One of the necessary condition to be satisfied in this regard is that the authority competent to grant leave can withhold whole or part of the cash equivalent of the earned leave if in the view of such authority, there is possibility of some money becoming recoverable from him on conclusion of the proceedings against him. This satisfaction of the concerned authority necessarily has to be in writing. Our attention has not been drawn that any such view has been expressed by the authority competent to grant the leave by passing an order to withhold the same for reasons referred to above. In the absence of any such opinion having been expressed, we are of the considered opinion that leave encashment could not have been withheld that was due to the applicant.
16. In the present case as well there is no material on record to show that any decision has been recorded by the competent authority expressing satisfaction that there were sufficient reasons for withholding the grant of leave encashment. As such I am of the view that the applicant would be entitled to the release of the amount admissible to him by way of leave encashment.
2. In the detailed reply filed by respondents it is contended that an FIR No.141/04 was lodged in the police by Shri Arvind Kumar and Shri Vijay Kumar Sharma and other officials. The said FIR is still pending, thus in terms of provision of Rule 69 of Pension Rules, 1972, pensionary benefits i.e. gratuity and leave encashment etc. could not be released.
3. Learned counsel appearing for applicant relied upon decision of this Tribunal in the case of TejPal Singh Tuli Vs. UOI & Ors.(OA-3312/2009) wherein it was held that there has to be nexus between allegation in criminal case and official duty of concerned employee in the absence of which there may be no justification to carry on departmental proceedings against employee. Para 9 of the said judgment read as under:- 9. I find that this Tribunal in OA-2411/2007 has as recently as on 19.12.2008. I the case of Jogeshwar Mahanta Vs. UOI relating to matrimonial discard, in which the applicant had been proceeded under Rule 14 of the CCS (CCA) Rules, 1965 by issue of chargesheet on the basis of allegations made by the wife, decided that there has to be a nexus with official duty and whereas the applicant may be still embroiled in matrimonial dispute with his wife, them would be no justification to carry on with the departmental proceedings against him. The charge memo was therefore quashed and the application was allowed.
4. In the case of I.Yesudanam OA-2281/2009 it was held that the leave encashment and other retirement benefits could not be withheld on the ground of pendency of judicial proceedings. In the said case this Tribunal viewed that even during pendency of judicial proceedings, Govt. servant is entitled to release of leave encashment, CGIES and GPF amount payable to him. Relevant excerpt of the order passed in said case read as under:- 11. A perusal of the order passed by the Tribunal in OA-2154/2002, relied upon by the applicant, shows that Sh. J.P. Sharma was suspended on 26.02.2001 under Rule 10(1)(b) of the CCS(CCA) Rules, 1965 and superannuated on 31.03.2002 whereupon a provisional pension in terms of Rule 69 of CCS(Pension) Rules, 1972 was granted to him. He had sought payment of all retiral dues such as gratuity, leave encashment, full pension etc. with interest although he was involved in a case of embezzlement of government money and FIR was filed with respect to offences under Section 120-B, 420, 468, 477-A, IPC and 13(2) r/w 13(1)(c) of P.C. Act, 1988. Having considered the submissions made and provisions of the various Rules the Tribunal found that while no judicial proceedings could be said to have been instituted or deemed to be so, the applicant having been suspended, departmental proceedings would be deemed to have been instituted against him as per Rule (9)(6)(a) of CCS(Pension) Rules, 1972 and therefore on.ly a provisional pension could be paid. Further by reference to Rule 9(4) and 3(o) of the CCS (Pension) Rules, 1972 and keeping in view the judgment of the Apex Court in D.V. Kapoor Vs. UOI and Ors., (1990) 4 SCC 314, the Tribunal noted that use of the term pension was in contradistinction to gratuity, and thus gratuity would be payable. Again by a reference to CCS (Leave) Rules, 1972, particularly Rule 39(3) thereof it was noted that the competent authority could withhold cash equivalent of earned leave in such a case if there was a possibility of some money becoming recoverable on conclusion of the criminal/disciplinary proceedings. It was held that in absence of such satisfaction of the concerned authority having been expressed by an order in writing, the leave encashment could not have been withheld. In this background the applicant was found to be entitled to leave encashment and gratuity and also to provisional pension only.
12. When this matter was taken to the Hon ble High Court of Delhi in CWP No. 6465/2003 the Court took note of Rule 10 of the CCS (CCA) Rules, 1965 and Rules 9 and 69 of the CCS (Pension) Rules, 1972. The question of leave encashment was not entertained and notice was issued limited to the question of release of gratuity. The Court referred to relevant citations and in particular noted that criminal proceedings start after the filing of the chargesheet before the Court. Having examined the matter from various angles the Court came to the conclusion that in the facts of the case it could not be said that departmental proceedings had been instituted against the applicant therein, as Rule 10(1)(b) relates to suspension in a case where criminal offence is under investigation, inquiry or trial and the suspension which was ordered could not be considered to be relevant to departmental proceedings. Further, the date of suspension viz. 26.02.2001, could not be treated as the date of institution of judicial proceedings either. Thus, to give only provisional pension was found to be unjustified. But, the validity of Rules 9(4) and 69(1) of CCS (Pension) Rules, 1972, was not found to be questionable. I am therefore not persuaded that these judgments would be of any assistance to the applicant in the facts of the present case, which are at variance, so far as claim for payment of gratuity is concerned.
13. In the present case the applicant admits that he was suspended under Rule 10(1)(b) of the CCS CCA Rules, 1965. Noticeably the order of suspension enclosed at Annexure A/1, page 22 of the paperbook, shows that powers had been exercised under Rule 10(1) to place the applicant under suspension which would therefore not exclude the applicability of sub clause (b) thereof. Besides, the respondents say in their counter reply that judicial proceedings stood instituted against the applicant as charge sheet had been filed by CBI in the Court and the requirement of Rule 9(6)(b) of CCS(Pension) Rules, 1972 was satisfied. Such contention has not been rebutted nor any rejoinder filed to the reply. However, reliance has been placed mainly on the judgments of the Tribunal and that of the Hon ble High Court noted above, which do not support the applicant s case for release of gratuity.
14. In so far as the claim for commutation of pension is concerned, I am in agreement with the respondents that such commutation of provisional pension authorized under Rule 69, would not be admissible to a government servant against whom departmental or judicial proceedings, as referred to in Rule-9 of the Pension Rules, have been instituted before retirement or afterwards. This finds support from Rule-4 of the CCS(Commutation of Pension) Rules, 1981 at Appendix-I to Swamy s Compilation of CCS (Pension) Rules, 1972.
15. The claim of the applicant for leave encashment on the other hand is found to be similar to the claim raised in the case of J.P. Sharma (supra) to which the applicant therein was found to be entitled in the light of the following observations in para-15 thereof:-
The learned counsel for the applicant has further stated that even leave encashment of the applicant is not being permitted. He relied upon sub-rule (3) to Rule 39 of the Central Civil Services (Leave) Rules, 1972. The said Rule unfolds itself in the following words:- 39. Leave/Cash payment in lieu of leave beyond the date of retirement, compulsory retirement or quitting of service.
(3) The authority competent to grant leave may withhold whole or part of cash equivalent of earned leave in the case of a Government servant who retires from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Government dues, if any.
One of the necessary condition to be satisfied in this regard is that the authority competent to grant leave can withhold whole or part of the cash equivalent of the earned leave if in the view of such authority, there is possibility of some money becoming recoverable from him on conclusion of the proceedings against him. This satisfaction of the concerned authority necessarily has to be in writing. Our attention has not been drawn that any such view has been expressed by the authority competent to grant the leave by passing an order to withhold the same for reasons referred to above. In the absence of any such opinion having been expressed, we are of the considered opinion that leave encashment could not have been withheld that was due to the applicant.
16. In the present case as well there is no material on record to show that any decision has been recorded by the competent authority expressing satisfaction that there were sufficient reasons for withholding the grant of leave encashment. As such I am of the view that the applicant would be entitled to the release of the amount admissible to him by way of leave encashment.
17. It is noticed from GOI decision (5) 2 (g) under Rule 68, CCS (Pension) Rules, 1972 that the Department of Pension and Pensioners Welfare by O.M. dated 05.10.1999 circulated the decision that payments under CGEGIS cannot be termed as terminal benefit and also that payment of the same cannot be withheld nor any government dues recovered therefrom except the amount claimed by financial institutions as due from the employees on account of loans taken for house building purpose. In so far as the claim for release of the GPF amount is concerned, the same enjoys protection in terms of the Provident Funds Act, 1925 as expressed therein and it is the duty of the authorities to release the same in accordance with the Rules.
18. The applicant is therefore found entitled to payment of leave encashment. Further, since the respondents have stated that the case for payment of CGEGIS amount as well as GPF amount has been taken up with the authorities, the same be finalized also keeping in view the above observations, and admissible amounts released. Since the applicant has retired on 30.06.2009, the interest shall be payable for delayed payment as admissible in accordance with law. This exercise be completed within three months from the date of receipt of a certified copy of this order and applicant informed by passing appropriate orders. The applicant is not entitled to payment of gratuity and to commutation of pension. Since it has been stated in Para 5.3 of the OA that a review has been filed by the respondents with regard to the orders of the Hon ble High Court of Delhi in the case of J.P. Sharma (supra), which has not been controverted by the respondents, the present directions shall be subject to the final outcome thereof.
19. The O.A. is disposed of as above. No costs.
5. In the case of UOI Vs. J.P.Sharma WP(C) 6465/2003 Hon ble Delhi High Court viewed that the gratuity of retired Govt. servant could not withheld for any length of time to await the instituton of departmental or judicial proceedings even after his retirement. The Relevant extract of said judgment of Hon ble High Court read as under. 22. This leads us to the question, as to what is the inter play of the rights of the Government and the retired Government servant with regard to the fixation of provisional pension and the withholding of the gratuity of the retired Government servant by the Government. Is it, that in every case where neither departmental proceedings nor judicial proceedings are instituted, as contemplated by Rule 9(6) as on the date of retirement of the Government servant, he immediately becomes entitled to receive full pension and gratuity? In such a situation, if departmental or judicial proceedings are instituted after the lapse of sometime from the date of the retirement of Government servant, but within the time permissible under Rule 9(2)(b)(ii) or otherwise within the period of limitation, would the Government not be entitled to fix the provisional pension and, in case by then the gratuity has not been paid to the retired Government servant would the Government not be entitled to withhold the gratuity in terms of Rule 9 (4) and Rule 69(1)(c) of the Pension Rules?
23. We may note that unlike for the initiation of
departmental proceedings, for the initiation of judicial
proceedings, there is no time limit prescribed under the Pension Rules within which the same can be initiated after the retirement of the government servant. However, judicial proceedings, be they civil or criminal, would be subject to the laws of limitation. A perusal of Rule 9(4) would show that the said Rule is applicable, inter alia, to every case where a departmental or judicial proceedings is instituted against the retired government servant. The said sub-rule(4) does not say that the departmental or judicial proceedings have necessarily to be in existence on the date of superannuation of the government servant. This means that even when the departmental or judicial proceedings are validly instituted subsequent to the date of superannuation, a provisional pension as provided in Rule 69 would be sanctioned in favour of the government servant.
24. The pension of a government servant, who is due to retirement, is required to be fixed well in advance, so that there is no delay in payment of pension to him immediately upon his retirement. Reference may be made to the provisions contained in Chapter VIII and in Rules 83 & 85 of the Pension Rules. Consequently, it follows that in respect of a government servant to whom Rule 9(4) of the Pension Rule does not apply, the Government is obliged to fix and pay the full pension and continue to pay the same, until a situation arises (with the institution of valid proceedings) as contemplated in Rule 9(4). Once a situation covered by Rule 9(4) arises, the government would become entitled to henceforth fix the provisional pension and continue to pay the same until the conclusion of the proceedings, and subject to the final outcome of the proceedings. While the right to receive monthly pension accrues immediately upon retirement, and the same is to be paid vide Rule 85(2) monthly on or after the last working day of the month to which the pension relates.................... , so far as gratuity is concerned, there is no specific Rule with regard to disbursement thereof. Rule 85(1) states Except as otherwise provided in these Rules, a gratuity shall be paid in lump sum . While in respect of pension a statutory right exists, to receive pension immediately upon retirement month by month. There is no time bound prescription with regard to release of gratuity to the retired government servant. This also appears to be the scheme as evident from Rule 9(1) of the Pension Rules. The question of withholding pension or gratuity or both either in full or in part by the President can arise only in a situation where the same has in fact not been paid to the retired government servant. From the aforesaid analysis of the Pension Rules, we draw the following conclusions:-
(i) In a case where neither departmental proceedings nor judicial proceedings are instituted as contemplated by Rule 9(6) of the Pension Rules as on the date of retirement of the Government servant, he immediately becomes entitled to receive the full pension.
(ii) If departmental or judicial proceedings are instituted validly after the retirement of the Government servant, but within the time permissible under Rule 9(2)(b)(ii) or otherwise within the period of limitation, the government would become entitled to fix provisional pension to be paid henceforth till the conclusion of the proceedings and would abide by the final decision arrived at in the proceedings in relation to the payment of the pension.
(iii) While a Government servant does become entitled to receive gratuity upon retirement (when proceedings as contemplated by Rule 9(6) are not in existence on the ate of his retirement),there is no rule that the same is payable immediately upon retirement. If proceedings are validly instituted after the date of retirement of the Government servant, but prior to the disbursement of the gratuity to him, the Government servant cannot claim release of gratuity till so long as the proceedings are not concluded, and the final decision with regard to disbursement of gratuity would abide by the outcome of the proceedings.
25. Does it mean that the gratuity of a retired government servant can be withheld for any length of time to await the institution of the departmental or judicial proceedings even after his retirement? In our view the answer to this question has to be in the negative. In case departmental proceedings are not instituted within the time granted by Rule 9(2)(b) against a retired government servant i.e. within four years of the commission of the misconduct, the same cannot be instituted at all. Similarly, judicial proceedings, would have to be initiated within the period of limitation. If no judicial proceedings are initiated against the retired Government servant within the period of limitation, it would be impermissible for the Government to institute them later, or even to withhold the full pension or gratuity of the retired government servant. The power to withhold the grant of gratuity in contemplation of disciplinary or judicial proceedings cannot be permitted to be misused or abused by the Government. The same cannot become an instrument of harassment of the retired government servant in the hands of the Government. At the same time, the Government cannot lightly be divested of its right to withhold the gratuity in respect of a retired government servant in a deserving case. Therefore, in every case where the Government withholds gratuity in respect of a retiring/retired Government servant, the Government shall be obliged to pass an order disclosing the grounds with reference to the particular cases in respect of which Rule 9(4) and Rule 69 of the Pension Rules are sought to be invoked against the Government servant.
26. Coming to the facts of this case, we find that the RC/FIR in the present case was registered on 6.2.2001. Neither a complaint was lodged, nor a challan filed till even four years after the date of registration of the FIR against the respondent. Consequently, in our view the respondent could not be denied the gratuity due to him.
27. Having said that we may, however, clarify that the right of the President under Rule 9(1) is not in any way fettered by the mere fact that the government servant is released his gratuity and pension, since it is always open to the President to withdraw the pension in full or in part and to order recovery from the pension or gratuity of whole or any part of the pecuniary loss caused to the government, as may be established in the departmental or judicial proceedings. With these observations, we dismiss this petition leaving the parties to bear their respective costs.
6. In the impugned order dated 5.1.2011 it is indicated that a decision to release the retirement benefits regular pension to applicant could be taken as per the outcome of Hon ble Court. It is correct that the relevant rules permit the Govt. to withheld certain amount of terminal benefits payable to Govt. servant on his retirement, but the provision of such rules should not be applied in a mechanical manner and each case should be dealt with on its own merit keeping in view the nature of charge against the Govt. servant i.e. whether those are related to financial irregularities committed by the Govt. servant while in service or grave in nature. It is submitted by learned counsel appearing for respondents that allegation against applicant is of joining a group of person and beating one Shri Arvind Kumar an accounts officer in office, thus no leniency can be shown in dealing with him in any manner. A perusal of impugned order reveal that the same is passed in a mechanical manner. When a Govt. servant make a representation to authority competent to decide the same for redressal of his grievances, it is expected that the contention raised by him in such representation are dealt with and when certain benefit claimed by the govt. servant are not admissible to him in terms of rules, instruction or notifications, the same should be duly referred to in the order itself.
7. Keeping in view aforementioned circumstances, I deem it appropriate to dispose of the present OA with the direction to the respondents to decide the claim of applicant for terminal benefits keeping in view of aforementioned decisions of Hon ble High Court and this Tribunal. Such decision shall be communicated to applicant by way of speaking order within a period of two months from the date of receipt of a copy of this order.
8. OA stands disposed of. No costs.
(A.K. Bhardwaj)
Member(J)
/rb/
Print Page
16. In the present case as well there is no material on record to show that any decision has been recorded by the competent authority expressing satisfaction that there were sufficient reasons for withholding the grant of leave encashment. As such I am of the view that the applicant would be entitled to the release of the amount admissible to him by way of leave encashment.
Central Administrative Tribunal - Delhi
Applicant has filed the present Original Application seeking issuance of directions to respondents to release his regular pension with other retiral benefits.2. In the detailed reply filed by respondents it is contended that an FIR No.141/04 was lodged in the police by Shri Arvind Kumar and Shri Vijay Kumar Sharma and other officials. The said FIR is still pending, thus in terms of provision of Rule 69 of Pension Rules, 1972, pensionary benefits i.e. gratuity and leave encashment etc. could not be released.
3. Learned counsel appearing for applicant relied upon decision of this Tribunal in the case of TejPal Singh Tuli Vs. UOI & Ors.(OA-3312/2009) wherein it was held that there has to be nexus between allegation in criminal case and official duty of concerned employee in the absence of which there may be no justification to carry on departmental proceedings against employee. Para 9 of the said judgment read as under:- 9. I find that this Tribunal in OA-2411/2007 has as recently as on 19.12.2008. I the case of Jogeshwar Mahanta Vs. UOI relating to matrimonial discard, in which the applicant had been proceeded under Rule 14 of the CCS (CCA) Rules, 1965 by issue of chargesheet on the basis of allegations made by the wife, decided that there has to be a nexus with official duty and whereas the applicant may be still embroiled in matrimonial dispute with his wife, them would be no justification to carry on with the departmental proceedings against him. The charge memo was therefore quashed and the application was allowed.
4. In the case of I.Yesudanam OA-2281/2009 it was held that the leave encashment and other retirement benefits could not be withheld on the ground of pendency of judicial proceedings. In the said case this Tribunal viewed that even during pendency of judicial proceedings, Govt. servant is entitled to release of leave encashment, CGIES and GPF amount payable to him. Relevant excerpt of the order passed in said case read as under:- 11. A perusal of the order passed by the Tribunal in OA-2154/2002, relied upon by the applicant, shows that Sh. J.P. Sharma was suspended on 26.02.2001 under Rule 10(1)(b) of the CCS(CCA) Rules, 1965 and superannuated on 31.03.2002 whereupon a provisional pension in terms of Rule 69 of CCS(Pension) Rules, 1972 was granted to him. He had sought payment of all retiral dues such as gratuity, leave encashment, full pension etc. with interest although he was involved in a case of embezzlement of government money and FIR was filed with respect to offences under Section 120-B, 420, 468, 477-A, IPC and 13(2) r/w 13(1)(c) of P.C. Act, 1988. Having considered the submissions made and provisions of the various Rules the Tribunal found that while no judicial proceedings could be said to have been instituted or deemed to be so, the applicant having been suspended, departmental proceedings would be deemed to have been instituted against him as per Rule (9)(6)(a) of CCS(Pension) Rules, 1972 and therefore on.ly a provisional pension could be paid. Further by reference to Rule 9(4) and 3(o) of the CCS (Pension) Rules, 1972 and keeping in view the judgment of the Apex Court in D.V. Kapoor Vs. UOI and Ors., (1990) 4 SCC 314, the Tribunal noted that use of the term pension was in contradistinction to gratuity, and thus gratuity would be payable. Again by a reference to CCS (Leave) Rules, 1972, particularly Rule 39(3) thereof it was noted that the competent authority could withhold cash equivalent of earned leave in such a case if there was a possibility of some money becoming recoverable on conclusion of the criminal/disciplinary proceedings. It was held that in absence of such satisfaction of the concerned authority having been expressed by an order in writing, the leave encashment could not have been withheld. In this background the applicant was found to be entitled to leave encashment and gratuity and also to provisional pension only.
12. When this matter was taken to the Hon ble High Court of Delhi in CWP No. 6465/2003 the Court took note of Rule 10 of the CCS (CCA) Rules, 1965 and Rules 9 and 69 of the CCS (Pension) Rules, 1972. The question of leave encashment was not entertained and notice was issued limited to the question of release of gratuity. The Court referred to relevant citations and in particular noted that criminal proceedings start after the filing of the chargesheet before the Court. Having examined the matter from various angles the Court came to the conclusion that in the facts of the case it could not be said that departmental proceedings had been instituted against the applicant therein, as Rule 10(1)(b) relates to suspension in a case where criminal offence is under investigation, inquiry or trial and the suspension which was ordered could not be considered to be relevant to departmental proceedings. Further, the date of suspension viz. 26.02.2001, could not be treated as the date of institution of judicial proceedings either. Thus, to give only provisional pension was found to be unjustified. But, the validity of Rules 9(4) and 69(1) of CCS (Pension) Rules, 1972, was not found to be questionable. I am therefore not persuaded that these judgments would be of any assistance to the applicant in the facts of the present case, which are at variance, so far as claim for payment of gratuity is concerned.
13. In the present case the applicant admits that he was suspended under Rule 10(1)(b) of the CCS CCA Rules, 1965. Noticeably the order of suspension enclosed at Annexure A/1, page 22 of the paperbook, shows that powers had been exercised under Rule 10(1) to place the applicant under suspension which would therefore not exclude the applicability of sub clause (b) thereof. Besides, the respondents say in their counter reply that judicial proceedings stood instituted against the applicant as charge sheet had been filed by CBI in the Court and the requirement of Rule 9(6)(b) of CCS(Pension) Rules, 1972 was satisfied. Such contention has not been rebutted nor any rejoinder filed to the reply. However, reliance has been placed mainly on the judgments of the Tribunal and that of the Hon ble High Court noted above, which do not support the applicant s case for release of gratuity.
14. In so far as the claim for commutation of pension is concerned, I am in agreement with the respondents that such commutation of provisional pension authorized under Rule 69, would not be admissible to a government servant against whom departmental or judicial proceedings, as referred to in Rule-9 of the Pension Rules, have been instituted before retirement or afterwards. This finds support from Rule-4 of the CCS(Commutation of Pension) Rules, 1981 at Appendix-I to Swamy s Compilation of CCS (Pension) Rules, 1972.
15. The claim of the applicant for leave encashment on the other hand is found to be similar to the claim raised in the case of J.P. Sharma (supra) to which the applicant therein was found to be entitled in the light of the following observations in para-15 thereof:-
The learned counsel for the applicant has further stated that even leave encashment of the applicant is not being permitted. He relied upon sub-rule (3) to Rule 39 of the Central Civil Services (Leave) Rules, 1972. The said Rule unfolds itself in the following words:- 39. Leave/Cash payment in lieu of leave beyond the date of retirement, compulsory retirement or quitting of service.
(3) The authority competent to grant leave may withhold whole or part of cash equivalent of earned leave in the case of a Government servant who retires from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Government dues, if any.
One of the necessary condition to be satisfied in this regard is that the authority competent to grant leave can withhold whole or part of the cash equivalent of the earned leave if in the view of such authority, there is possibility of some money becoming recoverable from him on conclusion of the proceedings against him. This satisfaction of the concerned authority necessarily has to be in writing. Our attention has not been drawn that any such view has been expressed by the authority competent to grant the leave by passing an order to withhold the same for reasons referred to above. In the absence of any such opinion having been expressed, we are of the considered opinion that leave encashment could not have been withheld that was due to the applicant.
16. In the present case as well there is no material on record to show that any decision has been recorded by the competent authority expressing satisfaction that there were sufficient reasons for withholding the grant of leave encashment. As such I am of the view that the applicant would be entitled to the release of the amount admissible to him by way of leave encashment.
17. It is noticed from GOI decision (5) 2 (g) under Rule 68, CCS (Pension) Rules, 1972 that the Department of Pension and Pensioners Welfare by O.M. dated 05.10.1999 circulated the decision that payments under CGEGIS cannot be termed as terminal benefit and also that payment of the same cannot be withheld nor any government dues recovered therefrom except the amount claimed by financial institutions as due from the employees on account of loans taken for house building purpose. In so far as the claim for release of the GPF amount is concerned, the same enjoys protection in terms of the Provident Funds Act, 1925 as expressed therein and it is the duty of the authorities to release the same in accordance with the Rules.
18. The applicant is therefore found entitled to payment of leave encashment. Further, since the respondents have stated that the case for payment of CGEGIS amount as well as GPF amount has been taken up with the authorities, the same be finalized also keeping in view the above observations, and admissible amounts released. Since the applicant has retired on 30.06.2009, the interest shall be payable for delayed payment as admissible in accordance with law. This exercise be completed within three months from the date of receipt of a certified copy of this order and applicant informed by passing appropriate orders. The applicant is not entitled to payment of gratuity and to commutation of pension. Since it has been stated in Para 5.3 of the OA that a review has been filed by the respondents with regard to the orders of the Hon ble High Court of Delhi in the case of J.P. Sharma (supra), which has not been controverted by the respondents, the present directions shall be subject to the final outcome thereof.
19. The O.A. is disposed of as above. No costs.
5. In the case of UOI Vs. J.P.Sharma WP(C) 6465/2003 Hon ble Delhi High Court viewed that the gratuity of retired Govt. servant could not withheld for any length of time to await the instituton of departmental or judicial proceedings even after his retirement. The Relevant extract of said judgment of Hon ble High Court read as under. 22. This leads us to the question, as to what is the inter play of the rights of the Government and the retired Government servant with regard to the fixation of provisional pension and the withholding of the gratuity of the retired Government servant by the Government. Is it, that in every case where neither departmental proceedings nor judicial proceedings are instituted, as contemplated by Rule 9(6) as on the date of retirement of the Government servant, he immediately becomes entitled to receive full pension and gratuity? In such a situation, if departmental or judicial proceedings are instituted after the lapse of sometime from the date of the retirement of Government servant, but within the time permissible under Rule 9(2)(b)(ii) or otherwise within the period of limitation, would the Government not be entitled to fix the provisional pension and, in case by then the gratuity has not been paid to the retired Government servant would the Government not be entitled to withhold the gratuity in terms of Rule 9 (4) and Rule 69(1)(c) of the Pension Rules?
23. We may note that unlike for the initiation of
departmental proceedings, for the initiation of judicial
proceedings, there is no time limit prescribed under the Pension Rules within which the same can be initiated after the retirement of the government servant. However, judicial proceedings, be they civil or criminal, would be subject to the laws of limitation. A perusal of Rule 9(4) would show that the said Rule is applicable, inter alia, to every case where a departmental or judicial proceedings is instituted against the retired government servant. The said sub-rule(4) does not say that the departmental or judicial proceedings have necessarily to be in existence on the date of superannuation of the government servant. This means that even when the departmental or judicial proceedings are validly instituted subsequent to the date of superannuation, a provisional pension as provided in Rule 69 would be sanctioned in favour of the government servant.
24. The pension of a government servant, who is due to retirement, is required to be fixed well in advance, so that there is no delay in payment of pension to him immediately upon his retirement. Reference may be made to the provisions contained in Chapter VIII and in Rules 83 & 85 of the Pension Rules. Consequently, it follows that in respect of a government servant to whom Rule 9(4) of the Pension Rule does not apply, the Government is obliged to fix and pay the full pension and continue to pay the same, until a situation arises (with the institution of valid proceedings) as contemplated in Rule 9(4). Once a situation covered by Rule 9(4) arises, the government would become entitled to henceforth fix the provisional pension and continue to pay the same until the conclusion of the proceedings, and subject to the final outcome of the proceedings. While the right to receive monthly pension accrues immediately upon retirement, and the same is to be paid vide Rule 85(2) monthly on or after the last working day of the month to which the pension relates.................... , so far as gratuity is concerned, there is no specific Rule with regard to disbursement thereof. Rule 85(1) states Except as otherwise provided in these Rules, a gratuity shall be paid in lump sum . While in respect of pension a statutory right exists, to receive pension immediately upon retirement month by month. There is no time bound prescription with regard to release of gratuity to the retired government servant. This also appears to be the scheme as evident from Rule 9(1) of the Pension Rules. The question of withholding pension or gratuity or both either in full or in part by the President can arise only in a situation where the same has in fact not been paid to the retired government servant. From the aforesaid analysis of the Pension Rules, we draw the following conclusions:-
(i) In a case where neither departmental proceedings nor judicial proceedings are instituted as contemplated by Rule 9(6) of the Pension Rules as on the date of retirement of the Government servant, he immediately becomes entitled to receive the full pension.
(ii) If departmental or judicial proceedings are instituted validly after the retirement of the Government servant, but within the time permissible under Rule 9(2)(b)(ii) or otherwise within the period of limitation, the government would become entitled to fix provisional pension to be paid henceforth till the conclusion of the proceedings and would abide by the final decision arrived at in the proceedings in relation to the payment of the pension.
(iii) While a Government servant does become entitled to receive gratuity upon retirement (when proceedings as contemplated by Rule 9(6) are not in existence on the ate of his retirement),there is no rule that the same is payable immediately upon retirement. If proceedings are validly instituted after the date of retirement of the Government servant, but prior to the disbursement of the gratuity to him, the Government servant cannot claim release of gratuity till so long as the proceedings are not concluded, and the final decision with regard to disbursement of gratuity would abide by the outcome of the proceedings.
25. Does it mean that the gratuity of a retired government servant can be withheld for any length of time to await the institution of the departmental or judicial proceedings even after his retirement? In our view the answer to this question has to be in the negative. In case departmental proceedings are not instituted within the time granted by Rule 9(2)(b) against a retired government servant i.e. within four years of the commission of the misconduct, the same cannot be instituted at all. Similarly, judicial proceedings, would have to be initiated within the period of limitation. If no judicial proceedings are initiated against the retired Government servant within the period of limitation, it would be impermissible for the Government to institute them later, or even to withhold the full pension or gratuity of the retired government servant. The power to withhold the grant of gratuity in contemplation of disciplinary or judicial proceedings cannot be permitted to be misused or abused by the Government. The same cannot become an instrument of harassment of the retired government servant in the hands of the Government. At the same time, the Government cannot lightly be divested of its right to withhold the gratuity in respect of a retired government servant in a deserving case. Therefore, in every case where the Government withholds gratuity in respect of a retiring/retired Government servant, the Government shall be obliged to pass an order disclosing the grounds with reference to the particular cases in respect of which Rule 9(4) and Rule 69 of the Pension Rules are sought to be invoked against the Government servant.
26. Coming to the facts of this case, we find that the RC/FIR in the present case was registered on 6.2.2001. Neither a complaint was lodged, nor a challan filed till even four years after the date of registration of the FIR against the respondent. Consequently, in our view the respondent could not be denied the gratuity due to him.
27. Having said that we may, however, clarify that the right of the President under Rule 9(1) is not in any way fettered by the mere fact that the government servant is released his gratuity and pension, since it is always open to the President to withdraw the pension in full or in part and to order recovery from the pension or gratuity of whole or any part of the pecuniary loss caused to the government, as may be established in the departmental or judicial proceedings. With these observations, we dismiss this petition leaving the parties to bear their respective costs.
6. In the impugned order dated 5.1.2011 it is indicated that a decision to release the retirement benefits regular pension to applicant could be taken as per the outcome of Hon ble Court. It is correct that the relevant rules permit the Govt. to withheld certain amount of terminal benefits payable to Govt. servant on his retirement, but the provision of such rules should not be applied in a mechanical manner and each case should be dealt with on its own merit keeping in view the nature of charge against the Govt. servant i.e. whether those are related to financial irregularities committed by the Govt. servant while in service or grave in nature. It is submitted by learned counsel appearing for respondents that allegation against applicant is of joining a group of person and beating one Shri Arvind Kumar an accounts officer in office, thus no leniency can be shown in dealing with him in any manner. A perusal of impugned order reveal that the same is passed in a mechanical manner. When a Govt. servant make a representation to authority competent to decide the same for redressal of his grievances, it is expected that the contention raised by him in such representation are dealt with and when certain benefit claimed by the govt. servant are not admissible to him in terms of rules, instruction or notifications, the same should be duly referred to in the order itself.
7. Keeping in view aforementioned circumstances, I deem it appropriate to dispose of the present OA with the direction to the respondents to decide the claim of applicant for terminal benefits keeping in view of aforementioned decisions of Hon ble High Court and this Tribunal. Such decision shall be communicated to applicant by way of speaking order within a period of two months from the date of receipt of a copy of this order.
8. OA stands disposed of. No costs.
(A.K. Bhardwaj)
Member(J)
/rb/
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