District and Sessions Judge vs Sanjeev Verma

D. Murugesan, C.J.—A short but important question arises in this appeal is that in the event a Government servant is compulsorily retired after a spell of suspension, would he be entitled for pensionary benefits. The facts in brief are as follows:

The respondent (hereinafter referred to as ''the Government servant'') was appointed as LDC by the Court of District & Sessions Judge, Delhi and was posted as Ahlmad in the Court of Special Metropolitan Magistrate sometime during March, 2004. On 15.3.2004, a raid was conducted in the Office and one person was found in the room of the Government servant who allegedly impersonated himself as Ahlmad in the Court. The Government servant was suspended vide order dated 16.3.2004. Charges were framed against him. An inquiry as to the misconduct was conducted by the Inquiry Officer who held that the Government servant was guilty. On the basis of the Inquiry Report, he was imposed with the punishment of compulsory retirement. In the interregnum, a case was also registered, viz., FIR No. 63/04 u/s 170/ 120B of the Indian Penal Code in this behalf. The order of compulsory retirement was challenged by the Government servant unsuccessfully.

A Division Bench of this Court in writ petition vide order dated 04.3.2011 directed that "it will also be examined as to whether the petitioner is entitled to pension having regard to the number of years of service put by the petitioner." Based on the said direction, the following order dated 10.6.2011 was passed, which reads as under:

Office of The District & Session Judge: Delhi

No. 18005-I/Pension/Acctts./2011 Dated 10 Jun 2011

To

Sh. Sanjiv Kumar Varma

S/o Sh. R.S. Verma,

R/o RZ-72/9, Gali No. 03,

Mohan Nagar, Pankha Road,

New Delhi-110046.

Subject: Regarding Pension.

In continuation of Letter no. 16702-I/Pension/Acctts/2011 dated 31/05/2011

I am directed to inform you that as per Swamy''s CCS Pension rule no. 49(b), "In case of Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty-three years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under clause (a)" and according to Swamy''s Pension Rules Made Easy, Chapter 6, Pension and Gratuity, "a government servant who retires from service with a qualifying service of less than ten years is not entitled for the payment of pension but is entitled for the payment of lumpsum amount termed Gratuity".

Sd/-

(Subhash Arora)

Sr. Accounts Officer,

Accounts Branch

Tis Hazari Courts,

Delhi.

Vide and above the said order, the request of the Government servant for payment of pension was rejected based on Rule No. 49(b) of CCS Pension Rules. Basically, the request for pension was rejected on the ground that the Government servant was not entitled for the payment as he had completed less than 10 years qualifying service. The said order was put in issue by filing a writ petition, which was ultimately allowed by the learned Single Judge vide the order under appeal.

For determination of the issue raised in this appeal, we may refer to the following Rules of CCS Pension Rules and Fundament Rules: Rule 23:

Counting of period of suspension

Time passed by a Government servant under suspension pending inquiry into conduct shall count as qualifying service where, on conclusion of such inquiry, he has been fully exonerated or the suspension is held to the wholly unjustified; in other cases, the period of suspension shall not count unless the authority competent to pass orders under the rule governing such cases expressly declares at the time that it shall count to such extent as the Competent Authority may declare.

Rule 49

Amount of Pension

(1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month''s emoluments for every completed six monthly period of qualifying service.

(2) (a) In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than thirty-three years, the amount of pension shall be calculated at fifty per cent of average emoluments, subject to a maximum of four thousand and five hundred rupees per mensem.

(b) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty three years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under Clause (a) and in no case the amount of pension shall be less than Rupee three hundred and seventy-five per mensem.

(c) Notwithstanding anything contained in Clause (a) and Clause (b) the amount of invalid pension shall not be less than the amount of family pension admissible under sub-rule (2) of Rule 54.

(3) In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one half-year and reckoned as qualifying service.

(4) The amount of pension finally determined under Clause (a) or Clause (b) of sub-rule (2), shall be expressed in whole rupees and where the pension contains a fraction of a rupee it shall be rounded off to the next higher rupee.

(5) Deleted.

(6) Deleted.

F.R. Rule 54B:

F.R. 54-B. (1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement (including premature retirement) while under suspension, the authority competent to order reinstatement shall consider and make a specific order-

(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement (including premature retirement), as the case may be; and

(b) whether or not the said period shall be treated as a period spent on duty.

(2) xxx

(3) xxx

(4) xxx

(5) In case other than those falling under sub-rules 92) and (3) the Government servant shall, subject to the provisions of sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.

Much reliance was placed by Mrs. Ahlawat the learned counsel appearing for the appellant on Rule 23 of CCS Pension Rules. In terms of Rule 23, a Government servant under suspension pending inquiry into the misconduct, the period under suspension shall count as qualifying service in the event on conclusion of such inquiry, he has been fully exonerated or the suspension is held to be wholly unjustified. In other cases, the period of suspension shall not count unless the authority competent to pass orders under the rule governing such cases expressly declares at the time that it shall count to such extent as the Competent Authority may declare. It is the contention of the appellant that the Government servant in question was not fully exonerated, as the charges were proved and he was awarded punishment of compulsory retirement, which is one of the major penalty under the relevant Rules. As far as the second limb of Clause 23 is concerned, it was argued by the appellant that only on account of the raid, the suspension was made. On the basis of factual background, it cannot be said that the suspension of the Government servant was unjustified. As far as last limb of arguments is concerned, it was argued that it is specifically recorded in the order denying pensionary benefits. The order dated 04.7.2009 states that the Government servant will not receive any benefits more than what he had received during the suspension. In view of the above, the period of suspension of the Government servant cannot be counted for the purpose of payment of pension and for that matter, she would submit that the Government servant is not entitled for payment of pension in the given facts. Ms. Ahlawat would also submit that in any case, the Government servant is not entitled for counting the period of suspension in terms of Section 49(2)(b) of the CCS Pension Rules, as it requires qualifying services of 10 years.

On the other hand, it is the contention of Mr. Ajesh Luthra, the learned counsel appearing for the respondent, that in terms of Fundamental Rules 54B(1), in the event a Government servant has been suspended is reinstated or would have been so reinstated but for his retirement (including premature retirement) while under suspension, the authority competent to order reinstatement shall consider and make a specific order regarding pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement (including premature retirement), as the case may be and whether or not the said period shall be treated as a period spent on duty. In the order of compulsory retirement, the Authority competent in terms of FR 54B did not indicate its decision. In the absence of such a decision, it would be only justifiable for the extension of the payment of pension. In this context, he would also rely upon the judgment of the Supreme Court in the case of Ashok Kumar Vs. Union of India (UOI), .

Before we dwell upon the submission of the learned counsel for the appellant based on Rule 23, we may refer to FR 54B. It is the specific submission of the learned counsel for the respondent that the word ''premature retirement'' employed in that Rule would include compulsory retirement as well and in that event a specific order is required under FR 54B (1) (a) & (b). In our opinion, we cannot place such a construction on the said Rule as the word ''premature retirement'' is employed in a different situation and it will not apply in respect of compulsory retirement. As has been rightly pointed out by the learned counsel for the appellant that compulsory retirement is a major penalty and it is not as if the Government servant was exonerated and was let off with the misconduct for the charges received. A reading of FR 54B firstly shows that in the event the Government servant who has been suspended has been reinstated, clauses (a) and (b) could be pressed into service. Factually, in this case, the Government servant was not reinstated. The order of compulsory retirement was made as a major penalty and fact remains that the same was questioned specifically by the Government servant and for that reason, there was no occasion for reinstatement. The second limb of the said Rule also includes that in case of a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement is concerned, again, the said clause is not applicable to the case of the Government servant in question, as there was no occasion that he would have been so reinstated. Such an argument could have been appreciated only in the event, the order of compulsory retirement was set aside and reinstatement was ordered. For that reason, the Authority Competent to order reinstatement has no obligation to pass any specific order in terms of Clauses (a) and (b) of FR 54B.

This takes us to the applicability of Rule 23 of the CCS Pension Rules. As we have noted that the said rule applies only on three occasions:

(i) The Government servant who has been fully exonerated;

(ii) The suspension of that Government servant is held to be wholly unjustified; and

(iii) The Authority Competent to pass order under the Rules governing such cases expressly declares at the time that it shall count to such extent as the Competent Authority may determine.

At the cost of repetition, we may again point out that the Government servant in question has not been fully exonerated and therefore, his claim should not fall under the first category. Equally, suspension cannot be wholly unjustified as the appellant was justified in suspending the Government servant for the reasons that an FIR was registered against the erring Government servant who handed over the Court records to some unauthorized person who could not have access to the same in the Office of the Registry. To this extent, second limb of the Rule is not applicable to the Government servant in question. As far as the third limb is concerned, the submission of the learned counsel for the respondent was that the Authority Competent should have passed an order under the Rules deciding specifically the issue of benefits, etc. for the suspension period. Having regard to our finding, FR 54B (1) (a) & (b) is not applicable to the facts of this case, the Government servant does not satisfy the third limb.

In these circumstances, the question of counting the period of suspension for the purpose of making the Government servant entitlement for payment of pension does not arise. That apart at the time when the compulsory retirement order was passed though the Competent Authority did not elaborately declare his disentitlement of pension, it could be seen that in the said order it was mentioned that the Government servant will not receive any benefits more than what he had received during the period of suspension. Therefore, it cannot be said that the question of payment of pension was not at all considered by the Competent Authority.

Coming to the judgment of the Supreme Court Ashok Kumar (Supra), of course, the Apex Court in that case having regard to the submission made by the counsel for the appellant therein directed the payment of pension. In our opinion, the Government servant in question cannot take advantage of the said judgment for the simple reason that the said judgment proceeds on the basis of that a specific order under FR 54B was required and such order was not passed declaring the Government servant as to the entitlement of pension. That apart, the fact of the case shows that the matter was remitted back to the Competent Authority for fresh consideration and even after the remand order was passed, there was no specific order by the Competent Authority made which led the Apex Court to issue specific direction. In the facts at hand, as FR 54B is not applicable, the judgment relied upon by the learned counsel for the respondent cannot be pressed into service in the given set of facts.

One more submission made by the learned counsel appearing for the respondent to the effect that the Division Bench of this Court in its order dated 04.3.2011 directed the Competent Authority to consider the request of the respondent for payment of pension by counting the period of suspension as well. In terms of the said order, the Competent Authority, viz., Disciplinary Authority has not made the order and the order was passed by the Sr. Accounts Officer of the appellant. Hence, the order of rejection of the pensionary benefits of the Government servant is not in accordance with the order of this Court and is bad in law. To rebut the said submission, it has been mentioned in Ground No.(B) of the memorandum of grounds of appeal that a communication dated 10.6.2011 was only on the basis of approval of the Competent Authority and the Sr. Accounts Officer only acted as Communicating Officer at the behest of the decision of the senior officer. The question as to whether the Disciplinary Authority has taken any decision or not is a matter of fact and this specific ground has not been confronted by the respondent by way of any reply and for that reason, we are not inclined to accept the challenge to the order in question in the writ petition. For all the above reasons, the appeal stands allowed and the impugned order in the writ petition is dismissed.