AI Structured Summary
Not yet generated for this judgment
Judgment
Dr. Sanjiv Kumar, Member (A)
The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking relief to set aside the impugned order dated 05.09.2017 passed by the Divisional Postal Superintendent of Post Offices Fatehgarh Division Farrukhabad and to direct the respondents to release the gratuity of the applicant alongwith @ 18% interest per annum, and to issue any other order or direction and to award cost.
The brief facts of the applicant is that he is challenging the legality and validity of the order dated 05.09.2017 whereby the claim of the applicant for payment of gratuity has been rejected on the ground of pendency of judicial proceedings. The applicant was appointed as Postal Assistant in the respondent department in the year 1979 and continued to work till his compulsory retirement on 25.01.2016. In the intervening period the applicant has satisfactorily discharged his duty. In the year 2011, in the audit, it was observed that an amount of Rs. 2,60,900/- has been misappropriated at Khemsapur on 13.06.2011 to 18.06.2011. In contemplation of the inquiry against the applicant, he was suspended on 24.06.2011 and his suspension was revoked on 16.07.2012. Based on the FIR lodged against the applicant on 04.07.2013 under various sections of IPC, the applicant obtained bail on 25.02.2015 after he was arrested in the aforesaid case on 19.11.2014. A charge sheet dated 24.11.2014 was submitted by the police and the case is pending consideration before the Trial Court. Under the departmental proceedings the applicant has been compulsorily retired on 25.01.2016. After his compulsory retirement, the applicant was granted pensionary benefits as admissible for compulsory retirement, but the department has withheld his gratuity amount on the ground of pendency of criminal case against the applicant. The applicant contends that as per rule 69 (C) of Pension Rules 1972 gratuity cannot be paid to the applicant until the conclusion of the judicial proceedings and issue of final order and therefore the payment of the gratuity shall be dependent upon the verdict of the Trial Court. He further states that to avoid any litigation on the subject, the applicant has deposited the entire amount which was alleged to be defalcated, although no such misappropriation was made by the applicant. In the process of depositing the said amount the applicant has been given a receipt of Rs. 1,19,000/-and rest of the amount he has credited directly into the account of the department hence a hand written receipt was provided. The applicant contends that the Hon‟ble Supreme Court and this Tribunal have ruled earlier that mere pendency of judicial proceedings will not give any right to the respondent department to withhold the payment of the gratuity to the delinquent employee. The applicant further contends that Payment of Gratuity Act, 1972 is a special act dealing with the non obstante clause, which over rides of the provisions of all other acts dealing with the payment of gratuity and within that act there is no provision by which the employer has any competence to withhold the gratuity of an employee, and therefore the provisions of Rule 69 (C) CCS Pension Rule in respect of payment of gratuity is nullified by the Gratuity Act, 1972 to the extent it is contrary to the provisions of Payment of Gratuity Act 1972. He quote Section 4(6) of the Payment of Gratuity Act, 1972 as follows:-
“(6) Notwithstanding anything contained in sub-section (1), -
(a) the gratuity of an employee, whose services have been terminated for any act, wilful 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 may be wholly or partially 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.”
By showing this section 6 the applicant wants to emphasize that the Gratuity Act provides only withholding of gratuity on the grounds of termination of the service of an employee for the alleged acts mentioned in the preceding paragraph. In the present case the services of the applicant have not been terminated, therefore his gratuity cannot be forfeited. He further emphasizes that as per Gratuity Act, 1972 quoted above the gratuity can be forfeited only to the extent of loss of damage or loss to the Government and in the present case the misappropriation is not attributed to the applicant, yet the said amount which is alleged to be misappropriated by the applicant has already been deposited and therefore, the gratuity can neither be forfeited nor be withheld. Hence, he seeks to allow his OA and quash the impugned order and direct the respondents to release his gratuity.
Counter affidavit has been filed by the respondents wherein the basic facts of the applicant have been accepted. It is further submitted that it was a case of payment of gratuity of Bhagwan Das, retired Postal Assistant Frrukhabad Sub Post Office, who was issued charge sheet under Rule 14 of CCS (CCA) Rules, 1965 vide Superintendent of Post Offices Fatehgarh Division Farrukhabad memo dated 13.03.2012 for indulging in the acts of misconduct fraudulently causing loss to the Government to the tune of Rs. 2,60,900/- during the period 27.11.2010 to 15.06.2011 and the applicant was placed under suspension vide memo dated 24.06.2011 and his suspension was revoked vide memo dated 16.07.2012. As the applicant was caught in a fraud case making fraudulent withdrawal from the SB account of 7 different depositors. A criminal case also was lodged on 04.07.2013 under Section 409, 419, 467, 468 and 471 of IPC and the applicant has owned responsibility, and deposited Rs. 1,19,000/- for which receipt was also provided to him on 30.06.2011 and remaining amount of Rs. 1,41,900/- consisting to two withdrawals were disallowed by the Post Master Fatehgarh HO. Thus, para 3 (C) of counter the respondents agree that the total loss of Rs. 2,60,000/- has already been made good/adjust by the applicant. They further agree that criminal proceedings is going on and simultaneously disciplinary proceedings under Rule 14 of CCS (CCA) Rules, 1965 was initiated and bases on the report punishment of compulsory retirement was awarded to the applicant vide memo dated 25.01.2016. After compulsory retirement of the applicant all his pensionary benefits were paid to him except the amount of his gratuity and the same has been withheld till the conclusion of the Court case No. 891 of 2014 State vs. Bhagwan Das which is under trial in the Court of ACJM Farrukhabad and under Rule 69 (C) of CCS (Pension) Rules, 1972 which reads as under:-
“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 CCS (CCA) Rules, 1965, for imposing any of the penalties specified in clauses (i), (ii) & (iv) of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant’.
As the applicant wants that his gratuity should be released but as the gratuity has been withheld as per the CCS (Pension) Rules, 1972 and the order of withholding gratuity is proper hence, there is no case for the applicant to get it released till the pendency of the criminal case which still is pending in the Judicial Court. The respondents further contend that the applicant could have appealed against the letter dated 05.09.2017 to the competent authority as per provision of rule 23 of CCS (CCA) rules, 1965 and as he has not exhausted the departmental appeal available to him, the OA should be dismissed being devoid of merit.
Rejoinder affidavit has been filed by the applicant wherein he reiterates the facts in the OA. They emphasize that mere availability of the power does not entitled an authority for exercise of the same and on the contrary the authority must exercise the power in good faith and with a definite object. Since the element of recovery is missing in his case hence, withholding the gratuity of the applicant merely on the ground that the power is available to the authority concerned is of no consequence and is not supported with the reason. He further contents that rule 23 as an alternative remedy is wholly misconceived, since the said rule is applicable in the disciplinary proceedings and not in the present case where order have been issued to withhold the applicant‟s gratuity.
Supplementary affidavit in reply of rejoinder affidavit on behalf of the respondents has been filed and they reiterate the facts which they have earlier stated in the counter affidavit.
The case came up for final hearing on 31.03.2023. Shri S.K. Singh, learned counsel for the applicant and Shri Vijay Kumar Pandey, learned counsel for the respondents were present and heard. I have carefully gone through the record of this case as well as the rival contentions.
Before me the limited issue to be decided i.e. “if judicial proceedings are pending can the departmental authorities withhold the gratuity of an employee who has been compulsorily retired? Whether the provisions of the CCA (Pension) Rules which provided for such withholding is nullified because there is no corresponding specific provision in the Gratuity Act, 1972 having a non obstante clause?”
Facts of the case is not denied that the applicant was charge sheeted and after due disciplinary inquiry was imposed with a penalty of compulsory retirement and was granted all his pensionary benefits except withholding of gratuity on the grounds that rule 69 of CCS (Pension) Rules, 1972 specifically provides as under:-
“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 CCS (CCA) Rules, 1965, for imposing any of the penalties specified in clauses (i), (ii) & (iv) of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant’.
From the perusal of the rule it is clear that it provides that this rule exists and says that no gratuity should be paid to the Government servant until the conclusion of the departmental or Judicial proceedings and issue of final orders thereon. In the instant case it not matter of dispute that a criminal case under various sections of IPC including under Section 409, 419, 467, 468 and 471 of IPC are pending trial in the Court ACJM Farrukhabad. Simple reading of the provisions of Gratuity Act which the applicant‟s quota. Section 4 (6) reads as under:
“(6) Notwithstanding anything contained in sub-section (1), -
(a) the gratuity of an employee, whose services have been terminated for any act, wilful 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 may be wholly or partially 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.”
This provision speaks of when an employees‟ services have been terminated how gratuity has to be treated in its para 1 „a‟ and in para „b‟ it gives details of gratuity payable to an employee may be wholly or partially forfeited, if his services have been terminated, or his riotous or disorderly conduct or any other act of violence on his part or 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. So expressly provisions are about what happened where employee is terminated, and how his gratuity has to be dealt with. But no specific provision has been shown by the applicant in the Gratuity Act which should contradict the provision of the Rule 69 (C) of CCS (Pension) Rule, 1972 which only provides for withholding of gratuity and not forfeiture of gratuity. So both subject matters are distinct and different.
The applicant has quoted some case laws in their favour, i.e. Writ Petition No. 27391 of 2012 – Udai Narain Ojha vs. State of UP thorough its Secretary and others where he states that the Hon‟ble High Court rules that gratuity cannot be withheld for an indefinite period and only if he delays the criminal trial (delays specifically attributable to the applicant) it can be withheld. He further draws my attention towards para 9 and 10 of the judgment, which reads following:-
“9. Even otherwise, the period of 4 years is a reasonable period from the date of the event, leading to submission of charge-sheet and the employee cannot be made to suffer for any un-explained or undue delay on the part of the State or the investigating agency. It is, otherwise, not shown by the respondents that such delay was attributed to any act or omission on part of the petitioner. The right of State to proceed in accordance with law, is otherwise available by virtue of Article 351 of Civil Services Regulations if the charges are found proved in judicial proceedings and the public interest also would not be adversely affected, if the gratuity due is paid to the government servant. In view of the above discussions, this Court has no hesitation in holding that action of respondents in withholding payment of gratuity to petitioner is wholly illegal, arbitrary and cannot be sustained.
Writ petition succeeds and is allowed. The order dated 28.1.2012 passed by the respondent no. 3, so far as it relates withholding of gratuity payable to petitioner is concerned, is set aside. A writ of mandamus is issued to the respondents to forthwith release the withheld amount of gratuity together with 6% interest. In case the amount is not paid within four months from today, the petitioner shall be entitled to enhanced rate of interest at the rate of 8% per annum, and it shall be open for the authorities of the State to realise the additional interest from the salary of the officer found responsible for not ensuring release of gratuity to petitioner in terms of this order”.
Simple reading of the above ratio of judgment it is clear that withholding of gratuity per se is not prohibited in rule, but it should not be for a very long undefined period, as in the said case before the Hon‟ble High Court a period of four years was considered as a reasonable period from the date of the event leading to the submission of charge sheet and the employee being made to suffer for unexplained and undue delay on the part of the State or investigating agency and as delay cannot be attributed to the accused Government servant, the Court had no hesitation in holding that action of the respondents in withholding payment of gratuity to the petitioner was wholly illegal and arbitrary and could not be sustained and they allowed the Writ Petition.
The another case which the applicant has quoted is of Hon‟ble Supreme Court order dated 29.07.1998 in the case of Municipal Corporation of Delhi vs. Dharam Prakash Sharma – LAWS (SC)-1998-7-26. Wherein the ratio of judgment is that after examining carefully the provisos of Pension Rules as well as provisions of Gratuity Act, 1972 the Hon‟ble Court ruled that as the Payment of Gratuity Act being a special act for payment of gratuity unless there was any provision therein which excludes its applicability to an employee who is otherwise governed by the Provisions of the Pension Rules, it is not possible for the Hon‟ble Court to hold that the respondents was not entitled to the gratuity until the payment of Gratuity Act, so the Hon‟ble Court rules that the MCD employee would be entitled for the payment of gratuity under the Payment of Gratuity Act which will prevail over the rules framed by the MCD. This case does not appears to be very relevant as the facts are different.
From the facts of this case it appears that the respondents have also agreed that the amount alleged to be defalcated by the applicant has already been deposited back. Hence, merely because the provision of withholding of gratuity is there in cases of pending judicial proceedings it may not appear to be justified in the instant case to withhold the full gratuity of the applicant. Considering the ratio of judgment in the case of Writ Petition No. 27391 of 2012 in the Hon‟ble High Court of Allahabad between Udai Narain Ojha vs. State of UP through its Secretary and other (supra) the present case also appears to be case of undefined extended period of Judicial proceedings as the alleged incidence has happened between the period from 13.06.2011 to 18.06.2011 and the applicant was compulsorily retired on 25.01.2016 since when 13 and 7 years respectively have passed and the Judicial proceedings have not been concluded. So there is a merit in the arguments of the learned counsel for the applicant that his gratuity should not be further withheld and should be released forthwith. Considering the same I pass following orders:-
“OA is allowed. The impugned order dated 05.09.2017 passed by the respondents is set aside. The respondents are directed to release the gratuity of the applicant within a period of four weeks from the date of receipt of a certified copy of this order, failing which after four weeks they shall pay the same with 6% interest. All associated MAs, if any, stand disposed off. No cost.”