Rajasthan High Court
Balbir Singh S/O Late Sh. Ram Dev Singh vs Union Of India (2024:Rj-Jp:44424-Db) on 22 October, 2024
Bench: Pankaj Bhandari, Praveer Bhatnagar
[2024:RJ-JP:44424-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 11610/2022
Balbir Singh S/o Late Sh. Ram Dev Singh, Aged About 61 Years,
R/o 12/56, New Housing Board, Shiv Singh Puri, Sikar,
Rajasthan, Superannuated As Deputy Director General Telecom
Security, Gujrat, Senior Administrative Grade-I, Indian
Telecommunications Service.
----Petitioner
Versus
1. Union Of India, Through Its Secretary To The Government
Of India, Ministry Of Telecommunications, Sanchar
Bhawan, 20 Ashok Marg, New Delhi-01
2. The Senior Deputy Director General, Gujarat License
Service Area (Lsa) Ahmedabad, Department Of
Telecommunications, 1st Floor, P And T Administrative
Building, Khanpur, Ahmedabad, Gujarat-380001.
----Respondents
For Petitioner(s) : Mr.Parmeshwari Choudhary
For Respondent(s) : Mr.Devesh Kumar Bansal with Mr.CP
Sharma
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Order
22/10/2024
1. The petitioner has preferred this writ petition aggrieved by
the order dated 12th May, 2022, whereby petitioner's claim for
release of gratuity and other retiral dues on his superannuation on
31st July, 2020 was dismissed.
2. It is contended by learned counsel for the petitioner that the
Central Administrative Tribunal, Jaipur Bench, Jaipur (for short
"the Tribunal") has not correctly appreciated the Payment of
Gratuity Act, 1972 (for short "the Act of 1972"). It is contended
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that gratuity cannot be withheld as conviction of the petitioner
was stayed by Division Bench of this Court.
3. It is also contended that conviction under Section 304B IPC
cannot be treated as a grave misconduct, as it has nothing to do
with the official duties of the petitioner.
4. It is further contended that as per Rule 9 of the Central Civil
Services (Pensions) Rule, 1972 (for short "the Rules of 1972"),
pension and gratuity can be withheld only if pecuniary loss is
caused to the Government.
5. It is contended that in the present case, there is no loss
caused to the Government. The petitioner has put in 31 years of
unblemished service and there was no charge-sheet ever issued to
him.
6. It is contended that the petitioner was not charge-sheeted,
however, he was subsequently added as an accused and convicted
& his conviction and sentence has been suspended and the
petitioner is facing hardship as he has not been paid gratuity
amount and full pension.
7. It is also argued that as per Explanation (b) of Rule 8(5) of
Rules of 1972, the expression 'grave misconduct' includes the
communication or disclosure of any secret official code or
password or any sketch, plan, model, article, note, document or
information, such as is mentioned in Section 5 of the Official
Secrets Act, 1923 so as to prejudicially affect the interests of the
general public or the security of the State.
8. Learned counsel for the petitioner has placed reliance on the
judgment passed by the Division Bench of this Court in the case of
H.R. Choudhary Vs. Central Administrative Tribunal, Jaipur Bench,
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Jaipur & Ors; D.B. Civil Writ Petition No.12437/2012 decided
on 27th January, 2017 as well as on the judgment passed by
learned Single Judge of this Court in the case of Mahesh Chandra
Soni Vs. The State of Rajasthan & Ors.; S.B. Civil Writ Petition
No.14891/2023, decided on 06th March, 2024.
9. Learned counsel for the petitioner contends that 'misconduct'
and 'grave misconduct' are not defined in the Rules of 1972 and
therefore, the definition referred in the explanation, as provided in
Rule 8(5) of the Rules of 1972 has to be taken note of in deciding
as to whether the President can withhold the gratuity on account
of grave misconduct.
10. Learned counsel for the respondents has opposed the
petition. It is contended that learned Tribunal has properly dealt
with the arguments of the petitioner and has come to the
conclusion that conviction for offence under Section 304B IPC is a
grave misconduct and the President has a right to withhold the
gratuity under Rule 9 of the Rules of 1972.
11. It is also contended that as per Rule 69(1)(C) of the Rules of
1972, no gratuity is payable to the government servant until the
conclusion of the departmental or judicial proceedings and issue of
final orders thereon. It is further contended that even if the
conviction order has been stayed by the High Court, the judicial
proceedings challenging the conviction and sentence, are still
pending before the High Court and therefore, the gratuity can be
withheld by the Government.
12. Learned counsel for the respondent has placed reliance on
the judgment passed by the Apex Court in the case of Manish
Goel Vs. Rohini Goel; AIR 2010 SC 1099. It is contended that
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demand of dowry has been included as a misconduct under Rule
13-A of Central Civil Services (Conduct) Rules, 1964 (for short
"the Conduct Rules") and dowry death is an offence where the
deceased is subjected to cruelty and demand of dowry and thus is
a graver offence than demand of dowry and since grave
misconduct is not defined, causing dowry death will tantamount to
the grave misconduct.
13. It is further contended that in the cases of misconduct even
on the basis of conviction, a person can be terminated. Though in
the present case, there is no termination but withholding pension,
the conviction under Section 304B IPC has to be treated as grave
misconduct authorising the President to withhold pension under
Rule 9 of the Rules of 1972.
14. We have considered the contentions of learned counsel for
the parties and carefully perused the order passed by learned
Tribunal.
15. It is an undisputed fact that the petitioner has been
convicted and sentenced for life imprisonment with fine for an
offence under Section 304B IPC. The conviction and sentence of
the petitioner has been stayed by this Court but the appeal
against conviction and sentence is still pending before this Court.
16. The contention of learned counsel for the petitioner that as
per Sub-section (6)(a) of Section 4 of the Act of 1972, the gratuity
of an employee can only be forfeited if his services have been
terminated and can also be partially forfeited for the reasons
assigned in Sub-section (6)(a) of Section 4 of the Act of 1972.
17. The contention that the Act of 1972 does not provide for
withholding of gratuity cannot be accepted for the very reason
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that right of President to withhold or withdraw the gratuity is
independent of Act of 1972 and authorises the President to
withhold the gratuity or pension in case an employee is found
guilty of grave misconduct in any departmental or judicial
proceedings. The Act of 1972 is silent on withholding of gratuity
and therefore, the Rules of 1972, which authorises the President
to withhold the gratuity will have to be given effect
notwithstanding the Act of 1972.
18. The contention of learned counsel for the petitioner that
gratuity or pension can be withheld only if pecuniary loss is caused
to the Government cannot be accepted for the very reason that
Rule 9 of the Rules of 1972 provides for recovery of pension or
gratuity of whole or part for any pecuniary loss, caused to the
Government. This would apply only if the pension or gratuity is
paid and pecuniary loss is caused to the Government. In that
case, the President can also recover the gratuity to the extent of
pecuniary loss, caused to the Government.
19. Rule 69(1)(c) of Rules of 1972 provides that no gratuity shall
be paid to the government servant until conclusion of the
departmental or judicial proceedings and issue of final orders
thereon. The judicial proceedings have not yet been concluded as
the conviction and sentence of the petitioner has been stayed but
the appeal against the conviction and sentence of life
imprisonment for an offence under Section 304B IPC is pending
adjudication before the High Court. Thus, the judicial proceedings
are pending and final order thereof has not yet been passed by
the High Court. Rule 69(1)(c) of the Rules of 1972 authorises the
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Government to withhold the gratuity till conclusion of
departmental or judicial proceedings.
20. The judgment referred to by learned counsel for the
petitioner in the case of H.R. Choudhary (supra) did not refer to
Rule 69(1)(c) of the Rules of 1972 and further that was a case of
an offence under Section 306 IPC i.e. abetment of suicide whereas
the present is the case under Section 304B IPC i.e. dowry death.
21. In the case of Mahesh Chandra Soni (supra), learned Single
Judge of this Court has held that judicial proceedings as referred
to in Rule 90 of Pension Rules, 1996 is in regard to the
proceedings of an act of an employee pertaining to the official
duties or in his office. However, the word 'judicial proceedings'
cannot be treated for the proceedings related to the 'family
disputes', which has nothing to do with the official duties or
functioning of the employee in his office. In the facts of that case,
the respondent - State themselves, on a misconduct report after
inquiry, have decided not to initiate disciplinary proceedings
against the petitioner.
22. Be that as it may, the facts of that case are not at par with
the present case, as in the present case, the petitioner has been
held guilty for an offence under Section 304B IPC. As demand of
dowry has been included as misconduct under the Conduct Rules
and as per Rule 9 of the Rules of 1972, the President has the
power to withhold the gratuity, if a person has been held guilty in
judicial proceedings, wherein an employee has been found guilty
of grave misconduct. The Tribunal has rightly dealt with the
arguments put forth by learned counsel for the petitioner.
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23. In view of the above, we do not find any illegality in the
impugned order so as to exercise the writ jurisdiction. The
Department has rightly withheld gratuity, as the petitioner has
been found guilty of committing dowry death.
24. Accordingly, the present writ petition is dismissed.
(PRAVEER BHATNAGAR),J (PANKAJ BHANDARI),J
Preeti Asopa /11
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