Union Of India (Uoi) And Ors. vs Sukhbir Saran Agarwal And Ors.
2002 Latest Caselaw 406 Del

JUDGMENT

S.B. Sinha, C.J.

1. This writ petition is directed against an order dated 05.03.2001 passed by the Central Administrative Tribunal, Principal Bench (hereinafter referred to as 'the Tribunal') in O.A. No. 1947 of 1999 whereby and whereunder an original application filed by the respondent herein was allowed.

2. The respondent herein superannuated on 31.07.1991 while he was working as Permanent Way Inspector. He had been paid his provident fund and provisional pension, whereas his other retiral benefits like gratuity, leave encashment, insurance, commutation, etc. had not been pad to him.

3. It is not in dispute that the charge of the stores had been taken from him. Only on 07.08.1991, a stock sheet showing alleged shortage of stock while he was in-charge thereof was given to him. He submitted his remarks as was called for from him on 22.05.1992. Further information had also been asked for from him as regards purported shortage of stock in reply whereto also he submitted his explanation on 10.02.1998.

4. Yet again the Divisional Superintending Engineer sent a photocopy of the purported report of the Divisional Accounts Officer, Moradabad as regards the said stock sheets and asked for his comments.

5. Although the matter had been pending for a long time, he had not been paid his retiral benefits. He filed a representation, but despite the same his retiral benefits had not been released.

6. In the aforementioned situation, he filed the aforementioned original application. Only in the counter affidavit before the learned Tribunal, the petitioners herein disclosed that a sum of Rs. 32.47.591/- is recoverable from him towards alleged losses on account of shortages in the stores in terms of the stock sheets dated 07.08.1991, 07.08.1992, 31.10.1994, 24.11.1994 and 09.05.1995. The learned Tribunal on the basis of its earlier decisions in its impugned judgment inter alia held:-

"11. It is also quite surprising that the department had been asking explanation after explanation by issuing stock sheets to the applicant but had never initiated any action for holding disciplinary proceedings or for imposing penalty on the applicant and since the proceedings could have been held within a period of 4 years and that period of 4 years have lapsed as the applicant had superannuated on 31.7.91 so I am satisfied that the respondents cannot withheld any of the retiral benefits of the applicant now on the alleged shortages. I am, therefore, satisfied that the applicant is entitled to the payment of all the retiral benefits as claimed by the applicant."

7. The said original application was, therefore, disposed of directing:-

"(1) The respondents are directed to pay DCRG, Leave Encashment, computation of pension to the applicant within a period of 3 months from the date of receipt of a copy of this order. The applicant is further entitled to the interest at the rate of 12% per annum w.e.f. 1.9.1998, i.e., one year prior to the filing of the OA."

8. Mr. Gangwani, the learned counsel appearing on behalf of the petitioners would submit that in terms of the provisions of the Railway Services (Pension) Rules, 1993 (hereinafter referred to as 'the said Rules') which had been made in terms of proviso appended to Article 309 of the Constitution of India (in short, 'the Constitution'), a recovery/adjustment of dues of the Railways can be made from the pensionary benefits inter alia on shortage in stores. Our attention in this connection has been drawn to Rule 15(1), 15(2), 15(3)(b), 15(4)(i)(a) and 15(4)(ii) of the said Rules.

9. The learned counsel would contend that in the aforementioned situation, the petitioners cannot, thus, be said to have committed any illegally in not paying the benefits to the respondent.

10. The learned counsel, relying on a decision of the Apex Court in Union of India v. Sisir Kumar Deb 1999 (K&S) SCC 781, would contend that such recovery is permissible.

11. Although in the aforesaid case, it has been observed that recovery could be effected from any amount payable to the respondent, but the said direction must be understood the factual matrix obtaining therein.

12. The question, which arose for consideration, before the Apex Court was as to whether the recovery can be effected through dearness relief admissible on pension. Any amount would not include the pensionary benefits inasmuch as the person drawing pension enjoys statutory protection having regard to the provisions of Sections 11 and 12 of the Pensions Act, 1871.

13. The aforesaid direction, therefore, must be held to have been issued having regard to the peculiar facts and circumstances contained therein and, in any event, thereby the Apex Court must be held to have exercised its jurisdiction under Article 142 of the Constitution of India (in short, 'the Constitution'), which power this Court and the Tribunal do not possess. A direction in terms of Article 226 of the Constitution can be issued only in accordance with law and not in contravention of law.

14. Ms. Meenu Mainee, the learned counsel appearing on behalf of the respondents, on the other hand, would submit that it is for the first time before the Tribunal, the petitioner disclosed in the counter affidavit that allegedly a sum of Rs. 32.47.591/- was due from the respondent. It has been contended that no disciplinary proceedings had ever been initiated either when the respondent was in service or after is superannuation.

15. Having regard to the facts and circumstances of this case, we are of the opinion that the impugned judgment cannot be faulted.

16. Rule 9 of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as 'CCS Pension Rules') reads thus:-

"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 recovery 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 pensions 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 re-employment, 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 re-employment,--

Shall not be instituted save with the sanction of the President,

Shall not be in respect of any event which took place more than four years before such institution, and 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 Government servant during his service.

.....

(4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under Sub-rule (2), a provisional pension as provided in [Para 59] shall be sanctioned.

(5) Where the President decides not to withhold or withdraw pension but orders 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 Government servant.

(6) For the purpose of this rule,-- 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

Judicial proceedings shall be deemed to be instituted,--

in the case of criminal proceedings, on the date on which the complaint or report of a police office,r of which the Magistrate takes cognizance is made, and in the case of civil proceedings, on the date the plaint is presented in the Court."

17. A bare perusal of the aforesaid Rule 9 of CCS Pension Rules makes it clear that the President alone is competent to withhold or withdraw a pension in the event in a departmental proceeding the pensionary is found guilty of grave misconduct or negligence. Clause (b) of the proviso to the aforesaid Rule stipulates that no such departmental proceeding not initiated before retirement shall be instituted except with the sanction of the President and that it shall not be in respect of any event, which took place more than 4 years before such initiation.

18. The respondent herein, as noticed hereinbefore, retired on 31.07.1991. Admittedly, no proceeding has yet been initiated and as such the right of the petitioner herein to initiate such proceeding gets lost on expiry of 4 years from the date of which event took place wherefor the pensionary benefits may be refused to be paid or withdrawn. Unless such proceeding was initiated, the question of withdrawal of such pensionary benefits would not arise.

19. It is not in dispute that despite the fact that the respondent herein had given his replies to the stock sheets, no show-cause notice had been served upon him.

20. At this juncture, therefore, in our opinion, it is too late in the day for the petitioner herein to contend that its sanction is within the purview of the said Rules and/or CCS Pension Rules.

21. We may notice that in C.W.P. No. 3477 of 2001, this Bench by an order dated 18.01.2002 approved the decision of the Tribunal in S.K. Khanna v. Union of India and Ors. whereupon the learned Tribunal has placed reliance in the impugned judgment also, held:-

"... Keeping in view the fact that the pension is not a bounty but retiral benefits and the same accrues to a retired employee by way of a right, we are of the opinion that the order passed by the learned Tribunal is just and equitable. We notice that despite the aforementioned reasonable order passed by the learned Tribunal, not only a writ petition has been filed but part balance amount was paid to the respondent only on the threat of contempt. Such an attempt on behalf of the petitioner herein, which is considered to be a model employer, cannot be appreciated, particularly when the learned Tribunal had directed adjustment of the recover of the amount of Rs. 22,831/- from the retiral benefits of the respondent and granted interest not from the date of retirement but from May, 1996, i.e. only from one year prior to the filing of the O.A."

22. In this view of the matter, we find no merit in this writ petition, which is accordingly dismissed costs, which is quantified at Rs. 5,000/-.