S.P. Saxena vs The Secretary Ministry Of Defence ...
2014 Latest Caselaw 5285 Del

$~11
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             DECIDED ON: 28.10.2014

+                        W.P. (C) 4752/2014

       S.P. SAXENA                                           ..... Petitioner
                         Through:     Mr. Jugal Kishore and Mr. Vishal
                                      Sinha, Advs.

                         Versus

       THE SECRETARY MINISTRY OF DEFENCE & ORS.
                                            ..... Respondents

Through: Mr. Nishant Grover for Mr. Ankur Chhibber, Adv.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI S.RAVINDRA BHAT, J. (OPEN COURT)

1. The petitioner claims to be aggrieved by an order of the Central Administrative Tribunal (CAT) dated 24.03.2014 in O.A. No. 2186/2010 and O.A. No. 27/2011. The impugned order declined the relief claimed by the petitioner i.e. release of terminal benefits and gratuity during the pendency of the judicial proceedings initiated at the behest of the Central Bureau of Investigation (CBI).

2. The petitioner had earlier approached this Court in writ proceedings, being W.P.(C) 1213/1999, challenging his removal from service on 18.08.1992. On 28.07.2000, that order of removal was quashed. Thereafter

W.P.(C)4752/2014 Page 1 he joined service and sought voluntary retirement through issuance of three months' notice dated 16.8.2000. Since the respondents had preferred a Special Leave Petition (SLP) against this order, petitioner's request for voluntary retirement was declined. He, therefore, approached CAT by filing O.A. No. 2015/2001. The CAT vide order dated 10.09.2002 directed that the petitioner should be deemed to have retired from service w.e.f. 16.11.2000 and further directed the respondent to grant/pay all the retiral and consequential benefits. The Central Government by an order dated 26.08.2004 declined to count the period between 21.8.1992 and 28.07.2000 when the petitioner was out of service, as having been spent on duty. He approached the CAT by filing O.A. No. 2759/2004. In the meanwhile, CBI filed a chargesheet in case titled 'CBI vs. S.P.Saxena' in CC No. 36/2009 on 28.3.2006. The Tribunal, on 12.07.2006 directed that the period the petitioner was out of employment and when the removal order was passed, be taken into account for salary, pension etc. On 22.11.2007 this order was complied with. The order of the CAT dated 08.01.2008 and 12.07.2006 was challenged by the Central Government in writ proceedings bearing W.P.(C) 343/2008. This writ petition was allowed by this Court on 04.11.2009. In these circumstances, the petitioner moved the respondents to consider his claim for promotion and fixation of proper pay scale. He also claimed entitlement for arrears of pension, gratuity and leave etc. Since this was declined by an order dated 17.05.2010 he preferred two applications before the CAT which are now the subject matter of the present proceedings.

3. It is contended that the CAT fell into error in declining the proper fixation of salary and grant of consequential benefits i.e. promotion from the date the petitioner's junior was promoted in its original course. Learned

W.P.(C)4752/2014 Page 2 counsel further submits that since no departmental proceedings are pending and further trial by the CBI is stayed, his retirement benefits such as gratuity, pay fixation and other terminal dues had to be granted. In this context learned also relied upon a ruling of a Division Bench of this Court in Union of India vs. R. Vasudevanin W.P.(C) 1424/2012 decided on 14.3.2012.

4. The Tribunal by its order while rejecting the petitioner's claim for grant of terminal benefits pertinently stated as follows:

"9. The applicant has challenged this decision and stated that according to the decision of the Hon_ble Supreme Court, he is entitled to the relief that has been sought namely to direct the respondents to grant payment of gratuity with interest along with leave encashment and arrears etc. The respondents, on the other hand, have stated that the compliance of the order of the Hon'ble Court has been made and nothing has to be done till the trial in the criminal case is over. We have perused the order of the Hon'ble High Court. Para 26 of the order reads as under:-

"26. In our view the stand taken by the petitioners in their communications dated 14.11.2007 and 22.11.2007 was completely justified. The said stand is well balanced, inasmuch as, the claim of respondent no.2 has not been completely rejected. The same has been made subject to the finding that the trial Court may return in the case filed by the CBI in respect of respondent no.2_s application for membership."

It therefore implies that the decision of the respondents in the matter would depend upon the finding of the trial court and cannot be treated as final decision.

10. In fact, therefore, in the light of the judgment of the Hon'ble Delhi High Court, the applicant in the present OA has been given the right to reagitate the matter before the

W.P.(C)4752/2014 Page 3 respondents but only after the finding of the trial court in the case filed by the CBI. Till such time the matter is finalized, the applicant is not entitled for any consideration of the payments that are being agitated in this OA. We find nothing wrong in the decision of the respondents as communicated in the impugned order dated 17.5.2010 in para 4 thereof by which the applicant has been informed that no further action is possible in his case relating to payment of pension, gratuity, leave encashment etc. until the judicial proceedings in the CBI case are finalized. It is also clear that the claim sought by the applicant can, therefore, be referred before the respondents after the conclusion of the judicial proceedings in the CBI case and if after the conclusion, it is found that the judicial pronouncement is in his favour, the respondents would take a decision. Such right has already been provided to the applicant by the Hon'ble High Court.

11. In view of above, we do not find any reason at this stage to interfere with the impugned order dated 17.5.2010 of the respondents at Annexure A-1 of this OA and to grant any of the reliefs claimed by the applicant in two OAs. It is also once again clarified that in terms of the judgment of the Hon'ble High Court, a final decision on the full pension, gratuity etc. as claimed by the applicant shall have to be taken by the respondents after finalization of the aforenoted judicial proceeding in the trial court."

5. The previous judgment order of this Court in W.P.(C) 343/2008 dated 04.11.2009 had taken into consideration the circumstance that the trial in the CBI case was pending. In fact, para 25 of the judgment of the Court visualised the situation that the Central Government should not be compelled at that stage to risk making payment to the respondent i.e. the present petitioner of the entire arrears of salary till the issue with regard to the authenticity and correctness of the information contained in the application for membership submitted by the respondent No.2 in those proceedings (in substance the CBI chargesheet and the subject matter of the

W.P.(C)4752/2014 Page 4 criminal proceedings), were completed. That situation has remained unchanged. The fact that the CBI chargesheet and further proceedings were stayed, does not mean that the Petitioner stands exonerated or acquittal. In other words, the judicial proceedings envisaged in Para 9 of the Central Civil Services (Pension) Rules continues to remain pending, even though it is stayed.

6. As far as the decision of this Court in R.Vasudevan (supra) is concerned, the Bench in that case appears to have emphasised Rule 69 which entitles fixation of pension but lost sight of Rule 69 (1)(C). That provision pointedly states that gratuity cannot be paid to the Central Government employment till conclusion of departmental proceedings. In this case, the proceedings are judicial proceedings. In these circumstances, the grant of terminal benefits cannot be a matter of course or entitlement, and would have to await the final outcome.

7. For the above reasons, this Court finds no reason to interfere with the impugned order of the CAT. The writ petition is, therefore, dismissed.

S. RAVINDRA BHAT (JUDGE)

VIPIN SANGHI (JUDGE) OCTOBER 28, 2014/nk

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