Vishvambhar Singh vs Union Of India & Ors.

Om Prakash VII, Member (J)

The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:-

“(i) The Hon’ble Tribunal may graciously be pleased to direct the respondents to grant the final pension by issuing PPO, release the gratuity and pay the revised commuted value of commutation of pension after sanction of final pension with 12% interest.

(ii) To issue any order, direction or further orders which this Hon’ble Court may deem fit and proper in the present facts and circumstances of this case.

(iii) Cost of the legal expenses payable in favour of the applicant”.

The brief facts of the case are that the applicant was appointed as Postal Assistant and served with an unblemished service record, earning several promotions during his career. On 04.08.2012, a charge sheet for major penalty was issued under Rule 14 of the CCS (CCA) Rules, 1965. While the charge sheet was pending, the applicant retired on 31.12.2012 on attaining the age of superannuation and was sanctioned only provisional pension. The validity of the charge sheet was challenged in O.A. No. 84/2013, which was allowed by this Tribunal on 07.03.2013. Though the respondents filed a writ petition before the Hon’ble High Court, ultimately the competent authority passed an order dated 05.09.2014 dropping the disciplinary proceedings. Thus, no departmental case remained pending against the applicant after retirement. During the pendency of the disciplinary case, an FIR had been lodged against the applicant and two other employees under Sections 420 and 409 IPC. However, the Investigating Officer submitted a final report on 14.03.2014. Though a protest petition was later filed, the same was accepted and case was converted into a complaint case only in 2018, i.e., long after the applicant’s retirement. The applicant thereafter submitted representation dated 05.10.2018 seeking release of his final pension, gratuity, and commutation of pension challenging that under Rule 9(4) of the CCS (Pension) Rules, 1972, there was no case pending against him on the date of his retirement. Despite this, his retiral dues have been withheld on the ground of pendency of the FIR, which is unjustified. Since the departmental proceedings had already been dropped by the competent authority and the criminal case was not pending at the time of his retirement. Thus, the applicant claims that denial of his full pension, gratuity, and commutation is arbitrary, contrary to rules, and violative of his legal rights.

The respondents stated in the counter affidavit that applicant, while serving as Postmaster at Saharanpur Head Post Office, committed serious irregularities relating to his LTC claim. He manipulated the leave application by altering the date from 27.12.2010 to 26.12.2010, which was a Sunday, and subsequently raised a fraudulent LTC claim for himself and his wife. The tickets submitted by him reflected ages as 48 years and 42 years, whereas as per service records his and his wife’s actual ages were 58 and 51 years respectively. Thus, the claim was false and fraudulent, for which a charge sheet under Rule 14 of CCS (CCA) Rules, 1965 was rightly issued on 04.08.2012. During pendency of the disciplinary proceedings, the applicant retired on 31.12.2012 and therefore the proceedings were converted under Rule 9 of CCS (Pension) Rules, 1972. In addition, the applicant was also found involved in a separate fraud case relating to irregular payment of commission to SAS agents during his tenure as Sub-Postmaster, Bajoria Marg SO. Since the fraud pertained to a period more than four years prior to his retirement, fresh departmental proceedings could not be instituted under Rule 9(2)(b)(ii) of CCS (Pension) Rules, 1972. However, as the fraud involved an amount exceeding Rs. 5000/-, an FIR was registered on 09.01.2014. Although the police initially filed a final report for lack of evidence, a protest petition was filed and accepted and by order dated 28.08.2018 the learned Chief Judicial Magistrate, Saharanpur directed registration of the case as complaint case, which is still pending adjudication as Criminal Case No. 22412/18. In these circumstances, the applicant is entitled only to provisional pension under Rule 9(4) of the CCS (Pension) Rules, 1972. Payment of gratuity is subject to the outcome of the pending judicial proceedings under Rule 69(1)(c) of the said Rules. Further, commutation of provisional pension is not admissible during pendency of judicial proceedings under Rule 4 of the CCS (Commutation of Pension) Rules, 1981. Accordingly, the respondents contend that the applicant’s claim for release of full pension, gratuity and commutation is legally unsustainable and premature, and the Original Application is liable to be dismissed.

The applicant has filed Rejoinder Affidavit to the Counter Affidavit as filed by the respondents refuting the contentions made by the respondents in their Counter Affidavit while reiterating the averments made in the O.A. and nothing new has been added.

I have heard Shri Santosh Kumar Kushwaha, learned counsel for the applicant and Shri Amitabh Kumar Sinha, learned counsel for the respondents and perused the record.

The submission of learned counsel for the applicant is that the charge sheet dated 04.08.2012 issued under Rule 14 of CCS (CCA) Rules, 1965 was ultimately dropped by the competent authority vide order dated 05.09.2014. Once the disciplinary proceedings have been dropped, no departmental case remained pending against the applicant after his retirement. In such circumstances, continued withholding of retiral dues is wholly arbitrary and without jurisdiction. He further argued that the applicant superannuated on 31.12.2012. On that date, no criminal case was pending against him. Though an FIR was lodged subsequently the Investigating Officer filed a final report dated 14.03.2014. The so-called protest petition was converted into a complaint case only in 2018, nearly six years after the applicant’s retirement. Under Rule 9(4) of CCS (Pension) Rules, 1972, withholding of retiral dues is permissible only if judicial or departmental proceedings were pending on the date of retirement. As neither departmental nor judicial proceedings were pending on 31.12.2012, the withholding of gratuity, commutation and full pension is contrary to law. Learned counsel for the applicant next argued that pension and gratuity are not a bounty, but statutory rights of a government servant earned by long and faithful service. Thus, withholding retiral benefits in the absence of any pending proceedings on the date of retirement is violative of Articles 14 and 21 of the Constitution of India. Learned counsel for the applicant also argued that the initiation of criminal complaint in 2018, long after the applicant’s retirement, cannot retrospectively affect his vested rights to pension, gratuity and commutation which crystallized on the date of retirement. The law is well settled that subsequent proceedings cannot take away the rights already accrued, unless expressly provided by statute. It has also been argued that the applicant has been receiving only provisional pension since 2012. Denial of final pension and other retiral dues for over a decade has caused grave prejudice and financial hardship to the applicant, despite the fact that no proceeding was pending against him on the date of superannuation. The respondents’ reliance on Rule 9(4), Rule 69(1)(c) of (CCS (Pension) Rules and Rule 4 of the Commutation Rules is misplaced, as these provisions apply only when proceedings are pending at the time of retirement. It is next argued that the applicant served the department with distinction and unblemished record until retirement. Withholding of his legitimate retiral dues on the basis of subsequent criminal complaint proceedings is not only unjust but also contrary to the principles of equity, justice and good conscience. Learned counsel for the applicant also argued that since no disciplinary or judicial proceedings were pending on the date of his retirement, the respondents are not justified in withholding his full pension, gratuity and commutation. The denial of such benefits is arbitrary, illegal and unconstitutional, and the applicant is entitled to immediate release of the same along with interest.

In rebuttal, learned counsel for the respondents argued the applicant, while serving as Postmaster at Saharanpur Head Post Office, was found guilty of serious irregularities in connection with his LTC claim. He manipulated the leave application by altering the date from 27.12.2010 to 26.12.2010, which was a Sunday, and thereafter submitted a fraudulent LTC claim supported by tickets that did not match the actual ages of himself and his wife. Such conduct amounts to gross misconduct and lack of integrity, fully justifying the issuance of charge sheet dated 04.08.2012 under Rule 14 of the CCS (CCA) Rules, 1965. Learned counsel for the respondents further argued that as the applicant retired on 31.12.2012 while disciplinary proceedings were pending, the proceedings were rightly converted into proceedings under Rule 9 of the CCS (Pension) Rules, 1972. The competent authority, i.e., the Hon’ble President, though pleased to drop the departmental proceedings, such order does not free the applicant from consequences of criminal misconduct that came to light subsequently. It is also argued that the applicant was also found involved in another case of financial irregularity relating to irregular payment of commission to SAS agents during his tenure as Sub-Postmaster, Bajoria Marg SO between 2003 to 2007. Though fresh departmental proceedings could not be initiated in view of Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972, the magnitude of the fraud (exceeding Rs. 5000/-) warranted initiation of criminal proceedings, and accordingly FIR was registered on 09.01.2014. Learned counsel for the respondents also argued that while the Investigating Officer submitted a final report in 2014, the protest petition was accepted by the competent court, which by order dated 28.08.2018 directed registration of the case as complaint. Criminal Case No. 22412/18 is presently pending before the court of competent jurisdiction. Thus, “judicial proceedings” are pending within the meaning of Rule 9(4) of the CCS (Pension) Rules, 1972. Learned counsel for the respondents next argued that under Rule 69(1)(c) of the CCS (Pension) Rules, 1972, gratuity is to be withheld during pendency of judicial proceedings. Similarly, under Rule 4 of the CCS (Commutation of Pension) Rules, 1981, no commutation of pension is permissible until the conclusion of such proceedings. The respondents have acted strictly in accordance with these statutory provisions by releasing only provisional pension and withholding gratuity and commutation. It is a settled principle that no government servant has an absolute or unconditional right to pension and gratuity. These benefits are subject to the provisions of Rule 9 of the CCS (Pension) Rules, 1972, which empower the Hon’ble President to withhold or withdraw such benefits where grave misconduct is alleged in departmental or judicial proceedings. During the pendency of the criminal case, the applicant’s claim for full settlement of retiral dues is premature. Learned counsel for the respondents again argued that the charges against the applicant relate to fraud, manipulation and financial irregularities that strike at the very root of integrity expected from a government servant. In such cases, it is in public interest and in the interest of maintaining purity of administration that retiral dues are withheld till the conclusion of judicial proceedings. Thus, withholding of the applicant’s gratuity and commutation, and payment of only provisional pension, is in strict conformity with the CCS (Pension) Rules, 1972 and CCS (Commutation of Pension) Rules, 1981. The Original Application is misconceived, premature and devoid of merit, and is liable to be dismissed.

I have carefully considered the rival submissions advanced by learned counsel for the parties and perused the material available on record.

It is an admitted fact that the applicant retired on 31.12.2012 on attaining the age of superannuation. A departmental charge sheet dated 04.08.2012 under Rule 14 of the CCS (CCA) Rules, 1965 was pending. The same was later converted into proceedings under Rule 9 of the CCS (Pension) Rules, 1972. Though the said departmental proceedings were ultimately dropped by the competent authority vide order dated 05.09.2014, thus by itself does not put an end to the matter, inasmuch as criminal proceedings were also set in motion against the applicant in respect of serious financial irregularities. The record shows that an FIR was registered on 09.01.2014 under Sections 420 and 409 IPC regarding fraud in payment to SAS agents. Though a final report was submitted, the protest petition filed thereafter was accepted by the learned Chief Judicial Magistrate, who by order dated 28.08.2018 directed that the matter be treated as a complaint. The case is presently pending as Criminal Case No. 22412/2018 before the competent court. Thus, it cannot be said that no judicial proceedings are pending against the applicant.

Rule 9(4) of the CCS (Pension) Rules, 1972 provides that in case of pendency of departmental or judicial proceedings, only provisional pension shall be sanctioned until conclusion of such proceedings. Rule 69(1)(c) of the aforesaid Rule further provides that gratuity shall be withheld during the pendency of such proceedings. Likewise, Rule 4 of the CCS (Commutation of Pension) Rules, 1981 specifically prohibits commutation of pension until the conclusion of departmental or judicial proceedings.

In the present case, as judicial proceedings in the form of a criminal complaint is admittedly pending, the respondents were justified in releasing only provisional pension and withholding gratuity and commutation of pension. The contention of the applicant that no proceeding was pending on the date of retirement does not help him in view of the later judicial proceedings that arose in connection with the some misconduct. The pensionary benefits are always subject to the provisions of Rule 9 of the CCS (Pension) Rules, 1972 and there is no vested right to gratuity or commutation while judicial proceedings are pending.

It is also well settled that pension and gratuity, though not a bounty, are subject to statutory limitations, and the competent authority is bound by the express mandate of the Pension Rules. In view of the serious allegations of fraud and financial irregularities, the respondents cannot be faulted for withholding final pension and other retiral dues pending the outcome of the criminal proceedings.

For the reasons recorded above, I am of the considered opinion that the respondents have acted strictly in accordance with the CCS (Pension) Rules, 1972 and CCS (Commutation of Pension) Rules, 1981. The applicant’s prayer for release of final pension, gratuity and commutation along with interest is premature and devoid of merit. Accordingly, the Original Application fails and is hereby dismissed. No order as to costs. All pending MAs are disposed of.