Union Of India Through Secretary ... vs Inspector R.P.Tyagi
2010 Latest Caselaw 931 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI


+                            W.P. (C.) No.13413/2009


%                          Date of Decision: 17.02.2010


Union of India through Secretary Ministry of Home     .... Petitioner
Affairs
                     Through Mrs.Avnish Ahlawat, Advocate.


                                   Versus


Inspector R.P.Tyagi                                      .... Respondent
            Through                Ms.Archana Gaur, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether reporters of Local papers may be               YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                 NO
3.    Whether the judgment should be reported in             NO
      the Digest?




ANIL KUMAR, J.

*

The petitioner, Union of India through Secretary Ministry of Home

Affairs challenges the order dated 30th June, 2009 passed by Central

Administrative Tribunal, Principal Bench in O.A No.600/2009 titled

Inspector Rishi Prakash Tyagi v. Union of India through the Secretary

directing the petitioner to release provisional pension to the respondent

after 31st January, 2007.

The relevant facts to comprehend the controversies are that the

respondent had retired on superannuation on 30th September, 2002. A

criminal case against the respondent was decided in December, 2006

whereby death penalty was awarded to the respondent. In an appeal

filed to the High Court the death penalty was reduced under Section

304 of Indian Penal Code and against the order of the High Court a

Special Leave Petition is pending.

The departmental proceedings which were initiated against the

respondent under Rule 9(1) has been forwarded to the President for

decision on withholding of pension/gratuity in accordance with rules,

however, no decision has yet been taken by the President.

Though no decision on withholding the pension/gratuity in

compliance with the CCS Pension Rule has been taken, however, after

31st January, 2007 no provisional pension has been paid to the

respondent.

The learned counsel for the petitioner does not dispute that the

provisional pension cannot be withheld unless there is an appropriate

order directing withholding the pension. In the circumstances, there is

no decision by the competent authority for withholding the pension.

Consequently, the entitlement of the respondent for provisional pension

under Rule 9(1) as well as Rule 69 of CCS (Pension) Rules, 1972 cannot

be denied by the petitioner.

The Tribunal in the facts and circumstances has directed the the

petitioner to continue payment of provisional pension to the petitioner

beyond 31st January, 2007 and made good non-payment, if any, by way

of arrears, until final orders are passed in the departmental

proceedings/judicial proceedings. The learned counsel for the petitioner

is unable to show any role or precedent following which the provisional

pension of the respondent can be stopped. In the circumstances there is

no illegality or irregularity in the decision of the Tribunal directing the

petitioner to continue payment of provisional pension and to pay

arrears of provisional pension beyond 31st January, 2007.

Though the respondent had also prayed for leave encashment,

however, has only directed the petitioner to take any appropriate view in

accordance with the rules and similarly about the payment of interest,

the Tribunal has directed the petitioner to consider about the same in

accordance with law. The direction and in the findings of the Tribunal,

therefore, cannot be faulted in the facts and circumstances.

In the circumstances there are no grounds to interfere with the

order of the Tribunal as no illegality or irregularity has been pointed out

by the learned counsel. The writ petition in the facts and circumstances

is without any merit and it is therefore, dismissed.

ANIL KUMAR, J.

FEBRUARY 17, 2010                               MOOL CHAND GARG, J.
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