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2008 DIGILAW 848 (MP)

MOHD ABDUL SAEED v. UNION OF INDIA

2008-07-10

DIPAK MISRA, K.S.CHAUHAN

body2008
Judgment ( 1. ) INVOKING the extraordinary jurisdiction of this Court under articles 226 and 227 of the Constitution of India the petitioner has prayed for issue of a writ of certiorari for quashment of the order dated 11. 4. 2008 passed by the Central Administrative Tribunal, Jabalpur Bench, Jabalpur in Original application No. 751/2007. ( 2. ) THE facts in a nutshell are that the petitioner invoked the jurisdiction of the tribunal under Section 19 of the Administrative Tribunal Act, 1985 stating, inter alia, that though he had been superannuated on 31. 12. 2006 the amount of gratuity has been withheld by the employer solely on the ground that a criminal case was pending against him for the offences punishable under Sections 408, 420, 120-B and 209 of the Indian Penal Code and the said withholding was done under Rule 9 (3) of the Railways Services (Pension) Rules, 1993. It was contended before the tribunal that the Ralilways could not have withheld the gratuity solely on the base that a criminal case was pending unless the petitioner, a pensioner, was found guilty of grave misconduct or negligence. It was urged that no departmental proceeding was initiated against the petitioner and he was not found guilty in any departmental or judicial proceeding and, therefore, withholding of gratuity was unjustified. On the said backdrop a prayer was made to command the respondents to release the amount of gratuity. ( 3. ) THE Railway Administration resisted the prayer of the petitioner contending, inter alia, that the gratuity has been withheld as a criminal case has been instituted against the petitioner and the controversy in the same has not yet attained finality. It was also put forth that if the petitioner is acquitted in the criminal case the gratuity would be released. ( 4. ) THE tribunal referred to Rule 10 (1) (c ) and taking note of the decision rendered in R. Veerabhadram v. Government of A. P. , (1999) 9 SCC 44 rejected the prayer of the petitioner. ( 5. ) WE have heard Mr. R. K. Jain, learned counsel for the petitioner on the question of admission. ( 6. ) MR. Jain has submitted that as the petitioner has not been found guilty either in any departmental proceeding or in the criminal case and, therefore, the employer could not have withheld the amount of gratuity. ( 5. ) WE have heard Mr. R. K. Jain, learned counsel for the petitioner on the question of admission. ( 6. ) MR. Jain has submitted that as the petitioner has not been found guilty either in any departmental proceeding or in the criminal case and, therefore, the employer could not have withheld the amount of gratuity. To bolster his submission he has placed reliance on the decision rendered in D. V. Kapoor v. Union of India, 1990 (3) SLR 5. ( 7. ) TO appreciate the submission of the learned counsel for the petitioner we have carefully perused the decision rendered in D. V. Kapoor (supra ). In the said case the Apex Court was dealing with the Rule 8 and 9 of the Civil Services pension Rules, 1972. The Apex Court referred to Rule 9 (1) of the said Rules and expressed the opinion that the power of the President is hedged with a condition precedent that a finding should be recorded either in a departmental enquiry or a judicial proceeding that a pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge and in the absence of such a finding the President is without authority of law to impose penalty of withholding of pension as a measure of punishment, either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee. It was held therein that in the absence of a finding of regarding guilty of misconduct, withholding of pension or gratuity is illegal. ( 8. ) IN the case at hand Rule 10 (1) (c) lays a postulate that no gratuity shall be paid under to the railway servant until the conclusion of the departmental or judicial proceeding and issue of final orders thereon. In R. Veerabhadram (supra)their Lordships have held as under : 7. The payment of gratuity was withheld, in the present case, since the criminal prosecution was pending against the appellant when he retired. Rule 52 (c) of the A. P. Revised Pension Rules. 1980 expressly permits the State to withhold gratuity during the pendency of any judicial proceedings against the employee. The payment of gratuity was withheld, in the present case, since the criminal prosecution was pending against the appellant when he retired. Rule 52 (c) of the A. P. Revised Pension Rules. 1980 expressly permits the State to withhold gratuity during the pendency of any judicial proceedings against the employee. In the present case, apart from Rule 52 (c), there was also an express order of the Tribunal which was binding on the appellant and the respondent under which the Tribunal had directed that death- cum retirement gratuity was not to be paid to the appellant till the judicial proceedings were concluded and final orders were passed thereon. In view of this order as well as in view of Rule 52 (c), it cannot be said that there was any illegal withholding of gratuity by the respondent in the case of the appellant. We, therefore, do not see. any reason to order payment of any interest on the amount of gratuity so withheld. " ( 9. ) IN view of the aforesaid the law laid down in R. Veerabhadram (supra) would be applicable to the case at hand as the Rule is different. Thus, we find that the view expressed by the tribunal is absolutely correct and does not warrant any interference by this Court. ( 10. ) RESULTANTLY, the writ petition is dismissed in limine. Petition dismissed.