Ram Roop Parasar vs Central Administrative Tribunal ...
2013 Latest Caselaw 1912 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 21
 

 
Case :- WRIT - A No. - 19509 of 2005
 

 
Petitioner :- Ram Roop Parasar
 
Respondent :- Central Administrative Tribunal & Others
 
Petitioner Counsel :- Satya Prakash
 
Respondent Counsel :- S.S.C.,Rakesh Sinha
 

 
Hon'ble Satya Poot Mehrotra,J.
 
Hon'ble Vipin Sinha,J.
 
	The present Writ Petition has been filed by the petitioner under Article 226 of the Constitution of India, interalia, praying for quashing the order dated 1.11.2004 (Annexure-9 to the Writ Petition) passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad (in short "the Tribunal") as also the order dated  11.5.2011 (Annexure-5 to the Writ Petition) passed by the Deputy Commissioner, Central Excise Division-I, Kanpur communicated to the petitioner by the communication dated 5.7.2001 (Annexure-6 to the Writ Petition) by the Joint Commissioner (P&V), Central Excise, Kanpur. Further prayer has been made for directing the respondents to pay interest over the retiral benefits of pension, death-cum-retiral gratuity and leave encashment and also to pay a sum of Rs. 18,863/- against commutation value.
 
	It appears that at the relevant time, the petitioner was posted as Superintendent, Customs and Central Excise in Division-I, Central Excise, Range-3, Kanpur. The petitioner retired from service on 31.1.1997. It further appears that on account of an Audit Objection dated 28.9.1994 by the Senior Deputy Accountant General, U.P. Allahabad regarding loss of revenue , chargesheets dated 6.1.1997 and 3.4.1997 were issued to the petitioner and three others. As the petitioner was retiring from service on 31.1.1997, an order for continuation of the proceedings under Rule 9(2)(a) of the C.C.S. (Pension) Rules, 1972 (in short "the Pension Rules, 1972") was also issued and the same was served on the petitioner by the order dated 22.1.1997.
 
	It further appears that the Enquiry Report dated 15.5.1998 was submitted by the Inquiry Officer (Assistant Commissioner, Central Excise Division-I, Kanpur-I). The Enquiry Report  dated 15.5.1998 was communicated to the petitioner by the communication dated 26.5.1998 sent by the Commissioner, Central Excise, Kanpur-I. Copies of the said communication dated 26.5.1998 alongwith the Enquiry Report dated 15.5.1998 have been collectively annexed as Annexure-1 to the Writ Petition. 
 
	The Inquiry Officer in the said Enquiry Report concluded as under:
 
	"On the basis of foregoing I feel that allegation of revenue loss as made in the Memorandum is baseless and there appears no revenue loss. Hence the question of failure of charged officer in detecting said revenue loss does not arise. Charges levelled in this regard in the memorandum is not sustainable."
 
	It further transpires that pursuant to the said Enquiry Report, the Senior Audit Officer, I.D.T./D.P. in the Office of the Accountant General (Audit) II, U.P., Allahabad sent a communication dated 30.10.2000 (Annexure-3 to the Writ Petition) to the Joint Commissioner (Audit), Central Excise Commissionerate, Lucknow, interalia, stating that it had been decided to settle the Audit Objection  in respect of the aforesaid matter relating to the petitioner. It further appears that thereafter on 7.12.2000, Vigilance Clearance was given in respect of the petitioner. Subsequent to the said Vigilance Clearance, retiral benefits were paid to the petitioner in the months of January, 2001, February, 2001 and March, 2001. Thus, entire retiral benefits stood paid to the petitioner. The petitioner made a claim for interest on account of late payment of retiral benefits and also in regard to the short payment of Rs. 18,863/- against commutation value. By the communication dated 5.7.2001 (Annexure-6 to the Writ Petition), the petitioner was communicated that by the communication dated 11.5.2001 (Annexure-5 to the Writ Petition), the claim of the petitioner in respect of the interest on account of delay in payment of retiral benefits and short payment of Rs. 18,863/- against commutation value had not been accepted. Copy of the communication dated 11.5.2001 was also enclosed with the said communication dated 5.7.2001. The petitioner thereupon filed an Original Application being Original Application No. 121 of 2003 before the Tribunal. Copy of the Original Application, verified as true copy, by Shri Satya Prakash, learned counsel for the petitioner, has been provided by him to the Court during the course of arguments. Following reliefs were claimed by the petitioner in his Original Application before the Tribunal:
 
	"i)	The respondents may be directed to quash the order dated 11-5-2011 passed by the Deputy Commissioner,Central Excise, Division-I, Kanpur and the order communicated on 5-7-2001 by the Joint Commissioner P&V, Central Excise, Kanpur, contained in Annexures 5 & 6 respectively, when the proceedings initiated against the applicant vide memorandum of charge dated 3-4-1997 were pending and ultimately the memorandum of charge dated 3-4-1997 was dropped by the Commissioner, Central Excise, Kanpur vide his order dated 11-2-2002.                                                                                                                                                 
 
	ii)	The respondents may be directed to pay the interest over the retiral benefits of pension, death-cum-retirement gratuity and leave encashment.
 
	iii)	The respondents may be directed to pay Rs. 18,863/- against commutation value.
 
	(iv)	The suitable relief which this Hon'ble Tribunal deem fit and proper."
 
	It will, thus, be noticed that in the said Original Application, the petitioner, interalia, claimed interest over the retiral benefits of pension, death-cum-retirement gratuity and leave encashment and further claimed an amount of Rs. 18,863/- against commutation value.
 
	By the order dated 1.11.2004, the Tribunal dismissed the said Original Application filed by the petitioner. Relevant portion of the order of the Tribunal is reproduced below:
 
	"The only question, which arises for decision, is with regard to the payment of interest, on delayed payment of retiral benefits to the applicant. It may be stated that Rule 68 of C.C.S. (Pension) Rules and Government of India's decision clearly provides that the interest will be paid only in case of full exoneration in the Disciplinary Proceedings. It is not applicable in the case where the Disciplinary Proceedings is dropped and it is not because of the applicant that he was fully exonerated, he is claiming it on the ground that the Disciplinary Proceedings were dropped and he was entitled for payment of interest on the delayed payment. I have no doubt about it that there is a distinction between the full exoneration in Disciplinary Proceeding and dropping of the Disciplinary Proceeding. In view of these facts, the O.A. is liable to be dismissed.
 
	In the result, the O.A. is devoid of merits and is accordingly dismissed. I find no justification to interfere with the impugned orders.
 
	No orders as to costs."	
 
	The petitioner has, thereupon, filed the present Writ Petition seeking the reliefs, as mentioned above.
 
	We have heard Shri Satya Prakash, learned counsel for the petitioner and Shri Rakesh Sinha, learned counsel for the respondents, and perused the record.
 
	In order to appreciate the submissions made by the learned counsel for the parties, it is pertinent to note that by the order dated 11.2.2002 (Annexure-7 to the Writ Petition), the Commissioner, Central Excise, Kanpur dropped the proceedings against the petitioner and other three persons started pursuant to the chargesheets dated 6.1.1997 and 3.4.1997. Relevant portion of the said order dated 11.2.2002 passed by the Commissioner, Central Excise, Kanpur is as under:
 
	"6.	The facts as afore-stated were brought to the notice of the Central Vigilance Commission and the Second Stage Advice in the matter was requested by this office. The Central Vigilance Commission, vide their letter C.No.A/CEX/60 dated 11.12.2001, which was communicated to this office under cover of letter F.No. V.538/1/96/28 dated 02.01.2002 issued by the Directorate General of Vigilance, New Delhi, advised the exoneration of S/Shri R.R. Parshar, Superintendent (Retd.), R.C. Sharma, Superintendent, Tarun Banerjee, Inspector and S.P.S. Nirmal, Inspector in the referred case.
 
	In view of the Discussion and Findings stated above, I order as under:
 
ORDER

The proceedings initiated against the charged officers vide Memoranda C.No.II(10)Vig./1/97/11-12 dated 06.01.97, C.No. II(10)Vig./8/97/272-273 dated 03.04.97, C.No. II(10) Vig./9/97/274-275 dated 03.04.97 and C.No. II(10)Vig./10/97/ 270-271 dated 03.04.97 are hereby dropped."

Shri Satya Prakash, learned counsel for the petitioner submits that the Tribunal erred in law in making distinction between exoneration in disciplinary proceedings and dropping of the disciplinary proceedings having regard to the facts and circumstances of the present case. It is submitted that a perusal of the order dated 11.2.2002 passed by the Commissioner, Central Excise, Kanpur shows that the petitioner was in fact exonerated of the charges and in consequence, the proceedings against the petitioner were dropped. It is further submitted that the Tribunal confined itself to the consideration of the claim of the petitioner in respect of the late payment of gratuity and it did not consider the claim of the petitioner for interest on account of delayed payment of other retiral benefits.

Shri Rakesh Sinha, learned counsel for the respondents submits that the Tribunal has correctly dismissed the Original Application filed by the petitioner. It is submitted that the proceedings against the petitioner were dropped only on 11.2.2002 while the retiral benefits had already been paid to the petitioner in the months of January, February and March, 2001 and as such, there was no delay in the payment of retiral benefits to the petitioner.

It is further submitted that the Tribunal rightly made the distinction between the exoneration in disciplinary proceedings and dropping of the disciplinary proceedings.

We have considered the submissions made by the learned counsel for the parties.

Rule 68 of the CCS (Pension) Rules, 1972 including relevant Decisions / Instructions of the Government of India is reproduced below:

"68. Interest on delayed payment of gratuity

[1. If the payment of gratuity has been authorized later than the date when its payment becomes due, and it is clearly established that the delay in payment was attributable to administrative lapses, interest shall be paid at such rate as may be prescribed and in accordance with the instructions issued from time to time.

Provided that the delay in payment was not caused on account of failure on the part of the Government servant to comply with the procedure laid down by the Government for processing his pension papers.]

2. Every case of delayed payment of gratuity shall be considered by the Secretary of the Administrative Ministry or the Department in respect of its employees and the employees of its attached and subordinate offices and where the Secretary of the Ministry or the Department is satisfied that the delay in the payment of gratuity was caused on account of administrative lapse, the Secretary of the Ministry or the Department shall sanction payment of interest.

3. The Administrative Ministry or the Department shall issue Presidential Sanction for the payment of interest after the Secretary has sanctioned the payment of interest under sub-rule (2).

4. In all cases where the payment of interest has been sanctioned by the Secretary of the Administrative Ministry or the Department, such Ministry or the Department shall fix the responsibility and take disciplinary action against the Government servant or servants who are found responsible for the delay in the payment of gratuity.

5. Deleted.

Government of India's Decisions

(1) Admissibility of interest on gratuity allowed after conclusion of judicial/ departmental proceedings. - 1. Under the rules, gratuity becomes due immediately on retirement. In case of a Government servant dying in service a detailed time-table for finalizing pension and death gratuity has been laid down, vide Rule 77 onwards.

2. Where disciplinary or judicial proceedings against a Government servant are pending on the date of his retirement, no gratuity is paid until the conclusion of the proceedings and the issue of the final orders thereon. The gratuity, if allowed to be drawn by the Competent Authority on the conclusion of the proceedings will be deemed to have fallen due on the date of issue of orders by the Competent Authority.

3. In order to mitigate the hardship to the Government servants who, on the conclusion of the proceedings, are fully exonerated, it has been decided that the interest on delayed payment of retirement gratuity may also be allowed in their cases, in accordance with the aforesaid instructions. In other words, in such cases, the gratuity will be deemed to have fallen due on the date following the date of retirement for the purpose of payment of interest on delayed payment of gratuity. The benefit of these instructions will, however, not be available to such of the Government servants who die during the pendency of judicial/ disciplinary proceedings against them and against whom proceedings are consequently dropped.

4. These orders (Paragraph 3) shall take effect from the 10th January, 1983.

(2) Interest for delayed payment of Retirement/ Death Gratuity to be at the rate applicable to GPF deposits.-................"

From a perusal of the above-quoted Rule 68, it is evident that the same deals with the question of payment of interest on account of delayed payment of gratuity.

Sub-rule (1) of Rule 68 provides that if the payment of gratuity has been authorized later than the date when its payment becomes due, and it is clearly established that the delay in payment was attributable to administrative lapses, interest shall be paid at such rate as may be prescribed and in accordance with the instructions issued from time to time.

In view of the proviso to sub-rule (1) of Rule 68, it is necessary that "the delay in payment was not caused on account of failure on the part of the Government servant to comply with the procedure laid down by the Government for processing his pension papers."

In other words, if the delay in payment was caused on account of failure on the part of the Government servant to comply with the procedure laid down by the Government for processing his pension papers, then such delay would not be attributable to administrative lapses.

Sub-para 2 of paragraph (1) of the Decisions/ Instructions of the Government of India in respect of Rule 68 provides that "where disciplinary or judicial proceedings against a Government servant are pending on the date of his retirement, no gratuity is paid until the conclusion of the proceedings and the issue of the final orders thereon. The gratuity, if allowed to be drawn by the Competent Authority on the conclusion of the proceedings will be deemed to have fallen due on the date of issue of orders by the Competent Authority."

Sub-para 3 of paragraph (1) of the Decisions/ Instructions of the Government of India in respect of Rule 68, as quoted-above, interalia, provides that "in order to mitigate the hardship to the Government servants who, on the conclusion of the proceedings, are fully exonerated, it has been decided that the interest on delayed payment of retirement gratuity may also be allowed in their cases." It is, interalia, further provided that "in such cases, the gratuity will be deemed to have fallen due on the date following the date of retirement for the purpose of payment of interest on delayed payment of gratuity."

In view of the above Rule 68 of the 1972 Rules, and the Decisions/ Instructions of the Government of India in respect of the said Rule, it is evident that in case the delay in payment of gratuity was attributable to administrative lapses, interest is required to be paid to the employee concerned. It is further evident that in case disciplinary proceedings are going-on against the employee concerned and the same conclude in fully exonerating the employee concerned, then interest on delayed payment of retirement gratuity would be allowed in his case, and for the payment of such interest, the gratuity would be "deemed to have fallen due on the date following the date of retirement".

The Tribunal in its order dated 1.11.2004 has referred to Rule 68 of the Pension Rules, 1972 and has held that as in case of the petitioner, the disciplinary proceedings were dropped and the case of the petitioner was not a case of the petitioner being fully exonerated, no interest was payable to the petitioner under Rule 68. The Tribunal was evidently relying upon sub-para 3 of para (1) of the Decisions/ Instructions of the Government of India in respect of Rule 68, as mentioned above. The Tribunal has emphasized that there is distinction between the full exoneration in disciplinary proceedings and dropping of the disciplinary proceedings. In our view, the Tribunal has not correctly appreciated the import of the order dated 11.2.2002 passed by the Commissioner, Central Excise, Kanpur. From a reading of the entire order dated 11.2.2002, particularly, paragrpah 6 thereof, it is evident that while dropping the proceedings against the petitioner and other persons, the Commissioner, Central Excise, Kanpur relied upon the Advice of the Central Vigilance Commission, whereby the Central Vigilance Commission advised the exoneration of the petitioner and other three persons. Thus, the Commissioner, Central Excise, Kanpur by the said order dated 11.2.2002 dropped the proceedings against the petitioner and other three persons accepting the advice given by the Central Vigilance Commission regarding exoneration of the petitioner and other three persons. Hence, the distinction sought to be made by the Tribunal between the dropping of disciplinary proceedings and the full exoneration in the disciplinary proceedings, does not exist in the present case. In the circumstances, we are of the opinion that the Tribunal ought to have considered on merits the question of payment of interest to the petitioner on account of delayed payment of gratuity in the light of the aforesaid Rule 68 of the 1972 Rules and the Decisions/ Instructions of the Government of India in respect of the said Rule, particularly sub-paras 2 and 3 of para (1) of the Decisions/ Instructions, as quoted-above.

It is further noteworthy that in the Original Application, the petitioner claimed interest on the delayed payment of retiral benefits of pension, death-cum-retirement gratuity and leave encashment and also claimed an amount of Rs. 18,863/- against commutation value.

Rule 68 of the 1972 Rules, as noted above, deals with the question of payment of interest on account of delayed payment of gratuity. The Tribunal has not considered the claim of the petitioner for interest in respect of other retiral benefits, as claimed by the petitioner in the relief clause of the Original Application. Further, the Tribunal has also not considered the claim of the petitioner for payment of Rs. 18,863/- against commutation value.

In view of the above discussion, we are of the opinion that the Writ Petition deserves to be allowed, and the order dated 1.11.2004 passed by the Tribunal is liable to be quashed, and the matter is liable to be remitted to the Tribunal for fresh consideration of the case in the light of the observations made above.

The Writ Petition is, accordingly, allowed.

The order dated 1.11.2004 passed by the Tribunal is quashed. The matter is remitted to the Tribunal for fresh consideration of the Original Application in the light of the observations made above.

As the petitioner is an old person, it will be appropriate that the matter be decided by the Tribunal expeditiously.

However, on the facts and in the circumstances of the case, there will be no order as to costs.

Order Date :- 10.5.2013

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