Union Of India (Uoi) vs Darshan Kumar Gupta
2007 Latest Caselaw 1281 Del

JUDGMENT

S.L. Bhayana, J.

1. By this writ petition, the petitioner, Union of India, prays for issuance of a Writ of Certiorari for quashing and setting aside the order dated 20.04.2006, passed by the Central Administrative Tribunal, New Delhi (for short the Tribunal ).

2. The brief facts leading to the present writ petition are that the respondent joined M.E.S., Ministry of defense as Assistant Executive Engineer on 27.03.1971. Later on, he was promoted as Executive Engineer and at the relevant point of time he was placed in the selection grade of Superintending Engineer. According to the respondent, he completed 25 years 4 months of regular service and deemed to have 30 years 4 months qualifying service as required under Rule 48 of CCS (Pension) Rules, 1972 and was also more than 50 years of age. In terms of CSR 459 (i) read with Rule 48 of CCS Rules the respondents served the petitioner with three months notice to the President of India expressing his intention to retire on the expiry of the period specified thereof, i.e., 30.10.1996. The said request was, however, rejected by the competent authority vide order dated 31.10.1996.

3. Aggrieved, the respondent filed O.A. No. 1062/98 before the Tribunal. By order dated 18.07.2000, the Tribunal dismissed the said OA. Against the said order, the respondent filed CW No. 5349/2000 in this Court. While allowing the writ petition, this Court observed as under:

X X X X

Keeping in view the aforementioned pronouncement we are of the view that once the petitioner has exercised his statutory right in terms of Article 459(1), question of acceptance thereof did not arise and the petitioner stood relieved w.e.f. 31.10.1996. We make it clear that we have not entered into the question as to whether the petitioner would be entitled to take benefit of CCS Pension Rules or not.

Before parting with the case, we may notice that the petitioner after service of notice offered to retire voluntarily and did not report for duty w.e.f. 01.01.1996, therefore, a show cause notice was issued. Keeping in view the fact that in law the petitioner was entitled to retire w.e.f. 31.10.1996, we are of the opinion that issuance of the aforementioned show cause notice would not stand in the way of the petitioner retiring voluntarily w.e.f. 01.01.1996. The petition is allowed and the order dated 31.10.1996 is quashed. No order as to costs.

We may, however, further observe that as we have not considered as to whether provisions of Rule 48 and 48A would apply in the case of the petitioner, the petitioner would be at liberty to pursue his other remedy for claiming retrial benefits in accordance with law.

4. Pursuant to the said directions, the respondent was allowed to retire w.e.f. 31.10.96. On 18.11.1997, the petitioner lodged an FIR under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 to investigate the alleged lapses on the part of the respondent during his tenure as Superintending Engineer and subsequently on 12th May, 2000 a charge-sheet was filed against the respondent.

5. The petitioner has submitted that since FIR was lodged and investigations were carried out and in view of the fact that the matter is pending with CBI, the respondent s retiral benefits were settled in accordance with the CCS (Pension) Rules, as applicable on 14.08.2002, taken by the petitioner to retire the respondent. On the date of the retirement of the respondent, the criminal proceedings were pending against the respondent.

6. It is further submitted by learned Counsel for the petitioner that the respondent was paid the benefits of leave encashment, TA /DA on retirement, final settlement of GPF account, CGEIS saving fund scheme. It is further submitted that the respondent was granted provisional pension in terms of Rule 69 of the CCS (Pension) Rules and the gratuity was withheld in view of pendency of criminal case against the respondent and, therefore, the pension awarded was in the nature of discipline pension.

7. Aggrieved of the said order, the respondent approached the Tribunal, seeking reliefs in terms of directions to delete the word Discipline in Col 8 of the pension payment order, release of benefits of commutation of pension and retirement gratuity and interest on all retirement benefits. The Tribunal while partially allowing the reliefs, prayed for by the respondent observed as under:

I find no reason and justification in the respondent's action in withholding gratuity payable to the applicant. However, in the peculiar facts and circumstances, he would not be entitled to any interest, prayed for.

8. It is argued on behalf of the petitioner that the Tribunal has erred in coming to conclusion that there is no justification in inserting the term Discipline under Column 8 of PPO. It is contended by learned Counsel for the petitioner that the Tribunal has erred in holding that the retiral benefits be computed according to the provisions as applicable from the date of deemed retirement and not as per the provisions as applicable on the date of retirement order, i.e., 14.08.2002. Learned Counsel for the petitioner urged that the Tribunal has erred in holding that respondent was outside the purview of the vigilance and there were no proceedings pending against him.

9. Learned Counsel for the petitioner has drawn our attention to CCS (Pension) Rules. He submitted that voluntary retiral benefits ought to be in terms of Rule 48, 48A and Rule 9 of the said Rules. Rule 9 of CCS (Pension) Rules gives right to the President to withhold the pension or gratuity, or both, in full or in part, or withhold a pension in full or in part, whether permanently or for a specified period, and of ordering recovery of pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if any, in any departmental or judicial proceedings, the pensioner is found guilty of misconduct or negligence during the period of service, including service rendered upon re-employment after retirement. Learned Counsel has also drawn our attention to Rule 69(c) which states that no gratuity shall be paid to the government servant until the conclusion of the departmental or judicial proceedings and issue of final order thereon

10. Further learned Counsel for the petitioner submitted that such an order passed by the tribunal would set a bad precedent especially when gratuity is directed to be released in view of pendency of criminal case against the respondent under Prevention of Corruption Act.

11. The ground taken by the the respondent before the Tribunal was that as per the rules, he had intimated his intention to take voluntary retirement and pursuant to such intention, a notice as per the rules was given to the petitioners. Further at the time of service of notice seeking voluntary retirement, no disciplinary proceedings were pending against the respondent. The High Court, vide its order, dated 10.01.2002, held that the petitioner had exercised statutory right in terms of Article 459(1) and, therefore, the question of acceptance thereof did not arise and the petitioner stood relieved w.e.f. 31.10.96. The respondent submitted that holding back the retiral benefits amounts to denial of legitimate rights of the respondent and such an act is completely contrary to rules.

12. We have gone through the writ petition, the arguments made at the bar and also perused the impugned order. The Tribunal while deciding the OA in favor of the respondent observed as under:

applicant is deemed to have retired on 31st October 1996, on which date he was neither facing departmental nor any judicial proceedings. As per Rule 9(6) of the aforesaid Rules, the judicial proceedings deemed to have been instituted on the date when the cognizance of FIR dated 18th November 1997 had been taken by the Court of competent jurisdiction, which was later than 18th November 1997. In other words there was no impediment for grant of pension or retrial benefits.

13. We have given our anxious consideration to the submissions made at the bar and also the order of the Tribunal. It is a matter of record that the respondent was deemed to have retired on 31.10.1996. The question of the retrial benefits was left open to the parties and the respondent was given the liberty to pursue the remedies available in law. The Tribunal s order in granting the retiral benefits and deletion of word Discipline from the Column 8 is also before us. The notice of voluntary retirement was given on 30.10.1996 and the same was rejected by the competent authority. FIR was lodged on 18.11.1997 almost a year after the notice of voluntary retirement was served.

14. Having gone through the submissions, we cannot ignore the fact that notice for voluntary retirement was given on 30.10.1996. The order of the High Court, directing the petitioner to pass order of retirement w.e.f. 31.10.1996 has not been challenged and the same has attained finality. Consequently, the date of retirement was 31.10.1996 and has been held to be date of Deemed Retirement. The necessary fallout of such a finding is that the computation of all the future and retiral benefits shall be computed from the date of Deemed Retirement. The FIR was lodged on 18.11.1997, which is almost a year after the notice of voluntary retirement. Further, the petitioner has failed to demonstrate through records or otherwise any inquiry or investigation that was carried out against the respondent during his tenure in office. The petitioners have failed to show that they had initiated any proceedings, criminal or civil, against the respondent during his tenure in office. It is quite apparent that FIR was lodged albeit almost after a year and the delay has not been explained. We cannot lose sight of the fact that the notice of voluntary retirement by the respondent was a valid one, as it was in accordance with the terms and also provisions which governed the respondent at the time of service of notice. Rule 9 and Rule 69(c) of CCS (Pension) Rules, as contended by learned Counsel for the petitioner, has no application in this case as at the time of deemed retirement there was no case of departmental or judicial proceedings pending against the respondent.

15. In view of these facts and circumstances, we are of the view that the Tribunal was right in directing the petitioner to delete the word discipline from Column 8 and to pay the retiral benefits to the respondent. Since the petitioner was deemed to have retired on 31.10.1996, the order dated 14.08.2002 is inconsequential for the purposes of computing retiral benefits. We, accordingly, direct the petitioner to compute the retiral benefits w.e.f. 31.10.1996.

16. In view of the above, the impugned order does not warrant any interference from this Court in exercise of the writ jurisdiction.

17. Dismissed.