Yograj Singh Charak vs Union of India

Mr. Alok Aradhe, J. (Oral) - In this writ petition, the petitioner, who was employed as Lower Division Clerk in the Central Water Commission

Department, inter alia seeks a direction to the respondents to fix his pay properly and to pay the arrears of leave encashment. The petitioner has

also prayed for a direction to the respondents to make payment of the interest on the amount of Group Insurance Claim as well as the amount of

gratuity which was paid to the petitioner belatedly. The petitioner also seeks a direction to the respondents to make payment of interest on the

amount of pension which was also paid to him belatedly.

In order to appreciate the petitioner's grievances, few facts need mention which are stated infra:

The petitioner at the relevant time was posted as Lower Division Clerk in the Central Water Commission Department, New Delhi. On the charges

of financial embezzlement, the petitioner was placed under suspension by an order dated 30.11.1982. A departmental enquiry was held against the

petitioner and by an order dated 11.12.1996, penalty of compulsorily retirement was imposed on the petitioner. However, in the aforesaid order,

there was no mention with regard to the period of suspension. The order passed by the Disciplinary Authority was subject matter of challenge

before the Central Administrative Tribunal, Chandigarh Bench (for short The Tribunal'). The Tribunal, by an order dated 28.01.2002, dismissed

the original application preferred by the petitioner. The petitioner challenged the aforesaid order in a writ petition, namely SWP No. 819/2002,

before this Court which was disposed by a Bench of this Court by order dated 21.08.2002 with liberty to the petitioner to submit a representation

to the Competent Authority with regard to his grievance and the Competent Authority was directed to decide the representation by passing a

speaking order after affording an opportunity of hearing to the petitioner.

In pursuance of the liberty granted by this Court, the petitioner submitted a representation which was decided by the Competent Authority by an

order dated 19.08.2003, by which, it was directed that the period of suspension of the petitioner from 30.11.1982 to 30.06.1983 shall be treated

as on duty. It was further directed that the period of suspension from 01.07.1983 to 10.12.1996 cannot be treated as on duty in terms of FR 54

and Rule 23 of Central Civil Service Pension Rules. However, the aforesaid period was directed to be treated as qualifying service specifically for

service pension only without any pay and allowances except the subsistence allowance already paid to the petitioner for the period for which the

petitioner remained under suspension. In i;he aforesaid factual background, the petitioner has approached this Court.

Learned counsel for the petitioner submitted that by an order dated 19.08.2003, the period of suspension was directed to be treated as

qualifying service for the purposes of pension and therefore, the salary of the petitioner ought to have been fixed notionally as on 01.01.1996 and

accordingly, the pensionary benefits ought to have been computed. It is further submitted that once the period of suspension was treated as

qualifying service for the purposes of pension, the petitioner is entitled to get his pay notionally fixed for the period of suspension. It is also

submitted that though the petitioner was compulsorily retired on 11.12.1996, yet the arrears of pension were released to him in the month of

September, 2005 and the insurance claim was released in favour of the petitioner on 30th August, 2005. It is also pointed out that an amount of

gratuity as well as the GPF was paid to the petitioner in the month of September, 2005 and on 28.04.2005 respectively and therefore, the

petitioner is entitled to interest on the delayed payment of his retiral dues. It is also submitted that an amount of Rs. 33,718/-has been recovered

from the retiral dues payable to the petitioner without any order from the Competent Authority.

Learned counsel for the petitioner while referring to Rule 40 of Central Civil Services (Pension) Rules, 1972 (for short 'Rules') has submitted

that under Rule 40(1) of Rules, the respondents were under an obligation to make the payment of pension or gratuity on the date of his compulsory

retirement. Reference has also been to Rule 39 of Rules as well as orders issued by Government of India pertaining to emoluments.

On the other hand, learned counsel for the respondents has submitted that by an order dated 19.08 2003 while deciding the representation

submitted by the petitioner, the period of suspension of the petitioner from 30.11.1982 to 30.06.1983 was ordered to be treated as on duty,

therefore, the pay of the petitioner was fixed as on 01.01.1986 and 01.01.1996 within the permissible limit of the pay fixation rules and the

petitioner was not eligible to earn annual increments and on the aforesaid basis, the pension of the petitioner was fixed which was subsequently

revised to Rs. 3875/- as per the recommendations of 5th Pay Commission. It is further submitted that the entire amount which is due and payable

to the petitioner has been paid to him and delay, if any, in making the payment of the retiral dues to the petitioner is attributable to the petitioner as

he himself did not comply with the formalities so as to enable the respondents to process his claim for payment of retiral dues.

I have considered the respective submissions made by learned counsel for the parties and have perused the record.

The relevant extract of order dated 19.08.2003 by which the representation submitted by the petitioner was decided is reproduced below for

the facility of reference:

Shri Y.S. Charak was placed under suspension with effect from 30.11.1982 on account of investigation of a criminal case against him which was

ultimately decided by the Special Judge Anti Corruption Jammu vide Judgment dated 01.01.1991 in which Shri Y.S. Charak was convicted of the

charge but was given the benefit of Section 562 of Cr.P.C. Since another case regarding embezzlement of Government money was detected

against Shri Y.S. Charak while he was working in Buttan Investigation Division, the suspension of Shri Y.S. Charak ordered with effect from

30.11.1982 was continued vide order dated 01.07.1983 as mentioned above. Thus, the suspension of Shri Y.S. Charak was concurrent from

01.07.1983 in two cases as mentioned above. Although the case in which Shri Y.S. Charak initially suspended with effect from 30.11.1982 was

decided on 01.01.1991 the case for which his suspension was continued with effect from 01.07.1983 had not been decided till then. In the other

case regarding embezzlement of Government money by Shri Y.S. Charak during his tenure in BID, Bhutan he was found guilty and was punished.

Therefore, his plea that period of suspension from 30.11.1982 to 01.01.1991 be treated as duty in terms of judgment of Special Judge Anti

Corruption Jammu cannot be accepted. However, since the Special Anti Corruption, Jammu did not attach any disqualification to Shri Y.S.

Charak, the period of suspension of Shri Y.S. Charak from 30.11.1982 to 30.06.1983 is hereby ordered to be treated as duty.

Since Shri Y.S. Charak was not exonerated of the charges for which his suspension was continued with effect from 01.07.1983 and was imposed

the penalty of compulsorily retirement from Government Service, the period of his suspension from 01.07.1983 to 10.12.1996 cannot be treated

as duty in terms of FR 54 and Rule 23 of CCS Pension Rules. However, the said period of suspension of Shri Y.S. Charak ordered to be treated

as qualifying service specifically for service pension only without any pay and allowance except the subsistence allowance already paid to him for

the suspension period 01.07.1983 to 10.12.1996"".

From the perusal of aforesaid order, it is axiomatic that the period of suspension of the petitioner from 01.07.1983 to 10.12.1996 was directed

to be treated as qualifying service for the purposes of pension only.

Before proceeding further, it is apposite to take note of relevant provisions of Central Civil Services (Pension) Rules, 1972.

The relevant extract of Rules 34, 39 & 40 read with Government of India's orders with regard to emoluments read as under:

Rules 34. Average Emoluments:-

Average Emoluments shall be determined with reference to the emoluments drawn by a Government servant during the last ten months of his

service.

Note 1.........

Note 2.........

If, during the last ten months of his service, a Government servant had been absent from duty on extraordinary leave, or had been under suspension

the period whereof does not count as service, the aforesaid period of leave or suspension shall be disregarded in the calculation of the average

emoluments and equal period before the ten months shall be included.

Government of India's Orders:

(2) ""Emoluments"" in cases where pay and allowances for the period of suspension is restricted to subsistence allowance. A question has been

raised as to what emoluments are to be taken into account for calculating the pension in the case of a person who has been suspended and

subsequently reinstated without forfeiture of past service, the pay and allowances for the suspension period being restricted to the subsistence

allowance already drawn. The Ministry of Finance had clarified that the difference between the subsistence allowance and emoluments which he

would have drawn had he not been suspended cannot be treated as increase in pay for the purpose of proviso to Note 1 below Rule 34 of CCS

(Pension) Rules, 1972"".

Compensation Pension:

(1) If a Government servant is selected for discharge owing to the abolition of his permanent post, he shall, unless he is appointed to another post

the conditions of which are deemed by the authority competent to discharge him to be at least equal of those of his own, have the option:-

(a) of taking compensation pension to which he may be entitled for the service he had rendered, or

Compulsory retirement pension:-

(1) A Government servant compulsorily retired from service as a penalty may be granted, by the authority competent to impose such penalty,

pension or gratuity or both at a rate not less than two thirds and not more than [full compensation pension] or gratuity or both admissible to him on

the date of his compulsory retirement.

From the conjoint reading of aforesaid rules, it is evident that the Competent Authority is required to pass an order with regard to payment of

pension or gratuity on the date of compulsory retirement of a Government servant. Rule 34 deals with Average emoluments and provides that

average emoluments shall be determined with reference to the emoluments drawn by a Government servant during the last ten months of his

service. Note 1 of the aforesaid Rule provides that if during the last ten months of service, a Government servant had been absent from duty on

leave for which leave salary is payable or having been suspended had been reinstated without forfeiture of service, the emoluments, which he

would have drawn, had he not absent from duty or suspended shall be taken into account for determining the average emoluments.

Proviso to Note 1 of the aforesaid Rule provides that, any increase in pay which is not actually drawn shall not form part of emoluments of a

Government servant. However, from conjoint reading of the said proviso & Government of India's orders pertaining to emoluments in cases where

pay and allowances for the period of suspension is concerned, it is clear that difference between subsistence allowance and the emoluments which

the Government servant would have been drawn had he not been suspended cannot be treated as increase in pay.

Rule 39 (l)(a) deals with Compensation pension and provides that a Government servant shall be entitled to compensation pension for the

period for which he has rendered services. In the instant case, admittedly at the time of passing the order of compulsory retirement, the Competent

Authority did not pass any order with regard to either pension or gratuity which was payable to the petitioner which tantamounts to contravention

of Rule 40 of the Rules. Proviso to Note 1 of Rule 34 also does not apply to the case of the petitioner in view of the clarification issued by

Government of India which has been referred to supra.

Since the period of suspension of the petitioner was directed to be counted for the purposes of pension while deciding his representation,

therefore, the petitioner is entitled to notional fixation of his salary.

In view of preceding analysis, it is directed that the respondents shall compute the notional salary of the petitioner as on 01.01.1996 and

thereafter shall compute the pensionary benefits payable to the petitioner afresh. Admittedly, the Competent Authority has acted in contravention of

Rule 40 of the Rules, therefore, the contention raised on behalf of the respondents that the petitioner is not entitled to interest on the delayed

payment of his retiral dues cannot be accepted.

In any case, when the order of compulsory retirement was passed on 11.12.1996, the Competent Authority ought to have fix the pension or

gratuity in terms of Rule 40 of the Rules which has not been done. The said Authority, therefore, cannot be allowed to take advantage of lapse on

his part as the same would amount to putting premium on the default committed by the Authority. Accordingly, it is held that the petitioner is

entitled to interest on the arrears of pension, insurance amount, gratuity and GPF which was admittedly paid to the petitioner in the month of

September 2005. It is, therefore, directed that the respondents shall pay the interest which is quantified at the rate of 8% p.a. on the amount of

arrears of pension, Insurance amount, gratuity, GPF and leave encashment for the period from 12.11.1996 till the actual payment is made to the

petitioner.

Admittedly, in the instant case, no penalty with regard to recovery of Rs. 33,718/- has been imposed on the petitioner. The aforesaid recovery

has been made without there being any order passed by the Competent Authority, therefore, the respondents are directed to refund the amount of

Rs. 33,718/- along with interest at the rate of 8% p.a. to the petitioner.

Let the aforesaid payments be made to the petitioner within a period of four months from today. It is also made clear that in case the petitioner

is entitled to payment of gratuity, leave encashment, GPF, Group Insurance at the enhanced rate, the same shall be paid to him.

With the aforesaid directions, the writ petition is disposed of.