D.C. Majumdar vs Union Of India & Ors.
1999 Latest Caselaw 29 Del

ORDER

K. Ramamoorthy, J.

1. The petitioner has prayed for the following reliefs:-

"(A) allow the writ petition of the petitioner with costs;

(B) Issue appropriate writ or writs, direction or directions, order or orders:

(i) directing the respondents to disburse entire retirements benefits such as, gratuity commutation of a portion of pension, pension accrued with effect from 1st day of May, 1994, and other benefits, such as, leave encashment, Group Insurance Scheme benefits etc. together with interest at the rate of 18% per annum from Ist day of May, 1994, till actual payment.

(ii) directing the respondents to produce all records pertaining to sanction and payment retirement and other benefits of the petitioner.

(iii) prohibiting the respondents not to proceed against the petitioner detrimental to the interest of the petitioner till the disposal of this writ petition."

2. The petitioner attained the age of superannuation of 60 years on the 30th day of April, 1994. Retiral benefits were not given to him. As such he had approached this Court. The respondent, it is stated, have got the power to take action against the petitioner for his acts of commission or omission under the Rule 9 of the CCS (Pension) Rules, 1972. The same reads as under:

9. "Right of President to withhold or withdraw pension.

(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovering from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re employment after retirement:

Provided that the Union Public Service Commission shall be consulted before any final orders are passed:

Provided further that where a part of pension is withheld or withdrawn the amount of such pension shall not be reduced below the amount of rupees three hundred and seventy five per mensem.

(2) (a) The departmental proceedings referred to in sub rule (1), if instituted while the Government servant was in service whether before his retirement or during his reemployment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service:

Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President.

(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his reemployment_

(i) shall not be instituted save with the sanction of the Presi dent.

(ii) shall not be in respect of any event which took place more than four years before such institution, and

(iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Govern ment servant during his service.

3. Deleted.

(4) In the case of Government servant who has retired on attain ing the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under subrule (2), a provisional pension as provided in Rule 69 shall be sanctioned.

(5) Where the President decides not to withhold or withdraw pension but order recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one third of the pension admissible on the date of retirement of a Government servant.

(6) For the purpose of this rule,_

(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and

(b) judicial proceedings shall be deemed to be instituted_

(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and

(ii) in the case of civil proceedings, on the date the plaint is presented in the court."

3. On the 15th of March, 1996, on behalf of the respondents, an affidavit was filed by Shri S.Lakshmikanthan the Acting Director (Insp& Quality Control), Export Inspection Council. The affidavit reads as under:

"Herein I, S. Lakshmikanthan S/o Late S. Srinivasan, aged 58 years do hereby solemnly affirm and state as under:

A. I am working as Acting Director (Insp & Quality Control) in Export Inspection Council and as such am fully conversant with facts and circumstances of the case in my official capacity. I am competent to swear this affidavit.

1. The present affidavit is being filed in pursuance of the order passed by this Hon'ble Court on 27.9.1995 whereby this Hon'ble Court had directed the respondents to release to the petitioner, whatever pensionary benefits were admittedly due him.

2. In compliance of the order passed by this Hon'ble Court on 27.9.1995, which was received on 16.10.1995, the Export Inspec tion Council has paid the following pensionary and other benefits to the petitioner vide Export Inspection Council Order No.EIC/D(Q/C)/Pen/168/2295 dated 26.10.1995 and EIC/D(Q/C)/Pen/168/95/2700 dated 16.11.95 (Annexure R1 and R2):

 a)   100% provisional pension                Rs.3,208/- 
     and admissible dearness relief          p.m. 
     alongwith arrear from 1.5.94 
     (cheque Nos. 332360 &  332361 
     both dated 27.10.95.
b)   CGIS benefit as applicable                  Rs.1,005/- 
      to EIC employees cheque 
     No.332362 dated 27.10.95.
c)   Group Insurance Scheme                  Rs.5,283/80 
     cheque No.332363 dated 27.10.95.
 
d)   Leave encashment                        Rs.12,191/- 
     cheque No.539814 dated 20.11.95.
e)   DCRG benefits                           Rs.1,00,000/- 
     cheque No.539813 dated 20.11.95.

 

The only pensionary benefit yet to be paid to the petitioner is commutation of pension. This has not been paid since the Chief Vigilance Commission (CVC) investigations into the allegations against the petitioner have not yet been completed. The CVC has been requested to expedite its enquiry."

4. As per this affidavit, payment had been made to the petitioner. This fact is not disputed by the petitioner. On the 20th of November, 1996, counter was filed on behalf of the respondents by Dr.K.P.Shrivastava, Acting Director (I&Q/C), Export Inspection Council, Delhi. Therein, it is stated that the disciplinary proceedings had been initiated against the petitioner and the inquiry was held against the petitioner. As per the directions by this Court, the learned Standing Counsel, Shri P.N.Mishra, filed a copy of the inquiry report with annexures on the 16th of August, 1998. The copy of the same was given to the petitioner. The respondents have to consider the inquiry report and pass appropriate orders.

5. The petitioner relied upon the judgment of this court in "C.P. Arora Vs. Union of India", . The decision of this Court is entirely different from the set of facts of this case and the ratio does not apply this case. The judgment is a short one and the same is as under:

"1. Rule DB.

2. Only a short question is involved in this writ petition. After hearing the learned counsel for the parties, we proceed to dis pose of this writ petition.

3. The petitioner has prayed for issuance of direction to the respondents to release all the pensionary benefits including gratuity, commuted value of pension and leave encashment etc. The petitioner had been allowed to voluntarily retire w.e.f. 31st March, 1993. In the order granting the voluntary retirement to the petitioner, it was mentioned that the same was being allowed subject to the enquiry pending in which petitioner was a witness. The petitioner, although retired, has not been released pension ary benefits and thus he came for seeking the aforesaid reliefs.

4. The respondents have come up with the plea that the pensionary benefits could not be released to the petitioner as he was to be proceeded against for some departmental inquiry. It is asserted by the respondents that in the preliminary inquiry it was found that the petitioner had committed embezzlement of Government funds in some transaction of purchase of Ballies and the allega tions is that about Rs.15 lakhs had been embezzled by the petitioner.

5. The short question, which arises, is whether the respondents are entitled in law to withhold the pensionary benefits on the ground that the respondents are yet to take some action against the petitioner for his alleged crime. The respondents have men tioned in the counteraffidavit that the provisional pension has already been paid to the petitioner w.e.f. 1st April, 1993 but other pensionary benefits are being withheld as some prosecution is to be lodged against the petitioner.

6. Rule9 of the Civil Services Pension Rules 1972, which is applicable to the petitioner, has laid down that either in departmental enquiry or judicial proceedings, if the pensioner is found guilty of grave misconduct or negligence during the period of his service, the President has the power to withhold or with draw pension either in whole or in part permanently or for a specified period or to order recovery of the pecuniary loss in whole or in part from the pension.

7. It is quite clear that till the petitioner is found guilty of grave misconduct or negligence in any departmental inquiry or judicial proceedings, the question of the respondents withholding the pensionary benefits of the petitioner does not arise.

8. The learned counsel for the respondents argued that the petitioner could be proceeded with departmentally within six months of his retirement but the petitioner has avoided to appear and allow the respondents to commence the departmental proceedings. Learned counsel for the respondents states that now the respondents will be lodging a criminal case against the petitioner. It is evident that mere fact that the respondents intend to lodge a criminal case against the petitioner does not mean that the respondents are entitled to withhold the pensionary benefits of the petitioner.

8. As Rule9 of the Pension Rules is very clear, the respondents are not now legally entitled to withhold the pensionary benefits of the petitioner.

9. This Rule9 is interpreted by the Supreme Court in the case of D.V.Kapoor Vs. UOI & Others, . It has been held as follows:

"As seen the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry of judicial proceedings that the pensioner committed grave misconduct or negligence in the dis charge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment either in while or in part permanently or for a specified period or to order recovery the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs.60/."

10. In the present case, as yet no order has been passed against the petitioner under Rule 9. Obviously, no order can be passed for withholding the pensionary benefits till it is established that either in departmental inquiry or judicial proceedings, any finding has been given holding the petitioner guilty of any misconduct or of any crime. Hence, we hold that the respondents are not entitled to withhold the pensionary benefits of the petitioner at present.

11. In view of the above discussion, we allow this writ petition and make the rule absolute and direct the respondents to pay all the pensionary benefits to the petitioner within two months. If the pensionary benefits are not released within two months, the petitioner will be entitled to be paid interest @ 18% p.a."

6. In "State of Uttar Pradesh Vs. Brahm Datt Sharma & Another", , the Supreme Court held that a departmental inquiry can be initiated even after retirement for misconduct, negligence or financial irregularity. In "Jarnal Singh Vs. Secretary, Ministry of Home Affairs & Others", , the Supreme Court held that the Government has power to withhold even gratuity by way of punishment. In view of the settled position, the petitioner cannot be heard to contend that no proceedings can be taken against him after his retirement.

7. The second respondent shall, after giving reasonable opportunity to the petitioner to explain what is stated against him in the inquiry report, consider the inquiry report and pass final orders thereon in accordance with law on or before the 28th of February, 1999.

8. The writ petition stands disposed of in the above terms.

9. There shall be no order as to costs.