J.L. Goyal vs The Food Corporation Of India, The ...
2007 Latest Caselaw 2190 Del

JUDGMENT

J.M. Malik, J.

1. The whole controversy centres around the question whether Food Corporation of India (hereinafter called as FCI), the employer can withhold gratuity in the sum of Rs. 3.50 lacs and earned leave encashment for 179 days in the sum of Rs. 95,000/- belonging to its employee J.L. Goyal, the petitioner, till the pendency of criminal case pending against him.

2. This is an admitted fact that vide office order dated 26th/30th June, 2003, the petitioner was relieved from the services of FCI w.e.f. 30th June, 2003, on attaining the age of superannuation. The FCI vide fax dated 24.06.2003 sent the following message:

Shri J.L. Goel (DOB 01.07.1943) Assistant Manager (QC) working in UP region is attaining the age of superannuation on 30.06.2003. Vigilance Division of this office has informed that the officer is involved in vigilance case. The retirement order cannot be issued till the vigilance case is finalized. Kindly relieve the officer from the services of the Corporation w.e.f. 30.06.2003(A/N). A copy of the relieving order may be endorsed to this office.

3. Vide its confidential letter Superintendent of Police, CBI, SPE, Dehradun replied to the Sr. Regional Manager (Vig. & Secu.), Food Corporation of India, Regional Office : Dehradun that RC-25/82-DAD against Shri J.N. Sharma, Quality Inspector, Food Corporation of India, Bulandshahar (UP) and others is pending trial and is at the stage of Prosecution Evidence. The FCI department refused to pay the above said retiral benefits to the petitioner due to the pendency of the said criminal proceedings.

4. Condition number 3 of the FCI Notifications dated 14th October, 1986 is reproduced as follows:

A gratuity not exceeding the amounts mentioned in Regulation 5, may be paid to an employee or to the other person or persons on whom the right to receive the gratuity is conferred under Regulation 7, for good, efficient and faithful service for such employee:

Provided that an employee against whom disciplinary action/proceedings is contemplated or pending at the time of resignation/retirement etc. will not be paid gratuity unless the action/proceedings against him have been finalised. On finalisation of the disciplinary proceedings, the release of payment of amount of gratuity will depend on the final outcome of the disciplinary proceedings and keeping in view the orders of the disciplinary authority. Gratuity will also not be admissible to an employee whose services are terminated for misconduct, insolvency or inefficiency.

5. The additional affidavit, submitted by Shri V. Sahadevan, dated 31.01.2007 carries infinite value. Paras No. 4, 5, 6, 7 and 8 run as follows:

4. I say that the case No. 2962/2005 State v. J.L. Goyal and Ors. under Section 120(B), 420 IPC and 5(2) r/w 5(1)(d) of Prevention of Corruption Act, PS C.B.I., Dehradun is pending in the court of Judicial Magistrate (C.B.I) Ghaziabad. A certified copy of FIR and chargesheet is annexed herewith as Annexure RR-1 (Colly).

5. I say that as per chargesheet dated 30.12.1986, the petitioner liability due to loss caused to Food Corporation of India is Rs. 21,25,900/-.

6. I say that in the matter, the proceedings are going on before the Judicial Magistrate (C.B.I.) Ghaziabad. Three prosecution witnesses have already been examined by 18.12.2006 and the next date of proceedings in this case is fixed for 02.03.2007.

7. I say that this criminal case against the petitioner was initially started in Munsif (C.B.I) court Dehradun bearing case No. 54/1987 and 64/1991 and latter on transferred to the court of Judicial Magistrate (C.B.I) Ghaziabad where the case is registered at No. 2962/2005 and prosecution against petitioner is going on.

8. I say that the petitioner was paid Rs. 8,00,000/- towards Contributory Provident Fund (C.P.F.) on 03.12.2002 vide cheque No. 8333946 dated 03.12.2002 drawn at State Bank of India, Bulandshahar which has been duly encashed. Further the petitioner has been paid final balance amount of C.P.F. with interest totaling Rs. 4,87,329/- and after deducting T.D.S. amounting Rs. 10,335/- a net amount of Rs. 4,76,994/- had been paid vide cheque No. 852739, dated 22.03.2006 drawn at State Bank of India, Bulandshahar and sent him through speed post. This amount has also been encashed by petitioner on 28.03.2006 as per the bank statement.

6. The learned Counsel for the petitioner vehemently argued that the petitioner is yet to be held guilty of the above said offences. He submitted that an accused must be presumed to be innocent till he is found guilty by the court. He pointed out that Service Rules do not prescribe any embargo upon the pendency of the criminal cases against its employees. He explained that no disciplinary action or departmental enquiry is pending against the petitioner. Again, the department did not serve him with any chargesheet. He opined that under these circumstances the judicial proceedings do not come within the ambit of disciplinary action/proceedings which term occurs in condition number 3 of the above said circulation. In order to buttress his arguments he has cited an authority reported in R. Kapur v. Director of Inspection , wherein, it was held:

10. This Court in M. Padmanabhan Nair case has held as under:

Pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment.

11. The Tribunal having come to the conclusion that DCRG cannot be withheld merely because the claim for damages for unauthorised occupation is pending, should in our considered opinion, have granted interest at the rate of 18% since right to gratuity is not dependent upon the appellant vacating the official accommodation. Having regard to these circumstances, we feel that it is a fit case in which the award of 18% is warranted and it is so ordered. The DCRG due to the appellant will carry interest at the rate of 18% per annum from 1.6.1986 till the date of payment. Of course this shall be without prejudice to the right of the respondent to recover damages under Fundamental Rule 48-A. Thus, the civil appeal is allowed. However, there shall be no order as to costs.

6. All these arguments have left no impression upon the court. FIR and chargesheet have been appended with the above said affidavit filed by Shri V. Sahadevan. The Counsel for the respondent did not pick up any conflict with the above said situation. The Apex court in a case reported in State of Orissa and Ors. v. Kalicharan Mohapatra and Anr. , was pleased to observe:

6. It is thus clear from an analysis of Sub-rules (1) and (2) that where a judicial proceeding is pending against a pensioner for grave misconduct the government is entitled to withhold gratuity amount and/or death-cum-gratuity amount and is also entitled to sanction provisional pension for the period of pendency of the said proceedings. It is not necessary that a judicial proceeding should relate to the charge of causing pecuniary loss to the Central or State Government by misconduct or negligence during his service. Sub-rule (1) of Rule 6 specifies two grounds upon which action there under can be taken. One is where the pensioner is found guilty of grave misconduct and the other is where he is found to have caused pecuniary loss to the Central and State Government by misconduct and negligence during his service. Sub-rule (2) provides for orders to be made during the pendency of such proceedings. It may also be mentioned that neither the All India Service (Death-cum-Retirement) Rules nor the Pensions Act. General Clauses Act or the Leave Rules (referred to Rule 2(2) define the expression misconduct. It would, therefore, be reasonable and permissible to understand the said expression in Rule 6 aforesaid in the manner defined in the Prevention of Corruption Act.

7. The Tribunal was, therefore, in error in holding that unless the charge expressly charges the pensioner with causing pecuniary loss to Central or State Government by his negligence or misconduct during his service, the action under Sub-rule (2) of Rule 6 cannot be taken.

7. Although, in the instant case it is not specifically mentioned in the Notification judicial proceedings, yet the words proceedings/action have wide connotation. It certainly includes the judicial proceedings as well. The word action means departmental or judicial action. The above said definition does not draw any distinction between the two. It must be borne in mind that the case pending against the petitioner pertains to embezzlement and the indictment against him is that he has caused loss to his department to the tune of Rs. 21,25,900/-.

8. It cannot be laid down as a rule of thumb that retiral benefits cannot be withheld under all the circumstances. It is now well settled that for certain reasons the retiral benefits can be withheld. See : Union of India and Ors. v. Shiv Charan 1991 Suppl (2) SCC 386, Wazir chand v. Union of India and Ors. JT 2000 (Suppl. 1) SC 515 and Dhan Singh v. Union of India and Ors. 2003 (70) DRJ 576.

9. It may by also mentioned that the petitioner did not retire. He was removed from the service due to superannuation. In view of this discussion, the action taken by the department cannot be said to be unfair or biased. The writ petition is without force and is hereby dismissed.