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2021 DIGILAW 363 (AP)

Union of India v. R. Guruswamy

2021-06-28

JOYMALYA BAGCHI, K.SURESH REDDY

body2021
JUDGMENT : JOYMALYA BAGCHI, J. 1. Union of India has assailed order dated 27.12.2019 in O.A. No. 20/740/2019 whereby the Tribunal extended the benefit of 7th Pay Commission and fixed the revised pension of the respondent-employee at Rs. 27,114/- for the purpose of commutation of pension. 2. Learned Assistant Solicitor General appearing for the Union of India submits that the Tribunal had failed to take into consideration the relevant rule position with regard to commutation of pension when disciplinary proceedings were pending against the employee He contends the employee had retired on 30.6.2013 when two disciplinary proceedings were pending against him as per Rule 9 of CCS (Pension) Rules, 1972 After conclusion of the said disciplinary proceedings in 2016 and 2018 respectively, the Department allowed commutation of pension on the basis of the provisional pension fixed at Rs. 10,550/- at the time of his superannuation in 2013 as he was not entitled to the benefit of revised pension as per 7th Pay Commission which came into force on 1.1.2016 Tribunal erred in reversing such decision and commuting the pension on the revised pension as per 7th Pay Commission. 3. We have considered the aforesaid submission in the light of materials on record. Undoubtedly, the respondent-employee retired on 30.6.2013 and at the time of his retirement he was facing two disciplinary proceedings, which continued as per Rule 9 of CCS (Pension) Rules, 1972. On 25.10.2016 a penalty of withholding of monthly pension at the rate of 10% on monthly pension for a period of three years was imposed Subsequently, on 22.3.2018 another penalty of withholding of monthly pension at a rate of 10% for a period of two years was imposed. Thereafter, on 21.8.2018 the Department allowed commutation of pension to the tune of Rs. 3,13,199/- on the provisional pension at Rs. 10,550/- instead of fixing the revised provisional pension as Rs. 27,114/- by giving the benefit of the 7th Pay Commission to the respondent-employee Tribunal reversed the decision by holding the employee was entitled to commutation of pension on the basis of revised pension at Rs. 27,114/- as per 7th Pay Commission. 4. 3,13,199/- on the provisional pension at Rs. 10,550/- instead of fixing the revised provisional pension as Rs. 27,114/- by giving the benefit of the 7th Pay Commission to the respondent-employee Tribunal reversed the decision by holding the employee was entitled to commutation of pension on the basis of revised pension at Rs. 27,114/- as per 7th Pay Commission. 4. In this factual backdrop, learned Assistant Solicitor General has strenuously assailed the decision of the Tribunal on the premise the fixation of revised pension as per 7th Pay Commission was contrary to rules He has referred to Rule 4 of CCS (Commutation of Pension) Rules, 1981 which read as follows: “4. 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 percentage of his provisional pension authorised under Rule 69 of the Pension Rules or the pension, as the case may be, during the pendency of such proceedings.” 5. The aforesaid rule entails that a Government servant who is facing a departmental/ judicial proceeding referred to in Rule 9 of the aforesaid rules instituted before or after his retirement shall not be eligible to commutation of his provisional pension during the pendency of the said proceedings. Thus, the rule creates a bar on commutation of provisional pension during pendency of the disciplinary proceeding and does not apply to commutation of pension after the conclusion of the disciplinary proceedings. Hence, the aforesaid rule does not run counter to the finding of the Tribunal that the employee was entitled to commutation of pension on the revised pension of Rs. 27,114/- as per the 7th Pay Commission which had already come into effect when such commutation of pension was made, that is, on 21.8.2018 after the conclusion of the departmental proceedings. 6. On the other hand, with regard to commutation of pension upon revision of pension, the Tribunal rightly referred to Rule 10 of the CCS Pension Rules, which read as follows: “10. 6. On the other hand, with regard to commutation of pension upon revision of pension, the Tribunal rightly referred to Rule 10 of the CCS Pension Rules, which read as follows: “10. Retrospective revision of final pension - An applicant who has commuted a percentage of his final pension and after commutation his pension has been revised and enhanced retrospectively as a result of Government's decision, the applicant shall be paid the difference between the commuted value determined with reference to enhanced pension and the commuted value already authorized. For the payment of difference the applicant shall not be required to apply afresh.” 7. The aforesaid rule unequivocally declares that in the event of retrospective revision of pension of a Government servant the difference between the commuted value calculated on the basis of the enhancement and the commuted value already authorised is to be paid to the superannuated employee. In the instant case, there was a pay revision in 2016 entitling the employee to revised pension. He could not commute his pension as per such revision due to pendency of disciplinary proceedings. Hence, upon the conclusion of such proceedings, he was entitled to commutation of pension on his revised pension and not on pension payable to him at the time of his retirement. There is nothing in the service rules, which acts as a bar to the revision of pension of an employee, who is facing departmental proceeding save and except the penalty that may be imposed upon him. 8. For the aforesaid reasons, we do not find any merit in the writ petition. 9. The writ petition is, accordingly, dismissed. No order as to costs. 10. As a sequel, miscellaneous petitions, if any, pending in the writ petition shall stand closed.