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2010 DIGILAW 1800 (RAJ)

Kishan Lal Nimesh v. Union of India

2010-10-27

ARUN MISHRA, SATYA PRAKASH PATHAK

body2010
JUDGMENT 1. Admit. With the consent of the parties, the matter is heard finally. 2. The instant writ petition has been filed against dismissal order dated 29.7.2010 passed by the Central Administrative Tribunal. 3. The petitioner Kishan Lai has retired from the post of Senior Audit Officer on 31.12.2008 He has been granted provisional pension and his gratuity has been withheld by the respondent-employer due to pendency of the criminal case filed by the daughter-in-law under Section 498-A IPC at Police Station, Gandhinagar. The police has filed charge sheet. The said criminal case has been registered as Case No. 219/2008. The complaint was filed by father in law of the son against the petitioner which was registered as Case No. 108/2008 and was rejected by the Judicial Magistrate on 6.9.2008. In the rejection order, there is reference to the advertisement published by the applicant informing the public at large that his son is not under his control. The said fact has not been disputed. His dues were not released due the pendency of the criminal case No. 219/08. Hence, he approached the Central Administrative Tribunal for release of his gratuity and commutation of pension. Respondents relied upon Rule-9(4) of the CCS (Pension) Rules, and Rule 69 (c) of the CSS (Pension) Rules. In case any judicial proceeding is pending, provisional pension can be released which has been released to the applicant but his gratuity has been withheld till the conclusion of judicial proceeding. The amount of commutation has also been declined on the ground that judicial proceeding is pending against him.Aggrieved against the dismissal of the Original Application, the writ petition has been preferred. 4. Mr. Vinod Goyal learned counsel for the petitioner has submitted that commutation as well as amount of gratuity ought to have been released to the petitioner but he has been paid only provisional pension under Rule 69 of the said Rules. It is submitted that the petitioner is ready to furnish adequate guarantee to refund the amount, in case any refund is necessitated by the respondents, considering nature of case In which the applicant Is involved which is purely a family dispute, it would not be appropriate to withheld the amount of gratuity and commutation of pension of the applicant for such a long period. 5. 5. Shri Jain learned counsel appearing on behalf of respondents No. 1 and 2 has supported the order Impugned and has relied upon Rule 69 and contended that the judicial proceedings Is pending and under Rule 69-b, provisional pension can be paid and no gratuity can be paid under Rule 69(1)(c) till the conclusion of judicial proceeding. As per Rule 4 of Central Civil Services (Commutation of Pension) Rules, 1981, due to pendency of criminal case, commutation cannot be ordered. Counsel has also submitted that In case the amount of gratuity and commutation of pension are released there may be difficulty to recover the amount. 6. After hearing learned counsel for the parties, in our opinion, the action of respondents in not releasing the amount of commutation of pension and making payment of provisional pension in terms of Rule 69 (1) is appropriate as per Rule 4 of Central Civil Services (Commutation of Pension) Rules, 1981 during the pendency of the criminal case. Thus, we are not inclined to interfere in the aforesaid part of the order. With respect to the amount of gratuity though it can also be withheld however in the peculiar facts and circumstances of the case and considering particularly the fact that the petitioner is involved in a case pertaining to family dispute and in another criminal complaint case filed by the father in law of the son against him, finding has been recorded that applicant had communicated to public at large that he had no concern with his son who was responsible for his own acts. Whatever that may be, we deem it proper to release the gratuity amount. In case gratuity is required to be refunded in terms of the order if any required to be ultimately passed by the respondents after conclusion of the judicial proceedings. We safeguard the interest of employer in the following manner : (1) that an undertaking shall be furnished by the petitioner to refund the amount of gratuity in case any part of the gratuity Is forfeited on conclusion of criminal case, the same shall be refunded within a period of 45 days of the order if any passed by the respondents to that effect after conclusion of the pending judicial proceedings. (ii) The petitioner shall also furnish solvent security to the satisfaction of disbursing officer to take care of the amount of the gratuity. (ii) The petitioner shall also furnish solvent security to the satisfaction of disbursing officer to take care of the amount of the gratuity. The aforesaid undertaking as well as solvent security be furnished within 15 days thereafter the amount of gratuity shall be released to the applicant. 7. The writ petition is allowed in part to the aforesaid extent and the order passed by the Central Administrative Tribunal stands modified in part. In case there is any breach of undertaking that shall constitute contempt of the order passed by this court punishable in accordance with the provisions of Article 215 of the Constitution of India read with Sections 10 and 12 of the Contempt of Courts Act. No costs.Writ Petition Allowed. *******