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2010 DIGILAW 177 (GAU)

Krishnadhan Biswas v. State of Tripura and Ors.

2010-03-05

T.NANDA KUMAR SINGH

body2010
1. By this writ petition, the petitioner, who had retired from service of the State of Tripura, Animal Resources Development Department as an officer of Grade-IV of Tripura Veterinary Service on 30.4.2009, is praying for a direction to the respondents not to withhold the retiral benefits of the petitioner including death-cum-retirement gratuity, pension, leave encashment, commutation, etc. 2. Heard Mr. B. Das, learned senior counsel assisted by Mr. D. Chakraborty, learned counsel appearing for the petitioner as well as Mr. T.D. Majumder, learned Additional Government Advocate appearing for the respondents. 3. For deciding the matter in issue in the present writ petition it may be profitable to see the rules 9 and 74 of the Central Civil Services (Pension Rules), 1972 as adopted in the State of Tripura. For easy reference, the relevant portion of rules 9 and 74 are reproduced hereunder : "9. Right of governor to withhold or withdraw pension. - (1) The Governor reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from a pension 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 his service, including service rendered upon re-employment after retirement: Provided that the Tripura 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shall be consulted before any final orders are passed : Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced before the limit specified in sub-rule (5) of rule 49. (2)(a) The departmental proceedings referred to in sub-rule (1), if instituted while 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 proceeding 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 Governor, that authority shall submit a report recording its findings to the Governor. (b) The departmental proceedings, if 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 Governor, (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 Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. (3) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose, or in respect of an event which took place, more than four years before such institution. (4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom departmental proceedings are continued under sub-rule (2), a provisional pension as provided in rule 65 or rule 74, as the case may be, shall be sanctioned." "74. Provisional pension where departmental or judicial proceeding may be pending. - (1) (a) In respect of a Government servant referred to in sub-rule (4) of rule 9, the Head of Office shall pay the provisional pension not exceeding the maximum pension which would have been admissible on the basis of qualifying service after the date of retirement of the Government servant, or if he was under suspension on the date of retirement up to the date immediately proceeding the date on which he was placed under suspension. (b) The provisional pension shall be paid by the Head of Office for a period of six months unless the period is extended by the Audit Office under the proviso to sub-rule (1) of rule 73. (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. (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. (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 or the pension is reduced or withheld either permanently or for a specified period. (3) Nothing contained in this rule shall prejudice the operation of rule 6 when final pension is sanctioned upon the conclusion of the departmental or judicial proceedings. 74A. Government servants on deputation. - In the case of a Government servant who retires from service, while on deputation to the Central Government or to other State Government or while or foreign service, action to sanction pension and gratuity in accordance with the provisions of this Chapter shall be taken by the Audit Officer or the Head of Office, as the case may be, of the cadre authority which sanctioned the deputation of the Government or to foreign service." 4. The petitioner was an employee of the State of Tripura, Animal Resources Development Department ('ARDD') as Veterinary Assistant Surgeon (an officer of Grade-IV of the Tripura Veterinary Service) and retired from service on superannuation in the afternoon of 30.4.2009. While the petitioner was in service, a disciplinary proceeding as well as a criminal case being No. 200 of 1996 were initiated against him. In a writ petition, i.e., W.P.(C) No. 326 of 1999, filed by the present petitioner, this court passed an interim order dated 22.7.1999 for staying the continuation of the disciplinary proceeding till the disposal of the said criminal case. Pursuant to the said interim order of this court dated 22.7.1999 passed in W.P.(C) No. 326 of 1999, the Government of Tripura passed an order being No. F. 11(24)-GA(AR)/95/P-II/691-693, dated, Agartala, the 26th March, 2002 that the disciplinary proceeding pending against the present petitioner shall be closed without any prejudice to further disciplinary liabilities against the writ petitioner, depending on the outcome of the above criminal case. Admittedly, the said criminal case against the petitioner is still continuing and not yet concluded. The State respondents had withheld the retiral benefits of the petitioner, viz., gratuity, leave salaries etc. Admittedly, the said criminal case against the petitioner is still continuing and not yet concluded. The State respondents had withheld the retiral benefits of the petitioner, viz., gratuity, leave salaries etc. and provisional pension had been sanctioned as per provisions of rule 9 and rule 74 of the Central Civil Services (Pension Rules), 1972 as adopted in the State of Tripura. The only grievance in the present writ petition is that the respondents had illegally withheld the retiral benefits of the petitioner only because of the pendency of the judicial proceeding, i.e., the said criminal case against the petitioner. Hence, the present writ petition. 5. The respondents had filed the affidavit-in-opposition, wherein the respondents categorically stated that the retiral benefits of the petitioner had been withheld under the relevant provisions of the Central Civil Services (Pension Rules), 1972 as adopted in the State of Tripura. The State respondents had also issued letter of authority being Memo No. Pen-2/Provl. Pension-13/PR No. 136/2009-10/1588-90 dated 11.11.2009 for granting provisional pension @ Rs. 15,330 only per month plus Dearness Relief and Medical Allowance in favour of the present petitioner for the period from 1.11.2009 to 30.4.2010. 6. Public employee holding a civil post or office under the State has a legitimate right to earn his pension at the evening of his life after retirement, be it on superannuation or voluntary retirement. It is not a bounty of the State. Equally too of gratuity, a statutory right, earned by him. In D.S. Nakara v. Union of India, (1983) 2 SCR 165 , the Constitution Bench of the Apex Court held that pension is not only compensation for loyal service rendered in the past, but also by the broader significance in that it is a social welfare measure rendering socio-economic justice by providing economic security in the fall of life when physical and mental prowess is ebbing corresponding to ageing process and, therefore, one is required to fall back on savings and one such saving in kind is when one had given his best in the hey-day of life to his employer, in days of invalidity, economic security by way of periodical payment is assured. 7. 7. In the present case it is an admitted fact that the said criminal case against the petitioner is still pending, but the disciplinary proceeding against the petitioner was closed without any prejudice to further disciplinary liabilities against the petitioner, depending on the outcome of the criminal case vide order of the State Government dated 26.3.2002. As such the disciplinary proceeding against the petitioner cannot be said to have been closed finally; it may be opened depending on the outcome of the pending criminal case against the petitioner. The said order dated 26.3.2002 reads as follows : '"GOVERNMENT OF TRIPURA GENERAL ADMINISTRATION (AR) DEPARTMENT Dated, Agartala, the 26th March, 2002. ORDER Whereas a disciplinary proceeding was drawn up against Sri K.D. Biswas, Assistant Director under ARDD vide No. F. 11(24)-ARD/95/114-16 dated 21.1.1999 for mis-appropriation of Government money; And whereas the said Sri Biswas submitted a defence statement denying charges brought against; And whereas an enquiry was to be conducted by Sri B.K. Sahu, IAS, Government of Tripura vide order No. F. 11(24)-GA(ASR)/95/P-II/1945-50 dated 24.9.1999. And whereas during the course of inquiry, Inquiry Officer was advised to stay the proceedings in view of the stay order dated 22.7.1999 passed by hon'ble High Court, Agartala Branch in W.P. case No. 326 of 1999 and pendency of a criminal investigation taken up by C.I.D into the similar nature of allegations/charges vide criminal case No. 200/96 lodged in East Agartala PS. under section 406/468/471 of IPC and section 13 of IPCAct. And whereas from the Information received from C.I.D., the criminal investigation is nearing completion. Now, therefore, considering all aspects, the Governor is pleased to close the aforesaid disciplinary proceeding against Sri Biswas without any prejudice to further disciplinary liabilities against the said Sri K.D. Biswas, depending on the outcome of the above criminal case. By order and in the name of Governor, Sd/- 20.3.2002. Under Secretary to the Government of Tripura." 8. Mr. B. Das, learned senior counsel appearing for the petitioner by placing heavy reliance on the decision of the Apex Court in D. V. Kapoor v. Union of India and Ors., AIR 1990 SC 1923 strenuously contended that the Governor of Assam or the State Government has no power and jurisdiction to withhold the retirement benefits, i.e., death-cum-retirement gratuity, pension, leave encashment, commutation, etc. He further contended that rule 9 of the Pension Rules does not confer the power on the State Government or the Governor of Tripura to withhold the retirement benefits of the petitioner. 9. On perusal of sub-rule (1) of rule 9 of the Pension Rules, which has been quoted above, it is clear that the Governor reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government as a measure of punishment, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement. It appears that the power for withholding the pension and part thereof, whether permanently or for a specified period as a measure of punishment, is subject to the findings in the departmental enquiry that the retired Government employee or pensioner is guilty of grave misconduct or negligence during the period of his service. In other words, in the absence of clear cut finding in the departmental or judicial proceeding that the petitioner is found guilty of grave misconduct or negligence during the period of his service, the Governor cannot exercise the power to withhold or withdrawing the pension or part thereof whether permanently or for a specified period as a measure of punishment. The Apex Court in D.V. Kapoor case (supra) held that the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry of judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding 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, subject to minimum of Rs. 60. Paras 6, 7 and 8 of the AIR in D.V. Kapoor case (supra) read as follows : "6. 60. Paras 6, 7 and 8 of the AIR in D.V. Kapoor case (supra) read as follows : "6. As seen the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding 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, subject to minimum of Rs. 60. 7. Rule 9 of the rules empowers the President only to withhold or withdraw pension permanently or for a specified period in whole or in part or to order recovery of pecuniary loss caused to the State in whole or in part subject to minimum. The employee's right to pension is a statutory right. The measure of deprivation, therefore, must be correlative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to assistance at the evening of his life as assured under article 41 of the Constitution. The impugned order discloses that the President withheld on permanent basis the payment of gratuity in addition to pension. The right to gratuity is also a statutory right. The appellant was not charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment. No provision of law has been brought to our notice under which, the President is empowered to withhold gratuity as well, after his retirement as a measure of punishment. Therefore, the order to withhold the gratuity as a measure of penalty is obviously illegal and is devoid of jurisdiction. 8. In view of the above facts and law that there is no finding that appellant did commit grave misconduct as charged for, the exercise of the power is clearly illegal and in excess of jurisdiction as the condition precedent, grave misconduct was not proved. Accordingly, the appeal is allowed and the impugned order dated 24th November, 1981 is quashed but in the circumstances parties are directed to bear their own costs." 10. Accordingly, the appeal is allowed and the impugned order dated 24th November, 1981 is quashed but in the circumstances parties are directed to bear their own costs." 10. In D. V. Kapoor case (supra) there was no finding in the disciplinary proceeding that the petitioner, D.V. Kapoor, committed a grave misconduct or negligence in discharging his duty while in office, the subject of the charge. In the given case of D.V. Kapoor case (supra), the Apex Court held that in the absence of the finding of the departmental proceeding that D.V. Kapoor had committed a grave misconduct or negligence in the discharge of his duty, the President cannot impose penalty of withholding pension as a measure of punishment either in whole or part permanently or for a specified period. The fact of the present case is diametrically different from that of the D.V. Kapoor case (supra) inasmuch as the said criminal case against the present petitioner is still pending and also the disciplinary proceeding cannot be said to have been closed finally and; the State Government, in the present case, under rule 9(4) of the Pension Rules had sanctioned the provisional pension and the concerned authority of the State Government under rule 74(1)(e) of the Central Civil Services (Pension) Rules, 1972 (as adopted in the State of Tripura) withheld the gratuity, etc., until the conclusion of the said criminal case and issue of final orders thereon. 11. However, this court is constrained to observe that the respondents shall take all steps for finalization of the said criminal case pending against the petitioner expeditiously inasmuch as long pendency of the criminal case against the petitioner shall violate the rights of the petitioner guaranteed under the Constitution of India for speedy disposal of the pending criminal case against him. 12. For the foregoing reasons, this writ petition is disposed of with the direction that the respondents shall continue to pay the provisional pension pending disposal of the said criminal case against the petitioner and the respondents shall take all possible steps to finalize the said criminal case as expeditiously as possible and also the petitioner shall co-operate the authority in speedy disposal of the said criminal case against him. 13. The writ petition is disposed of. No costs.