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Allahabad High Court · body

2001 DIGILAW 462 (ALL)

M. D. GAUTAM v. UNION OF INDIA

2001-05-10

S.R.SINGH

body2001
S. R. SINGH, J. ( 1 ) PETITIONER, a Senior Auditor who retired from service in January, 1998 from L. A. O. (AF), agra, had been suspended from service vide order dated 21. 1. 1994 with retrospective effect, i. e. . 9. 11. 1993 (Anncxure-1 to the petition ). By means of the order dated 7. 11. 1994. the petitioner was resituated in service, his suspension order having been revoked with immediate effect in exercise of powers conferred by clause (c) of sub-rule (v) of Rule 10 of the Central Civil services (Classification. Control and Appeal) Rules. 1965. The causative factor of his suspension, as would transpire from the record, was his detention in public custody for a period exceeding 48 hours in a criminal case under Sections 323 and 506. I. P. C. The essence of his grievance is that he Is being paid provisional pension only stemming from the reason that a criminal case under Sections 323 and 506, I. P. C. has been lingering trial in the Court of additional Chief Judicial Magistrate, Agra. ( 2 ) THE Instant petition has been filed for the relief of a writ of mandamus for direction to the respondents 2, 3 and 4 to pay gratuity, regular pension, and other retiral benefits studded with 16% interest to the petitioner and also to pay him the increments due with effect from 1993 till the date of retirement. The stand taken in the counter-affidavit is that the petitioners request for grant of regular pension, gratuity and other retirement benefits cannot be taken Into reckoning till finalisation of criminal proceedings pending in Criminal Case No. 4140 of 1995 (Case Crime no. 718 of 1993) pending against him in the district courts at Agra. The respondents have taken aid of the provisions contained in Rule 69 of the Central Civil Services (Pension) Rules, 1972 and Rule 4 of Central Civil Services (Commutation of Pension) Rules, 1981. As regards leave encashment, C. G. E. I. S. and final settlement of G. P. F. of the petitioner, it has been averred in the counter-affidavit that the petitioner has already been paid by the C. D. A. (AF) Dehradun No. AN/1v/3500/ Agra/gen. Corr. , dated 25. 9. 2000. As regards leave encashment, C. G. E. I. S. and final settlement of G. P. F. of the petitioner, it has been averred in the counter-affidavit that the petitioner has already been paid by the C. D. A. (AF) Dehradun No. AN/1v/3500/ Agra/gen. Corr. , dated 25. 9. 2000. In respect of medical claims, it has been averred that the same has already been rejected in terms of the C. D. A. (AF) Dehradun "important Circular No. AN-III/3048/e/west/li, dated 23. 11. 1994 and AN-III/0770/xxvii1, dated 7. 1. 1998 for want of submission of wrappers and empty containers for verification and non-compliance of orders by the petitioner. ( 3 ) I have heard Sri Vijay Gautam for the petitioner and Sri Shesh Mani Mishra for the respondents. The disputation bears on construction of provisions embodied in Rules 9 and 69 of central Civil Services (Pension) Rules, 1974. Rule 9 of the Central Civil Services (Pension)Rules, 1974 in so far as it is germane to the disputation is excerpted below. "9. Right of President to withhold on withdraw pension.-- (1) The President reserves to himself the right of withholding of pension or gratuity or both, either in full or in part, or withdrawing 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 any pecuniary loss caused to the Government, if. in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct on negligence during the period of service Including service rendered upon re-employment after retirements. (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. (6) (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 lakes cognisance, is made, and (ii) in the case of civil proceedings, on the date the plaint is presented in the Court. ( 4 ) RULE 69 which provides for payment of provisional pension while departmental and judicial proceedings may be pending, is also quoted below : "69. ( 4 ) RULE 69 which provides for payment of provisional pension while departmental and judicial proceedings may be pending, is also quoted below : "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 Rule 9. the Accounts Officer shall authorise 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 upto the date Immediately preceding the date on which he was placed under suspension. (b) The provisional pension shall be authorised 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 Appeal ). Rules. 1965, for imposing any of the penalties specified in clauses (i ). Hi) and (iv) of Rule 11 of the said rules, the payment of gratuity shall be authorised 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 no recovery shall be made where the pension finally sanctioned is less than the provisional pension on the pension is reduced or withheld either permanently or for a specified period. " ( 5 ) IT would thus be luminous that if the case of the petitioner is covered by sub-rule (4) of Rule 9. the respondent cannot be faulted in authorising only provisional pension to the petitioner and withholding the gratuity till the conclusion of the departmental or judicial proceedings and the issue of final orders thereon. Therefore, the question that begs consideration is whether the case of the petitioner is covered by sub-rule (4) of Rule 9. the respondent cannot be faulted in authorising only provisional pension to the petitioner and withholding the gratuity till the conclusion of the departmental or judicial proceedings and the issue of final orders thereon. Therefore, the question that begs consideration is whether the case of the petitioner is covered by sub-rule (4) of Rule 9. It bears no repudiation that under sub-rule (1), the President is invested with the powers of withholding the 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 any 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 the service rendered upon re-employment after retirement. Sub-rule (4) envisages that 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. The President has the power to withhold a pension or gratuity or both either in full or in part permanently or for a specified period, and of ordering recovery from pension or gratuity or any part of any pecuniary loss caused to the Government if the petitioner is found guilty of grave misconduct or negligence during the period of service. If the full pension is paid and gratuity released, the effectuation of power of the President under Rule 9 (1) may become difficult. ( 6 ) ADMITTEDLY, departmental proceedings are not pending against the petitioner and his suspension had already been revoked before his retirement but judicial proceedings, i. e. , a criminal case is still pending against the petitioner. It would be evident from clause (b) of sub-rule [6) of Rule 9 that judicial proceedings would be deemed to be Instituted in a case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognisance is made. The Magistrate in the case has already taken cognisance in Criminal Case No. 4148 of 1993 arising out of case Crime No. 718 of 1993 under section 323/506. The Magistrate in the case has already taken cognisance in Criminal Case No. 4148 of 1993 arising out of case Crime No. 718 of 1993 under section 323/506. I. P. C. In such view of the matter, the question that begs consideration is as to whether pendency of any judicial proceedings will attract Rule 69 of the Rules or only such judicial proceedings will bring the case within the purview of Rule 9 (4) read with Rule 69 of the rules as may have arisen out of grave misconduct or negligence during the period of service. In my opinion, every judicial proceedings irrespective of the gravity of the related misconduct or negligence, will not attract Rules 9 and 69 of the Rules. Only such judicial proceedings as may be related to grave misconduct or negligence will attract the rules aibrestated. The concerned authority has to address itself to this aspect of the matter before ordering provisional pension and withholding gratuity under the rules aforestated. A decision to pay provisional pension and withhold gratuity sans any application of mind to the gravity of the misconduct or negligence which is the subject-matter of judicial proceedings will be vitiated by error of law and liable to be quashed in certiorari. The authorities in the instant case do not appear to have addressed themselves as to whether the petitioners conduct giving rise to the case under Sections 323 and 506, I. P. C. was such as may be termed as grave misconduct or negligence in service that may justify an action under sub-rule (1) of Rule 9 of the Rules. The authorities were not justified in sanctioning/making provisional pension and withholding of gratuity under sub-rule (4) of Rule 9 read with Rule 69 of the C. C. S. (Pension) Rules, 1982 without proper application of mind to relevant factors. Therefore. 1 feel called to issue directions to the respondents to reconsider the matter in the light of the observation made in this Judgment. ( 7 ) IN the result, the petition is disposed of finally with the direction that in case the petitioner files a representation, the concerned authority shall reconsider the matter and take appropriate decision in accordance with law and in the light of the observations made in the body of the judgment. .