Union Of India Through Its ... vs Pitambar S/O Fagoji Lanjewar ...
2017 Latest Caselaw 5719 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR



                         WRIT PETITION NO.6634 OF 2013



  1.     Union of India,
          Through its Secretary,
          Ministry of Communication,
          New Delhi-1.
  2.     Director of Accounts (Postal),
          Maharashtra Circle, Civil Lines,
          Nagpur-440 001.
  3.     Senior Superintendent of Post
          Offices, Nagpur City Division,
          Nagpur-440 010.
  4.     Senior Post Master,
          Nagpur City H.O., 
          Nagpur-440 002.                  ..........      PETITIONERS


          // VERSUS //


  Pitambar s/o. Fagoji Lanjewar,
  Aged about Major, R/o. 163,
  Misal Layout, Indira, Nagpur.           .........       RESPONDENT




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  ____________________________________________________________  
       Mrs.Mugdha Chandurkar, Advocate for Petitioners.
                Mr.B.Lahiri, Advocate for Respondent.
  ____________________________________________________________


                                    CORAM     :  SMT. VASANTI  A  NAIK
                                                       AND
                                                       M.G.GIRATKAR, JJ.

DATE : 7.8.2017.

ORAL JUDGMENT (Per Smt. Vasanti A Naik, J) :

By this Writ Petition, the petitioners challenge the order

of the Central Administrative Tribunal, dt.31.1.2012 allowing the

Original Application filed by the respondent and directing the

petitioners to continue to pay full pension of the respondent.

While the respondent was working as a Postal Assistant,

he was served with the charge sheet and a departmental inquiry was

conducted against him under the Central Civil Services (C.C.A.)

Rules, 1972. After holding the departmental inquiry, the respondent

was asked to pay Rs.75,000/- in 30 instalments and minor

punishment of 'Censure' was also imposed upon him. After the

respondent attained the age of superannuation on 31.3.2009, the

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petitioners released the amount of retiral benefits in favour of the

respondent in two instalments. The petitioners also wrongfully paid

full pension to the respondent without considering the provisions of

the Central Civil Services (Pension) Rules and the fact that the

criminal proceedings were pending against him. The order of

Tribunal restraining the petitioners from seeking recovery of the

amount that was paid to the respondent in excess, is challenged by

the petitioners in the instant petition.

Mrs.Mugdha Chandurkar, the learned Counsel for the

petitioners submitted that before passing the impugned order, the

Tribunal had failed to consider Rules 69 and 70 of the Rules. It is

stated that as per Rule 69 of the Rules when judicial proceedings or

departmental proceedings are pending against a retired employee,

provisional pension could be authorised by the Accounts Officer

during the period commencing from the date of retirement till the

conclusion of the departmental or judicial proceedings. It is

submitted that since the Criminal trial is still pending against the

respondent, the respondent would be entitled to receive only

provisional pension as per Rule 69 of the Central Civil Services

(Pension) Rules. It is stated that the Tribunal did not consider the

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relevant rules before allowing the Original Application filed by the

respondent.

Mr.Lahiri, learned Counsel for the respondent states that,

during pendency of the Writ Petition, by an interim order passed by

this Court, the petitioners were permitted to recover the excess

amount paid to the respondent towards pension, in instalments. It is

submitted that as soon as the Criminal trial concludes, the petitioners

should take a decision for grant of pensionary benefits to the

respondent.

On a reading of Rules 69 and 70 of the Central Civil

Services (Pension) Rules, it is clear that a retired employee against

whom judicial proceedings or departmental proceedings are pending

would be entitled only to provisional pension as authorised by the

Accounts Officer. The respondent was mistakenly paid full pension,

though the respondent was entitled to provisional pension. After

realising the mistake, the petitioners had rightly asked the

respondent to refund the amount that was received by the

respondent towards pension, in excess. The Tribunal, however, did

not advert its mind to Rules 69 and 70 of the Central Civil Services

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(Pension) Rules before allowing the application of the respondent.

The order is clearly erroneous and is liable to be set aside.

Hence, for the reasons aforesaid, the Writ Petition is

allowed. The impugned Order is quashed and set aside. The

petitioners are free to recover the amount paid to the respondent in

excess towards pension in instalments as per the interim order of this

Court. As soon as the Criminal trial concludes, the petitioners should

consider the claim of the respondent for pension, in accordance with

the Rules. It is needless to mention that the petitioner should

continue to pay provisional pension to the respondent under Rule 69

of the Central Civil Services (Pension) Rules till the Criminal trial

concludes. Rule is made absolute in the aforesaid terms with no

order as to costs.

                   JUDGE                                                JUDGE
   



  [jaiswal]





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