Tulsi Ram Arya vs Chairman D.V.B. & Ors.
2013 Latest Caselaw 465 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) No.618/2001

%                                                        January 31, 2013

TULSI RAM ARYA                                        ..... Petitioner
             Through:                Mr.H.D.Sharma &
                                     Mr. Dev.P. Bhardwaj, Advs.

                            versus


CHAIRMAN D.V.B. & ORS.                  ..... Respondents

Through: Ms.Uttara Babbar, Adv. for R-1 & 2.

Mr. Sumeet Pushkarna & Mr. Narayan, Advs. for R-4.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?     Yes


VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, the petitioner who is a retired employee

of the Delhi Vidyut Board, seeks release of the part of the terminal

benefits which were not paid to the petitioner on account of a criminal

case under Section 498A of Indian Penal Code, 1860 (IPC) pending

against the petitioner. The petitioner also prays that besides the terminal

benefits which have to be released to him, the petitioner be also paid all

terminal benefit amounts which have been retained. The retention of

amounts was by the erstwhile employer viz DVB, and whose successor-

in-interest is now the respondent No.3/M/s. BSES Yamuna Power Ltd.

(BYPL). Following are the relief clauses of the writ petition:-

"a) issue a writ/order or direction in the nature of mandamus to release the gratuity with pendent lite and future interest.

b) issue a writ/order or direction in the nature of mandamus to award full pension alongwith commuted value of pension with pendent lite with future interest.

c) issue a writ/order or direction for adding one increment in basic pay-scale withheld during the period of suspension.

d) Issue a writ/order or direction to provide any other retirement and incidental benefit payable lawfully to the petitioner.

e) Any other relief or orders which this Hon'ble court may deem fit and proper in the facts and circumstances of the case."

2. The only ground on which the writ petition was contested by

the erstwhile DVB was that the employer was entitled to withhold

amounts in terms of Rule 69 of the CCS Pension Rules as applicable to

Delhi Vidyut Board.

3. Since Rules 9 and 69 of the CCS Pension Rules are relevant

for adjudication of the present petition, the same are reproduced below:-

Rule 9:- "Right to 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 nay 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 nay final orders are passed:

Provided further that where a part of pension is withheld or withdrawn, the maount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five (Rupees Three thousand five hundred from 1-1-2006 - see GID below Rule 49) 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 department proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment,-

(i) shall not be instituted save with the sanction of the President,

(ii) shall not be in respect of nay 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 Government servant during his service.

(3) Deleted

(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 Rule 69 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 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.

xxxx xxxx xxxx

Rule 69. Provisional pension where departmental or judicial proceedings may be pending.

(1) (a) In respect of a Government servant referred to in sub-rule (4) of Rule9, the Accounts Officer shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government

servant, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension.

(b) The provisional pension shall be authorized by the Accounts Officer during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the Competent Authority.

(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon:

Provided that where departmental proceedings have been instituted under Rule 16 of the Central Civil Services (Classification, Control and Appeal0 Rules, 1965, for imposing any of the penalties specified in Clauses (i), 9ii) and (iv) of Rule 11 of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant.

(2) Payment of provisional pension made under sub- rule (1) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but not recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period."

4. When we read sub Rule 1 of Rule 9 it becomes clear that

entitlement to withhold pensionary benefits or other terminal benefits as

stated in Rule 9 only arises if "pecuniary loss is caused to the

Government", and that too on account of "the pensioner is found guilty

of grave misconduct or negligence during the period of service". A

reading of this sub-Rule 1 of Rule 9 makes it clear that object of

withholding of pensionary benefit is for adjusting the pecuniary loss

caused to the employer on account of grave misconduct or negligence of

the employee while performing his service. Therefore, the departmental

proceedings or judicial proceedings which are talked of under Rules 9

and 69 are such departmental proceedings or judicial proceedings

wherein after adjudication against the employee, if he is found guilty of

grave misconduct or negligence which causes pecuniary loss to the

employer, only then the employer would be entitled to adjust the same

from the pensionary benefits to the employee.

5. Admittedly in the present case, there is no charge of

misconduct or negligence of the petitioner in the performance of his

service with the employer. The criminal case which is pending against

the petitioner is under Section 498A IPC and therefore nothing to do with

any misconduct of the petitioner performing service as an employee of

the employer. Therefore, there does not arise any issue of pecuniary loss

to the employer/DVB/BYPL on account of the judicial

proceedings/criminal case going on against the petitioner.

6. I may for the sake of completion of narration state that the

Supreme Court in the case of North Delhi Power Ltd. Vs. BSES

Rajdhani Power Ltd., AIR 2010 SCC 2302 has held that whatever is the

liability of the Delhi Vidyut Board for the service benefits including

pensionary benefits, payable to an employee, liability for clearing such

dues will be of the DISCOM or the transferee company. In the present

case respondent No.3/BYPL is the DISCOM in question who will have to

pay the dues.

7. I may finally note that the Supreme Court in a catena of

judgments has held that grant of pensionary benefits to an employee is

not an act of bounty, but a bounden duty put upon the employer. The

Supreme Court has consistently held that where there is delay in payment

of pensionary benefits, and which is not on account of default on the part

of the employee, then, interest is liable to be paid by the employer to the

employee.

8. In view of the above, writ petition is allowed. The

respondent No.3 is directed to release all the service dues of the petitioner

including dues towards terminal benefits payable to the petitioner.

Service benefits to the petitioner including the pensionary benefits will

include necessary amounts which would be payable to the petitioner in

accordance with law and the petitioner would be entitled to any

enhancement in scale of pay or enhancement on account of promotions or

any other consequential service benefits due to the services rendered by

the petitioner with the erstwhile DVB. The petitioner will also be entitled

to interest at the rate of 9% per annum simple from the date of filing of

this petition till the entire monetary benefits in terms of today's judgment

are paid to the petitioner. The monetary dues as payable in terms of the

present judgment be calculated by the respondent No.3 and be paid to the

petitioner within a period of three and a half months from today. In case

the benefits under today's judgment are not paid within a period of four

months from today, then, the petitioner will be entitled thereafter to an

interest at 12% per annum simple till payment. Writ petition is allowed

and disposed of in terms of the aforesaid observations. Let the petitioner

supply copy of today's judgment to the competent authority of respondent

No.3 within 15 days so that the monetary benefits in terms of today's

judgment can be paid to the petitioner.

VALMIKI J. MEHTA, J JANUARY 31, 2013 ak