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Judgment
Anjani Nandan Sharan, Member (A)
Heard Shri S K Singh Vashisht, learned counsel for the applicant and Shri Devendra Pratap Singh, learned counsel for the respondents.
The instant Original Application has been filed u/s 19 of the Administrative Tribunal Act, 1985 seeking following reliefs :-
“8. (i) (a) issue an order or direction to the respondents to set aside the impugned order dated 02-08-2023 passed by respondent No. 3
(b) Issue an order or direction to the respondents to give gratuity, commutation and arrear of Selection Scale, and pension accordance with, fixation, after grant of selection scale, interest with the rate of 18%
(c) Issue an order and direction to the respondents which the Honorable Tribunal deemed fit and proper.
(d) award cost in the favour of applicant.”
The brief facts of the case as submitted by the applicant are that he was a TGT Teacher (Hindi) and retired on 31.10.2022 after completing 36 years of service and on attaining the age of superannuation. His entire Service career was bright and taintless. However, the respondents have not paid the retirement gratuity, commutation amount and arrear of selection grade to the applicant till now in spite of his representation dated 22.12.2022. The applicant again gave the representation dated 18.05.2023. Selection Grade was given by the respondents to him on 24.05.2023, Fixation order has been passed but arrear of Selection Scale has not been paid. Now, his pension is being paid in accordance with pay fixation of the applicant. Aggrieved by this, the applicant filed O.A. No. 459/2023 before this Tribunal. And This Tribunal passed an order on 31.05.2023 directing the respondents to decide the representation of the applicant dated 18.05.2023 within a specific period. In pursuance to this order, the respondent no. 3 has passed the impugned order dated 02.08.2023 in which it has been stated that due to pendency of the case under FIR No. 202/2020 under Section 420, 406 and 506 of IPC and Section 3 & 4 of Dowry Prohibition Act. The amount of gratuity will not be paid till the finalization of the case. Other retiral benefits, GPF, Leave Encashment, etc. had already been paid. Under Rule 69 of CCS, Pension Rules, 1972, payment of commutation was not prohibited nor was the arrear of the selection grade. It has also been mentioned by him that so far no summon has been served to the applicant in any criminal case for sake of abovementioned section of IPC and 3 & 4 Dowry Prohibition Act. He has only son who married himself to a girl of his liking and there is no role of applicant in any case. Till retirement, he was one of the best employees and he got several prizes for his best service. No departmental proceeding was initiated in his entire career. So far as the judgment of the Hon’ble High Court Allahabad is concerned, due to pendency of any criminal Case, no employee would be deprived from promotion. Due to pendency of Criminal Case, the applicant cannot be deprived from his pension, gratuity amount and other unpaid funds and arrears.
In the counter affidavit filed on behalf of the respondents, it has been stated that the applicant was working as TGT (Hindi) in Kendriya Vidyalaya and he retired on reaching the age of superannuation on 31.10.2022. A complaint was received that an FIR No. 202/2020 under section 420, 506, 406 IPC and Section 3/4 of Dowry Prohibition Act had been filed in P.S. Naini and criminal case was pending against him. This fact was verified from the office of Police Commissioner, Prayagraj by Principal KVS New Cantt, Prayagraj. The SHO P.S.Naini submitted his report verifying these facts and stated that a charge sheet has also been filed in the above case on 04.05.2022. The case is still pending against the applicant before the Court. The pension is governed by CCS (Pension) Rules, 1972. Rule 8 of said Rules provides that pension is subject to future good conduct. As per Rule 8, future good conduct of employee is an implied condition of every grant of pension and its continuance under these Rules, Sub Rule (b) of said Rules further provides the authority to the appointing authority to withhold or withdraw a pension or part thereof if employee is convicted or found guilty of grave misconduct. Rule 9(4) provides that in case of government servant retired after attaining the age of superannuation and against whom any departmental or judicial proceeding are pending, a provisional pension will be sanctioned. Rule 69 of the aforesaid Rules provides for payment of provisional pension and it also provides that “no gratuity shall be paid to the government servant until the conclusion of the departmental or judicial proceeding and issue of final order thereon.” Therefore, in view of legal provisions, the applicant is entitled only for provisional pension which has been sanctioned and also revised vide order dated 24.05.2023. As the applicant has not got a regular pension, he is not entitled for commutation of pension and he is not entitled to gratuity at this stage until judicial proceedings are concluded against him. So far as the payment of arrears of selection grade is concerned, the same had already been paid to the applicant. In view of above, the present Original Application is liable to be dismissed.
Rejoinder has been filed on behalf of the applicant wherein the applicant has reiterated his averments and further submitted that no summon has been served by any competent Court upon him uptil now. No FIR was lodged by anyone till last date of duty. The applicant was awarded for his best work by respondents. When he asked about his gratuity vide letter dated 13.04.2023 under RTI Act, no information was given by the respondents about any Criminal case pendency. The averments of respondents “Conduct of employee is an implied condition of every grant of pension” is wrong and illegal.
Submissions of learned counsels for both the parties have been heard and records have been gone through.
In support of his argument, learned counsel for the applicant relies on the judgment passed by the High Court of Allahabad in Writ A No. 27391 of 2012 in case of Udai Narain Ojha vs. State of U.P. Thru Its Secy. And others on 21.01.2020. The relevant paras of the said judgment is quoted as under:-
… “8. The power of State to withhold pension and gratuity, therefore, must be exercised strictly as per the applicable law and if the State action is not found to be in consonance with it, the withholding of gratuity would violate Article 300-A of the Constitution of India. The denial of such constitutional right, therefore, would be liable to be interfered with by this Court under Article 226 of the Constitution of India.
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.”
Learned counsel for the respondents also relies upon the above judgment and submits that as per para 8 of the above judgment, the power of the state to withhold pension and gratuity is to be exercised strictly as per applicable law. He also submitted that pension and gratuity of the applicant has been withheld as per provisions of CCS (Pension) Rules, 1972.
It is seen from records that an FIR is registered u/s 420, 406, 506 of IPC and 3/4 of Dowry Prohibition Act in PS, Naini, Prayagraj and the Charge sheet against Prem Narayan (applicant) and Rukmini Devi etc. has been submitted on 04.05.2022 as per the report of PS, Naini, Prayagraj. The applicant was an employee of the Kendriya Vidyalaya Sangathan. His pension is governed by the CCS (Pension) Rules, 1972. The relevant provisions of CCS (Pension) are quoted as under:-
Rule 8 (1)
(a) Future good conduct shall be an implied condition of every grant of pension and its continuance under these rules.
(b) The Appointing Authority may, by order in writing, withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct.
Rule 9(4)
In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 69 shall be sanctioned.
Rule 69
Provisional pension where departmental or judicial proceedings may be pending
(1) (a) In respect of a Government servant referred to in sub-rule (4) of Rule 9, the Accounts Officer shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension.
(b) The provisional pension shall be authorized by the Accounts Officer during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the Competent Authority.
(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon:
Provided that where departmental proceedings have been instituted under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for imposing any of the penalties specified in Clauses (i), (ii) and (iv) of Rule 11 of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant.
(2) Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.
It is noted from records that the applicant has been paid GPF, GIS(EWS) and leave encashment. Provisional pension has also been sanctioned to him. Selection Grade and its arrears have already been paid to the applicant. Amount of gratuity has been withheld and the amount of commuted value of pension has not been sanctioned as the same can be sanctioned only after sanction of regular pension to the applicant after conclusion of the departmental or judicial proceedings and issue of final orders thereon as per Rule 69 of CCS (Pension) Rules, 1972.
In the light of above, I am of the view that the action of respondents is strictly as per the provisions contained in CCS (Pension) Rules, 1972. Therefore, the instant Original Application is liable to be dismissed being devoid of merit and the same is, accordingly, dismissed.
Pending M.A., if any, stands disposed of, accordingly. No order as to costs.