Central Administrative Tribunal - Delhi
S K Jain vs Kendriya Vidyalaya Sanghthan on 18 October, 2022
1
OA No. 3210/2018
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 3210/2018
Order reserved on: 28.09.2022
Order pronounced on: 18.10.2022
Hon'ble Mr. Manish Garg, Member (J)
S.K.Jain, Retd., 68 years,
TGT, Group-C
S/o Late K.M.Jain,
R/o T-121, Om Vihar, Sukar Bazar,
Uttam Nagar, New Delhi-110059.
...Applicant
(By Advocate: Mr. A.K.Trivedi)
Versus
1. Kendriya Vidyalaya Sangathan,
Through its Chairman,
Ministry of HRD, Room No.122-C,
C Wing, Shastri Bhawan,
New Delhi-110001.
2. The Commissioner,
Kendriya Vidyalaya Sangathan,
18, Institutional Area,
Saheed Jeet Singh Marg,
New Delhi-110016.
3. The Deputy Commissioner,
Kendriya Vidyalaya Sangathan,
Delhi Region, JNU Campus,
New Mehrauli Road, New Delhi-67.
... Respondents
(By Advocate : Mr. Anil Nag)
2
OA No. 3210/2018
ORDER
This Original Application has been filed by the applicant under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s):
"(a) Declare the whole action of the respondents as illegal, unjust, arbitrary and against the rules and law on the subject in adjusting the amount of gratuity against the provisional pension of the applicant, which was paid to him after due diligence and not on account of any misrepresentation by the applicant.
(b) Direct the respondents to release the amount of Gratuity of Rs3,49,107/- to the applicant alongwith interest @18% p.a. till payment.
(c) any other relief which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
2. Applicant was initially appointed with the respondents as Trained Graduate Teacher (TGT) on 23.08.1985. He retired from service on attaining the age of superannuation on 26.02.2010. When he was posted in K.V.Bhatinda in Chandigarh Region, a major penalty charge sheet under rule 14 of CCS (CCA) Rules, 1965 was issued vide memo dated 09.06.1994. At the time of his retirement, 3 OA No. 3210/2018 disciplinary proceedings were pending against him, therefore, applicant was only granted provisional pension and his gratuity and retirement benefits were withheld. On 07.12.2012, respondents passed an order whereby penalty of withholding applicant's pension in full from the date of his superannuation was passed, but no order regarding withholding of gratuity was passed.
3. Feeling aggrieved, applicant filed OA No.1739/2012 seeking to quash impugned order dated 07.12.2012 before this Tribunal which was dismissed vide order dated 21.04.2015. Thereafter, he approached the Hon'ble High Court of Delhi by filing WP (C) No.9833/2015, which is still pending. On 27.05.2015, he preferred a representation dated 27.05.2015 stating that he has not received the gratuity and requested the respondents to release his gratuity. Since no action was taken, he sent a legal notice on 03.09.2015 through his counsel stating that only the penalty of withholding of full pension has been imposed and no orders have been 4 OA No. 3210/2018 passed for withholding of gratuity and requested the respondents to immediately release the amount of gratuity along with interest but till date neither the gratuity has been paid to him nor any decision conveyed by the respondents in this regard. Thereafter, he again approached this Tribunal by filing OA No.2599/2017 which was disposed of on 20.09.2017 with a direction to the respondents to decide the representation of the applicant dated 27.05.2015 within two months and if the facts, are not otherwise, release the amount of gratuity to the applicant as per rules. In compliance of the aforesaid order, respondents passed an order dated 28.11.2017 stating that respondent No.2 vide letter dated 01.11.2017 ordered to release the amount of gratuity to the applicant but no gratuity amount has yet been released. Thereafter, applicant filed a CP No.42/2018 wherein notices have been issued to the respondents. Meanwhile, the respondents issued a show cause notice dated 08.03.2018 to the applicant as to why the amount of provisional 5 OA No. 3210/2018 pension already drawn by him should not be adjusted against the amount of retirement gratuity due to him. The applicant submitted reply on 22.03.2018 stating that in terms of Rule 69(2) no recovery can be made where pension is reduced or withheld either permanently or for specified period. In support of his claim he cited the decision of Hon'ble Supreme Court in State of Punjab vs. Rafiq Masih, AIR 2015 SC 696 and requested the respondents to release his gratuity with interest. The respondents thereafter passed the order dated 19.07.2018, impugned herein thereby rejecting his claim qua release of gratuity placing reliance on the judgments which have no applicability to the facts of the present case. The Tribunal while hearing the CP, which came up for hearing before this Tribunal on 13.08.2018 passed the order that CP has become infructuous and while dismissing the CP gave liberty to the applicant to take recourse to appropriate remedy as available to him under the 6 OA No. 3210/2018 rules in case he is aggrieved by the order dated 19.08.2018. Hence the OA.
4. Respondents vehemently opposed the OA by filing the counter reply. It is contended by the respondents that the applicant was chargesheeted on 09.06.1994 for an incident which took place on 05.10.1993. It is contended that he adopted dilatory tactics to delay the disciplinary proceedings which could not be completed at the time of his retirement on 28.08.2010. At the time of his retirement he was sanctioned provisional pension vide order dated 16.04.2010. The applicant approached this Tribunal challenging the disciplinary proceedings. Since the applicant had already drawn provisional pension w.e.f. 28.02.2010 to 07.12.2012, a show cause notice was issued to him as to why the amount of gratuity payable to him should not be adjusted against the provisional pension drawn by him to which he was not legally entitled. Thereafter, vide order dated 19.07.2018 the competent authority passed an 7 OA No. 3210/2018 order withholding the gratuity amount of Rs.3,49,107/- to be adjusted against the provisional pension amounting to Rs.5,20,480/- already disbursed to the applicant. It was also directed that the balance amount of provisional pension amounting to Rs.1,73,373/- shall not be recovered from him.
5. Analysis:
On perusal of the records of the case and after hearing the learned counsel for respective parties, the following undisputed facts emerges:
5.1 It is not disputed that the earlier order dated 07.12.2012 passed by the Competent Authority in which the penalty of withholding of pension in full with effect from the date of superannuation was passed but no order of recovery withholding of gratuity was passed.
5.2 Against the said order dated 07.12.2012, OA No.1739/2012 was filed before this Tribunal seeking quashing of the impugned order wherein 8 OA No. 3210/2018 this Tribunal dismissed the OA of the applicant vide order dated 21.04.2015 and the applicant has preferred Writ Petition No.9833/2015 before the Hon'ble High Court of Delhi and same is pending adjudication till date.
5.3 In the present facts of the case, it is not disputed that the impugned order qua gratuity has been passed which is under subject matter of challenge in the present OA.
5.4 As can be seen from the impugned order, the following reasons have been assigned for dismissal of the representation of the applicant:
"(i) The contentions of Sh. S.K. Jain have been considered in the light of the rules as well as the law laid down by the Hon'ble SC in Wazir Chand v. Union of India and Ors.. (2001) 6 SCC 596, a retired employee continuously kept the quarter occupied unauthorisedly. He was charged penal rent in accordance with rules and after adjustment of dues, balance amount of gratuity was paid to him. He contended that it was bounden duty of the Government not to withhold the gratuity amount. The Court, however, dismissed the appeal observing that it was "unable to accept" the prayer of the appellant. The Court observed that the appellant having unauthorizedly kept the government quarter was liable to pay penal rent in accordance with rules and there was no illegality in adjusting those dues against death-cum-retirement benefits.9 OA No. 3210/2018
(ii) Similarly, in Jarnail Singh v. Secretary, Ministry of Home Affairs and Ors, [1993] 1 SCC 47, this Court had an occasion to consider the provisions of the Central Civil Services (Pension) Rules, 1972. The definition of "pension" included gratuity under Rule 3. Rule 9 conferred on the President right to withhold or withdraw pension in certain circumstances. The order was passed against the appellant withholding pension and the entire amount of death- cum- retirement gratuity otherwise admissible to him. The direction was given on serious irregularities found to have been committed by the appellant. The appellant challenged that order unsuccessfully before the Central Administrative Tribunal. He, therefore, approached this Court. His contention was that an amount of gratuity could not have been withheld. Negativing the contention, the Court held that the power to withhold gratuity was conferred on the President under the relevant rules and hence, such action could not be said to be illegal. According to the Court, there could be adjustment of Government dues against the amount of death-cum- retirement gratuity payable to Government servant."
5.5 On perusal of the impugned order, reliance has been placed on Rule 69 (2) of CCS (Pension) Rules, 1972, which is reproduced as under:
"Payment of provisional pension made under sub- rule (1) shall be adjusted against final retirement benefit 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."
5.6 Further, in the facts of the case, counsel for respondents has drawn reference to Rule 9 of the 10 OA No. 3210/2018 CCS (Pension) Rules, 1972. A reference is also drawn to Rule 71 of CCS (Pension) Rules, 1972 which reads as under:
"71. Recovery and adjustment of Government dues (1) It shall be the duty of the Head of Office to ascertain and assess Government dues payable by a Government servant due for retirement.
(2) The Government dues as ascertained and assessed by the Head of Office which remain outstanding till the date of retirement of the Government servant, shall be adjusted against the amount of the retirement gratuity becoming payable."
5.7 In view of the aforesaid Rule position, it is highlighted that the reliance has been placed on Rule 69 (2) of CCS (Pension) Rules, which is misplaced and mis-interpreted by the learned counsel for the respondents inasmuch as no final order regarding "retirement benefit" or "pension order" has been sanctioned in terms of the said Rule 69 (2). The said Rule 69(2) pre-supposes passing of a final order for retirement benefits. Since no final order has been passed in terms of Rule 69 of CCS (Pension) Rules and only 11 OA No. 3210/2018 Provisional Pension Order has been passed, therefore, no adjustment can take place. 5.8 Reliance placed on the decision of the Hon'ble Apex Court in Wazir Chand vs. Union of India, (2001) 6 SCC 596 wherein the facts of the case are entirely different to the facts of the present case, as the applicant therein was a retired employee who continuously occupied the Government quarter unauthorizedly and he was liable to pay penal rent and balance amount of the gratuity was paid to him. As in the present case, the penalty of withholding of pension in full was imposed and the only order which is also sub-judice before the Hon'ble High Court in aforesaid writ petition No.9833/2015 is still pending. The facts of the present case are entirely different. 5.9 Reliance also placed on the case of Jarnail Singh vs. Secretary, Ministry of Home Affairs, (1993) 1 SCC 47, is also misplaced in the facts of the present case in as much as the court has cautioned to deal with Rule 3 which was existing at 12 OA No. 3210/2018 the relevant point of time. As can be seen from the rule itself that the said sub Rule 3 was deleted by Government of India order notification dated 04.02.1992 published in the Gazette of India dated 15.02.1992. Therefore, the applicability of the said provision Rule 3 does not apply to the facts of the present case.
5.6 From the records of the case, it is also borne out that the provisional pension was given from 16.04.2010 as per the counter affidavit during the pendency of the disciplinary proceedings on date of retirement. Therefore, it does not lie in the mouth of the respondents to say that the provisional pension was wrongly sanctioned/granted and as such, it is liable to be adjusted against the said provisional pension granted to him. It is also seen from the records that the gratuity was sanctioned by the competent authority vide office order dated 27.11.2017/28.11.2017 and the same is still in place. This Tribunal can also not lose sight of the fact that a Writ Petition No.9833/2015 is also 13 OA No. 3210/2018 pending adjudication qua the claim of the applicant with regard to "withholding of full pension" before the Hon'ble High Court.
5.10 As can be seen from Rule 71 as reproduced in foregoing para, the Competent Authority/ Government is duty bound to ascertain the Government dues as ascertained and assessed by Head of Office as per sub-Rule 2 of Rule 71, the same shall be adjusted against the amount of retirement gratuity being payable.
6. Conclusion:
In view of the aforesaid rule position, having regard to Rule 71(2) of the CCS (Pension) Rules and also to the decision rendered by the Hon'ble Apex Court in Rafiq Masih (supra), the OA is disposed of with following directions:
(a) No recovery as per the impugned order itself dated 07.12.2012 to the tune of Rs.1,73,373/- shall be recovered from the applicant.14
OA No. 3210/2018
(b) That the applicant shall be entitled to refund the amount of Rs.3,49,107/- subject to any orders passed by the Hon'ble High Court in Writ Petition No.9833/2015, which is pending for adjudication.
It is made clear that in the event the applicant succeeds in the aforesaid writ petition, he shall be entitled to release the amount of Rs.3,49,107/-, which has been wrongly adjusted against the "provisional pension" within two months from the date of decision passed by Hon'ble High Court in his writ petition.
7. The OA is partly allowed in aforesaid terms. There shall be no order as to costs.
(Manish Garg) Member (J) /sd/