CIT (A), Mumbai. That disciplinary proceedings are pending as per Rule 9 CCS(Pension) Rules, 1972 for major penalty proceedings vide charge memo dated 23.06.2021. The applicant has also challenged his compulsory retirement order under FR 56(j) vide OA No.366/2021 before this Tribunal, which is pending disposal. The respondents further submitted that the disciplinary as well as criminal proceedings are still pending 7 OA _No.81/2021 claimed in the OA. However, the applicant is only entitled for the grant of provisional pension, which is being paid to him.
3.2 The respondents thus submitted that once an order under FR 56(j) is passed against an employee, he is entitled to his service and retiral benefits, but in case any disciplinary proceedings or criminal case are pending, the employee concerned is entitled to provisional pension only and further entitlement is decided on the closure of the proceedings and outcome thereof. In the facts of the present case, the disciplinary as well as criminal proceedings are pending against the applicant and he is thus entitled to provisional pension only, which is being paid to him. Hence, the respondents submitted that this OA is liable to be dismissed.
4. I have heard learned counsel for the parties and carefully gone through the pleadings available on record.
5. It is the statement of the respondents that criminal case/FIR was pending against the applicant on the date of his retirement and the same has not been concluded yet. Therefore, on the date of retirement, final pension was not paid due _ to 8 OA No.81/2021 commute a percentage of the provisional pension under Rule 4 of the CCS (Commutation of Pension) Rules, 1981. Payment of his gratuity was withheld under Rule 69 (1) (C) of the CCS (Pension) Rules, 1972. His leave encashment was withheld under Rule 39(3) of the CCS (Leave) Rules, 1972. Further, the departmental proceedings have been initiated under Rule 9 of the CCS (Pension) Rules.
6. Before proceeding further, it would be relevant to look at the Rules. Rule 9(4)&(6) of the CCS (Pension) Rules, 1972 reads thus:
"9(4) 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.
XX XX (6) For the purpose of this rule,
(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant
(b) judicial proceedings shall be deemed to be instituted -
(1) in the case of criminal proceedings, on the date on which the complaint or report ... (11) in the case of civil proceedings, on the date the plaint is presented in the Court 9 OA No.81/2021 judicial proceedings may be pending.
(1) (a) In respect of a Government servant referred to 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.
(b) The provisional pension shall be authorized by the Accounts Officer during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the Competent Authority.
(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon Provided where departmental proceedings have been instituted under Rule 16 of the Central Civil Services (Classification, Control and Appeal) rules, 1965, for imposing any of the penalties specified in Clauses (i), (ii) and
(iv) of Rule 11 of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant.
(2) Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such Proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period."
Rule 4 of the CCS(Commutation of Pension) Rules, 10 OA _No.81/2021 departmental or judicial proceedings as referred to in Rule 9 of the Pension Rules, have been instituted before the date of his retirement, or the pensioner against whom such proceedings are instituted after the date of his retirement, shall be eligible to commute a percentage of his provisional pension authorized under Rule 69 of the Pension Rules or the pension, as the case may be, during the pendency of such proceedings."
Rule 39(3) of the CCS(Leave) Rules, 1972 reads thus:
"(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."
7. A combined reading of Rules 9(4) & (6) and 69 of the CCS(Pension) Rules, 1972, Rule 4 of the CCS (Commutation of Pension) Rules, 1981, and Rule 39 (3) of the CCS(Leave) Rules, 1972, makes it abundantly clear that the date of institution of the criminal proceedings against a retiring Government servant is the determining factor for considering his eligibility for pension, gratuity, commuted value of 11 OA _No.81/2021
8. Under Rule 9(6) (b) (i) of the CCS(Pension) Rules, 1972, criminal proceedings shall be deemed to be instituted against a Government servant on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made. Undoubtedly, the report of a Police Officer, referred to in Rule 9(6)(b) (i) ibid, of which the Magistrate takes cognizance, is under Section 173 of the CrPC. The said report is commonly known as charge sheet. In the instant case, the CBI registered the FIR and/or the criminal case against the applicant in 2017. It is, thus, to be seen as to on which date the charge sheet was filed by the CBI against' the applicant and the Magistrate took cognizance thereof. Both the applicant and the respondents have not disclosed in their pleadings as to on which date the charge sheet was filed by the CBI against the applicant and the Magistrate took cognizance of the same. They have not filed the copy of FIR or the charge sheet in the criminal case and have also not disclosed the nature of offence or offences alleged to have been committed by the applicant and other co- accused. The applicant has also not filed copy of the statement of charges framed by the Court. Further, 12 OA No.81/2021
9. During the course of arguments, learned counsel for applicant and respondents both relied upon the judgment of the Hon'ble Supreme Court in Union Of India etc. Vs K. V. Jankiraman reported as (1991) 4 SCC 109. In the said decision, a three-Judge Bench of the Hon'ble Supreme Court examined the legality of the Office Memorandum dated 30.01.1982 and some other aspects connected thereto. Amongst others, one question, which had arisen before the Court was, 'What is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee?' This question was answered in the following words:-
"16. On the first question, viz., as to when for the purposes of sealed cover procedure the disciplinary/criminal proceeding can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted only after the charge-
memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the appellant-authorities that when there are serious allegations and it takes time to collect evidence to prepare ang Jaaia chargqe--memo /chargqe- aheat. ion 13 OA No.81/2021 employees in many cases. As has been the experience Ste) far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. Tf the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities are thus not without a remedy. It was then contended on behalf of the authorities that conclusions Nos.1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. These conclusions are as follows: "(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official (2) (3) (4) the sealed cover procedure can be resorted to only after a charge memo is serviced on the concerned official or the charge-sheet is filed before the criminal court and not before.
17. There is no doubt that there is seeming contradiction between the two conclusions.
But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion No.1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the 14 OA No.81/2021
18. We, therefore, repel the challenge of the appellant- authorities to the said finding of the Full Bench of the Tribunal."
10. A careful reading of paragraph Nos.16 and 17 of the aforesaid decision in Jankiraman's' case (supra) reveals that after examining the Office Memorandums dated 30.01.1982 and 12.01.1988, the Apex Court approved the ratio of law laid down by the Full Bench of the Tribunal that departmental proceedings / criminal prosecution is initiated against the employee only when a charge-memo in disciplinary proceedings and charge-sheet in criminal prosecution is filed. The Apex Court further stated in categorical terms that the sealed cover procedure should be resorted to only when a charge memo is served on the concerned official or the charge-sheet is filed before the criminal court and not before. In view of the decision in Jankiraman's case (supra), the Department of Personnel and Training, Government of India issued an Office Memorandum dated 14.09.1992 on the subject of 'sealed cover procedure', the relevant portion whereof reads as under:-
"Sub: Promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation - Procedure and guidelines to be followed. Cases of Government servants to 15 OA No.81/2021 of ,Sealed Cover" cases. Procedure for ad-hoc promotion. Sealed cover procedure for confirmation. Sealed cover procedure applicable to officers coming under cloud after holding of DPC but before promotion.
The undersigned is directed to refer to Department of Personnel & Training OM No.22011/2/86-Estt.(A) dated 12th January, 1988 and subsequent instructions issued from time to time on the above subject and to say that the procedure and guidelines followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court of India in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of review and in supersession of all the earlier instructions on the subject (...4. ), the procedure to be followed in this regard by the authorities is laid down in the subsequent paras of this OM for their guidance.
2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-
(i) Government servants under suspension;
(i1) Government servants in respect of whom a charge sheet has'7 been issued and_ the disciplinary proceedings are pending and (i111) Government servants in respect of whom prosecution for a criminal charge is pending.
2.1 The Departmental Promotion Committee shall assess the Suitability of the Government servants coming within the purview of the circumstances mentioned above =| 4 659 16 OA No.81/2021 till the termination of the disciplinary case/criminal prosecution...." (Emphasis Supplied)
11. In view of the OM dated 14.09.1992, as quoted above, I have no difficulty in saying that sealed cover procedure shall be adopted in cases where the charge sheet or the departmental charge memo has been issued and proceedings are thus said to be pending. The said Office Memorandum holds the field on the subject of 'Sealed Cover Procedure' till date but with a clarification on the subject by another Office Memorandum dated 02.11.2012, contents whereof are worthwhile for our purpose and read as under:-
"8. As regards the stage when prosecution for a criminal charge can be stated to be pending, the said O.M. dated 14.9.92 does not specify the same and hence the definition of pendency of judicial proceedings in criminal cases given in Rule 9 (6) (b) (i) of CCS (Pension) Rules, 1972 is adopted for the purpose. The Rule 9 (6) (b)
(i) of CCS (Pension) Rules, 1972 provides as under:-
"(b) judicial proceedings shall be deemed to be instituted -
(i) in 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."
(Emphasis Supplied) 17 OA No.81/2021 criminal charge is pending when a charge sheet is filed by the investigating agency in the criminal court, dealing with a case registered against the Government servant. Thus, in view of the Office Memorandum dated 02.11.2012, nothing further would ordinarily survive for consideration. However, there is another decision of Hon'ble Supreme court in different facts and circumstances, yet relevant for our purpose, i.e., in the case of State, CBI Vs. Sashi Balasubramanian & Anr. reported as (2006) 13 SCC 252. In said case, amongst other aspects, the Apex Court was dealing with clause (1ii1) of Section 95 of Finance Act, 1995, which prescribes that the provisions of Section 95 shall not apply to any person in respect of whom prosecution for certain specified offences or for purpose of enforcement of any civil liability has been instituted on or before the filing of the declaration. In said context, one of the questions, which had arisen for consideration before the Court, was that 'when does a prosecution start'. The question was answered in following terms:-
"The First Information Report in regard to the offences committed, as indicated hereinbefore, was lodged on 02.03.1995. The investigation started immediately ns en one a mL a ee i ne -- oo L. e | oe 18 OA No.81/2021 Charge-sheet in the criminal case was filed on 12.04.1999. It is in the afore-mentioned context, interpretation of word nprosecution™ assumes Significance. The term nprosecution™ would include institution or commencement of a criminal proceeding. It may include also an inquiry or investigation. The term ,prosecution™ and ,cognizance" are not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages.
In initio means in the beginning. The dictionary meaning of initiation is cause to begin. Whereas some statutes provide for grant of sanction before a prosecution is initiated, some others postulate grant of Sanction before a cognizance is taken by Court. However, meaning of the word may vary from case to case. In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.
The term prosecution has been instituted would not mean when charge-sheet has been filed and cognizance has been taken. It must be given its ordinary meaning.
(Emphasis Supplied)
13. The above-noted observations made by the Supreme Court in Sashi's case (supra) are to the effect that prosecution would begin when a person is accused of having committed an offence, i.e., before the filing of charge sheet by the investigating agency. In view of this decision, one thing is clear that the prosecution would be pending when the charge sheet is filed by an investigating agency in the 19 OA _No.81/2021 reason for me to deny the relief to the applicant, i.e., as on date the departmental proceedings are going on under Rule 9 of the CCS (Pension) Rules, which is admitted by both the parties, as such the question of granting full pension today, does not survive unless the said departmental proceedings reach a culmination. It is not in dispute that retirement under FR 56(j) makes an officer eligible for all and full retirement benefits. These retirement benefits would include regular pension, commutation of pension, leave encashment for the earned leave balance on the date of retirement and gratuity. The retiral benefits are matter of right to life under Article 21 of the Constitution. In a catena of judgments by the Hon'ble Supreme Court and the Hon'ble High Courts enunciated that pension and other terminal benefits are matter of right of the employee. Gratuity and leave encashment are a part of the salary, which is regulated at the time of retirement. It is neither a charity nor a free gift by the respondent-employer herein. That non-grant / delaying grant of retirement amounts to harassing the officers irrespective of whether an employee retired under FR 56(j) or by way of superannuation and 20 OA No.81/2021 Constitution of India are invocable against such arbitrariness, more so when seen in juxtaposition to the long-standing career and services rendered to Government of India. In D.S. Nakara_ and Ors. Vs Union of India 7983) 1 SCC 305, the Hon'ble Supreme Court laid down a law that "the pensionary benefit is a matter of right of the employee and not a bounty by the Government". Under the circumstances, granting provisional pension and withholding other terminal benefits earned by the employee during the course of employment, ordinarily would be violation of his right to equality and the right to life guaranteed by the Constitution, in addition to being violative of service jurisprudence. The present case, however, shall have to be dealt with on a different footing. The important point for consideration here is as to what are the charges against the applicant and whether from the charges and the statement of allegations, it is borne out that any pecuniary loss has been caused to the State on account of any act or omission on the part of the applicant. The allegations against the applicant are very grave in nature and pertain to loss of revenue to the State, due to acts of the applicant. Departmental 21 OA No.81/2021 pending, retiral dues, including regular pension, commutation, leave encashment etc. cannot be released to applicant.
14. I find no merit in the Original Application, the same is dismissed. There shall be no order as to costs.
(Harvinder Kaur Oberoi) Member (J) ma.