Om Prakash VII, Member (J)
1. The present O.A has been filed by the applicant under section 19 of Administrative Tribunal Act, 1985 seeking following reliefs:-
“(a) To allow the application and set aside the order dated 24.12.2012 and order dated 27.02.2013 passed by respondent No.2 & 3 (Annexure No. A-1 and 2) of compilation No.1 and permit the applicant to join his duty as P. No. 861988, OS/Store, SAF, Kanpur.
(a-1) Issue an order or direction to the respondents to grant and pay final pension and arrears thereof to the applicant pursuant to his retirement w.e.f. 31.10.2014.
(a-2) Issue an order or direction to the respondents to pay the last two annual increments, along with the bonus for the last three years immediately preceding his retirement on 31.10.2014.
(a-3) Issue an order or direction to the respondents to pay arrears of enhanced dearness allowance, arrears of salary for the period of suspension from 24.12.2012 till his retirement on 31.10.2014, leave encashment and the gratuity.
(a-4) Issue an order or direction to the respondents to pay the Rs. 45,000/- wrongly deducted towards house rent allowances. (a-5) Issue an order or direction to the respondents to pay interest @ 10% per annum on the delayed payment under the above heads.
(b) A direction may be given to respondents to treat the suspension period 14.08.2012 till date of reinstatement into leave and he may be paid salary of aforesaid period.
(c) To pass any other direction as this Hon’ble Tribunal may deem fit and proper on the facts and circumstances of the case in the interest of justice.
(d) Award the cost of the application to the applicant”.
2. The brief facts of the case are that the applicant was initially appointed as P. No. 861988, OS/Store, SAF, Kanpur. An FIR was lodged against the applicant in case crime No. 31 of 2012 under sections 420, 467, 471, 504, 506 IPC in Police Station Armapur, District Kanpur Nagar. In the FIR, the allegation was made that the applicant has cheated the complainant and collected Rs. 45 lacs for providing job of Assistant Teacher. Applicant was detained in jail. Since he was sent in jail, therefore, he could not inform the respondents about his detention in jail. Respondents issued show cause notice to the applicant on 08.12.2012 regarding unauthorized absence from duty till 14.08.2012. Reply to the show cause notice was sent by the advocate of applicant on 17.12.2012. Applicant filed Criminal Misc. Bail Application No. 23921 of 2012 before the Hon’ble Allahabad High Court and Hon’ble High Court has granted bail to the applicant. Vide impugned order dated 24.12.2012, respondent No.2 passed an order suspending the applicant from service w.e.f. 14.08.2012 (F/N) until further order. After releasing in jail, applicant moved an application dated 05.02.2013 for resuming on duty. On the consideration of applicant’s representation, respondents have stated in the impugned order dated 27.02.2013 that since applicant has been suspended and it is effective w.e.f. 14.8.2012, his application is not considered. Applicant was retired from service on 31.10.2014 and after retirement, applicant has filed amendment application whereby he sought a direction to the respondents to pay final pension and arrears thereof. He has also sought a direction to the respondents to pay last two annual increments along with bonus as well as enhanced dearness allowance for the last three years with interest. Amendment application was allowed vide order dated 18.10.2016 and necessary amendment was carried out in the OA.
3. Per contra, learned counsel for the respondents filed counter affidavit stating therein that Station Officer, Police Station, Armapur, Kanpur intimated the respondents that applicant has allegedly taken several lakhs of rupees from Shri Naresh Chandra Arya, R/o B-136, Shyam Nagar, Kanpur – 208013. Thus, an FIR was lodged against the applicant under sections 420, 467, 471, 504, 506 IPC. Police authority requested the departmental authority to give direction to the applicant to surrender him in police station. As such, applicant was directed vide SAF letter No. SAF/43/C/VCO dated 27.03.2012 to report to Police Station Armapur, Kanpur for giving his statement. Since applicant did not attend the enquiry/investigation, the respondents vide letter dated 13.04.2012 directed the applicant to join duty only after getting clearance from Police Authorities, Armapur, Kanpur. Applicant remained absent from duty without any information and application for granting leave. On confirmation from the police authorities regarding detention of the applicant in jail, the competent authority has issued an order regarding placing him under deemed suspension vide order dated 24.12.2012 and the suspension order has not been revoked by the competent authority considering the gravity of charges against the applicant.
4. Rejoinder affidavit has also been filed in which the applicant has reiterated the facts as stated in the OA and denied the contents of the counter affidavit.
5. Heard Shri Satyajit Mukherjee, learned counsel for the applicant and Shri Ajay Kumar Rai, learned counsel for the respondents and perused the record.
6. The submission of the learned counsel for the applicant is that the criminal case pending against the applicant has nothing to do with his official duties and the applicant had not committed any misconduct in his official duties and no disciplinary proceedings is pending against the applicant. Learned counsel for the applicant also submitted that applicant has retired from service and if the pleas taken by the respondents in the counter are taken into consideration then also there is no occasion for not releasing the final pension and retiral dues. Thus the retiral dues as well as final pension cannot be withheld by the department. To substantiate his arguments, learned counsel for the applicant has placed reliance upon the judgment of Hon’ble Supreme Court in the case of Meera Tiwari (Smt) Vs. The Chief Medical Officer and others reported in (2001) 3 UPLBEC 2057. Learned counsel for the applicant further submits that it is well established from the perusal of Gratuity of Payment of Gratuity Act, 1972 that payment of gratuity cannot be withheld by the employer unless and until it has found proved that certain loss caused by the employee to the department but in the present case no such type of loss is alleged to have been caused by the applicant.
7. In rebuttal, learned counsel for the respondents submits that since a criminal case is pending against the applicant, as per Rule 69 of CCS (Pension) Rules, 1972, the gratuity and other retiral dues can be withheld. In support of his arguments, learned counsel for the respondents has placed reliance on the Full Bench judgment of Hon’ble High Court, Allahabad in the case of Shivgopal and others Vs. State of U.P and 4 others – 2019 Law Suit (All) 867 and submitted that in case of pendency of departmental/judicial (civil / criminal) proceeding, the death cum retiral gratuity can be withheld. Learned counsel for the respondents through their supplementary counter affidavit dated 1.5.2018 vide Annexure SCA No.2 has submitted that respondents themselves have disclosed that leave encashment, CGEGIS and subsistence allowance have been paid. Certain amount was adjusted towards retention of Government accommodation, audit objection and computer advance.
8. We have considered the rival submissions and have gone through the record carefully.
9. In the case of State of Jharkhand and others Vs. Jitendra Kumar Srivastava and another reported in 2013 (3) UPLBEC, 2369, the Hon’ble Apex Court has held that terminal benefits such as pension and gratuity are not bounty and they cannot be taken away as per Article 300-A of the Constitution of India without following the due process of law. The Apex Court has further held that merely because a criminal case or departmental proceedings are pending against employee, his terminal benefits cannot be withheld, unless he is found guilty of the same.
10. In the case of D.S. Nakara Vs. Union of India reported in (1983) 1 SCC page 305, the Apex Court has observed as under:-
“From the discussion three things emerge: (1) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to article 309 and clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch....”
11. In the case of State of Punjab and another Vs. Iqbal Singh reported in 1976 SCC (2) 1, Hon’ble Supreme Court has held that since the cut of pension and gratuity adversely affects the retired employee, as such order cannot be passed without giving reasonable opportunity of making his defence. It is an admitted fact that no notice was issued to the applicant before withholding the gratuity and not sanctioning the regular pension.
12. In the case of Shiv Sewak Prasad Mishra Vs. State of U.P and Ors. reported in 2015 (2) ADJ 393, the Hon’ble Allahabad High Court has held that final pension cannot be withheld if there is no allegation of loss to the Government. Para 8 of said judgment reads as follows:-
“8. It is also not the case of respondents that in the criminal case, there is any allegation of loss to the Government and there is recovery to be made from the petitioner, which is the only exception recognized by this Court in the above mentioned authorities where final pension etc. may not be paid and respondents may withhold the same”.
13. So far as the law laid down by the Hon’ble High Court in the case of Shivgopal (Supra) is concerned, gratuity may be withheld if civil or criminal case is pending by the employer. In the instant case, as per the submissions raised across the Bar, the FIR lodged against the applicant is not related with any loss caused to the Government.
14. In the instant case, the criminal proceedings pending against the applicant has nothing to do with his official duties and the applicant had not committed any misconduct in his official duties and no disciplinary proceeding is pending against the applicant.
15. Rule 69 of CCS (Pension) Rules, 1972 reads as under:-
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:
1Provided 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 less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period”.
(Emphasis supplied)
The words ‘judicial proceedings’ have not been defined in CCS (Pension) Rules, 1972. The words ‘judicial proceeding’ has been defined in Section 2 (1) of the Criminal Procedure Code and they include any proceedings in the course of which evidence is or may be legally taken on oath. Section 136 of Income Tax Act provides that any proceedings under the said Act before an Income Tax Authority shall be deemed to be a ‘judicial proceeding’ for the purposes of Section 196 of Indian Penal Code. Section 30 of Administrative Tribunals Act 1985 provides that all proceedings before a Tribunal shall be deemed to be ‘judicial proceedings’ within the meaning of Sections 193, 219 and 228 of the Indian Penal Code. Thus the ‘judicial proceedings’ includes criminal as well as civil proceedings instituted and pending in any Criminal or Civil Court including any Tribunal who is competent to take evidence on oath.
16. Acceptance of contentions of respondents will mean that if any Criminal or Civil case is pending against any employee, even though it is not related with his official duties, the employer has full right to withhold the pension and gratuity of his retiring employee. Provision of Section 4 (1) and Section 4 (6) of Payment of Gratuity Act, 1972 reads as under:-
“4.Payment of gratuity.-
(1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years,-
(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease;
Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement :
Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to the heirs.
Explanation.- For the purposes of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement”.
4. (6) Notwithstanding anything contained in sub-section (1),-
(a) the gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused;
(b) the gratuity payable to an employee shall be wholly forfeited,-
(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or
(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment”.
17. The bare reading of Section 4 (1) and (6) of Payment of Gratuity Act, 1972 shows that ‘gratuity’ cannot be forfeited unless the services of such employee have been terminated for the reason disclosed in sub section 4 of Section 4 of Payment of Gratuity Act.
18. Considering the entire facts and circumstances of the case and comparing the same with the law laid by the Hon’ble Apex Court and Hon’ble Allahabad High Court in the above cited case laws and provision of Section 4 (1) and (6) of Payment of Gratuity Act, 1972 and Rule 69 (c) of CCS (Pension) Rules 1972, we are of the considered opinion that gratuity and pension cannot be withheld or forfeited in the present matter merely on the ground that a judicial proceeding (criminal or civil) is pending against the applicant on the date of superannuation. It is an admitted fact that in the instant case, criminal proceedings pending against the applicant has nothing to do with his official duties. Neither any disciplinary proceeding is pending against him nor any loss has been caused to the department by the applicant. No recovery is proposed on part of the respondents against the applicant.
19. So far as the impugned orders dated 24.12.2012 (Annexure A-1) and 27.02.2013 (Annexure A-2) are concered, suspension order and its continuance shall be deemed to have been revoked as soon as the applicant superannuated. In the circumstances, when no departmental proceeding has been initiated against him, he is entitled for subsistence allowance of the suspension period. Supplementary counter affidavit filed by the respondents on dated 1.5.2018 also reveals that subsistence allowance, GIS and leave encashment have been paid to the applicant.
20. Accordingly, O.A. is partly allowed. Respondents are hereby directed to release the entire post retiral benefits including the subsistence allowance if not already paid in favour of the applicant within a period of three months from the date of receipt of a certified copy of the order along with simple interest @ 6% per annum from the date it become due till its payment. If the entire post retiral benefits are not released within the stipulated period as mentioned hereinabove, respondents would pay penal interest @ 8% per annum from the date it become due till its payment. No order as to costs. All associated MAs are disposed of.
