w w w . L a w y e r S e r v i c e s . i n

P. Venu v/s The Union of India, Through The Secretary Department of Industrial Policy & Promotion, Ministry of Commerce & Industry, New Delhi & Others

    OP (CAT). No. 268 of 2019

    Decided On, 18 December 2019

    At, High Court of Kerala


    For the Petitioner: P. Venu, (Party in Person). For the Respondents: R1-R4, P. Vijayakumar, ASG of India.

Judgment Text

K. Vinod Chandran, J.

1. We posted three Original Petitions [O.P.(CAT) Nos.119/2016, 16/2019 and 268/2019] together, from three separate orders of the Central Administrative Tribunal [“CAT” or “Tribunal” for brevity]. The same applicant before the Tribunal is a Government servant, who retired, as Assistant Salt Commissioner, on 30.06.2013. Two matters [O.P (CAT) Nos.119/2016 and 16/2019] are with respect to disciplinary proceedings initiated against the applicant, one of which ended with imposition of penalty. The Tribunal though found the allegation of misconducts having been proved, relegated the matter to the Disciplinary Authority for consideration of reduction of penalty. In the second Original Application ['OA' for brevity], in which the disciplinary proceedings had not concluded, the Tribunal found the initiation to be improper and allowed the OA, against which the Union of India is before us. While the above two matters were pending, the applicant was denied gratuity and commuted value of pension; the provisions enabling such withholding was challenged as unconstitutional before the Tribunal, which OA stood rejected. The third Original Petition [O.P(CAT) No.268/2019] is filed by the applicant against that rejection order of the Tribunal. Though the very same applicant is before us, we pass separate judgments in the three Original Petitions. We refer to the parties from their status in the OA and Annexures as produced in the OA.

2. This proceeding has been initiated by the applicant in desperation, to get disbursed his gratuity and commutation of pension, which has been withheld for reason of two disciplinary proceedings pending against him. The challenge is against Rule 69(1)(c) of the Central Civil Services (Pension) Rules, 1972 and Rule 4 of the Central Civil Services (Commutation of Pension) Rules, 1981 [hereinafter referred to as 'Pension Rules' and 'Commutation of Pension Rules' for brevity].

3. It is contended that the said rules are unreasonable and unconstitutional for reason of violation of Articles 14 and 21 of the Constitution of India. Reliefs sought in the O.A. were for declaration of the aforesaid rules as unconstitutional and disbursal of gratuity as also commutation of pension. It is argued by the applicant, who appeared in person before us, that the rules challenged are instruments of oppression in the hands of respondents. It is submitted that there is no allegation of pecuniary loss caused and in such circumstances there could be no recovery from the applicant. If there could be no recovery there could be no withholding of pension or gratuity. The blanket prohibition of withholding of gratuity and commuted value of pension works undue hardship on the Government servant, who has been proceeded against departmentally; pending which he superannuated. Such arbitrary action interferes with his valuable civil rights. Right to life includes within its ambit, the right to have a decent living with dignity, which has been deprived, invoking arbitrary provisions, is the compelling argument.

4. The Tribunal rightly observed that the pleadings and arguments focused mainly on the illegality or irregularity of the articles of charges levelled against the applicant. It was rightly found that there could be no declaration of unconstitutionality made on the facts arising in the applicant's case. The challenge to the rules on ground of violating Articles 14 and 21 cannot be sustained on individual facts of a case and hence has to be looked at from the context of the Constitution, independent of the facts of the case which led to the challenge.

5. Considering the challenge independently, Rule 9(1) of the CCS (Pension) Rules reserves the right in the President to withhold a pension or gratuity, or both, either in full or in part, or withdrawal of a pension 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 Government, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service. The recovery from pension or gratuity in the nature of recovery of a pecuniary loss arise in the second limb of Rule 9(1). But however; the withholding or withdrawal of pension and gratuity, either in full or part, permanently or for a specified period, as seen from the first limb of Rule 9(1) is in the nature of punishment imposed on the employee if found guilty of grave misconduct or negligence during the period of service. Hence, it cannot be said that only if pecuniary loss is alleged to have been caused to the Government, the pensionary benefits can be withheld; solely for the purpose of recovery of such loss. There could always be a punishment imposed of either withdrawal or withholding of any of the pensionary benefits, including gratuity, in part or in full.

6. Rule 69(c) of the Pension Rules, gives a clear mandate that no gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon. Rule 4 of the Commutation of Pension Rules also brings in a restriction in the case of commutation of pension. As far as Leave Surrender, Rule 39 of the Central Civil Services (Leave) Rules, 1972 ['CCS (Leave) Rules' for short] enables the authority competent to grant leave, to withhold whole or part of cash equivalent of earned leave in the case of a retired Government servant against whom disciplinary or criminal proceedings are pending. However, we notice that Rules 9(4) and 69(1)(a) indicates that insofar as a retired employee against whom disciplinary proceedings have been initiated, necessarily the provisional pension sanctioned should be the maximum pension on the basis of qualifying service. This has been sanctioned in the case of the respondent/applicant. It is termed provisional only to reserve the right of the Government to recover from the pension, any pecuniary loss caused or withhold or withdraw; a part of or even the whole of the pension as a punishment.

7. The rules challenged ensure not only recovery from a retired Government servant, to make good the loss caused to the exchequer in the discharge of his duties but also as a punishment for misconducts proved as committed in the course of discharge of his duties. A retired Government servant also cannot be imposed with any of the punishments as is delineated under Rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, after his retirement. If the proceeding initiated before or after retirement, alleging misconduct against a Government servant while he was in service, spills over after his superannuation, the punishment that could be imposed is only that under Rule 9(1) of the Pension Rules. We have already discussed the nature of such penalties herein above.

8. Rule 9, as we found not only enables recovery of pecuniary loss caused to the Government but also enables, the disciplinary authority to withhold a pension or gratuity or both either in full or in part, that too, permanently or for a specified period as a punishment imposed, on finding the retired Government servant guilty of grave misconduct or negligence during the period of service. But for this provision, a Government servant on the verge of retirement could indulge in misconducts causing loss to the Government or by appropriating advantage to himself by means of oppression upon those over whom he wields power or compromising on implementation of the established laws. As a deterrent measure Rule 9 and 69(1)(c) of the Pension Rules as also Rule 4 of the Commutation of Pension Rules have been brought into the statutory Scheme. We cannot find any violation of Article 14 or 21 in the rules challenged.

9. A retired Government servant against whom disciplinary proceeding is initiated and continued after superannuation does not stand equally to a Government servant who retired with no such proceeding pending against him. There cannot also be said to be a deprivation of livelihood for reason of the provisions of the Pension Rules ensuring provisional pension at the maximum of the pension payable, as noticed herein before. There can be no contention raised on the wider ambit of Article 21, since the withholding of amounts due on superannuation is a consequence of the conduct of the Government servant; which delinquency alleged cannot at every instance be termed as victimisation or arbitrary.

10. We also notice the provisions of the Pension Rules, which compensate the retired Government servant in case of any victimisation. Chapter VIII of the Pension Rules has the heading of “Determination and Authorisation of the Amounts of Pension and Gratuity” and Rule 68 ensures interest on delayed payment of gratuity, when delay is attributable to administrative reasons or lapses. The rate of interest also is stipulated to be the rate applicable to the General Provident Fund amounts in accordance with the instructions from time to time. The discretion to decide on the question of interest is also conferred on the Secretary of the Administrative Ministry or the Department from which the Government servant retired as per sub-rule 2 of Rule 68.

11. Further, we also notice Rule 88, which is extracted hereunder:

“88. Power to relax Where any Ministry or Department of the Government is satisfied that the operation of any of these rules, causes undue hardship in any particular case, the Ministry or Department, as the case may be, may, by order for reasons to be recorded in writing, dispense with or relax the requirements of that rule to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner:

provided that no such order shall be made except with the concurrence of the Department of Personnel and Administrative Reforms.”

The Ministry or the Department of the Government can, looking at individual cases, if it is found just and equitable, dispense with or relax the requirements of any rule. If an application is made by a retired Government servant, against whom proceedings have been taken by the Government, it has reserved to itself the discretion not to impose the rigour of any rule which includes the rule, which enables withholding of pension and gratuity. In such circumstances, we reject the ground raised of unconstitutionality.

12. Now coming to the claim of disbursement of commuted value of pension and gratuity. We have to briefly look at the result of the challenge made against the two disciplinary proceedings, reference to which was made in the first paragraph by us. The first disciplinary proceeding against the applicant had ended in the imposition of punishment of withholding of 20% of the pension for a period of 5 years. The Tribunal had pointed out various aspects on the specific allegations raised against the applicant, which constituted the misconducts; a consideration of which would result in the gravity of the offences being considerably reduced. On such finding, the Tribunal had remanded the matter to the disciplinary authority for consideration of reduction of penalty. We had elaborated more on the aspects of mitigation as found by the Tribunal, which judgment has been passed in O.P.(CAT) No.119/2016; resulting in the severity of the misconducts being toned down further; more than the Tribunal's findings. We have also found a total lack of application of mind on the part of the disciplinary authority in finding the charges to have been proved and also imposition of punishment. We set aside the impugned order in the O.A. which gave rise to O.P.(CAT) No.119/2016 and directed a fresh consideration. A fresh consideration can only result in a lesser punishment than that which was originally imposed. Here, we have to pertinently observe that the Tribunal's order directing reduction of penalty was not challenged by the Union of India. In such circumstances, if at all a punishment is imposed, it can only be less than withholding of 20% of the pension or/and for a lesser period than 5 years as now imposed.

13. The second disciplinary proceedings have been set aside in toto for reason of the initiation being not in tune with the mandatory requirement of Rule 14 under the CCA Rules. In O.P.(CAT) No.16/2019 which arose from the challenge against the second disciplinary proceedings, we concurred with the Tribunal which set aside the disciplinary proceedings itself. A prayer made for de novo enquiry has also been rejected finding the same to be not possible since the events upon which the allegations were raised to constitute misconducts, had occurred far beyond the four year period provided under Rule 9(2)(b) of the Pension Rules, which apply to retired servants against whom disciplinary proceedings are initiated. The applicant had retired in 2013, about 7 years back and there is no question of a fresh initiation of disciplinary proceedings now on grounds related to instances alleged prior to retirement.

14. In the above circumstances, we are of the opinion that there is absolutely no requirement to withhold the gratuity or commuted value of pension since a punishment of withholding from the commutation amounts of pension or gratuity would be a punishment more onerous than that already imposed on the Government servant, in the sole disciplinary proceeding upheld by us. On that reasoning, though we reject the challenge against Rule 69(1)(c) of the Pension Rules and Rule 4 of the Commutation of Pension Rules, we direct the disbursement of gratuity and commuted value of pension within a period of one month from the date of receipt of a certified copy of this judgment which is deemed to be the date on which the Central Government Counsel accepts the certified copy from the Registry.

15. In this context, we also have to take note of a decision of the Division Bench of the High Court of Delhi in Union of India & Anr. v. Shri. J.P. Sharma [ILR (2009) 1 Delhi 344]. The Government does not have a case and it is very evident that there was no written order passed by the Government withholding the commuted value of pension or the gratuity; which was held to be mandatory by the Delhi High Court. We extract paragraph 25 of the cited decision, with which we respectfully agree:

“25. Does it mean that the gratuity of a retired Government servant can be withheld for any length of time to await the institution of the departmental of judicial proceedings even after his retirement? In our view the answer to this question has to be in the negative. In case departmental proceedings are not instituted within the time granted by Rule 9(2)(b) against a retired Government servant i.e. within four years of the commission of the misconduct, the same cannot be instituted at all. Similarly, judicial proceedings, would have to be initiated within the period of limitation. If no judicial proceedings are initiated against the retired Government servant within the period of limitation, it would be impermissible for the Government to institute them later, or even to withhold the full pension or gratuity of the retired Government servant. The power to withhold the grant of gratuity in contemplation of disciplinary or judicial proceedings cannot be permitted to be misused or abused by the Government. The same cannot become an instrument of ha

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rassment of the retired Government servant in the hands of the Government. At the same time, the Government cannot lightly be divested of its right to withhold the gratuity in respect of a retired Government servant in a deserving case. Therefore, in every case where the Government withholds gratuity in respect of a retiring/retired Government servant, the Government shall be obliged to pass an order disclosing the grounds with reference to the particular cases in respect of which Rule 9(4) and Rule 69 of the Pension Rules are sought to be invoked against the Government servant.” 16. We find that there is an administrative lapse on the part of the Department for reason of there being no order of withholding of commuted value of pension or gratuity. This also further fortifies the directions issued by us to disburse the entire gratuity and commuted value of pension within the time stipulated herein above and also enables us to direct interest, which the Secretary of the Ministry to which the applicant is attached, is obliged to grant under Rule 68 of the Pension Rules, at rates applicable to the General Provident Fund from time to time. Interest shall run from the next day of the applicants retirement to the date of payment, which we direct to be paid along with disbursement of gratuity and commuted value of pension, both of which shall carry interest. Though commutation of pension is not covered under Rule 68 of the Pension Rules, we are of the opinion in the facts of the case, where withholding of the said amount was without any enabling provision, interest as provided under Rule 68 of the Pension Rules should be paid. The original petition is partly allowed. There is no order as to costs.