Central Administrative Tribunal - Delhi
Sh. Lakhi Ram vs Commissioner on 22 September, 2011
Principal Bench, New Delhi,O.A.No.2517/2010,New Delhi this the 22nd day of September, 2011
Honble Mrs. Meera Chhibber, Member (J)
Honble Dr. A.K. Mishra, Member (A)
Sh. Lakhi Ram,Retd. Head-Master,S/o Sh. Hari Singh,R/o H.No. 273,
Vill. & P.O. Rasoolpur,Delhi. . Applicant
(through Sh. K.K. Sharma, Advocate)
1. Commissioner,Municipal Corporation of Delhi,Town Hall, Delhi-6.
2. Education Officer,Education Department,Municipal Corporation of Delhi,Rohini Zone, Rohini, Delhi. . Respondents
(through Sh. Abhishek Sharma, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A)
The grievance of the applicant is that his last pay was not properly fixed and some of his retiral dues are not released on the ground that a criminal case started against him is yet to be finalized. The applicant, while working under the respondents, was placed under suspension on 13.08.2001 when he was arrested in connection with FIR No.2/2001; he was reinstated on 25.05.2005 and retired from service of the respondents organization on 31.08.2007.
2. He filed OA 2517/2010 alleging that his annual increments have been stopped since 2001 and not been released even after his reinstatement. It was his specific grievance that his gratuity dues have been withheld since his retirement. He submits that the criminal case initiated against him related to a land dispute, which he had with his neighbour; it had nothing to do with his duties as a employee of the respondents. When the respondents have decided to release provisional pension, GPF, GIS dues of the applicant, there was no justification to deny him his normal increments and the benefits under the 6th Pay Commission recommendations and refuse him his pension on the basis of his revised last pay.
3. All the issues raised by the applicant were examined in our order dated 01.06.2011 in OA 2517/2010. For better appreciation, paragraphs 5 to 16 of this order are extracted below:
5. At the time of hearing, learned counsel for the applicant placed reliance on the judgment dated 24.11.2009 of the Principal Bench of this Tribunal in OA-264/2009 in which in respect of a similarly placed employee the Tribunal not only directed the respondents to release the regular pension and other retiral benefits but also granted 8% interest per annum from the date the payment was due. It is his contention that the facts of the present case are squarely covered by the judgment of this Tribunal in the aforesaid case.
6. The following extract from the order in OA-264/2009 would show that the facts in both the cases are almost identical:-
The Applicant, Shri Prabhu Dayal, who retired on superannuation as Income Tax Officer (ITO) on 28.02.2007, is aggrieved that his dues on retirement, i.e., gratuity, commutation of pension and regular pension have been withheld owing to pendency of a criminal case against the Applicant, which is on account of some personal dispute and has nothing to do with the performance of his official duties, while in service.
7. After examination of the law on the subject, the Tribunal came to the following findings:-
9. In the case of the Applicant, there is a criminal case pending against him in the Court of Law. However, so far there has been no decision in the case pending against the Applicant. In the light of the above, it would be amply clear that only on the basis of the case pending against the Applicant, pension cannot be withheld under Rule 8 of CCS (Pension) Rules, 1972. It has to abide by the final decision in the criminal case against the Applicant. Gratuity cannot, in any case, be withheld or withdrawn under the provisions of Rule 8 ibid.
8. The reasons which led to the aforesaid conclusion have been given in paragraph-8 of the order. They read 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) x x x x
(iii) 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 pensioner is convicted of a serious crime of is found guilty of grave misconduct. Sub-rule (2 of Rule 8 further elucidates that action will be taken against the pensioner in the light of the judgement 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) It is clear, therefore, that pension can be withhold or withdrawn only after conviction in a serious crime and that too on the basis of the judgement of the Court relating to such conviction.
9. The judgment of the Hon,ble Supreme Court which was relied on in coming to the finding at paragraph-8(i) above is in the case of D.V. Kapoor vs. U.O.I., AIR 1990 SC 1923. The relevant portion of paragraph-7 of that judgment reads as under:- 7.xxxx 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.xxxxx 9.1 At that point of time Rule-9 (1) the Pension Rules did not mention about the power of the President to withhold gratuity. However, it was subsequently amended by Notification dated 23.08.1991. The amended version of the rule, which is in force now, is extracted below:- The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement:
10. Besides, Rule-69 (c) of the Pension Rules ibid expressly prohibits grant of gratuity during the pendency of departmental/judicial proceedings. Rule-69 reads as follows:-
(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. 10.1 The entitlement of gratuity to government employees are governed by Rule-50 of the Pension rules ibid. Therefore, provisions of payments of the Gratuity Act, 1972 are not relevant for our purpose. Section-2(3(3) of this Act excludes persons holding civil posts under the Central or State Government from the definition of employees under that Act.
11. The position was clarified in the case of Jarnail Singh Vs. Secretary, Ministry of Home Affairs and Others, (1993) 1 SCC 47 in which it was held that conceptually pension includes gratuity. Hence by way of punishment payment of gratuity could also be withheld under Rule-9. Besides, the words Pension or Gratuityor both which were introduced by the amendment of the Pension Rules in 1991 were merely clarificatory in nature, by which the definition was made explicit in nature although it was implicit prior to that amendment. Besides, the Honble Supreme Court also dealt with this issue in the case of R. Veerabhadram Vs. Govt. of A.P., (1999) 9 SCC 43 in the context of analogous provisions of the corresponding Rules of Andhra Pradesh Government and upheld the action of the State government to withhold the gratuity of the employee during the pendency of criminal proceedings. The Tribunal in OA-264/2009 placed reliance in the case of Rajendra Kumar Nangia Vs. Rashtriya Chemicals and Fertilizers Limied, 2002-1-LLJ-94. This case was dealing with the employees of Rashtriya chemicals and Fertilizers Limited which is a public sector industrial undertaking. The Pension Rules did not apply to the employees of that organization. Therefore, their case was examined with reference to Section-4 of the Indian Gratuity Act, 1972. Factually their cases were different from the case which is under our consideration.
12. The respondent organization has adopted the C.C.S. (Pension) Rules for their employees. Therefore, we would be guided by the provisions of the Pension Rules ibid. In OA-264/2009 a reference has been made of Rule-8 of the said Rules. As the caption of the Rule says it relates to continuance of the pension subject to future good conduct of the employee. In our considered opinion, it has no application to misconduct/offences committed prior to the retirement of an employee in which case the relevant rule applicable is Rule-9.
13. The only point for consideration is whether the gratuity can be withheld only for offences connected with an employees official work. Under Rule-19 of CCS CCA Rules an employee who is in service can be suitably punished if he is convicted in a court of law. It does not distinguish between misconduct relatable to his official work and those outside. Therefore, such a distinction cannot be imported into the scope of penalty provided under Rule-9 nor the Prohibition declared under Rule 69(b) of the Pension Rules. The other argument is that gratuity can be withheld only if there is a need for recovery of any pecuniary loss. A plain reading of the Rule suggests that gratuity can be withheld both by way of penalty and also for recovery of loss caused to government.
14. We also notice that charges for which the applicant is facing trial are serious in nature: they involve offences of theft, receiving stolen properties, assaulting government servants in discharge of their lawful duties, rioting and many other offences punishable under the Indian Penal Code. These are surely not simple offences. If there is delay in finalization of the criminal case, it is for the applicant to take necessary legal steps to expedite the trial. The respondents have no role to play in that. For the foregoing discussions, it is not possible for us to give a direction to the respondents to release the withheld gratuity amount before finalization of the pending criminal case.
15. As regards his prayer for grant of annual increments, fixation of revised pay after his reinstatement, we do not fore see any insuperable difficulty standing (in) the way (of) the respondents to grant these reliefs. A decision how to treat the period of suspension may, however, have to wait till conclusion of the criminal proceedings. Except for that period, the respondents could grant him increments for the remaining period when he actually worked following his reinstatement. The applicant retired after the Sixth Pay Commission recommendations were implemented w.e.f. 01.01.2006. Therefore, his revised pay should have been fixed w.e.f. 01.01.2006 and the provisional pension determined on that basis. Pendency of the criminal case does not prevent the respondents to give these reliefs to the applicant. The respondents are accordingly directed to grant increments to the applicant for the period from 29.05.2005 (date of reinstatement) to 31.08.2007 (date of his superannuation) and to fix his pay as per the Sixth Pay revision effective from 01.01.2006 and determine his provisional pension.
16. Since we have taken a different view about release of gratuity during the pendency of criminal case than what had been held by the Co-ordinate Bench in the case of Sh. Prabhu Lal vs. U.O.I. & Ors., (OA-264/2009) decided on 24.11.2009, Registry may place the matter before the Honble Chairman on administrative side for constitution of a Larger Bench to determine an authoritative and clear position of law on the subject. The issue for determination is, whether gratuity of an employee can be withheld by the Government or the MCD (the respondent in this case) before finalization of criminal proceedings against an employee and whether the correct law on the subject was laid down in OA-264/2009?As our view about withdrawing gratuity dues during the pendency of a criminal proceeding was different from what had been held in OA No.264/2009 by the coordinate Bench, we referred the matter for consideration of a Larger Bench. Now, it has been brought to our notice by the Registry that the decision of the coordinate Bench was challenged in the Honble Court of Delhi in W.P.(C) No.383/2010 and the Honble High Court has since upheld the order dated 24.11.2009 passed in OA-264/2009 in its order dated 25.01.2010 wherein it was held as follows:- 13. We are satisfied that while exercising power under Rule 69/9 of the CCS Pension Rules, the President has to be satisfied, that the pensioner committed grave misconduct in discharge of his duties. In absence of any such finding, the President cannot hold the pension or withhold gratuity. In the present case also there is no finding against the respondent warranting withholding of any part of pension or gatuity by the President as the respondent was neither facing any departmental proceedings nor the judicial proceedings having anything to do with his official functions. There is nothing on record that any loss has been caused to the Government by any act/omission of the respondent. .
In this case also the criminal proceedings against the applicant had nothing to do with his official duties. Neither is there finding that the applicant had committed grave misconduct in discharge of his duties. As such, the view of the Tribunal on the specific issue has attained finality and nothing more survives for adjudication and we are bound by the order of the Honble High Court.
4. Accordingly, we dispose of the present O.A. by directing the respondent authority to release the withheld gratuity in favour of the applicant within two months from the date of receipt of a copy of this order. The other directions given in paragraph 15 of the order dated 01.06.2011 in OA 2517/2010 extracts of which have been given earlier will remain as they are without any change. (DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)