Central Administrative Tribunal - Patna
Amar Nath Prasad vs Department Of Posts on 7 August, 2024
1 OA No. /050/00459 of 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/00459 of 2022
Reserved on: 01.08. 2024.
Pronounced on: 07.08.2024
CORAM
HON'BLE MR. AJAY PRATAP SINGH, MEMBER [J]
AMAR NATH PRASAD, Son of Late Ram Chandra Prasad,
Resident of Mohalla-Ashok Nagar, Road No.5, Kankarbagh, Post
Office-Lohianagar, Patna-800020 at present retired Sorting
Assistant HRO, RMS, PT- Dn Patna-800004.
Patna
Mobile No.7765996185 Email: [email protected]
Bench
.......... Applicant.
-Versus-
1. The Union of India through the Secretary, Government of
India, Ministry of Communication Department of Posts, Dak
Bhawan, Sansad Marg. New Delhi-110001.
2. The Director General, Department of Posts, Government of
India, Dak Bhawan, Sansad Marg. New Delhi-110001.
3. The Chief Postmaster General, Bihar Circle, Meghdoot
Bhawan, Patna-800001.
4. The General Manager, Finance (Postal) Bihar Circle, G.P.O.
Campus, Patna G.P.O.-800001.
5. The Director of Postal Services, Head Quarter, Meghdoot
Bhawan, Patna-800001.
6. The Senior Superintendent of RMS PT-Dn Patna- 800004.
7. The Head Record Officer, HRO, RMS, PT-Dn. Patna- 800004.
........Respondents
For Applicant:- Shri. Om Prakash Singh, Advocate.
For Respondents:-Shri, Rabindra Kumar Choubey, Addl.CGSC.
ORDER
AS PER:- AJAY PRATAP SINGH, MEMBER[JUDICIAL]
1. By way of the present OA, the applicant has challenged the order dated 07.03.2022(Annexure-A/9), whereby respondent No. 06 informed the applicant that DCRG amount has not been sanctioned because of pendency of 2 OA No. /050/00459 of 2022 Criminal Case registered pursuant to FIR No. 713/17 under Section 406, 409, 420 & 120B of IPC at Kotwali Thana, Patna and as per Rule 69 of CCS (Pension) Rules, 1972 (for brevity Rules 1972). The applicant is also seeking directions to respondents to release provisional DCRG /final DCRG with statutory interest.
2. By way of the present OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking main reliefs (as extracted from the OA) as under:
"8(i) Your Lordships may graciously be pleased to quash the communication of 0/ SSRM PT-Dn Patna No- Pen/A.N. Prasad/Retd. SA/PT- Dn Patna dated 07.03.2022 (Annexure-A/9) 8(in) Your Lordships may graciously be pleased to direct the respondents to pay provisional DCRG/ final DCRG with statutory interest. 8 (iii) Cost of the case may please be awarded to the applicant for unnecessary expenditure in litigation and for financial and mental harassment.
Patna 8(iv) Any other relief/ reliefs as your Lordships may deem fit and proper in the Bench interest of justice."
3. Briefly stated facts as stated by the applicant in the OA are that the applicant superannuated from the post of Sorting Assistant on 31.01.2022. The applicant while working with the respondent was arrested by Kotwali Police Patna on 16.12.2017 and a Criminal Case pursuant to FIR No. 713/17 dated 17.12.2017 was registered against the applicant under section 406, 409, 420 & 120B of IPC. Subsequently, the applicant was granted bail by the Hon'ble Patna High Court on 27.12.2018 in Criminal Miscellaneous No. 11635 of 2018. The Respondents have issued charge sheet under Rule-16 of CCS (CCA) Rules, 1965 and inflicted the penalty of withholding of one increment of pay for a period of three months without cumulative effect vide order dated 02.08.2019.
4. Upon superannuation, the respondents sanctioned payment of provisional pension to applicant from 01.02.2022 in accordance with sub-rule 4 of Rule 64 of Rules 1972. Total four persons were accused in FIR No. 713/17 and under similar facts and circumstances, the other co-accused namely Salabh Kumar Karn and Prakash Chandra Dheeraj and one other similarly placed employee were granted bail and on superannuation they have been paid DCRG and the applicant has been discriminated and has not been paid the DCRG amount.
3 OA No. /050/00459 of 20225. It is also stated in the OA that the case of the applicant is covered in light of letter dated 25.03.2024 issued by the Department of Posts. The applicant stood retired on 31.01.2022 and on the date of his retirement neither any criminal case nor any departmental proceeding were pending against the applicant and the respondents cannot withhold the DCRG amount due and admissible to the applicant.
6. Opposing the claim of the applicant, the respondents have filed written statement stating therein that while working as a Sorting Assistant, FIR No 713/17 was registered against the applicant along with other co-accused under Section 406/409/420/120B of IPC in connection with mishandling of a speed post Bag containing 537 articles, which were found thrown besides the road of north Kidwaipuri at Income Tax Golamber, Patna. The Kotwali Police, Patna Patna summoned the applicant and other co-accused connected with the matter. On Bench investigation prima facie case was found against the applicant. The applicant was already suspended on 19.12.2017. Charge sheet under Rule 16 of Rules 1965 was issued and penalty order of withholding of one increment of pay for a period of three months without cumulative effect was imposed upon the applicant vide order dated 02.08.2019. The charge sheet No. 50/2018 dated 12.02.2018 has already been submitted in the Court of C.J.M Patna pursuant to FIR no. 713/17 dated 17.12.2017 under Section 406/409/420/120B of IPC, PS Kotwali, Patna and the said criminal case is pending against the applicant.
7. In the Written Statement the respondents have contested that provisional pension, encashment of leave and final amount of GPF have already been sanctioned but the amount of DCRG has been withheld as Criminal Case pursuant to FIR No. 713/17 is pending against the applicant. It is also stated by the respondents in the written statement that in view of sub Rule 1(c) of Rule-69 of the CCS (Pension) Rules, 1972 cannot be paid to the applicant until the conclusion of judicial proceedings in Criminal case pursuant to FIR No. 713/17. The respondents further stated that the order dated 07.03.2022 is justified and there is no legal infirmity in the said order and the amount of DCRG cannot be sanctioned.
8. The respondents further stated that the order passed by the Hon'ble High Court of Allahabad in the case of Dukhan Prasad Singh Son of Sri Karu. vs Union of India (UoI) & Others was based in the different peculiar 4 OA No. /050/00459 of 2022 facts and circumstances of that case and hence the said order is of no help to the applicant in the present OA.
9. Shri Om Prakash Singh, learned counsel for applicant contended that-
(i) Respondents sanctioned provisional pension as per sub-rule (4) of Rule 64 of Rules, 1972 and illegally withheld DCRG amount under Rule 69 of Rules 1972 on pretext that Criminal Case vide FIR No 713 of 2017 under Section 406, 420, 409, 120 B IPC is pending before trial court and charge sheet filed.
(ii) Respondents vide impugned order dated 07.03.2022 withheld DCRG amount due to pendency of criminal case whereas sub-rule (4) of Rule 9 of Rules 1972 does not contemplate where judicial Patna proceedings have been initiated prior to superannuation and thus Bench applicant is entitled for release of gratuity/CDRG, withheld illegally vide order dated 07.03.2022. The Senior Superintendent vide order dated 07.03.2022 cannot withheld DCRG it is part of pension except President under Rule 9 of Rules 1972, no one can withheld the DCRG due to applicant.
(iii) Learned counsel for applicant further submits that respondents in case of similarly situated employee in case of Salabh Kumar Karn was paid provisional DCRG but applicant discriminated.
(iv) Applicant is facing criminal proceedings in Criminal case in the court of CJM, Patna for grave misconduct during service, offences under Section 120 B, 406, 409 & 420 of IPC pending trial and in disciplinary proceedings charges established of misconduct Rule 8 of Rules 1972, provides future good conduct implied condition of every grant of pension and appointing authority withhold a part thereof, whether permanently or for a specified period, if found guilty of grave misconduct. So also under Sub-Rule (4) of Rules, 1972, provides that in case government servant retired on attaining age of superannuation and against whom any departmental or judicial proceedings are continued, provisional pension as provided in Rule 69 of Rules, 1972 shall be sanctioned. Respondents issued impugned order dated 07.03.2022 in consonsance with sub-sub-clause (c) of Sub-Rule (1) of 5 OA No. /050/00459 of 2022 Rule 69 of Rules, 1972 and provisional pension being granted regularly after decision criminal case pending before competent court.
(v) Hon'ble High Court, Allahabad in case of Dukhan Prasad Singh versus Union of India, 2006 (4) AWC 3210. Co-ordinate Bench, Bench at Delhi in case of Syed Sagar Ali Vs. Urban Development in OA No. 3910 of 2016, decided on 20.02.2019. Hon'ble High Court, Delhi in Shri Ashok Kumar Vs. North Delhi Power, in WP(C) No. 510 of 2012, decided on 05.09.2013, Hon'ble Supreme Court in case of State of Jharkhand Vs. Jitender Kumar Srivastava, (2013) 12 SCC 210. Hon'ble High Court, Patna in case of Arvind Kumar Singh Vs. State of Bihar in CWJC No.15328 of 2016, decided on 02.05.2018, reported in 2018 (2) PLJR 933 and Patna Hon'ble High Court at Allahabad, Lucknow Bench in case of Ram Pal Bench versus State of UP in Service Single Case No. 582 of 2010, decided on 30.08.2012, quashed orders of withholding of gratuity.
10. Shri Rabindra Kumar Choubey, ld. Addl. CGSC appearing for respondents contended that:-
(i) Applicant while discharging official duties found to be.
guilty of misconduct and admitted that due to his gross negligence and carelessness towards duty the bags and blank bar code of speed post were found lying by the Police of Kotwali P.S., Patna at end of Income Tax Golambar, Patna. On charges being proved considering long service lenient view was taken and penalty dated 02.08.2019 was awarded. The police of Kotwali Thana, Patna lodged FIR no. 713 of 2017 under Section 406, 409, 420 & 120-B of IPC and criminal case before trial court is still pending and charge sheet filed on 12.02.2018. Rule 69 of Rules 1972 does not permit to release gratuity until conclusion of judicial or disciplinary proceedings. The DCRG can only be release once criminal case before CJM Court, Patna is decided and thereafter a decision will be taken under Sub-Rule 1(a) of Rule 8 of Rules 1972 relating to such conviction. Thus applicant involved in misconduct tarnished image of the department and criminal case still pending.
6 OA No. /050/00459 of 2022(ii) Applicant has no legal right to claim negative equality contrary to Rule 69 of Rules 1972. No benefit can be granted contrary to Rules, 1972
11. Heard learned counsel appearing for parties and perused the materials on record as well as precedents relied.
12. In Written Statement, respondents herein stated that penalty charge sheet served and after giving opportunity of hearing as per CCS (CCA) Rules, 1965 penalty inflicted and charges proved.
13. Relevant Rules of Rules, 1972 for ready reference reads as:-
(i) 8. Pension subject to future good conduct (1) (a) Future good conduct shall be an implied condition of every grant of Patna pension and its continuance under these rules. Bench
(b) The appointing authority may, by order in writing, withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct.
Provided that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the amount of 4 [rupees three hundred and seventy-five] per mensem.
(2) Where a pensioner is convicted of a serious crime by a Court of Law, action under sub-rule (1) shall be taken in the light of the judgment of the court relating to such conviction.
(3) In a case not falling under sub-rule (2), if the authority referred to in sub-rule (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order under sub-rule (1),
(a) serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit, within fifteen days of the receipt of the notice or such further time not exceeding fifteen days as may be allowed by the [appointing authority] such representation as he may wish to make against the proposal; and
(b) take into consideration the representation, if any, submitted by the pensioner under Clause (a).
(4) Where the authority competent to pass an order under sub-rule (1) is the President, the Union Public Service Commission shall be consulted before the order is passed.
(5) An appeal against an order under sub-rule (1), passed by any authority other than the President, shall lie to the President and the President shall, in consultation with the Union Public Service Commission, pass such orders on the appeal as he deems fit.
7 OA No. /050/00459 of 2022EXPLANATION. - In this rule, -
(a) the expression `serious crime' includes a crime involving an offence under the Official Secrets Act, 1923 (19 of 1923);
(b) the expression `grave misconduct' includes the communication or disclosure of any secret official code or password or any sketch, plan, model, article, note, document or information, such as is mentioned in Section 5 of the Official Secrets Act, 1923 (19 of 1923) (which was obtained while holding office under the Government) so as to prejudicially affect the interests of the general public or the security of the State.
(ii) Rule 9
9. Right of President to withhold or withdraw pension .
(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 Patna continued under sub-rule (2), a provisional pension as provided in 2 [Rule Bench 69] shall be sanctioned.
(iii) Rule 69
69. Provisional pension where departmental or 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 that 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 8 OA No. /050/00459 of 2022 less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.
GOVERNMENT OF INDIA'S DECISION Grant of cent per cent provisional pension under Rule 69 mandatory even if departmental or judicial proceedings are continued. - It has come to the notice of Finance Ministry that some of the administrative authorities are not following Rule 69 of the CCS (Pension) Rules, 1972, which provide that Government servant who has retired and against whom any departmental or judicial proceedings are instituted or are continued, shall be paid provisional pension. The payment of provisional pension under these rules is mandatory. But some administrative authorities appear to be under the impression that in cases where the departmental proceedings instituted against a Government servant were for a major penalty and in which ultimately no pension might become payable on the conclusion of the proceedings after his retirement under Rule 9 of the CCS (Pension) Rules, 1972, even the provisional pension need not to be sanctioned. This view is against the letter and spirit of the rule. The Ministry of Home Affairs, etc., are, therefore, requested to bring to the notice of administrative authorities under them the correct position under the rules so that the provisional pension under Rule 69 ibid is Patna not denied to the retired Government servants. Bench
23. Rule 4 of CCS (Commutation of Pension Rules 1981.
Restriction on commutation of pension - No Government servant against whom 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 authorised under Rule 69 of the Pension Rules or the pension, as the case may be, during the pendency of such proceedings.
[Emphasis supplied]
14. The applicant has committed misconduct of negligence during his tenure of service is fact and power of appointing authority to pass an order of withholding or withdrawing the pension or part thereof in terms of the rules reproduced herein above is not in dispute. It is also not disputed that departmental proceedings was initiated and the applicant was found guilty of commission of above alleged misconduct therein.
15. It is now settled that requirement for imposing of punishment was to arrive at a finding of misconduct which is of grave nature involving misconduct of committing negligence and illegalities in official duties tarnishing image of Postal Deptt. The applicant was working as MSA in NSH/2B, Patna, RMS and on 18.11.2017 dispatched SP bags for direct delivery to Bihar Health Society and contents of SP bags and blank bar code of speed post were found lying by Police of PS Kotwali, Patna and gross negligence of applicant found proved and department image tarnished.
9 OA No. /050/00459 of 2022Applicant held responsible for misconduct and criminal case still pending, gratuity cannot be released in view of statutory provision under Rule 69 of Rules, 1972.
16. Rule 8, imposes condition for every grant of pension, future conduct must be good and under Rules 1972 for continuing pension. Appointing authority by order in writing withhold, withdraw a pension or a part thereof, whether permanently or for a specified period, if petitioner is convicted of a serious crime or is found guilty of misconduct. Case in hand appointing authority has taken decision to sanction and grant provisional pension as applicant found guilty of misconduct in enquiry and PS Kotwali registered Criminal Case vide FIR No. 713/2017 under Sections 409, 406, 420, 120B of IPC and under sub-Rule (4) of Rule 9 of Rules, 1972 only provisional pension is legally payable. Rule 69 of Rules 1972, further provides that once Patna Bench provisional pension as stipulated in sub rule (4) of Rule 9 admissible based on qualifying service and shall continue up to and date after the conclusion of departmental or judicial proceedings and final orders are passed by the competent authority. Sub-Sub Rule (c) of sub-sub rule (1) of Rule 69 further specifically bar payment of gratuity until conclusion of the departmental or judicial proceedings and issue of final orders thereon.
17. As evident from the facts of present case, dispute relates to setting- aside order dated 07.03.2022 passed by Senior Superintendent, RMS, Patna Division hereby under Rule 69 of Rules 1972, DCRG withheld as criminal case pursuant to FIR no. 713 of 2017 under Section 406, 409, 420 & 120 B of IPC registered at PS Kotwali, Patna and trial pending before court of law - CJM, Patna. The Applicant does not have vested legal right to claim release of DCRG dehors the sub-rule 1 (C) of Rule 69 of Rules 1969 as no gratuity is payable until the conclusion of the judicial proceedings/criminal trial and issue of final orders thereon. So also applicant has been subjected to disciplinary proceedings and admitted the guilt and all charges proved and due to length of service, lenient view was taken and on departmental enquiry, the penalty inflicted on 02.08.2019. The applicant superannuated and by operation of Sub-sub-rule (C) of sub-rule (1) of Rule 69 Rules 1972, no DCRG can be paid to the applicant until conclusion of pending criminal case before CJM, Patna. Sub-Rule (2) of Rule 69 further provides payment of provisional pension shall be adjusted against final retirement settlement on conclusion of 10 OA No. /050/00459 of 2022 such proceedings. Thus, DCRG can only be released once pending criminal case is decided and decision is taken by appointing authority under Sub-rule 1(a) of Rule 8 of Rules 1972 to such conviction.
18. Shri O.P. Singh, learned counsel for respondents much emphasized on point of equal treatment as in case of Salabh Kumar Karn and Ors DCRG released, they are also co-accused and on date of retirement no criminal case or departmental enquiry pending. Hence, respondents cannot withheld DCRG amount due to applicant.
19. Undisputedly applicant is facing criminal trial in criminal case pursuant to FIR No.713/2017 registered at PS Kotwali, Patna under Sec. 406, 409, 420 and 120B IPC and in criminal case chargesheet No. 50 of 2018 dated 12.02.2018 filed in court of CJM, Patna and prima facie case of misconduct Patna Bench already established in the departmental enquiry and penalty inflicted on 02.08.2019 having found charges fully proved and lenient view was taken.
20. This Tribunal is of the considered opinion that settled legal position that there is no equality in favour of applicant dehors clause (c) of sub-rule (1) of Rule 69 of Rules, 1972. The benefits to applicant can only be granted as to payment of DCRG in accordance with Rules, 1972 and there is no negative equality benefits conferred, if even conferred on similarly placed person without any legal basis as Article 1`4 of the Constitution of India is not meant to perpertuate illegality extending wrong decisions. The applicant not entitled to relief claimed and present OA does not merit any consideration.
21. Shri Om Prakash Singh, counsel for applicant has also laid much emphasis on cases Dhukhan Prasad Singh, Syed Sagar Ali, Ashok Kumar, Jitendra Kumar Srivastava, Arvind Kumar Singh and Ram Pal (supra).
22. But it is settled position of law that judgment has got no universal application rather the judgment is to be tested on the basis of each case. Reference in this regard be made to the judgment rendered of Hon'ble Supreme Court in case of Dr. Subramanian Swamy versus State of Tamil Nadu and others, (2014) 5 SCC 75. Relevant paragraph reads as under:-
"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for that what it actually decides, and not what logically follows from it. The court should not place reliance on 11 OA No. /050/00459 of 2022 decisions without discussing as to how the factual situation fits in with the facts and situation of the decision on which reliance is placed."
[Emphasis supplied]
23. This Tribunal now proceeding to examine the factual aspects as was in case of Dukhan Prasad Singh versus Union of India & Ors (supra) and found that after retirement not granted full pension and there was no departmental proceeding pending but was facing trial in case no. 932 of 1992, related to his service during employment. F.I.R. was registered and charge sheet for minor penalty issued, during departmental enquiry, exonerated of all the charges leveled against him. In such circumstances Hon'ble High Court, Allahabad held that order of provisional pension as provided in Rule 69 of Rules 1972 could not have been passed instead of regular pension.
24. But herein the case on hand applicant faced disciplinary proceedings Patna Bench before superannuation and a Criminal Case pursuant to FIR No. 713/17 under Section 406, 409, 420 & 120B of IPC registered at Kotwali Thana, Patna and still pending before competent court - CJM, Patna for misconduct, illegalities committed in discharge of official duties. Therefore judgment rendered in case of Dukhan Prasad Singh Vs Union of India & Ors (supra) will not be applicable as there is material difference in the facts of the two cases.
25. In case of Syed Sagar Ali (supra) applicant was convicted under section 302 IPC was superannuated being in custody. The Tribunal at Delhi allowed OA as applicant was involved in judicial proceedings, Criminal Case unconnected with performance of his duties. Therefore the ratio of Syed Sagar Ali (supra) will not be applicable in present case as there is material difference in facts of the case in hand.
26. In case of Shri Ashok Kumar Versus North Delhi Power Ltd (supra) and Jitendra Kumar Shrivastava (supra) and Arvind Kumar Singh (Supra) and Rampal Ghosh (supra) and short question for consideration was "whether in absence of any provision in Pension Rules, the state government can withhold a part of pension during pendency of departmental/criminal proceedings?" Hon'ble courts were dealing with different set of service rules. So far as facts and legal position applicable is different facts not applicable in present case. So also Hon'ble Supreme Court held in case of Nair Service Society versus DR. T. Beer Masthan, (2009) 5 SCC 545 Their Lordships held as :-
12 OA No. /050/00459 of 2022"48...It is well settled that judgements in service jurisprudence should be understand with reference to the particular service rules governing the filed."
[Emphasis supplied]
27. Therefore, judgments rendered in case of Dhukhan Prasad Singh, Syed Sagar Ali, Ashok Kumar, Jitendra Kumar Srivastava, Arvind Kumar Singh and Ram Pal (supra) are not applicable in the case on hand as there is material difference in facts of case on hand.
28. In view whereof, issue is decided against the applicant. The impugned order dated 07.03.2022, (Annexure-A/9) withholding of DCRG until conclusion of the judicial proceedings and issue of final order thereto in present OA is upheld being justified and same does not suffer from any Patna Bench infirmity, remains unassailable and applicant is not entitled to the relief sought in the O.A.
29. Resultantly, the Original Applicant being devoid of merit accordingly dismissed.
30. There shall be no order as to cost.
31. As a sequel thereof, pending Miscellaneous Application(s), if any shall also stand disposed of.
(Ajay Pratap Singh) Judicial Member.
Central Administrative Tribunal, Patna Bench, Patna.
bp/-