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2017 DIGILAW 2364 (PNJ)

Union of India v. Durjan Mehto

2017-10-04

AJAY KUMAR MITTAL, AMIT RAWAL

body2017
JUDGMENT : AMIT RAWAL J. 1. The Union of India has challenged the impugned order dated 13.02.2017 passed by the Central Administrative Tribunal (hereinafter called as the “CAT”) whereby the OA preferred by respondent No.1- applicant claiming release of Death-cum-Retirement Gratuity (DCRG) and retiral benefits as well as interest thereon has been allowed by directing the petitioners to release the retiral benefits from the date when the respondent No.1-applicant retired from service i.e. 31.07.2014 along with interest @7% on delayed payment from 01.11.2014 (after expiry of three months period) till its actual payment. 2. Mr. Sanjiv Ghai, learned counsel appearing on behalf of the petitioners submitted that respondent No.1-applicant was initially appointed as AC Khalasi in Firozepur Division of Northern Railways in the year 1976 and was promoted from time to time. The Scheduled Tribe (ST) Certificate issued in favour of respondent No.1-applicant was subjected to vigilance enquiry by the CBI on the premise that the same was a fake certificate. 3. On 31.01.2002, while working as AC Mechanic Grade-I respondent No.1-applicant was removed from service. The aforesaid order was impugned by him in OA bearing No.823/2003 before the principal Bench of Central Administrative Tribunal at New Delhi. Vide order dated 07.07.2004, the aforementioned OA was allowed and he was reinstated into service and all consequential benefits were also granted, in essence, his pay was fixed in the grade of Rs. 4500-7000 w.e.f. 4.2.2002 as per letter dated 29.03.2007. 4. The petitioners-Union of India challenged the aforementioned order of the Central Administrative Tribunal, New Delhi by filing writ petition bearing No.18257 of 2004 before the High Court at Delhi but the same was dismissed vide order dated 02.05.2006. 5. Though the respondent No.1-applicant was reinstated into service and granted all consequential benefits but his promotion was withheld on account of pendency of vigilance enquiry. The aforementioned fact gave another cause of action to respondent No.1-applicant to approach the CAT in OA No.283/JK/2011 which was disposed of vide order dated 20.05.2013 directing the petitioners to declare the result of the suitability test in respect of the respondent No.1-applicant and grant him further service related benefit with effect from the date his junior officer was promoted. As such, in compliance of the order dated 20.05.2013 of the CAT, respondent No.1-applicant was promoted as MCM/AC/JAT w.e.f. 1.11.2013 from the date his junior i.e. Ram Niwas was granted the benefit of promotion. As such, in compliance of the order dated 20.05.2013 of the CAT, respondent No.1-applicant was promoted as MCM/AC/JAT w.e.f. 1.11.2013 from the date his junior i.e. Ram Niwas was granted the benefit of promotion. The arrears of Rs. 1,70,000/- was also paid to the respondent No.1-applicant, who retired from service on 31.7.2014 on attaining the age of superannuation. The retiral benefits under the following heads were also granted to him:- (i) Provident Fund : Rs.1,84,426/- (ii) Leave Encashment : Rs.3,03,312/- (iii) GIS : Rs.48,698/- (iv) Pension : Rs.10,655/- DA (provisional) 6. The pension was provisional owing to the pendency of the case in respect of FIR registered in the year 1995 under Sections 120B, 420, 467, 471 IPC before the CBI Court. However, vide order dated 03.02.2017 (Annexure P-2), the Special Judicial Magistrate, CBI, Patiala discharged respondent No.1-applicant from the aforementioned criminal case. Due to pendency of the criminal case against respondent No.1-applicant, service book was being retained by the CBI, Chandigarh Bench, therefore, in the absence of the service book, as per Rule 10 (1) (c) of the Pension Manual of the Railway Services (Pension) Rules, 1993, in case of any departmental or judicial proceedings pending against the individual, the DCRG and pensionary benefits were not commuted and released. By pointing out the Rule extracted in paragraph 12 of the writ petition, the counsel for the petitioners submitted that the aforementioned Rules have not been taken into consideration and therefore, there is illegality and perversity, thus, respondent No.1-applicant would be entitled to benefits with effect from the date of discharge i.e. 03.02.2017 and not before. The Tribunal while passing the impugned order has not noticed the aforementioned fact. 7. We have heard learned counsel for the petitioners and appraised the paper book. In order to appreciate the controversy raised in the present writ petition, it would be apt to reproduce Rule 10(1)(c) of the Railway Services (Pension) Rules, 1993:- “10. Provisional Pension where departmental or judicial proceedings may be pending. 7. We have heard learned counsel for the petitioners and appraised the paper book. In order to appreciate the controversy raised in the present writ petition, it would be apt to reproduce Rule 10(1)(c) of the Railway Services (Pension) Rules, 1993:- “10. Provisional Pension where departmental or judicial proceedings may be pending. (1) xxxx xxxx xxxx xxxx xxxx (c) No gratuity shall be paid to the railway servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon; provided that where departmental proceedings have been instituted under the provisions of Railway Servants Discipline and Appeal Rules, 1968, for imposing any of the penalties specified in clauses (i), (ii), (iii a) and (iv) of rule 6 of the said rules, the payment of gratuity shall be authorized to be paid to the railway servant.” 8. A perusal of the aforementioned provision contained in clause (c) of sub rule 1 of Rule 10 would reveal that it pertains only to non payment of gratuity until the departmental or judicial proceedings is concluded. Admittedly, vide order dated 07.07.2004, the respondent No.1- applicant was reinstated into service by setting aside the order of removal which related to alleged fake certificate of Scheduled Tribe. No doubt the departmental and criminal proceedings can go parallel but the fact remains that pendency of the judicial proceedings was of no significance in view of the order dated 07.07.2004 rendered by the Tribunal which attained finality vide order dated 02.05.2006 by the High Court at Delhi. Once the order of reinstatement had attained finality, continuation of criminal proceedings was insignificant and the department was not justified in not computing the pension and withholding DCRG. The language of the Rule is simple and unamgibuous, which envisages conclusion of departmental or judicial proceedings. Once removal from service had been set aside and the department had not initiated any departmental proceedings, nothing prevented it to grant the relief as sought for. The order of discharge dated 03.02.2017 is also based upon the aforementioned premise. The relevant portion of the same reads as under:- “10. Once removal from service had been set aside and the department had not initiated any departmental proceedings, nothing prevented it to grant the relief as sought for. The order of discharge dated 03.02.2017 is also based upon the aforementioned premise. The relevant portion of the same reads as under:- “10. In view of the facts and circumstances of the case that accused Durjan Mahto was charge sheeted by the CBI on the premise that he belongs to Nonia caste which was a backward class whereas in the caste certificate submitted by him in Railways Department, his caste was mentioned as Kharia which was a Scheduled Tribe; that the orders of Railways Authorities whereby major penalty was imposed upon accused Durjan Mahto on the ground that he had submitted a false caste certificate to get employment, were set aside by Central Administrative Tribunal vide order dated 06.07.2004 holding that the Railways Authorities had not been able to show the original caste certificate as false; that the order passed by Central Administrative Tribunal was upheld by the Hon'ble High Court of Delhi vide order dated 02.05.2006 directing the Railways Authorities to make verification regarding caste certificate of accused Durjan Mahto; that in the verification carried out by Railways Department, it was found that actual caste of accused Durjan Mahto was Kharia which was a Scheduled Tribe; that the investigating Officer of the case in his statement made before this Court has stated that accused Durjan Mahto may be discharged as CBI was not at all aware of the verification regarding caste of Sh. Durjan Mahto conducted by the Railways Department as per orders of Hon'ble High Court, Delhi at the time of filing of charge sheet and the Railways Department has reinstated him on the basis of verification of his caste; I am constrained to hold that the application of applicant/accused Durjan Mahto for his discharge from this case bears merit and deserved to be allowed as he actually belongs to Kharia caste as per the verification conducted by Railways Department and the caste claimed by him in his caste certificate submitted with Railways Department while seeking employment was genuine and not a misrepresentation as alleged in the charge sheet and the CBI was not aware of verification conducted by Railways Department regarding his caste as per order dated 02.05.2006 passed by the Hon'ble High Court of Delhi at the time of filing of charge sheet. Accordingly, the application under reference stands allowed and accused Durjan Mahto stands discharged from this case.” 9. As an upshot of our finding, we do not find any illegality and perversity in the impugned order passed by the CAT as the same has been passed on appreciation of facts and law and cannot be faulted with. Resultantly, the writ petition is dismissed.