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2022 DIGILAW 202 (ALL)

Chandra Prakash v. Union Of India

2022-02-16

KRISHAN PAHAL, SUNITA AGARWAL

body2022
JUDGMENT : Krishan Pahal, J. 1. Heard Sri Chandra Prakash, Petitioner (in person) along with Ms. Subhash Rathi, learned Amicus Curiae who assisted the Court on behalf of the petitioner and Sri Praveen Kumar Srivastava and Sri Arun Kumar Gupta, learned counsels for the respondents. 2. Ms. Subhash Rathi, learned Amicus Curiae has filed the written submissions on behalf of the petitioner. 3. By means of the present writ petition, the petitioner has prayed for the following reliefs:- “I. To issue a writ or order or a writ in the nature of Certiorari quashing the impugned order dated 1.3.2012 of Central Administrative Tribunal, Allahabad Bench passed in O.A. No.1235 of 2011 (Chandra Prakash Vs. U.O.I. & Others), II. To issue a writ or order or a writ in the nature of Certiorari quashing the impugned order No. b@50@fjt@lalnh; lfefr@V@ikVZ&11 dated 26/02/2010 passed by respondent No. 4. III. To issue a writ or order or a writ in the nature of Certiorari quashing the part of impugned order No. Nil dated 03/03/2010 passed by respondent No.4, as far as it relates to withholding of “petitioner’s all Retirement dues & benefits”, IV. To issue a writ or an order or direction in the nature of mandamus directing the respondents Railway Administration to retire the petitioner with immediate effect (as the petitioner is waiting for ‘order of his retirement’ since 01.03.2010 as mentioned in para-93 & 94 of writ petition) & serve to the petitioner “Retirement Order cum Service Certificate” & pay the salary {last pay drawn} of the petitioner from 01.03.2010 to till date of receipt of retirement order by the petitioner along with interest at the bank rate (i.e. @18%) upon its arrears. V. To issue a writ or an order or direction in the nature of mandamus directing the respondents Railway Administration to release & pay all retirement dues & benefits of the petitioner i.e.:- i. Pension Payment Order (PPO) from the date of retirement ii. Gratuity iii. Leave in Cashment iv. Pension Commutation from the date of retirement v. Remaining part of P.F. of period September/October, 1973 to December, 1994. vi. Composite Transfer Grant etc. along with interest at the bank rate (i.e. @18%) upon aforesaid amounts from the date of retirement. VI. Gratuity iii. Leave in Cashment iv. Pension Commutation from the date of retirement v. Remaining part of P.F. of period September/October, 1973 to December, 1994. vi. Composite Transfer Grant etc. along with interest at the bank rate (i.e. @18%) upon aforesaid amounts from the date of retirement. VI. To issue a writ or an order or direction in the nature of mandamus directing the respondents Railway Administration to release & serve petitioner’s:- i. Service Medal, ii. Medical Card for post retirement medical facilities, iii. Other Post Retirement facilities. VII. To issue a writ or an order or direction in the nature of mandamus directing the respondents Railway Administration to pay compensation of Rs.20 lacs for the irreparable losses & damages caused due to non-payment of petitioner’s all retirement dues & benefits as mentioned in para-100 & XLVI of writ petition.” Factual Matrix:- 4. Facts in brief giving rise to the present writ petition are that in the year 1969, the Railway Service Commission, Allahabad vide its Employment Notice No.3/69-70 advertised 24 posts of Apprentice Assistant Telecommunication Inspector. The petitioner applied for the said post mentioning his caste as “Bhuiya” which is recognised as Scheduled Caste in the State of U.P. The petitioner along with 23 other candidates were selected for the said post and in the final selection panel, the petitioner found his place at S.No.23 in the merit list. Thereupon, the petitioner joined as Apprentice Assistant Telecommunication Inspector in North-East Railway, Gorakhpur on 31.07.1970. After completion of 12 years of service in Railway, an inquiry was initiated by the General Manager (Personal), North-East Railway, Gorakhpur, U.P. (Respondent No.4) with regard to the validity of the caste certificate submitted by the petitioner. The District Magistrate, Gorakhpur submitted a report vide Letter No.354 tkfr Áek.k i=okn fyfid dated 09.02.1983, the relevant part of the said report reads as under:- 5. On the basis of the said report of the District Magistrate, Gorakhpur, a criminal case was registered against the petitioner, his real elder brother Om Prakash Bhuiya and his parents wherein charge-sheet was submitted against them. The Criminal Case No.601 of 1984, u/S 409 and 420 IPC had been decided in favour of the petitioner by the Additional Chief Judicial Magistrate, Gorakhpur vide order dated 14.05.1984. The Criminal Case No.601 of 1984, u/S 409 and 420 IPC had been decided in favour of the petitioner by the Additional Chief Judicial Magistrate, Gorakhpur vide order dated 14.05.1984. It was held that the petitioner and his family members belonged to the Scheduled Caste “Bhuiya” and the privileges accorded to them as per the said caste certificate were proper. The operative part of the judgement and order dated 14.05.1984 reads as under:- 6. It is submitted that thereafter the petitioner and his family members had moved application in the Court of Additional Chief Judicial Magistrate, Gorakhpur for issuing the caste certificates in their favour in order to avoid further illegal harassment. The learned Additional Chief Judicial Magistrate, Gorakhpur after inviting objections from the District Magistrate, Gorakhpur issued caste certificates in favour of the petitioner and his family members on 12.06.1984. The State of U.P. being aggrieved by the aforesaid judgement and order dated 14.05.1984 filed a revision being Original Revision No.158 of 1984 in the Court of District and Sessions Judge, Gorakhpur which was dismissed vide order dated 11.12.1984 affirming the findings reformed in the judgement and order dated 14.05.1984. The said order has not been challenged in any judicial proceedings and as such has attained finality. Meanwhile in the year 1983, a disciplinary enquiry under Rule 9 of Railway Servants (Discipline and Appeal) Rules, 1968 was initiated against the petitioner and a chargesheet vide Memorandum dated 26.03.1984 had been served. The disciplinary Authority framed charge against him, which read as under:- “ Where as Sri Chandra Prakash TCI/MW/GKP has committed misconduct in as much as that he got his appointment in Railway Service in an irregular manner by misdeclaring his caste as BHUIYA, which is recognised as Scheduled Caste, although he belongs to BHARBHUJ Caste, which comes under category of backward class. On the basis of this misdeclaration of caste, he has also taken the irregular benefit in promotion grade of Rs.550-750. The above act of Sri Chandra Prakash shows lack of absolute integrity, failure to maintain devotion to duty and an act unbecoming of a Railway Servant, which tentamounts to misconduct and thereby he has contravened Rules 3(I)(I), (II) and (III) of Railway Services Conduct Rule, 1966.” 7. The above act of Sri Chandra Prakash shows lack of absolute integrity, failure to maintain devotion to duty and an act unbecoming of a Railway Servant, which tentamounts to misconduct and thereby he has contravened Rules 3(I)(I), (II) and (III) of Railway Services Conduct Rule, 1966.” 7. A Special Leave Petition (Civil) No.14633 of 1986 was filed by the petitioner before the Supreme Court challenging the decision of the Disciplinary authority to initiate enquiry, wherein the petitioner was directed to cooperate in the enquiry. The following order was passed on 29.04.1987:- “After hearing counsel on both sides we do not consider that it is a fit for the grant of special leave petition, however we consider that in the interest of justice a direction should be issued from this Court to the respondent to complete the Disciplinary Proceedings initiated against the petitioner and pass final orders within three months from today. The petitioner will fully cooperate in the enquiry for the time scheduled. With the above observations and directions, the Special Leave Petition will stand dismissed.” 8. It is argued on behalf of the petitioner that pursuant to the order of the Supreme Court, the Enquiry Officer had concluded the enquiry and submitted its report on 24.07.1987 to Disciplinary Authority holding the charges levelled against the petitioner to be false and baseless. The findings of the Enquiry Officer are as under:- “I. Shri Chandra Prakash can not be classed as a member of a Scheduled Caste Community i.e. ‘Bhuiya’ in absence of any valid certificate issued by any of the authorities competent to grant such certificate. I feel that if the various certificates including the certified photo-stat copies of the judgements are accepted in Shri Chandra Prakash’s case, the generations of this family will not need a caste certificate from the competent authority. II. The mis-declaration of the caste with a malafide intention of getting irregular appointment is not established beyond doubts. III. The aspect of getting promotion is not proved.” 9. It is further argued on behalf of the petitioner that the Disciplinary Authority on 11.08.1987 accepted the enquiry report and dropped the charges levelled against the petitioner by passing the following order:- “The consideration of the Enquiry Report of E.O./HQ shows that the charges levelled against you have not been proved and therefore, the charges are dropped.” 10. It is further argued on behalf of the petitioner that the Disciplinary Authority on 11.08.1987 accepted the enquiry report and dropped the charges levelled against the petitioner by passing the following order:- “The consideration of the Enquiry Report of E.O./HQ shows that the charges levelled against you have not been proved and therefore, the charges are dropped.” 10. The Enquiry Report dated 24.07.1987 and the order of the Disciplinary Authority dated 11.08.1987 had not been challenged in any Court and, thus, the same had attained finality. 11. It is further contended that when the petitioner was not provided the pre-selection coaching for ASTE Group-B selection from 14.02.2000 to 11.03.2000 along with other SC/ST candidates and was directed to appear as a General candidate, he filed objections on 03.04.2000 and 18.08.2000 which were replied by the General Manager (Personal), North-East Railway, Gorakhpur, U.P. vide his letter No. dk@256@6&lflnwb¼1½ dated 31.08.2000 and the same is reproduced hereunder:- 12. It is contended by the petitioner that the aforesaid report has also been fetched behind his back and he had no knowledge whatsoever of any enquiry being conducted after the aforesaid disciplinary and judicial enquiry having attained finality. 13. The order dated 31.8.2000 passed by the General Manager (Personnel), North Eastern Railway, Gorakhpur U.P. was challenged in the Original application no.1140 of 2001 before the Central Administrative Tribunal, Allahabad. 14. The argument of the petitioner that the full fledged inquiry had been conducted on the basis of report of the District Magistrate, Gorakhpur and since the applicant had been exonerated in the said departmental proceeding, no fresh inquiry regarding the genuineness of the caste certificate could be conducted, had been rejected. However, on the question of opportunity of hearing, it was noted that the petitioner had not been given any opportunity to show that the certificate filed by him was genuine before passing the impugned order. Taking into consideration of the decision of the Apex Court in the State of Andhra Pradesh 7 ors v.Nagam Chandrasekhara Lingam; reported in AIR 1988 Supreme Court 1309, it was observed that the inquiry into the validity of social status certificate should be entrusted to Commissioner Social Welfare. Taking into consideration of the decision of the Apex Court in the State of Andhra Pradesh 7 ors v.Nagam Chandrasekhara Lingam; reported in AIR 1988 Supreme Court 1309, it was observed that the inquiry into the validity of social status certificate should be entrusted to Commissioner Social Welfare. With the above reasons, while allowing the original application, quashing the order dated 31.08.2000, following directions had been issued in the judgment and order dated 19.11.2001 by the tribunal: “ The respondent no.5 General Manager (P), N.E. Railway, Gorakhpur and District Magistrate Gorakhpur Respondent no.7 are directed to place the matter before the commissioner, social welfare of the State Government of Uttar Pradesh to hold an enquiry regarding the validity of the caste certificate issued in favour of the applicant. The applicant shall be allowed participation in such an inquiry and opportunity to file evidence in support of his claim. The District Magistrate shall also be entitled to place evidence which was found by him against the applicant. The enquiry shall be completed within a period of four month from the date it is entrusted to Commissioner Social Welfare of the State. The status of the applicant in service shall be determined in accordance with the order passed by the Commissioner Social Welfare. There will be no order as to costs.” 15. The aforesaid order dated 19.11.2001 of the Central Administrative Tribunal was challenged by the petitioner in Civil Misc. Writ Petition No.10784 of 2002 wherein interim order dated 13.03.2002 was passed by this Court to the following effect:- “Until further order operation of the order dated 19.11.2001 as for as it directs holding enquiry regarding validity of the caste certificate issued in favour of the petitioner shall remain stayed.” The said writ petition had been dismissed on 07.04.2016 by this Court. 16. Ms. Subhash Rathi, learned Amicus Curie appearing for the petitioner has stated that the petitioner, thus, continued to be treated as ‘Scheduled Caste’ candidate as he was on the date of his initial appointment. The petitioner was promoted to the higher post as “ASTE” on 12.05.2008 and worked on the said post till his superannuation i.e. on 28.02.2010. 17. 16. Ms. Subhash Rathi, learned Amicus Curie appearing for the petitioner has stated that the petitioner, thus, continued to be treated as ‘Scheduled Caste’ candidate as he was on the date of his initial appointment. The petitioner was promoted to the higher post as “ASTE” on 12.05.2008 and worked on the said post till his superannuation i.e. on 28.02.2010. 17. Prior to the date of superannuation of the petitioner, a communication dated 22.2.2010 was sent from the office of the General Manager (Personnel) N.E. Railways, Gorakhpur to the effect that the retiral benefits and other dues of the petitioner had been withheld in view of the interim order dated 13.03.2002 passed by this Court in Writ petition no.10784 of 2002 (Shri Chandra Prakash vs Union of India) and the decision of the Railway board communicated vide letter dated 28.06.1996. 18. This order was further challenged before the Central Administrative Tribunal in Original application no.1235 of 2011. The tribunal had dismissed the Original application vide judgment and order dated 01.03.2012 noticing that : “11. In the background of the fact and circumstance of the case it may relevant to quote from the judgment of the Apex Court in the case of G. Sundarsan v. Union of India & another; (1995) 4 Supreme Court Cases 644, wherein it has held that continuance of onus of, on the person appointed in the quota of Scheduled Castes does not cease merely because of continuing in service for a long period on the basis of a caste certificate granted by the competent authority earlier, where it is subsequently, found on evidence that the appointee did not belong to a Scheduled Caste and that he had procured appointment in reserved quota by submitting a false certificate, imposition of punishment of forfeiture of his pension, is held to be proper. In another case reported in (2001) 9 Supreme Court Cases 706 B.S. Gaur v. Union of India & others the Apex court held that after revocation of SC Certificate, employee's status as SC had come under cloud. Merely because the applicant has obtained stay order does not conclude the dispute. 12. Having regard to the above position, the ratio of law in regard to such cases is clear. In case, Caste certificate of an employee comes under cloud, the Department is within its rights to withhold the terminal benefits of the concerned employee. Merely because the applicant has obtained stay order does not conclude the dispute. 12. Having regard to the above position, the ratio of law in regard to such cases is clear. In case, Caste certificate of an employee comes under cloud, the Department is within its rights to withhold the terminal benefits of the concerned employee. The payment or forfeiture of these benefits will necessarily be contingent upon the final determination of the status of the applicant regarding whether he belongs to schedule caste or not. Since this issue is pending consideration of the Hon'ble Allahabad High Court, any further action in this matter can be taken only after the Hon'ble High Court decide the controversy. 19. At this stage, it may be necessary to note that on 20.12.2021, when this writ petition came up for consideration, the Court had noted that even provisional pension had not been paid to the petitioner. Taking serious view of the matter, explanation was called from the respondents and the General Manager (Personnel), North Eastern Railways, Gorakhpur was directed to remain present on 22.12.2021. The affidavit of compliance dated 22.12.2021 has been filed on behalf of the respondent wherein it is stated that the pensionary benefits could not be released in favour of the petitioner for two reasons; firstly for the fact that the petitioner had challenged the order dated 01.03.2012 passed by the Tribunal in the present petition wherein the order dated 26.04.2017 has been passed noticing that the special leave petition has been filed challenging the order dated 07.04.2016 dismissing Writ A no.10784 of 2002 and simultaneously review application has also been filed by the petitioner in the said writ petition. The Court, therefore, observed that the present petition be heard after disposal of the review application and the special leave petition filed by the petitioner against the order dated 07.04.2016 as final outcome of those matters would be relevant for deciding the present petition. 20. The contention is that the Special Leave Petition no.3516 of 2019 challenging the order dated 07.04.2016 has been dismissed vide order dated 15.11.2021 and the review application is still pending consideration. 21. The second contention is that the release of pensionary benefits and retiral dues to the petitioner is dependent upon the inquiry conducted by the Director Social Welfare as directed by the Tribunal and the High Court. 21. The second contention is that the release of pensionary benefits and retiral dues to the petitioner is dependent upon the inquiry conducted by the Director Social Welfare as directed by the Tribunal and the High Court. The retiral benefits of the petitioner has not been released by the department due to pendency of the present petition and the order dated 26.04.2017 passed in this writ petition as also due to pendency of the inquiry. 22. It is submitted by the learned Amicus appearing for the petitioner that as on date neither any departmental inquiry nor any judicial proceeding is pending against the petitioner. No such inquiry has been initiated by the department after retirement of the petitioner. 23. In the said scenario, pensionary benefits cannot be withheld as against the Rule 9 of the Railway Services (Pension) Rules, 1993. 24. Per contra, Sri Praveen Kumar Srivastava learned counsel appearing for the respondents vehemently argued that the initial appointment of the petitioner in the railway taking benefit of the Scheduled Caste category is under cloud. Initially in the year, 1999, the inquiry was conducted by the District Magistrate into the genuineness of the caste certificate and the report was submitted that the petitioner actually belong to the caste BHARBHUJ which is backward class category and nor BHUIYA (scheduled caste) as indicated in the caste certificate. At every stage, when the challenge has been raised by the petitioner regarding competence of the authority to initiate inquiry into the validity of the caste certificate, he was turned down by the Court and was directed to participate in the inquiry. The petitioner instead of participating in inquiry in compliance of the order passed by the Tribunal on 19.11.2001 had initiated fresh litigation and got an interim order from this Court. The inquiry into the correctness of the caste of the petitioner could not be initiated on account of the interim order granted by this Court. After dismissal of the writ petition on 07.04.2016, on vacation of the interim order by this Court, Special Leave Petition was filed which has been decided vide order dated 15.11.2021. As the petitioner did not cooperate in the inquiry, the department cannot be held responsible for non release of the pensionary benefits. The order of withholding the pensionary benefits is strictly in accordance with the Railway Services (Pension) Rules, 1993. As the petitioner did not cooperate in the inquiry, the department cannot be held responsible for non release of the pensionary benefits. The order of withholding the pensionary benefits is strictly in accordance with the Railway Services (Pension) Rules, 1993. The respondents had no option but to wait the final outcome of the writ petition filed by the petitioner including the present petition. 25. Having considered the submissions of the learned counsel for the parties and perused the record, before entering into the factual inquiry, it would be appropriate to take note of the relevant rule which confers power on the competent authority to withhold pension of the superannuated railway employee. Relevant Rule 9 of the Railway Services (Pension) Rules 1993 framed by the President of India in exercise of power conferred by the proviso to Article 309 of the Constitution is to be quoted: “9. Right of the President to withhold or withdraw pension. The President reserves to himself the right of with holding or withdrawing a pension or gratuity, or both, either 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 Railway, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his 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 pension shall not be reduced below the amount of rupees three hundred seventy five per mensem. 2. The departmental proceedings referred to in sub-rule (1) a. if instituted while the railway servant was in service whether before his retirement or during his re-employment, shall after the final retirement of the railway servant, be deemed to be proceeding under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the railway 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. if not instituted while the railway 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 which an order of dismissal from service could be made in relation to the railway servant during his service. 3. In the case of a railway 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 10 Rule 96 shall be sanctioned. Amended vide Railway Board's letter No. F(E) III/99/PN 1/38 (Modification) dated 23.05.2000 (RBE 100/2000). 4. 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 railway servant. 5. 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 railway servant or pensioner, or if the railway 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 the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognisance, is made; and ii. in the case of civil proceedings, on the date the plaint is presented in the Court.” 26. in the case of civil proceedings, on the date the plaint is presented in the Court.” 26. A perusal of the said rule indicates that the pension or gratuity or both, either in full or in part, whether permanently or for a specific period, can be withheld or withdrawn and also an order of recovery from pension or gratuity of the whole or part can be made, in case of any pecuniary loss caused to the railway, in the event that the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement, in any departmental or judicial proceedings. 27. The requirement of the Rule is that a pensioner shall have to be found guilty of grave misconduct or negligence in a departmental or judicial proceedings, for a decision to be taken for withholding or withdrawal of pension or gratuity or both, either in full or in part, permanently or for a specified period. 28. Sub-rule 2(a) of the Rule further provides that the departmental proceeding, if instituted while the railway servant was in service shall be continued after his retirement and shall have to be concluded by the competent authority in the same manner as if the railway servant had continued in service. The proviso further states that the departmental authority has to submit a report recording its findings to the President. 29. Sub-Rule 2(b) of Rule 9 further contemplates a situation where departmental proceeding has not been instituted while the railway servant was in service. It states that the departmental inquiry, if not instituted while railway servant was in service, shall not be instituted without sanction of the President; and shall not be in respect of any event which took place more than four years before such institution. Sub-rule (3) of Rule 9 further states that where railway 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 per Rule 10, Rule 96 shall be sanctioned. Sub-rule (5) further contains a deeming provision to interpret the terms “departmental” and “judicial proceeding” for the purpose of sub rule (1). It states: (i). Sub-rule (5) further contains a deeming provision to interpret the terms “departmental” and “judicial proceeding” for the purpose of sub rule (1). It states: (i). departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the railway servant or pensioner, or if the railway servant has been placed under suspension from an earlier date, on the date of suspension. (ii). With regard to judicial proceedings, it is stated that judicial proceeding of criminal nature shall be deemed to be instituted on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made; in civil proceedings, on the date of presentation of the plaint in the Court. 30. Having carefully gone through the Rule 9, 1993 Rules which empowers the respondent to withhold or withdraw the pensionary benefits of a pensioner/railway servant, it is evident that the pensionary benefits can be withheld only in two conditions, which are:- (i). a departmental or judicial proceeding against such railway servant was instituted prior to the date of retirement (ii). the departmental proceeding if not instituted prior to the retirement, has been instituted with the sanction of the President after his retirement. The relevant date for institution of departmental proceedings is the date of issuance of the statement of charges by the disciplinary authority/inquiry officer or the date of suspension, whichever is earlier. There is no other situation in which the pensionary benefits of railway servant can be withheld under the Rules. 31. In the instant case, admittedly, no judicial proceeding had been instituted or pending against the petitioner prior to his superannuation or thereafter. As regards the departmental proceeding, it is evident that the petitioner has not been placed under suspension prior to his superannuation. The departmental inquiry initiated against him had been concluded much earlier in his favour. No fresh proceeding had been instituted by the departmental authority. As on the date of superannuation of the petitioner, i.e. on 28.2.2010, apart from the directions issued by the Tribunal vide order dated 19.11.2001 to conduct an inquiry into the correctness of the caste of the petitioner, no other adverse order was passed against the petitioner. The order dated 31.08.2000 issued by the department initiating inquiry against the petitioner had already been quashed. The order dated 31.08.2000 issued by the department initiating inquiry against the petitioner had already been quashed. Even in the order dated 19.11.2001, the Tribunal had observed that the matter be placed before the Commissioner, Social Welfare of the State of U.P. to hold an inquiry regarding the validity of the caste certificate issued in favour of the petitioner and that the petitioner was allowed participation in such an inquiry and to be provided due opportunity to file evidence in support of his claim during the said inquiry. On the basis of evidence of rival parties, the inquiry report was directed to be submitted by the Commissioner, Social Welfare of the State within the period of four months from the date of the said order. The status of the petitioner in service was required to be determined in accordance with the order passed by the Commissioner, Social Welfare. 32. We are conscious of the fact that this inquiry could not commence on account of the interim order dated 13.03.2002 passed by this Court in Writ petition no.10784 of 2002, challenging the order dated 19.11.2001, passed by the Tribunal directing the Commissioner, Social Welfare of the State to conduct an inquiry. 33. However, it is pertinent to note that the said writ petition was dismissed on 07.04.2016 noticing that the judgment of the Tribunal did not warrant any interference and any finding in the previous inquiry or the caste certificate allegedly issued by the Additional Chief Judicial Magistrate, Gorakhpur has no relevance, in as much as, no judicial officer has power to issue such certificate. The position, thus, remains that an inquiry was required to be conducted by the Commissioner, Social Welfare of the State in accordance with the order dated 19.11.2001 passed by the Tribunal after dismissal of the writ petition on 07.04.2016. We may further note that there was no challenge to the judgment and order dated 07.04.2016 of dismissal of the writ petition filed by the petitioner till the year 2019 when Special Leave Petition (C) no.3516 of 2019 (Chandra Prakash vs Union of India) was filed before the Apex Court. There is nothing on record which would indicate that the respondents were restrained from proceeding with the inquiry regarding correctness of the caste certificate through Commissioner, Social Welfare by any order of a Court of law. 34. There is nothing on record which would indicate that the respondents were restrained from proceeding with the inquiry regarding correctness of the caste certificate through Commissioner, Social Welfare by any order of a Court of law. 34. From 07.04.2016 till the date of hearing of this writ petition, i.e 22.12.2021, no such inquiry had been conducted which is evident from the affidavit of the respondents filed on 22.12.2021. The explanation offered by the respondent in the said affidavit is that the petitioner did not comply with the order of the Tribunal and did not participate for inquiry before the Director, Social Welfare, U.P. Neither any record of the said inquiry has been placed before us nor it is averred that the competent authority namely the Director Social Welfare, U.P had issued any notice to the petitioner to participate in the inquiry. No such statement even has been made in the latest affidavit of the officer filed on behalf of the respondents on 22.12.2021 in compliance of the order of this Court. 35. The plea that the inquiry into the correctness of the caste certificate could not be conducted on account of the order dated 26.4.2017 passed by this Court in the present petition is of no benefit to the respondents. The order dated 26.4.2017 was in no way a restraint on the respondents or the Director Social Welfare , U.P. to conduct the fact finding inquiry. 36. In any case, the inquiry contemplated into the correctness of the caste certificate of the petitioner was not with regard to the genuineness of the caste certificate rather it was with respect to the caste to which actually the petitioner belong. The cause of the said inquiry was the report of the District Magistrate, Gorakhpur wherein it was stated that the petitioner belong to BHARBHUJ which is a backward class. To ascertain this, a fact finding inquiry was required to be conducted by the Commissioner, Social Welfare Department. The said inquiry required leading of evidence by both sides. 37. Nevertheless, the said inquiry could only fall in the category of a fact-finding or vigilance inquiry and the same even if completed could not have been said to be a 'departmental inquiry' within the meaning of Rule 9 of the Railway Service (Pension) Rules, 1993. The said inquiry required leading of evidence by both sides. 37. Nevertheless, the said inquiry could only fall in the category of a fact-finding or vigilance inquiry and the same even if completed could not have been said to be a 'departmental inquiry' within the meaning of Rule 9 of the Railway Service (Pension) Rules, 1993. Even on receipt of the said inquiry report, a departmental inquiry was required to be initiated by the Railways after getting sanction from the President in accordance with the Rule 9 (2)(b) of the Railway Service (Pension) Rules 1993. The question of withholding pensionary benefits could arise only after initiation of the departmental inquiry within the meaning of Rule 9(5) with the issuance of the chargesheet by the disciplinary authority. 38. In the instant case, since the petitioner had already been retired on 28.02.2010, only option before the respondents after 07.04.2016 was to conclude the vigilance inquiry or fact finding inquiry through the Commissioner, Social Welfare and then approach the President to grant sanction for initiation of the departmental proceeding, i.e to serve chargesheet on the petitioner as to why his initial appointment be not cancelled on account of the submission of incorrect or wrong caste certificate. 39. The decision to withhold pension of the petitioner had been taken in the year 2010 on account of pendency of the writ petition no.10784 of 2002 and the interim order passed therein which was vacated on 07.04.2016. It is evident from the record that there was no restraint order after 07.04.2016 against the respondent stopping them from concluding the inquiry pursuant to the order of the tribunal, which itself was a fact finding inquiry. 40. It may further be noted that the pendency of the review application of the petitioner cannot be a ground to say that the respondents could not proceed with the inquiry. 41. In the said scenario, it cannot be successfully argued by the respondents that the order of withholding of pension and other retiral dues is subject to conclusion of the inquiry initiated by the Director, Social Welfare under the direction issued by the Tribunal on 19.11.2001. No record of such an inquiry has been placed before us. 42. 41. In the said scenario, it cannot be successfully argued by the respondents that the order of withholding of pension and other retiral dues is subject to conclusion of the inquiry initiated by the Director, Social Welfare under the direction issued by the Tribunal on 19.11.2001. No record of such an inquiry has been placed before us. 42. For the aforesaid, we have no option but to hold that there is complete inaction on the part of the respondents to conduct the fact finding inquiry through the Commissioner, Social Welfare in accordance with the order of the Tribunal. Moreso, five years have passed since after dismissal of the Writ petition no.10784 of 2002 wherein the respondents had been initially restrained from conducting the inquiry. We may also note that Rule 9(2)(b)(ii) provides that no departmental inquiry, if not instituted prior to the retirement of railway servant, shall be instituted if the charges are stale i.e in respect of the event which took place more than four years before the institution of inquiry. We are also conscious of the fact that the inquiry instituted by the respondent goes to the very root of appointment of the petitioner. But, we are not getting any explanation from the respondents for not completing even the fact finding inquiry for a period of more than five years. The excuse taken by the respondents for not initiating the said inquiry after the dismissal of the writ petition on 07.04.2016 is not convincing. 43. Moreover, the inquiry is not about the genuineness of the certificate in as much as the report of the District Magistrate, Gorakhpur also does not say that the caste certificate which is the basis of appointment of the petitioner on the post in question had not been issued by the competent authority. The said caste certificate has not been cancelled or revoked by the competent authority till date. The correctness of the caste certificate had been doubted by the respondents on the basis of the report of the District Magistrate Gorakhpur submitted in the year, 1983 that the petitioner and his family members do not belong to scheduled caste BHUIYA rather they are of backward class named by BHARBHUJ. The correctness of the caste certificate had been doubted by the respondents on the basis of the report of the District Magistrate Gorakhpur submitted in the year, 1983 that the petitioner and his family members do not belong to scheduled caste BHUIYA rather they are of backward class named by BHARBHUJ. An extensive fact finding inquiry was required to be conducted to ascertain the said fact that too after giving opportunity of hearing to the petitioner to file evidence to support his contention that he belong to scheduled caste named as BHUIYA and not BHARBHUJ, a backward category as alleged by the District Magistrate, Gorakhpur. It is evident that the report of the District Magistrate dated 09.02.1983 was obtained behind the back of the petitioner and at no stage of the said inquiry, opportunity of hearing had been granted to the petitioner, which is the reason for quashing of the order dated 31.08.2000 of the General Manager (P) North Eastern Railway, Gorakhpur, by the tribunal. 44. The respondents, therefore, could not be demonstrate before us that the petitioner had secured appointment in the year 1970 on the basis of a forged caste certificate of a caste to which he does not belong. They could not demonstrate before us that they have conducted any inquiry or any departmental inquiry is pending against the petitioner which could have justified the action of the respondents in withholding pension and other retiral benefits of the petitioner. The stand taken by the respondent for withholding retiral benefits and pension of the petitioner does not fall within the scope of Rule 9 of the Railway Services (Pension) Rules 1993 which is the only Rule empowering the Railways to withhold the pension or other retiral benefits of the petitioner. 45. For the above noted facts, in view of the position of law as noted above, we are of the considered opinion that the order dated 22.02.2010 issued by the General Manager (Personnel) North Eastern Railway, Gorakhpur (Annexure-2 to the instant writ petition), therefore, has lost its tenor as on date, as the said order could survive only till 07.04.2016 when the writ petition no.10784 of 2002 was dismissed. The said order which comes in the way of the petitioner in getting his pensionary benefits does not survive after 07.04.2016. The said order which comes in the way of the petitioner in getting his pensionary benefits does not survive after 07.04.2016. No fresh order of withholding pension and other retiral dues of the petitioner has been passed by the respondents after dismissal of the Writ petition on 07.04.2016 on the basis of any departmental proceeding instituted against him with the sanction of the competent authority in accordance with the Rule 9(2)(b) of Rules 1993. 46. The respondents, therefore, have no authority of law to withhold pension and other retiral benefits of the petitioner in absence of any judicial proceeding or departmental proceeding pending against him. 47. For the aforesaid, we allow the present writ petition with the direction to the respondents to immediately release pension and other retiral dues of the petitioner by making a computation of the same w.e.f 28.02.2010, the date of his superannuation and pay the same within a period of four months from the date of receipt of copy of this order. The petitioner is also held entitled to simple interest @ 7 % per annum since 08.04.2016, on the above computation of pension and other retiral benefits, in view of the fact that there was no restraint order of this Court after 07.04.2016 and the respondents were under obligation to pay retiral benefits to the petitioner, in absence of any departmental or judicial proceeding. 48. No order as to costs.