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2016 DIGILAW 268 (GUJ)

UNION OF INDIA v. MANILAL AMBALAL PATEL

2016-02-04

K.J.THAKER, S.R.BRAHMBHATT

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JUDGMENT : K.J. THAKER, J. 1. By way of this petition, filed under Articles 226 and 227 of the Constitution of India, the petitioners have brought challenge the pragnability of the judgment and order dated 29.10.2013 passed by the Central Administrative Tribunal in O.A. No. 177 of 2013, wherein the Tribunal quashed Annexure-A and directed the respondents in the O.A. to pay interest, at the rate applicable to the Provident Fund deposits for the delay occurred in payment of DCRG and CVP from 01.08.2008 to till payment. 2. Facts in brief, as could be culled out from the memo and the proceedings of the O.A. deserve to be set out as under:- 2.1 The respondent, applicant before the Tribunal, retired on superannuation on 31.07.2008 as DE (VST) from the office of the Principal General Manager Telecom, Surat. According to him, on the date of retirement, the respondents therein issued Annexure A-1 order with a special noting that no vigilance case is pending/contemplated against the retiring officer. On 04.08.2008, the respondent therein issued another letter Annxure-A-2, stating that vigilance clearance in respect of the applicant therein was not received from the Vigilance Cell of BSNL and therefore, he shall be given provisional pension and that the DCRG and CVP shall be withheld till the conclusion of the vigilance/disciplinary case as per CCS (Pension) Rules, 1972. 2.2 It is stated that although the Anti-Corruption Bureau has registered the case against the present respondent, the investigating officer has found no evidence against him and accordingly the said officer submitted 'A' summary before the Principal District and Session Judge, Banaskantha, Planpur, but the District and Session Judge refused to accept the 'A' summary and thereupon the State of Gujarat approached this Court challenging the said order. 2.3 This Court vide order dated 30.03.2012 in Criminal Revision Application No.52 of 2007 allowed the same, according sanction to the investigating officer to file 'A' summary report before the trial Court. The order passed by District and Sessions Judge was set aside. As the present respondent has been fully discharged from the offences registered against him, he submitted a letter to the respondent no.2 therein, praying for release of his withheld pensionary benefits i.e. DCRG and CVP. The present respondent has again sent a request dated 04.09.2012. The order passed by District and Sessions Judge was set aside. As the present respondent has been fully discharged from the offences registered against him, he submitted a letter to the respondent no.2 therein, praying for release of his withheld pensionary benefits i.e. DCRG and CVP. The present respondent has again sent a request dated 04.09.2012. On 19.06.2012, the Assistant General Manager (Admn.) in the office of the respondent no.2, therein, sent a letter to the Assistant General Manager of BSNL informing that the present respondent has made a representation that he is free from all allegations and enclosing a copy of the note sheet signed by Circle Vigilance Officer for issuance of necessary order permitting to grant pensionary benefits to the present respondent. 2.4 The present respondent has again represented to the respondent No.2, therein, reiterating his request for payment of interest on the delayed payment of the arrears of retiral benefits. Therefore, present respondent has filed O.A. before the Tribunal, which was disposed of by quashing Annexure-A and directed the respondents in the O.A. to pay interest, at the rate applicable to the Provident Fund deposits for the delay occurred in payment of DCRG and CVP from 01.08.2008 to till payment. Being aggrieved by the same, the present petitions have preferred this petition. 3. Heard learned counsel appearing for the parties and perused the documents and order impugned. We have called upon to decide the legal pragnability of the decision of the Tribunal, whereby the tribunal considering the facts in detail has held that the applicant of the O.A. i.e. present respondent was entitled to interest on delayed payment of CVP, which according to the rules he was denied. 4. Ms. Patel, learned counsel for the petitioners has challenged the same on three counts:- (i) That CVP is not a right, which would accrue. (ii) The criminal proceeding pending against the employee. (iii) The judgment i.e. S.K. Dua Vs. State of Haryana and Another, reported in (2008) 3 SCC 44 , does not lay down any law and could not have been relied by the tribunal. 5. She has heavily relied on Rule 4 of the Central Civil Services (Commutation of Pension) Rules, 1981. (i) Ms. Patel has submitted that pensionary benefit may be a right of the employee, but commuted value of pension is not a right, which would accrue and which has to be paid. 5. She has heavily relied on Rule 4 of the Central Civil Services (Commutation of Pension) Rules, 1981. (i) Ms. Patel has submitted that pensionary benefit may be a right of the employee, but commuted value of pension is not a right, which would accrue and which has to be paid. (ii) It is submitted by Ms. Patel that the criminal proceedings, which was pending against the respondent-employee, when he had claimed the amount of gratuity and commuted value of pension and therefore, in light of rules, he was denied the same. It is submitted that the moment, when the proceedings came to an end in 2012, he was granted commuted value of pension and, therefore, there is no question of granting any interest on the same. (iii) It is submitted by her that the judgment of S.K. Dua (supra) does not lay down any law and cannot be pressed into service as a precedent, as in the said case, she has heavily relied on the factual scenario, as it emerged. 6. The learned counsel for the respondent has heavily relied on the decisions, mentioned herein-below, which clinches the issue, therefore, the submissions made by Ms. Patel are not acceptable. (i) S.K. Dua Vs. State of Haryana and Another, reported in (2008) 3 SCC 44 ; (ii) The Government of Tamil Nadu Vs. M. Deivasigamani, passed in Writ Appeal No. 886 of 2007 by the Madras High Court on 17.12.2008. (iii) Raghuvir Singh Vs. State of U.P. passed in Writ Appeal No. 65598 of 2009 by the Allahabad High Court on 25.07.2013. He contended that there was technically no pendency of any case against the respondent. His CVP was withheld, his gratuity was withheld and he has made elaborate submissions relying upon the aforesaid decisions and has submitted that the judgment of the Tribunal does not require any interference under Article 227 of the Constitution of India. He has further submitted that this is a classic case where the petitioner has done injustice for no fault of respondent. The police had already submitted that there was no case made out against him, despite that he was denied these benefits. 7. We are unable to accept the petition for elaborate reasons given herein-under. While going through the entire judgment of the tribunal its pragnability has not been crumbled by the submissions made by Ms. Patel. 8. The police had already submitted that there was no case made out against him, despite that he was denied these benefits. 7. We are unable to accept the petition for elaborate reasons given herein-under. While going through the entire judgment of the tribunal its pragnability has not been crumbled by the submissions made by Ms. Patel. 8. As far as, the provisions of Cr.P.C. are concerned, there was no criminal proceeding pending against the employee, as the police had asked for A Summary, for which learned Sessions Judge passed the following order:- “Heard, Accused is traceable. There is no question of granting “A” Summary. It is nobody's case that accused is absconding. If at all, I.O. fact that evidence is not sufficient to prosecute the accused. He may apply under Section 169 of Cr.P.C. Hence rejected as it is not tenable at law.” This order was quashed after a period of six years. This order was challenged by the State that A-Summary in the trap case was just and proper, as narrated in paragraph no.6.1 at page no.207, which read as under:- 6.1 On the basis of a complaint of demand of bribe, a trap was conducted and thereafter, when the statements were recorded, complainant as well as the panch witness gave inconsistent statements and therefore, the investigating officer tendered the said application for grant of Summary 'A' before the Special Court. Thus, it was not a case where the accused was not traceable, but, Summary 'A' was sought on the ground that there is no evidence to justify the accused being sent up to the Court for trial. This Court in Criminal Revision Application No. 52 of 2007 decided on 30.03.2012, observed in para nos. 9 to 10.1, which read as under:- 9. A reading of this section would make it amply clear that it does not contemplate making of any application or report to the Court by the investigating agency. This Court in Criminal Revision Application No. 52 of 2007 decided on 30.03.2012, observed in para nos. 9 to 10.1, which read as under:- 9. A reading of this section would make it amply clear that it does not contemplate making of any application or report to the Court by the investigating agency. On the contrary, it contemplates the situation where, upon an investigation, the investigating officer or the officer in-charge of the police station finds that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond with or without sureties, as such officer may direct, requiring the accused to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or to commit the case for trial. 9.2 Thus, the above provision does not contemplate making of any application to the Court or any report. On the contrary, a duty is cast upon the investigating officer or the officer in-charge of a police station to release the accused on bond with or without sureties requiring the accused to appear before the Court, if and when so required, if after the investigation, the officer finds that there is no evidence or reasonable ground of suspicion forwarding the accused for trial to the Magistrate. 10. In this context, paragraph 232 of the Gujarat Police Manual makes a relevant reading. It classifies the report into four categories:- (i) “A” where the complaint is true, undetected (where there is no clue whatsoever about the culprits or property) or where the accused is known but there is no evidence to justify his being sent up to the Magistrate for trial; (ii) “B” where the complaint is maliciously false; (iii) “C” where the complaint is neither true nor false, e.g., due to a mistake of facts or on account of the dispute being civil nature; (iv) “D” non-cognizable cases, where the case is for an offence and the police investigation reveals commission of only a non-cognizable offence. 10.1 These first three categories are known as 'summary' and the provision requires the investigating officer to request the Magistrate to classify the case and issue an appropriate summary of the order. 10.1 These first three categories are known as 'summary' and the provision requires the investigating officer to request the Magistrate to classify the case and issue an appropriate summary of the order. The said provision runs as under:- “232. Final reports – (1) When there is no sufficient evidence to justify the forwarding of the accused to a Magistrate the Police Station Officer or the investigating officer will release the accused person on bail, if he is in custody. (2) The Police Station Officer will then submit a final report to the Magistrate empowered to take cognizance of an offence on a Police report through the Sub-Divisional Police Officer in the following three classes of cases:- (a) Those in which it appears from the Police investigation that no offence has been committed. (b) Those in which it appears from the Police investigation that only a non-cognizable offence has been committed. (c) (i) Those in which there are grounds for believing that an offence has been committed, but in which, in the opinion of the officer-in-charge of the Police Station, there are not sufficient grounds t investigate or there is not sufficient evidence to justify sending any accused for trial, or in which the offender is not known or cannot be arrested and sent for trial. (ii) In cases referred to the Police by a Magistrate, the final report will be sent direct to the Magistrate. (3) The final report should be written up carefully by the officer-in-charge of the Police Station personally and should be accompanied by all the case papers numbered and indexed methodically. If the accused has been released on bail, the Magistrate should be requested to cancel the bail bond. He should also be requested to pass orders regarding the disposal of property attached, unless any of the articles, e.g., blood stained clothes, are required for further use in true but undetected cases. A request should also be made to the Magistrate to classify the case and to issue an appropriate summary of his order, viz.:- (i) “A” True, undetected (where there is no clue whatsoever about the culprits or property or where the accused is known but there is no evidence to justify his being sent up to the Magistrate (for trial). (ii) “B” Maliciously false. (iii) “C” Neither true nor false, e.g., due to mistake of facts or being of a civil nature. (ii) “B” Maliciously false. (iii) “C” Neither true nor false, e.g., due to mistake of facts or being of a civil nature. (iv) “Non-cognizable” Police investigation reveals commission of only a non-cognizable offence. (4) A Sub-Divisional Officer is not bound to forward a final report to the Magistrate immediately. He may of his own motion direct further enquiry or he may for special reasons permit a case to remain pending under investigation. (5) When any further investigation is ordered and made subsequent to the submission of the final report the papers should, at each stage upto final disposal, be sent through the Sub-Divisional Officer. In urgent cases, however, the Magistrate may return the papers direct to the investigating officer. (6) When a final report of an officer-in-charge of a Police Station is returned to him for further investigation or other purpose, the date of the submission of the final report in its last and complete form should be taken as the date of its submission to the Magistrate for the purpose of determining the beginning of the period of 14 days within which a summary of the Magistrate's final order should be sent. (7) It is not competent to a Magistrate to return investigating officer's report made to him under Section 173, Criminal Procedure Code, with an order to make a case against the accused and to send it up for trial. If the Magistrate considers that there is a prima facie case against the accused he should take action under Section 204 of the Code. A reference should also be made to instruction contained in sub-rules (2) & (2) of rule 230. Therefore, this was the final report, which should have been looked into by the legal remembrance of the department instead of holing that he was not entitled to commuted value of pension from the date of his superannuation. 9. The decision of the Apex Court, as far as redressal of the benefits are concerned, has been followed by the Madras High Court and Allahabad High Court in the judgment cited by Mr. Patel. 9. The decision of the Apex Court, as far as redressal of the benefits are concerned, has been followed by the Madras High Court and Allahabad High Court in the judgment cited by Mr. Patel. It is no doubt clear that commuted value of pension is not a “bounty” and is governed by the rules and, therefore, denial of the same without any rhyme or reason or misreading of pendency of criminal proceedings, will entail interest as it is wrongful denial of a legitimate right of a person, which flows from Articles 14 and 16 of the Constitution of India. In the circumstances, the grievances, which has been voiced by the present respondent was well founded and he would be entitled to interest on such benefits, as there were statutory rules, which occupy the field, which we have discussed herein. The guidelines or norms prescribed for the purpose would be available to him. The Apex Court has gone a stage further by holding that even if in absence of such rules or guidelines, an employee can claim interest under Part III of the Constitution, as there is violation of Articles 14, 16 and 19 of the Constitution of India. Thus, the tribunal was right in its approach. 10. The learned Tribunal in paragraph no.12 has rightly held and, therefore, we are in complete agreement with the order passed by the Tribunal. Paragraph no.12 at page 103 of the judgment and order of the Tribunal is reproduced as under:- 12. It was brought to my attention that the Government of India has taken a decision to pay interest on gratuity after conclusion of judicial/departmental proceedings also. The aforesaid Government decision is extracted below:- “(1) Admissibility of interest on gratuity allowed after conclusion of judicial/ departmental proceedings. 1. Under the rules, gratuity becomes due immediately on retirement. In case of a Government servant dying in service, a detailed timetable for finalizing pension and death gratuity has been laid down, vide Rule 77 onwards. 2. Where disciplinary or judicial proceedings against a Government servant are pending on the date of his retirement, no gratuity is paid until the conclusion of the proceedings and the issue of the final orders thereon. 2. Where disciplinary or judicial proceedings against a Government servant are pending on the date of his retirement, no gratuity is paid until the conclusion of the proceedings and the issue of the final orders thereon. The gratuity if allowed to be drawn by the competent authority on the conclusion of the proceedings will be deemed to have fallen due on the date of issue of orders by the competent authority. 3. In order to mitigate the hardship to the government servants who, on the conclusion of the proceedings are fully exonerated, it has been decided that the interest on delayed payment of retirement gratuity may also be allowed in their cases, in accordance with the aforesaid instructions. In other words, in such cases, the gratuity will be deemed to have fallen due on the date following the date of retirement for the purpose of payment on interest on delayed payment of gratuity. The benefit of these instructions will, however, not be available to such of the Government servants who die during the pendency of judicial/disciplinary proceedings against them and against whom proceedings are consequently dropped. 4. These orders (paragraph 3) shall take effect from the 10th January, 1983.” The rate of interest payable is also mentioned in the same OM i.e. Dept. of P. & P.W., OM No.F.7/1/93-P.P.W. (F), dated the 25- 8-1994 wherein it has been decided by the Government of India that if payment of DCRG has been delayed beyond three months from the date of retirement, an interest at the rate applicable to GPF deposits will be paid to retired/dependants of deceased Government servants. 11. The submission of Ms. Patel that there is no delay and even if there is delay, it is only after the date of culmination of criminal proceedings in the High Court. We are unable to accept the said submission as narrated hereinabove. There were no criminal proceedings on 01.08.2008. All that the High Court in its order has done directing the authority below, which is produced at page no.219 at Para 14, which read as under:- 14. The report made to the Court below by the investigating officer was, therefore, made under Section 173 of the Code and the Court was required to pass an order under Section 173(4) of the Code, which the Special Court has failed to do. The report made to the Court below by the investigating officer was, therefore, made under Section 173 of the Code and the Court was required to pass an order under Section 173(4) of the Code, which the Special Court has failed to do. The order passed by the learned Principal District and Sessions Judge, Banaskantha at Palanpur, dated 03.05.2006 is, therefore, set aside. The prayer sought by the investigating officer for Summary “A” is allowed. Accordingly, present revision application is allowed. Rule is made absolute to the aforesaid extent. Muddamal currency note be confiscated to the State. It will relate back to the date of filing of A-Summary, which is prior to the date when the respondent retired. More particularly, in the year 2007, when the Criminal Revision Application was filed before this High Court. 12. There is a delay of huge period, where the respondent was given clearance by the vigilance that there were no cases, which were pending as the State had already filed A-Summary in the ACB trap case. There were no disciplinary action taken by the petitioners and, therefore, the action was bad in eye of law and could not have been sustained, had he challenged it even in the year 2008. Hence, the stand taken by the authorities is violative of Article 14 also. Hence, the same has been rightly deprecated by the Tribunal and as granted interest to the petitioner, we agree with the same. 13. The interest has been that of Provident Deposits and not at the rate of 24%, as claimed by the respondent. We also make it clear that the respondent would be entitled to rate of interest, as they were applicable to provident fund deposits. 14. We are unable to accept the submission of Ms. Patel and the grounds urged in the petition. This being a petition filed under Article 227, we do not see any infirmity in the order of the Tribunal, which calls for our interference. Even the criminal proceeding which were said to be proceeding we do not delve into the same, as the High Court directed the trial court to accept A-Summary. 15. Hence, the petition being bereft of merits, deserves rejection and accordingly rejected. Rule is discharged. Rule discharged.