Shri Dharamvir Singh vs The Commissioner Of Police on 4 July, 2011
New Delhi, this the 4th day of July, 2011
HONBLE SHRI GEORGE PARACKEN, MEMBER (J)
HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A)
Shri Dharamvir Singh,S/o Shri Nihal Singh,R/o House No. 38,
Sanik Colony,Rohtak, Haryana. Applicant.
(By Advocate:Shri Sachin Chauhan)
1. The Commissioner of Police,Police Headquarters, I.P. Estate,
MSO Building, New Delhi.
2. The Deputy Commissioner of Police,Communication
Through Commissioner of Police,Police Headquarters, I.P. Estate,
M.S.O Building, New Delhi.
3. The Pay & Accounts Officer
Pay & Accounts Office-II (Delhi Police),
Man Singh Road,New Delhi.
4. The Pay & Accounts Officer
Pay & Accounts Officer, GPF Cell,
Old Sectt. Delhi. Respondents.
(By Advocate Mrs. Harvinder Oberoi)
Shri G.George Paracken:
The applicants grievance is that he has not been paid his pensionary benefits which include gratuity, commuted pension, full leave encashment and regular pension with effect from the date of his superannuation on 31.03.2008. He has, therefore, sought a direction to the respondents to pay the same with 24% interest till the date of actual payment.
2. The applicant was a Head Constable AWO in Delhi Police and superannuated on 31.03.2008. While he was in service, a criminal case on the basis of FIR No. 20/2003 dated 18.11.2003 U/s 498/A, 406, 506,323,341 IPC Ladies Police Station, Sonipat was registered against him. According to him, though no departmental inquiry was held against him, yet the respondents have withheld his pensionary benefits on his superannuation and granted him only provisional pension. He challenged the aforesaid action of the respondents vide this Original Application relying upon the Order of a coordinate Bench of this Tribunal in OA 870/2004 Retd. Sub Inspector Yad Ram Vs. Deputy Commissioner of Police decided on 29.4.2004 and OA 1605/2005 - Sh. Mam Chand Vs. Union of India & Ors. decided on 04.01.2008.
3. In Retired Sub Inspector Yad Rams case (supra), a criminal case under Section 498/406 IPC was initiated against Shi Yad Ram on the basis of a FIR dated 22.9.1995. He has also challenged the respondents action of withholding his pensionary benefits before this Tribunal. The relevant part of the Order dated 29.11.2004 in that case is as under:-
On the question of what constitutes grave misconduct under Rule 9 of the CCS (Pension) Rules, references have been made to the decisions of the Hon’ble Supreme Court in Union of India and Others vs. B. Dev [(1998) 7 SCC 691)], in which, among other things, it has been held that definition of grave misconduct in Explanation (b) to Rule 8 is not exhaustive. However, it has been further observed by the Hon’ble Apex Court in the said order that it is not correct to say that failure to follow these rules cannot be a grave misconduct. The gravity of misconduct would depend upon the nature of conduct. It was further held by the Hon’ble Court that it was wrong on the part of the Tribunal to have held the respondents in the said Civil Appeal as decided on August 14, 1998, guilty of grave misconduct because the charge was limited against him under Rules 3 (i) (ii) and (iii) of the CCS (Conduct) Rules, 1964.
It has been further held in the said order as under:-
It would not be correct to say that a government servant who is charged with not maintaining devotion to duty or with conduct unbecoming of a government servant cannot be held guilty of grave misconduct. The gravity of the misconduct would depend upon the nature of the conduct.
The Tribunal has wrongly held that because the inquiry was initiated under Rules 3(1)(ii) and (iii) of the CCS Conduct Rules, the respondent cannot be held guilty of grave misconduct.
It has been held that there can be many kinds of grave misconduct and that the explanation does not confine grave misconduct to only the type of misconduct described there. In the present case, however, I find that the criminal case, which has been pending against the applicant and about which the applicant has argued that it is not connected with his service, it is still not decided. It is also mentioned that the criminal case does not relate to any pecuniary loss caused to the Govt. As grave misconduct has not been established in the case of the applicant, and also as the FIR which was lodged in the year 1999 and the criminal proceedings started with that, which is still inconclusive/undecided, it will be quite unfair to make the applicant suffer for want of his retirement dues, namely, gratuity and regular pension. The objective of withholding his gratuity/normal pension because of the said criminal proceedings pending against him thus does not appear to be quite clear. It is also not known how much more time the criminal proceedings would take before the same are concluded. Under these circumstances, it dos not appear to be quite logical and rational to continue to deprive the applicant of normal pension and other retirement benefits. Having regard to the above, I am, therefore, of the considered opinion that the ends of justice shall be met if the applicant is paid his normal pension and other retirement dues pending decision in the criminal/proceedings against him. In any case, the relief thus granted to the applicant shall be subject to the outcome of the said criminal proceedings.
With this, the OA stands disposed of in terms of above observations/directions. The respondents are directed to release the pensionary benefits, namely, gratuity, commuted pension, leave encashment and full pension to the applicant forthwith, in any case, within a period of two months from the date of receipt of a copy of this order, which will be without any prejudice to the outcome of the criminal proceedings pending against him. No order as to costs.
4. Similarly, the case Shri Mam Chand (supra) was allowed by this Tribunal after considering the aforesaid order in OA 870/2004 (supra). The relevant part of the order reads as under:-
It is clear that the criminal proceeding against the pensioner were for gross misconduct, i.e., assets disproportionate to his known sources of income during the period of his Government service. The misconduct for which criminal proceedings were initiated against him had close nexus with his conduct as a Government servant. The Hon’ble Supreme Court held that where a judicial proceeding is pending against a pensioner for grave misconduct the Government is entitled to withheld the gratuity amount and is also entitled to sanction provisional pension for the period of pendency of the said proceeding.
In other words where the judicial proceedings were not for grave misconduct neither gratuity could be withheld nor could provisional pension be sanctioned.
As a result before decision to withhold gratuity amount or sanctioning the provisional pension authorities per force are duty bound to apply their mind to consider whether the proceeding departmental/judicial proceedings may end in the pensioner being held guilty of grave misconduct and negligence during the period of his government service to enable the President of India to exercise one or the other power as provided in Rule 9 of Pension Rules.
It will be impossible for the authorities to routinely issue provisional pension and withhold gratuity of a pensioner on a mere pendency of a judicial or departmental proceedings on the date of retirement.
The nature of the offenses for which criminal cases are instituted against the applicant, is such that if the applicant is held guilty of committing these offense he may be no logic be held guilty of grave misconduct and negligence during his government service within the purview of Rule 9 of Pension Rules.Consequently, there is no, even remote possibility of the President exercising powers under Rule 9 of the Pension Rules on the conclusion of these proceedings.
It is unlike the facts of the case of State of Orissa and Others Vs. Kalicharan Mohapatra (Supra) before the Honble Supreme Court where the criminal case related to allegation of grave misconduct against the pensioners committed before his retirement.
As a result it is held that the respondents have erroneously withheld the regular pension, gratuity and other retiral dues of the applicant on the pretext that three criminal judicial proceedings were pending against him. His view is supported by order of this Tribunal in Retired SI Yad Ram (supra) and Om Prakash (supra) copies of which are filed by the applicant as Annexure-2 to the OA.
The learned counsel for the applicant has cited an order of Chandigarh Bench of this Tribunal in R.P. Thakur Vs. Union of India and others 1996 (2) ATJ 3 but it deals with the claim of interest on delayed payment of retrial dues after the applicant was exonerated in departmental proceedings. In the present case facts are different. Indeed the respondents have delayed the payment of pensionary and retrial dues of the applicant erroneously for no fault of applicant. Therefore, they should be directed to pay interest at least @ 6% p.a. (which the Bank pay on fixed deposits) for the period of delay which in the present case will be from three months after the date of decision to the date of actual payment. It will meet the ends of justice.
Accordingly, the OA is allowed. The respondents are directed to issue regular pension and release gratuity, commuted pension etc. within two months from the date on which certified copy of the order is served on the respondents with interest @6% p.a. on the amount paid from 1.5.2005 to the date of actual payment. No costs.
5. The respondents in their reply have submitted that the applicant was suspended on 18.01.1994 for misconduct, indiscipline, unbecoming behaviour of a police officer and dereliction of duty vide order dated 19.01.1994. However, he was reinstated in service on 06.06.1994 vide letter dated 07.06.1994. Thereafter, a departmental inquiry was initiated against him. On conclusion of the same, he was awarded the punishment of forfeiture one year approved service temporarily for a period of one year entailing reduction in his pay from the stage of Rs.1150 to Rs.1125 in the pay scale of Rs.975-25-1150 EB 30-1660 from 31.1.1996. The applicant was again suspended w.e.f 27.11.1995 due to misconduct and gross indiscipline and dereliction of duty. He was reinstated on 23.02.1996 vide letter of the same date. In the Departmental inquiry held subsequently, he was awarded a punishment of pay reduction by one increment from the stage of Rs.3710/- to Rs.3625/- per month in the scale of pay of Rs.3200-85-4900 for a period of one year we.f. 05.11.1997 and his suspension period from 27.11.1995 to 23.2.1996 was treated as NOTE SPENT ON DUTYvide order No. 8221-8300/HAP DCP/Comn. Dated 5.11.1997 and amendment order No. 22429-34/CR/Comn. dated 18.11.1997. Besides, he was also awarded three censures vide orders dated 25.02.1999, 30.06.1999 and 09.12.2003. He was arrested in FIR No 20/2003 dated 18.11.2003 u/s 498-A/406/506/323/34 IPC P.S. Sonepat Haryana and suspended from the date of his arrest i.e. 22.11.2003 vide order no. 3054-99/HAP (P-1)/Comn. dated 05.12.2003. He was reinstated from suspension w.e.f. 28.12.2006 without prejudice to the disciplinary action, if any, on the outcome of criminal case pending against him vide order No. 4174-4223/HAP (P-i) Comn. 28.12.2006.
8. Therefore, the applicants name for financial upgradation under the ACP Scheme was kept in a sealed cover vide order dated 27.01.2004. His name for promotion was also kept in sealed cover vide order dated 06.12.2007 due to criminal case pending against him and not to be opened till the finalisation of the criminal proceedings against him.
9. Applicant retired on superannuation on 31.03.2008 with the qualifying service of 20 years, 3 months and 16 days. Because of the pendency of the criminal case against him, he was granted only provisional pension w.e.f. 01.04.2008 in terms of Rule 69 of the CCS (Pension) Rules, 1972. However, his leave encashment was kept in abeyance as his suspension period from 22.11.2003 to 28.12.2008 has not been decided in view of the pendency of the criminal case. His GPF final payment, insurance and DPWs fund have already been released. In terms of the aforesaid Rule 69 of the CCS (Pension) Rules, 1972, his regular pension, gratuity and commutation can be decided only after conclusion of the criminal case pending against him.
10. We have heard the learned counsel for the applicant Shri Sachin Chauhan and the learned counsel for the respondents Mrs. Harvinder Oberoi. Admittedly, the applicant was denied his full pensionary benefits because of the pendency of the aforesaid criminal case against him. All other departmental proceedings and punishments awarded to him are things of past and the applicant has superannuated from service on 31.3.2008. In our view, the principle followed in the aforesaid Orders of the coordinate Bench of this Tribunal in OA 870/2004 (supra) and OA 1605/2005 (supra) will equally apply in this case also.
12. We, therefore, allow this OA. The respondents are directed to release the pensionary benefits, namely, gratuity, commuted pension, leave en-cashment and full pension to the applicant forthwith, in any case, within a period of two months from the date of receipt of a copy of this order without prejudice to the outcome of the criminal proceedings pending against him. There shall be no order as to costs.
(Dr.Ramesh Chandra Panda) (G.George Paracken)