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2023 DIGILAW 707 (KAR)

Managing Director v. Boregowda B. L.

2023-05-25

ALOK ARADHE, ANANT RAMANATH HEGDE

body2023
JUDGMENT : Mr. Alok Aradhe, J. - This intra court appeal arises out of an order dated 10.09.2018 passed by learned Single Judge by which writ petition preferred by the respondent has been allowed. 2. Facts giving rise to filing of this appeal briefly stated are that the respondent (hereinafter referred to as 'the employee' for short) joined the services of Karnataka Power Transmission Company Limited (hereinafter referred to as 'the Company' for short) on 24.09.1980. The employee was promoted from time to time. On 16.06.2007 the employee was caught red handed by the Lokayukta for accepting the bribe. The employee was placed under suspension on 02.07.2007 and a charge sheet was issued to him on 02.01.2012. A criminal case under the provisions of Prevention of Corruption Act, 1988 was also instituted against the employee. 3. It is not in dispute that employee was acquitted in the criminal case by an order dated 30.11.2011. However, the disciplinary proceeding initiated against him is still pending. The employee attained the age of superannuation on 31.05.2012. Thereafter, by an order dated 01.06.2012, the Company held the employee to be entitled to only 75% of pensionary and other retiral benefits, in view of pendency of the proceeding against him. 4. The employee thereafter, submitted a representation on 05.07.2012 seeking payment of pension and other retiral benefits in its entirety. However, the representation submitted by the employee failed to evoke any response. The employee therefore, filed a writ petition viz., W.P.No.805/2013, which was disposed of by an order dated 31.01.2013 with the direction to the Company to consider the representation in accordance with law. In pursuance of the aforesaid order, by an endorsement dated 22.07.2013, the claim of the employee was rejected. 5. The employee challenged the aforesaid order in a writ petition. A learned Single Judge of this court by an order dated 10.09.2018 inter alia held that employee has a fundamental right under Article 14 and 16 of the Constitution of India to receive the pensionary and retiral benefits. It was further held that the employee was entitled to receive 100% pensionary benefits along with interest within a period of three months. However, liberty was reserved to the Company to enforce the order against the employee, which may be passed in the criminal case, in the aforesaid factual background, this appeal has been filed. 6. It was further held that the employee was entitled to receive 100% pensionary benefits along with interest within a period of three months. However, liberty was reserved to the Company to enforce the order against the employee, which may be passed in the criminal case, in the aforesaid factual background, this appeal has been filed. 6. Learned counsel for the Company has invited the attention of this court to Regulations 171 and 172 of the Karnataka Electricity Board Employees Service Regulations (hereinafter referred to as 'the Regulations' for short) and has submitted the.t the same provide for withholding or withdrawal of pension in case of an employee who faces departmental or judicial proceeding. It is pointed out that learned Single Judge has failed to consider the aforesaid Regulations. It is further submitted that the Regulations have a statutory force and the learned Single Judge has issued a direction which amounts to compelling the Company to act in contravention of law. It is pointed out that disciplinary proceeding is still pending against the employee. (n support of aforesaid submissions, reliance has been placed on decisions of this court in 'G.M.Kunte v. Karnataka Power Transmission Corporation Ltd.', ILR 2003 KAR 3851 and a decision of Hon'ble Supreme court in State Of West Bengal v. Subhash Kumar Chatterjee', (2010) 11 SCC 694 '. 7. On the other hand, learned counsel for the employee has submitted that the Company cannot be permitted to withhold the Death-cum-Retirement Gratuity as well as the pension. It is further submitted that no pecuniary loss has been caused to the Company. It is further contended that the learned Single Judge has granted the liberty to the company to enforce the order which may be passed against the employee in the criminal case. It is therefore, contended that the order passed by learned Single Judge does not call for any interference. 8. We have considered the rival submissions and have perused the record. The relevant extract of Regulation 171 and 172 of the Regulations is reproduced below for the facility of reference: 171. It is therefore, contended that the order passed by learned Single Judge does not call for any interference. 8. We have considered the rival submissions and have perused the record. The relevant extract of Regulation 171 and 172 of the Regulations is reproduced below for the facility of reference: 171. The Board further reserves to itself the right of withholding or withdrawing a pension, or any part of it, whether permanently, or for a specified period and the right of ordering the recovery from a pension of the whole, or part of any pecuniary loss caused to the Board, if, in a departmental or judicial proceedings, the pensioner is found guilty of grave misconduct, or negligence, during the period of his service, including service rendered on re employment after retirement. 172(1) Where any departmental or judicial proceedings is instituted under Regulation 171 or where a departmental proceedings is continued, under clause (a) of the proviso thereto against an employee who has retired on attaining the age of superannuation or otherwise, he shall be paid the period commencing from, the date of his retirement o the date on which upon conclusion of such proceedings final order are passed, a provision pension not exceeding the maximum pension which would have been Admissible on the basis of his qualifying service upto the date of retirement, or if he was under suspension on the date of retirement upto the date immediately preceding the date on which he was under suspension, but no gratuity or death-cum retirement gratuity shall be paid to him until the conclusion of such proceedings and the issue of final orders thereon. Note - In the case of a retired employee entitled to pension without death-cum-retirement gratuity under the pension Regulations elected by him, the provisional pension shall not exceed three-fourths of the maximum pension admissible to him. 9. In the instant case, the departmental enquiry was initiated against the employee prior to his superannuation. Therefore, by virtue of Regulation 172(1) of the Regulations, the company has the authority to withhold the pension. Regulation 172(1) of the Regulations also provides that no gratuity or Death-cum-Retirement Gratuity shall be paid to the employee till conclusion of the proceedings pending against him. 10. In the instant case, admittedly in a proceeding initiated by the employee before this court, the proceedings of the departmental enquiry were stayed. Regulation 172(1) of the Regulations also provides that no gratuity or Death-cum-Retirement Gratuity shall be paid to the employee till conclusion of the proceedings pending against him. 10. In the instant case, admittedly in a proceeding initiated by the employee before this court, the proceedings of the departmental enquiry were stayed. It is not in dispute that the aforesaid writ petition now has been dismissed and the proceedings of the departmental enquiry are at the stage of conclusion. The Regulation 171 and Regulation 172(1) of the Regulations which have statutory force have to be given effect to in the absence of any challenge to its validity and the same are binding on the employee. The aforesaid Regulations permit the company to fix a provisional pension by withholding a part of the pension and in clear terms provide that the gratuity shall not be paid to the employee till the conclusion of the proceedings. Therefore, the action of the company in issuing an endorsement dated 22. 07.2013 cannot be found fault with as the same is in consonance with the Regulations 171 and 172(1) of the Regulations. 11. For the aforementioned reasons, the order dated 10.09/2018 cannot be sustained in the eye of law. It is accordingly set aside. However, taking into account the fact that the employee has attained the age of superannuation on 31.05.2012 and the departmental enquiry is still pending against him, it is expected that the Upalokayukta shall make an endeavour to conclude the proceedings of the departmental enquiry within an outer limit of two months from the date of receipt of certified copy of the order passed today. Needless to state that the company shall on conclusion of the departmental enquiry within a further period of two months shall decide the claim of the employee about the payment of Death-cum-Retirement Gratuity / Gratuity, remainder of pension as well as other monetary benefits to which the employee is entitled depending upon the outcome of the departmental enquiry. The company shall pass a speaking order with regard to the claim of the employee. With the aforesaid directions, the appeal is disposed of.