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Jharkhand High Court · body

2008 DIGILAW 434 (JHR)

Amarendra Nath Sinha v. Indian School of Mines

2008-04-09

N.N.TIWARI

body2008
Order The petitioner was appointed as Lecturer in Indian School of Mines. Dhanbad on 12.7.1984 in the Department of Engineering and Mining. In course of service, he was given promotion to the post of Assistant Professor in the year 1995. He rendered about 19 years of service. 2. According to the petitioner, there was no further promotional avenue available in the respondent-Institute. The petitioner came to know about the vacant post of Professor in Mechanical at Birla Institute of Technology ('BIT' for short), Mesra. He requested the respondents for issuing 'no objection certificate' for applying to the post of professor in BIT, Mesra, but it was denied by the respondents by letter dated 7.11.2002. The petitioner thereafter requested the higher authority relating to issuance of 'no objection certificate', but the same was not issued by the respondents and the petitioner resigned from the post. The petitioner claimed that by that time he had completed qualifying service required for the benefits of pension, gratuity, leave encashment etc. according to the regulation of the respondents. The petitioner under the said circumstance submitted his resignation to the respondents. His resignation was finally accepted w.e.f. 23.4.2003. The petitioner then joined his new assignment at BIT, Mesra. 3. In this writ petition, the petitioner has prayed for a direction on the respondents to release his gratuity and the leave encashment, which the petitioner is entitled to get, having rendered 19 years of service in the Institute. 4. The respondents have contested the petitioner's claim. In their counter affidavit, it has been stated that since the petitioner resigned under the provision of Rule 26(1) of the Central Civil Services (Pension) Rules, 1972 [hereinafter referred to as the 'CCS (Pension) Rules]. it would entail forfeiture of past service on view thereof, he is not entitled to get gratuity. So far as the claim of leave encashment is concerned, it has been submitted that under Rule 39(6)(a)(i) of the Central Civil Services (Leave) Rules, 1972, [hereinafter referred to as 'CCS (Leave) Rules'] the same is not maintainable. His case is covered under Rule 39(6)(a)(ii) of the said rules, which provides for payment of leave encashment, in case a Government servant resigns or quits service. The claim of the petitioner for leave salary is, thus, allowed in view of the said provision under which his case is applicable and the same has already been sanctioned by order dated 19.8.2003. The claim of the petitioner for leave salary is, thus, allowed in view of the said provision under which his case is applicable and the same has already been sanctioned by order dated 19.8.2003. 5. I have heard learned counsel for the parties and considered the claim and rival contentions made by them. It is an admitted position that the respondent-Institute is governed by the CCS (Pension) Rules, 1972. Rule 4.9(1) of the said CCS (Pension) Rules, 1972 clearly goes to show that a person, on completion of ten years of service, becomes entitled to get gratuity to be calculated at the rate of half month's emoluments for every completed six monthly period of gratuity qualifying service. Obviously, therefore, the Government servant, who completes ten years of service, becomes entitled for getting gratuity under the said Rules. 6. Mr. I. Sinha, learned counsel for the respondents placed reliance on Rule' 26 of the said CCS Rules to support the respondents' stand for denial of gratuity to the petitioner, which deals with forfeiture of service on resignation. 7. A separate provision has been given in the rule for forfeiture of pension. Rule 9 of the said CCS Rules provides for withholding or withdrawing pension by the President, which runs as follows:- "Right of 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 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 service rendered upon re-employment after retirement: Provided that the Union Public Service Commission shall be consulted before any final orders are passed: Provided further that where a part of pension is withheld or withdrawn the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five per mensem. (2)(a) The departmental proceedings referred to in sub-rule (1), if instituted which 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 departmental proceedings, is 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 any 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 relation to the Government servant during his service. (3) *** (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 59] 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." 9. On plain reading of the Rules, it is evident that the Government servant, who has already rendered qualifying service, is entitled to get pensionary benefits, which include gratuity, and withholding of the same is a condition by the provisions made by the said Rule 9 of CCS Rules. Resignation after having rendered qualifying service is not mentioned under the said rule 9. No other provision has been brought to the notice for withholding of pension, particularly withholding of pension after resignation when the Government servant has already completed qualifying service. Rule 26, which deals with for feilure of service, does not include forfeiture of pension on resignation and the same, in my view, is not attracted in the instant case of the petitioner. 10. It is now well settled that the right of pension, which includes gratuity is a not bounty and the employer is duty bound to provide the said benefits to the retired employee unless the same is forfeited by an order passed in a proceeding in accordance with law after giving notice and opportunity of hearing to the concerned employee. 11. Admittedly, there was no proceeding and there is no order of the President or any other authority forfeiting the petitioner's gratuity. I, therefore, find no valid ground for withholding the petitioner's gratuity by the respondents. 12. So far as the claim of the petitioner's full leave encashment is concerned, stand has been taken on behalf of the respondents that the petitioner's case is covered by Rule 39(6)(a)(ii)of the CCS (Leave) Rules, which provides that if a Government servant resigns or quits service, may be granted leave encashment to the extent of half of such leave at his credit. It has been stated in the counter affidavit that the leave encashment in accordance with the said provision has already been sanctioned as far back as on 19.8.2003 (Annexure-C). The said fact has not been disputed by any affidavit in op- position by the petitioner or no contrary provision has been brought to show that he is entitled to get full leave encashment. 13. In view thereof, I find no arbitrariness or illegality in granting leave encashment in accordance with Rule 39(6)(a)(ii), as admittedly the petitioner had resigned from the service. 14. 13. In view thereof, I find no arbitrariness or illegality in granting leave encashment in accordance with Rule 39(6)(a)(ii), as admittedly the petitioner had resigned from the service. 14. For the reasons aforementioned, it is held that the petitioner is entitled to get the amount of gratuity and, as such, the respondents are directed to pay the same with statutory interest within a period of six weeks from the date of receipt/production of a copy of this order. If the said amount is not paid within the said period, the petitioner shall be entitled to get interest @ 10% per annum till final, payment. 15. With the aforesaid observations and directions, this writ petition stands disposed of.