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2011 DIGILAW 769 (JHR)

Ramesh Chandra Prasad v. Union of India

2011-08-08

R.R.PRASAD

body2011
JUDGMENT The petitioner, who was initially appointed on the post of LOC at Dhanbad Headquarter got retired on 31.7.2009 as UOC from the Regional Office of the Coal Mines Provident Fund Commissioner, Asansol on his superannuation. Before six months of his retirement, memo of charges was served upon him whereby he was charged to have been found alongwith office bearers of unrecognized union raising slogans and insinuating other staffs against the Commissioner and Administration of CMPFO, Dhanbad and thus, he was alleged to have violated Rule 3(1)(i), (ii), (iii), Rule 3-C(23)(3), Rules 6 and 7 of the CCS (Conduct) Rules, 1964. The petitioner by placing his case denied all the charges. On such denial, charges were framed and therefore, enquiry committee was constituted to hold an enquiry on the charges. While the disciplinary enquiry was pending, the petitioner got retired on 31.7.2009. 2. According to the case of the CMPF, the Commissioner, CMPF Headquarter, Dhanbad on the retirement of the petitioner sought permission of the President of India under Rule 9(2)(a) of the CCS (Pension) Rules, 1972 to continue disciplinary proceeding against the petitioner, who had retired from service. Upon which, permission was accorded by the Central Government which was communicated by the Ministry of Coal, Government of India, to the Commissioner, CMPF, Dhanbad on 21.10.2009. Since then the proceeding is ending. 3. It is the case of the petitioner that after retirement, the petitioner applied for payment of all retiral dues, upon which pension was paid but the amount payable towards gratuity, leave encashment was not paid nor the petitioner was allowed to have commutation of pension and, therefore, the petitioner has filed this writ application for a direction to the authority to pay the retiral dues as aforesaid. 4. It was submitted on behalf of the petitioner that the petitioner retired during the pendency of departmental proceeding but immediately thereafter, no order was passed for continuation of the proceeding and hence, any continuation of the proceeding is bad in law. 5. Other argument advanced is that admittedly the proceeding is pending. Therefore, during the pendency, the authority does not have power to withhold gratuity and leave encashment, in view of the provision as contained in Rule 9 of the Central Civil Services (Pension) Rules, 1972 which provision is akin to Rule 43(b) of the Bihar Pension Rules. When the question fell for consideration in a case of Dr. Therefore, during the pendency, the authority does not have power to withhold gratuity and leave encashment, in view of the provision as contained in Rule 9 of the Central Civil Services (Pension) Rules, 1972 which provision is akin to Rule 43(b) of the Bihar Pension Rules. When the question fell for consideration in a case of Dr. Dudh Nath Pandey vs. State of Jharkhand and Others [2007 (4) JCR 1 (Jhr.)(FB)), as to whether the authority does have any power under the Bihar Pension Rules to withhold pension and gratuity during the pendency of judicial or departmental proceeding? The Court having taken into consideration several decisions and also Rule 9 of the Central Civil Service (Pension) Rules, 1972 did hold that the State Government does not have any power to withhold pension and gratuity during the pendency of judicial or departmental proceeding. At the same time, it was also held that in any event, the authority does not have power to withhold the amount payable towards leave encashment. 6. Mr. Ratnesh Kumar, learned counsel appearing for the CMPF submits that the provision as contained in Rule 9 of the Central Civil Services (Pension) Rules, 1972 cannot be said to be in pari materia to the provision as contained in Rule 43(b) of the Bihar Pension Rules as Rule 9 does envisage continuation of the proceeding even after retirement of an employee whereas in Rule 43(b) of the Bihar Pension Rules, there is no such provision of continuation of the proceeding after retirement of an employee and that under the Bihar Pension Rules, no provision is there of withholding the amount of the gratuity during the pendency of departmental or judicial proceeding whereas under the provision of Rule 69 of the Central Civil Services (Pension) Rules, 1972, the amount payable towards gratuity can be withheld during the pendency of those proceeding. 7. Similarly, under Rule 4 of the Central Civil Services (Commutation of Pension) Rules, 1981, one would not be entitled to have commutation of pension during the pendency of departmental or judicial proceeding. 8. 7. Similarly, under Rule 4 of the Central Civil Services (Commutation of Pension) Rules, 1981, one would not be entitled to have commutation of pension during the pendency of departmental or judicial proceeding. 8. Likewise, sub-rule (3) of Rule 39 of the Central Civil Services (Leave) Rules, 1972, does stipulates that the Government servant against whom a disciplinary or criminal proceeding was initiated in terms of Rule 9 of the Rules, 1972 before his retirement and continued even after his retirement would not be entitled to have the amount payable towards leave encashment. 9. By referring to those provisions it was submitted that the petitioner is not entitled to any relief claimed in this writ application on the basis of decision rendered in a case of Dr. Dudh Nath Pandey vs. State of Jharkhand and Others (supra) as under the Bihar Pension Rules there has been no provision of withholding of gratuity and leave encashment during the pendency of judicial or criminal proceeding whereas in case of employees of the CMPF, who are subjected to Central Civil Services (Conduct) Rules, 1964 and are governed by the aforesaid pension rules are not entitled to have the amount payable towards gratuity and leave encashment during the pendency of judicial or criminal proceeding. 10. 10. In the context of the aforesaid submissions, relevant provisions of different rules, as referred to above, need to be taken notice of Rules 9 of the Central Civil Services (Pension) Rule, 1972 which speaks about the right of President to withhold or withdraw pension reads 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 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 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) ............. (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 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. 11. Rule 2(a) does postulate in categorical term that the proceeding instituted against Government servant would be deemed to have been continued even after retirement of an employee but the condition which has been put in is that if the departmental proceeding has been initiated by an authority subordinate to the President, that authority simply requires to submit a report of the finding arrived at during the proceeding to the President. 12. Thus, according to me, no separate order requires to be made for continuation of the proceeding after retirement of an employee. 13. However, as per the case of the respondent, permission was sought after retirement of the petitioner for continuation of the proceeding which has been granted and under this situation, submission made on behalf of the petitioner that the continuation of the proceeding is quite illegal is devoid of any merit. 14. 13. However, as per the case of the respondent, permission was sought after retirement of the petitioner for continuation of the proceeding which has been granted and under this situation, submission made on behalf of the petitioner that the continuation of the proceeding is quite illegal is devoid of any merit. 14. Coming to other submission relating to withholding of gratuity and leave encashment, it be recorded that in a case of Dr. Dudh Nath Pandey vs. State of Jharkhand and Others (supra) this Court after taking notice of Rule 43(b) of the Bihar Pension Rules did hold that the State Government does not have any authority to withhold the amount of pension and gratuity during the pendency of judicial or departmental proceeding but the ratio laid down by this Court would not be applicable in case of employees of the Central Government, who are subjected to Central Civil Services (Conduct) Rules, 1964 as well as Central Civil Services (Pension) Rules, 1972 and Central Civil Services (Commutation of Pension) Rules, 1981 as there has been specific provision for withholding of the amount of gratuity under Rule 69 of the Central Civil Services (Pension) Rules, 1972 which reads as follows:- "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 authorize 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 up to the date immediately preceding the date on which he was placed under suspension. (b) The provisional pension shall be authorized 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. (b) The provisional pension shall be authorized 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 order 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), (ii) and (iv) of Rule 11 of the said Rules, the payment of gratuity shall be authorized to be paid to the Government servant. (2) Payment of provisional pension by made under sub-rule (2) 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." 15. On perusal of the said provision, I do find that Rule 69(c) puts a restriction upon payment of the gratuity during the pendency of departmental or judicial proceeding but that restriction under proviso to Rule 69(c) is limited to the employee facing departmental proceeding under other rule than Rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. In other words, if the employees are facing charges punishable under Rule 11 of the aforesaid Rules then that restriction put in clause (c) would not be applicable. 16. In the instant case, as per the case of the CMPF, charges which have been levelled against the petitioner would be punishable under Section 16 of the aforesaid Rules and therefore, the petitioner would not be entitled to have the amount payable towards gratuity until conclusion of the departmental proceeding. 17. Likewise, the petitioner would not be entitled to have commutation of pension under Rule 4 of the Central Civil Services (Commutation of Pension) Rules, 1981. 17. Likewise, the petitioner would not be entitled to have commutation of pension under Rule 4 of the Central Civil Services (Commutation of Pension) Rules, 1981. The said Rule reads as follows:- "Restriction on commutation of pension.-No Government servant against whom departmental or judicial proceedings as referred to in Rule 9 of the Pension Rules, have been instituted before the date of his retirement, or the pensioner against whom such proceedings are instituted after the date of his retirement, shall be eligible to commute a fraction of his provisional pension authorized under Rule 69 of the Pension Rules or the pension, as the case may be, during the pendency of such proceedings." 18. Coming to other point relating to claim of the amount payable towards leave encashment, it be recorded that the matter relating to leave encashment is governed by rule known as Central Civil Services (Leave) Rules, 1972. The relevant provision would be Rule 39 (3) of the said Rules which reads as follows:- "The authority competent, to grant leave may withhold whole or part of cash equivalent of earned leave in the case of a Government servant who retires from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion of the proceedings, he will become eligible to the amount so withhold after adjustment of Government dues, if any." 19. On perusal of this rule, it does appear that the authority does have power to withhold the amount payable towards earned leave if a proceeding either disciplinary or criminal is pending against a person who got retired but that would be limited to a case where one faces charges for which an order may possibly be made for recovery of the amount but here in the instant case, the petitioner has been put to a departmental proceeding on the allegation of insinuating employees of the CMPF to participate in gharao and strike which can never be resulted into a punishment of recovery of any amount, even if the petitioner is found guilty in the department proceeding. Therefore, the petitioner is entitled to have the amount payable towards leave encashment 20. Thus, this application is allowed but in part.