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Judgment
Suresh Kumar Kait, J
Vide the present petition, the petitioner is seeking prayer as under: -
a) Pass a writ/order/direction quashing the Impugned Order contained in letter dated 17.02.2017 issued by respondent no.1 whereby the petitionerâ€s
terminal/retirement benefits have been withheld;
b) Pass an order directing respondent no.1 to release the retirement benefits comprising Gratuity, Employerâ€s contribution to CPF and Leave
encashment along with interest @ 18% per annum;
c) Pass a Writ/order/direction quashing the Charge-sheet dated 23.02.2017 whereby disciplinary proceedings have been initiated/instituted against the
petitioner after his retirement by respondent no.1.
Brief facts of the case are that the petitioner was appointed as teacher w.e.f. 01.09.1973 in the Commerce Department of Kirori Mal College
(hereinafter referred to as “the Collegeâ€). On 28.02.1992, an agreement of service for College teachers was entered into between the petitioner
and respondent no.1 with retrospective effect from 01.09.1973 i.e. the date of appointment of the petitioner.
In the month of November, 2012, the College received an invitation from the University Grants Commission (UGC) to act as Coordinating
Institution for “UGC-National Eligibility Test†for December, 2012. Thereafter on 27.11.2012, UGC sent first grant of Rs. 75 lacs to the College
for conducting the UGC Net Exams. Vide letter No. F No.6-17/12 (NET) dated 05.12.2012 UGC gave “no objection certificate†to the Principal
of the College to open a separate Bank account for UGC NET exam. On 28.12.2012, the petitioner was appointed as Bursar of the College for a
period of three years. The acting Principal of the College and the petitioner, vide letter dated 07.06.2013 requested the Manager, Oriental Bank of
Commerce to transfer Rs. 75 lacs to UGC-Net Centre Account from Kirori Mal College General Fund Account as the same was wrongly credited by
UGC in the General Fund Account of the College.
On 05.07.2013, the petitioner asked for clarification from the Acting Principal of the College, Sh. S. P. Gupta, about his role as College Bursar in
the whole UGC NET Examination Account. On 07.07.2013, the petitioner was informed by the Acting Principal that UGC NET Examination Account
is not a College account and Bursar of the College is not a signatory to this account and, therefore, its accounts are to be submitted to UGC only.
Further case of the petitioner is that on 14.10.12014, Metropolitan Magistrate, Tis Hazari Courts, Delhi in CC No.896/1/2014 u/s 156(3) of Cr.P.C.
titled as “Mithilesh Kumar vs. S.P. Guptaâ€, directed the police to lodge an FIR against the petitioner and other accused persons, namely, Sh. S.P.
Gupta, Sh. Rajinder Maan, Sh. Baleshwar Rai and Sh. Sheroj Singh for financial irregularities in the UGC NET Examination.
Accordingly, on 20.10.2014, police registered FIR No.204/2014 under sections 120-B, 409, 419, 420, 466, 468, 471 & 477-A of the Indian Penal
Code, 1860 and Section 13 (1) & (2) of the Prevention of Corruption Act, 1988 against the petitioner and the other co-accused.
The petitioner challenged the said order of the learned Magistrate by way of petition u/s 482 Cr.P.C. being CRL.M.C. 5815/2014 and the same is
pending before this Court. However, on 26.03.2016, the petitioner received a show cause notice from the Principal of the College as to why action
against him should not be taken for alleged unauthorized transfer of Rs. 75 lacs of UGC NET Exam. The petitioner sent his reply vide letter dated
01.04.2016.
On 30.04.2016, respondent no.1 constituted an Empowered Fact Finding Committee (EFFC) with a duty to work out a clear picture of admissible
and inadmissible expenditure based on the genuineness or otherwise of the vouchers and also to report on the irregularities and violations of norms of
General Financial Rules (GFR) in incurring the said expenditure out of grant of Rs. 1.5 crore by UGC for conducting UGC NET Examination for
December, 2012 and June 2013. The EFFC submitted its report in the month of July, 2016 and found the petitioner guilty of alleged negligence in
transferring the sum of Rs. 75 lacs from the General Fund Account of the College to the UGC NET Examination Account.
The EFFC report gave a finding that expenditure of an amount of Rs. 1,24,49,556/- cannot be allowed. Moreover, the report only pointed out alleged
negligence on the part of the petitioner, but not guilty of any financial irregularity/embezzlement and no amount were shown to be recoverable
from/against the petitioner.
Further case of the petitioner is that on 02.11.2016, the Principal of the College informed the petitioner about the date of retirement of the
petitioner and on 02.01.2017, the petitioner requested the Principal of the College to instruct the College Accounts Department to initiate the process
of fixation of quantum of terminal benefits of the petitioner.
On 10.01.2017, the petitioner submitted “No Dues Certificate†to the Principal of the College. On 31.01.2017, the petitioner attained the age
of superannuation and retired from the services of the college as Associate Professor. However, the petitioner was informed by the Principal of the
College vide letter No. 2105 dated 31.01.2017 that the decision with regard to release of the terminal benefits would be taken by respondent no.1 on
01.02.2017. Thereafter, the petitioner received the impugned letter dated 17.02.2017 from the Principal of the College informing the petitioner about
the decision of respondent no.1 of withholding of retirement benefits of the petitioner. On 23.02.2017, the petitioner was served with the chargesheet
by respondent no.1 initiating the disciplinary proceedings. On 03.03.2017, the petitioner sent his explanation/written statement of defence to the
chargesheet. In addition, the petitioner filed W.P.(C) No. 2097/2017 in this Court for quashing of letter dated 17.02.2017, however, the same was
withdrawn with liberty to file afresh petition. Thereafter on 07.03.2017, the petitioner filed RTI application with the respondents seeking copy of the
relevant rules/regulations under which actions against the petitioner has been taken. On 07.04.2017, the petitioner received ambiguous reply from the
respondents. Respondent no.2 informing that CCS (Pension) Rules, 1972 are applicable insofar as withholding of retirement benefits are concerned,
despite the fact that neither of the respondent is a pensionable establishment qua the petitioner.
Learned counsel appearing on behalf of the petitioner submitted that on the date of retirement of the petitioner on attaining superannuation on
31.01.2017, the disciplinary proceedings were not even initiated by respondent no.1 inasmuch as the chargesheet dated 23.02.2017 was served on the
petitioner, post his retirement. There are no rules/regulations, etc. in force which empowers the said respondent to initiate/institute/continue disciplinary
proceedings against the petitioner on his post retirement. Moreover, there are no rules/regulations which empowers the respondents to withhold the
retirement benefits of the petitioner.
He further submitted that the petitioner was retired from the services of respondent no.1 on 31.01.2017 after attaining the age of superannuation.
The petitioner was served with chargesheet dated 23.02.2017 post retirement and admittedly, there was no disciplinary enquiry pending against the
petitioner on the date of retirement.
The counsel for the petitioner has relied upon the case of Dev Prakash Tewari vs. U.P. Coop Institutional Service Board: (2014) 7 SCC 26,0
whereby the Honâ€ble Supreme Court has held as under: -
“In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any
reduction in the retiral benefit of the Appellant. There is also no provision for conduction a disciplinary enquiry after retirement of the appellant and not
any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from
service on 30.6.95 there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any
reduction in the that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.â€
In view of the fact that there is no rule/regulation authorizing the respondent no.1 to initiate or even continue the disciplinary enquiry post
retirement of the petitioner.
Counsel for the petitioner further submitted that respondent no.1 in para 4 of its counter affidavit has admitted that petitioner is governed by the
Payment of Gratuity Act, 1972 and, therefore, there is no question of application of provisions of Statute 28-A of the respondent no.2 University, as
Section 14 of the Payment of Gratuity Act has a non-obstante clause, thus the Act overrides other enactment.
Section 14 of the Act is reproduced hereunder:
“14. Act to override other enactments, etc.-The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other
than this Act.â€
It is submitted, therefore, since the Payment of Gratuity Act has no provision for withholding the gratuity pending departmental enquiry, the same
cannot be withheld by relying on any other enactment or rules. Further even otherwise, there is no question of applicability of the statute of University
of Delhi to the petitioner as the same gives power to withhold payment of gratuity only in case of resignation, dismissal or removal for misconduct,
insolvency, insufficiency. However, the petitioner retired from the services of the respondent no.1 after attaining the age of superannuation in normal
course of the duty performed by him without any imputation and hence, there is no question of removal for misconduct as no order of removal can be
passed post retirement as there is no provision in the service rules of the respondents which continues to treat a retired employee a delinquent
employee of respondent for the purpose of departmental enquiry.
To strengthen the case of above arguments, counsel for the petitioner has relied upon the case of Jaswant Singh Gill vs. M/s. Bharat Coking Coal
Ltd. & Ors.: (2007) 1 SCC 66, whereby the Honâ€ble Supreme Court has observed as under: -
“The provision of the Act, therefore, must prevail over the Rules. Rule 27 of the Rules provides for recovery from gratuity only to the extent of
loss caused to the company be negligence or breach of orders or trust. Penalties, however, must be imposed so long an employee remains in service.
Even if a disciplinary proceeding was initiated prior to the attaining of the age of superannuation, in the event, the employee retires from service, the
question of imposing a major penalty by removal or dismissal from service would not arise. Rule 34.2 no doubt provides for continuation of a
disciplinary proceeding despite retirement of employee if the proceeding despite retirement of employee if the same was initiated before his retirement
but the same would not mean that although he was permitted to retire and his services had not been extended for the said purpose, a major penalty in
terms of Rules 27 can be imposed.
Power to withhold gratuity contained in Rule 34.3 of the Rules must be subject to the provisions of the Act. Gratuity becomes payable as soon as the
employee retires. The only condition therefore is rendition of five years continuous service. A statutory right accrued, thus, cannot be impaired by
reason of a rule which does not have the force of a statute. It will bear repetition to state that the Rules framed by Respondent No.1 or its holding
company are not statutory in nature. The Rules in any event do not provide for withholding of retrial benefits or gratuity.â€
Counsel for the petitioner further submitted that the reliance made by respondent no.1 on judgment of this Court in Prof. Marmar Mukhopadhyay
vs. Union of India & Ors. decided on 18.07.2013 in W.P.(C) No. 2566/2007 is also not applicable to the facts of the present case as the said judgment
clearly says that the departmental proceedings should be held only to determine the existence of conditions of Section 4(6) of the Payment of Gratuity
Act, however, there is nothing in the chargesheet issued to the petitioner so as to show that the proceedings have been initiated post retirement for
determining existence of conditions of Section 4(6) of the Payment of Gratuity Act, 1972 rather the same has been issued for establishing misconduct
which is impermissible. Moreover, once the order of Honâ€ble Supreme Court in Jaswant Singh Gill’s case (Supra) has laid down that since no
order of termination can be passed against an employee, once he retires from the services after attaining the age of superannuation and hence,
gratuity cannot be withheld. Therefore, the reliance on the judgment of this Court in Prof. Marmar Mukhopadhyay (Supra) is misconceived.
Further, the judgement of this Court in Prof. Marmar Mukhopadhyay (Supra) case runs counter to the law laid down by the Honâ€ble Supreme
Court in State of Jharkhand and Ors. vs. Jitendra Kumar Srivastava: (2013) 12 SCC 201,0 wherein it has held that in the absence of any power to
withhold pension or gratuity the same cannot be done. The relevant para of the judgement of the Honâ€ble Supreme Court is as under: -
“11. Reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the
Government to withhold pension etc. ONLY when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had
committed grave misconduct in the discharge of his duty while in his office. There is no provision in the rules for withholding of the pension/ gratuity
when such departmental proceedings or judicial proceedings are still pending.â€
Counsel for the petitioner further submitted that employerâ€s contribution to the PF/CPF on the issues of rules of PF/CPF, respondent no.1 vide
impugned letter dated 17.02.2017 withhold the employerâ€s contribution to the CPF of the petitioner. Thus, respondent no.2 has not implemented the
judgment of this Court in LPA No.647/2014, whereby the petitioner was held to be under the GPF cum pension scheme. The respondent no.2 has
preferred SLP against the said judgment, hence the petitioner as on the date is covered under CPF scheme, as per the withholding letter/order of the
respondent.
It is further submitted that the reliance by respondent no.1 on Clause No.1(iv) in Appendix “B†to Statute 28-A of the University of Delhi
empowering deduction of CPF is misconceived inasmuch as Clause 1(iv) is applicable only in case of dismissal from service due to misconduct,
insolvency or inefficiency. whereas the petitioner retired from the service of respondent no.1 after attaining the age of superannuation without any
imputation and there is now no question of imposing any penalty of dismissal on the petitioner. This rule is fortified by the 2nd proviso to Clause 1(iv)
which reads as “Provided further that if any such order of dismissal is subsequently cancelled, the amount so deducted shall, on his reinstatement in
the service be placed to his credit in the fundâ€, which clearly shows that clause 1(iv) is not applicable to a retired employee because there would be
no occasion of reinstatement of a retired employee. Further reliance of respondent no.2 on provision of GPF cum pension scheme are misconceived
as the respondent no.1 has withhold CPF and not GPF.
Learned counsel appearing for the petitioner submitted that respondents have not shown any provision for withholding leave encashment, hence
there is no occasion for the respondents for withholding the same.
Learned counsel appearing on behalf of respondent no.1 submitted that employees of the University get their retirement benefits as per the
provisions of Statute 28-A of the University. As per the Section 18 of Statute of University of Delhi no gratuity is payable by the University in case of
dismissal or removal for misconduct. Relevant paragraph of Statute is being reproduced as under: -
“18. (i) xxxxxxx
(ii) xxxxxxxxxx
(iii) No gratuity shall be payable on resignation from the service of university or the dismissal or removal from it form misconduct, insolvency,
inefficiency not due to age.â€
It is further submitted that the Statute of the University also empowers the University to deduct the entire amount of University contribution if
subscriber is dismissed from the service for misconduct. Relevant paragraph of the Statute is being reproduced as under: -
“APPENDIX B TO STATUTE 28-A
The vice-chancellor may direct the deduction therefrom and payment to university of (iv) all the amounts representing such contribution and interest if
the subscriber is dismissed from the service due to misconduct, insolvency or inefficiencyâ€
Learned counsel for the respondent no.1 submitted that in case of State of Maharashtra vs. M.H. Mazumdar: (1998) 2 SCC ,5 it is held by
Honâ€ble Supreme Court that if rules empower the organization to deduct and withdraw the retirement benefits, then disciplinary proceedings may be
initiated or continued even after retirement.
This Court also held in case of Prof. Marmar Mukhopadhyay (Supra) held that if the Payment of Gratuity Act is applicable, then the department
may initiate or continue with departmental proceedings, even after retirement of delinquent employee under Section 4(6) of the Payment of Gratuity
Act.
The Division Bench of this Court in the case of University of Delhi vs. Kanwar Kumar Gambhir: (2015) 222 DLT 453 has held that Payment of
Gratuity Act, 1972 is applicable to employee of University of Delhi. Accordingly, the respondent has jurisdiction to withhold the retirement benefit of
the employee and initiate and continue with departmental enquiry even after retirement.
30. Ratio of Dev Prakash Tewari (Supra) is not applicable to the facts of present case as in the said case, the Honâ€ble Supreme Court has held
that in absence of the rules or reduction in the enquiry cannot be continued ever after the retirement. In the present case, the rules specifically
empower the respondent to withhold gratuity and contribution to CPF, therefore, enquiry may be initiated/continued even after retirement. Moreover,
the ordinance XII/XVIII of University of Delhi has been mentioned in the chargesheet itself.
Learned counsel appearing on behalf of respondent no.2-University of Delhi submitted that that the confirmation of the University has been
constituted by an Act of Parliament called University of Delhi Act, 1922 as amended from time to time. Section 28 of the said Act provides for
Statues which in turn provides for the Constitution of the pension or provident fund and the establishment of an insurance scheme for the benefits of
the officers, teachers and the other employees of the University and its Colleges.
Statute 28-A provides for General Provident Fund-cum-pension-cum-Gratuity scheme under its Appendix-A. Clause 14 under the heading pension
of the said appendix-A to Statue 28-A provide as under: -
(B) The departmental proceedings, if not instituted while the University employee was in service, whether before his retirement or during his re-
employment:
(i) shall not be instituted save with the sanction of the Vice Chancellor.
(ii) shall not be in respect of any event which took place more than four years before such institution, and
(iii) shall be conducted by such authority and in such place as the Vice-Chancellor may direct and in accordance with the procedure applicable to
departmental proceedings in which an order of dismissal from services could be made in relation to the University employee during his service.
Also, in this same clause 14(i) of Appendix A to statute 28-A it is provided as under: -
(i) The Vice-Chancellor reserve to himself the right of withholding for specified period, and of ordering recovery from a pension of the whole or part
of any pecuniary loss caused to the University, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or
negligence during the period of his service, including service rendered upon re-employment after retirement.
In view of the above provisions, the teachers of the Colleges affiliated to the University of Delhi to whom these provisions are applicable are
governed accordingly. Moreover, Ordinance XII refers specifically to College appointed teachers with regard to their terms of service and are
governed under Annexure-II to the Ordinance above, vide which the teacher concerned has to execute the bond of agreement of the services with the
Governing Body of the College which is also the appointing/ Disciplinary Authority. Further Ordinance XVIII also provides for condition of service of
teacher. Hence the Petitioner who admittedly served as teacher of Kirori Mal College which is maintained college of University of Delhi is governed
by the University of Delhi Act, Statutes and ordinances as is amenable to the same.
In M. Narasimachar vs. The State of Mysore: (1960) 1 SCR 98 1and State of Uttar Pradesh vs. Brahm Datt Sharma & Anr.: (1987) 2 SCC 17,9
similar rules authorizing the Government to withhold or reduce the pension granted to the Government servant were interpreted and the Honâ€ble
Supreme Court held that merely because a Government servant retired from service on attaining the age of superannuation, he could not escape the
liability for misconduct and negligence or financial irregularities which he may have committed during the period of his service and the Government is
entitled to withhold or reduce the pension granted to a Government servant.
In view of above, this Court in Prof. Marmar Mukhopadhyay (Supra) has observed that the provisions of Section 4(6) will have to be read in the
same manner as was done by the Supreme Court with reference to Bombay Civil Services Rules 188 and 189 in the case of M.H.Mazumdar (supra)
i.e. entitling an employer to continue with the departmental proceedings even after retirement of the employee.
It is further observed that there is nothing in the applicable provision of Section 4(6) of the aforesaid Act which brings to an end automatically the
continuation of an enquiry against a charged employee merely on account of superannuation/retirement.
The provision of Section 4(6) also does provide entitlement of forfeiture on account of loss or damages caused by an employee and which
entitlement does not bear any co-relation to the incidence of retirement of an employee. because nothing in Section 4(6) of the Payment of Gratuity
Act at all provides that on retirement there is disentitlement to continue the enquiry/departmental proceedings against a superannuated employee.
The provisions of Section 4 (6) provides that once the services have been terminated i.e. in effect can be terminated if employee was in service or
the employee being found guilty of act or wilful omission or negligence causing any damage or loss or destruction of property belonging to the
employer, then, forfeiture can be made of the gratuity, and if that be so, this provision does not in any manner prohibit continuing of the departmental
enquiry after superannuation of the charged official/retiring employee. Accordingly, held that there is no disentitlement of the employer-organization to
continue with the departmental enquiry against the charged official because the relevant provision being Section 4(6) of the Payment of Gratuity Act,
1972 does not bring to an end an enquiry which is commenced during the employment, and in fact, the said provision 4(6) entitles commencing of an
enquiry even after retirement of a charged official, and which is also the ratio of M.H.Mazumdar (supra).
Further held that the provision of Section 4(6) of the Payment of Gratuity Act to entitle the employer-organization not only to continue a
departmental enquiry after superannuation of an employee, but also to commence departmental proceedings against the employee even after his
superannuation/retirement, subject to the fact that such proceedings are not disciplinary proceedings but are enquiries/departmental proceedings to
determine the existence of conditions of Section 4(6) of the Payment of Gratuity Act.
In view of above discussion and the law discussed above, I find no merit in the present petition and the same is, accordingly, dismissed with no
order as to costs.
CM APPL. No. 16121/2017
In view of the order passed in the present writ petition, the application has been rendered infructuous and is, accordingly, disposed of.