Sanjeev Kaushik, Member (J).
1. The applicant has invoked the jurisdiction of this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, seeking a declaration that Vigilance Enquiry stated to be pending against the applicant be deemed to have been abated having not been completed within the time allowed for and to issue direction to the respondents to release him all retiral dues with interest @18% per annum from 1.2.2016, till its realization.
2. At the very outset, learned counsel for the applicant stated that he restricts this O.A. only qua release of full retiral dues and would seek relief in regard to legality of action of respondents in not completing the disciplinary proceedings within the time allowed by this Court in earlier round of litigation, by separate appropriate proceedings as per rules and law. Prayer is allowed. Now this case would proceed only qua release of full retiral dues.
3. The facts of the case are largely not in dispute. The applicant joined service as Sectional Officer/Junior Engineer on 8.11.1979 and retired voluntarily as Sub Divisional Engineer w.e.f. 1.2.2016. During employment, he had submitted an application for Ex-India leave in 2013 in response to which he was informed on 3.9.2013 (Annexure A-1) that certain complaints were pending against him, relating to the year 2011. His request for indicated leave was rejected. He submitted a representation dated 9.9.2013 (Annexure A-2), and he was granted leave. He submits that he was never served any memorandum or charge sheet relating to the alleged complaints of period 2011. In 2016, he applied for voluntary retirement to which he received a reply dated 25.1.2016 (Annexure A-5), that comments on complaints are still awaited from respondent no.3 and a Vigilance Enquiry No. 2/Vig/C dated 30.1.2015 was registered against Building Branch, Estate Office, Union Territory, Chandigarh. He was, however, retired from service on 1.2.2016 and submitted application / documents for release of dues. Respondent No.2 issued a letter dated 20.5.2016 (Annexure A-7), that as on date, no departmental / criminal case was pending against the applicant nor he was placed under suspension and as such under rule 2.2 of Punjab Civil Services Rules, the retiral dues could not be withheld. However, Respondent No.5 vide letter dated 5.7.2016 (Annexure A-8) refused to release dues to await “outcome of the vigilance enquiry report”. On filing of O.A.No.060/1002/2016, this Tribunal directed the respondents on 8.12.2017 to complete the enquiry within a period of two months and release dues, but to no avail hence the O.A.
4. Respondent No.3 has filed a short reply. It is submitted that applicant was posted as SDO (Buildings) from 22.9.2010 to 28.9.2011. Vigilance Department has intimated that a vigilance enquiry dated 31.1.2015 is pending against the applicant, relating to amalgamation of plot no. 84 and 85, Phase-II, Industrial Area, Chandigarh. The retiral dues are to be released by respondent no.1. Respondents No.1, 2 & 4 have filed a joint reply. They admit that Vigilance enquiry pending against the applicant has not yet been completed despite time granted by Tribunal having expired a long time back. They submit that respondent no.4 vide his letter dated 24.1.2018 had informed that SP (Vigilance) had given report that prima facie offence has been found to have been committed by officials including applicant and permission was sought to register an FIR u/s 13 (1)(d) of P.C. Act, 1988. The provisional pension has already been released to the applicant w.e.f. 1.2.2016. He would be released full retiral dues, after completion of the pointed case pending against the applicant. The applicant has filed a rejoinder rebutting the contentions raised in the written statement.
5. We have heard the learned counsel for the parties at length.
6. Mr. Jaswal, learned counsel appearing for the applicant vehemently argued that the action of the respondents in not releasing retiral benefits and final pension, even when there was nothing against the applicant on the date of retirement, is totally illegal, arbitrary and in colourable exercise of power at the hands of the respondents. To elaborate, he submitted that mere non issuance of vigilance certificate or pendency of a vigilance case, cannot be taken to be equivalent to pendency of or initiation of disciplinary / criminal proceedings against the applicant.
7. Per contra, learned counsel for respondents, argued that the respondents are well within their right to withhold the retiral benefits in terms of Rule 2.2 (c) of the Punjab Civil Services Rules, Volume-II. They submitted that the respondents have already released provisional pension to the applicant, and they cannot release more than what has already been accorded in his favour and the SP (Vigilance) has opined that a prima facie case is made out against officials including the applicant relating to amalgamation of plots in question.
8. We have given our thoughtful consideration to the entire matter and perused the pleadings available on record with the able assistance of the learned counsels appearing for the parties
9. The short question that arises for determination in this case before us is as to whether, on the ground of non issuance of vigilance clearance or pendency of a vigilance case without issuance of formal charge sheet or framing of charges in criminal case, the respondents can withhold the full retiral benefits of a retiree, in terms of Punjab Civil Services Rules or not?
10. Rule 2.2 (b) of the Punjab Civil Services Rules, which goes to the root of problem, is reproduced below, as the same is applicable to the employees / retirees of Chandigarh Administration:
“2.2. Recoveries from pensions:
(a) xx xx xx
(b) The Government further reserve to themselves 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 Government, if, in a departmental or judicial proceeding, the pensioner is found guilty of grave mis-conduct or negligence during the period of his service, including service rendered upon reemployment after retirement:
(1) Such departmental proceedings, if instituted while the officer was in service, whether before his retirement or during his reemployment, shall after the final retirement of the officer, he deemed to be a proceeding under this article and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service;
(2) Such departmental proceedings, if not instituted while the officer was in service whether before his retirement or during his reemployment-
(i) shall not be instituted save with the sanction of the Government;
(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 Government 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 officer during his service.
(3) No such judicial proceedings, if not instituted while the officer was in service, whether before his retirement or during his re-employment shall be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution........"
Explanation: For the purpose of this rule-
(a) A Departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the officer has been placed under suspension from an earlier date, on such date; and (b) A Judicial proceedings shall be deemed to have been instituted.-
(i) in the case of criminal proceedings, on the date on which the complaint is made or a challan is submitted to a criminal court; and
(ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to civil court.
Note: As soon as proceedings of the nature referred to in the above rule are instituted, the authority which institutes such proceedings should without delay intimate the fact to the Accountant General.”
Rule 8.21 of PCS Rules (Leave Encashment)
"8.21(a) Leave at the credit of a Government employee in his leave account shall lapse on the date of his retirement: Provided that the Government employee;-
xxx xxx xxx
(aa) Notwithstanding anything contained in sub-rule (a) the authority competent to grant leave may withhold whole or part of cash equivalent of earned leave in the case of Government employee who retires from service on superannuation while under suspension or while disciplinary or criminal proceedings are pending against him, if in the opinion of such authority, there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him and on conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Government dues, if any."
11. A perusal of the aforesaid extraction, makes it beyond any doubt that that pending departmental or judicial proceedings, the employer is well within its power and authority to withhold the retiral benefits i.e. gratuity or DCRG and leave encashment. The next question is as to what would be the stage at which one can say that departmental / criminal proceedings are taken to have been instituted. This is made clear in the rule itself specifically explaining that departmental proceedings shall be deemed to be instituted on the date on which statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension, from an earlier date on such date. It is not disputed that the applicant has not ever been issued any charge sheet by the respondents or registered any criminal case, what to talk of framing of charge, on criminal side, in the indicated vigilance case. Considering these facts, we have no hesitation in holding that the respondents could not withhold the amounts of retiral dues / pension as the requirements for invoking of rule 2(b) reproduced above are totally missing in this case and mere pendency of a vigilance case, cannot be taken as a refuse to withhold the dues and the same cannot be taken to be initiation of criminal / disciplinary proceedings. 12. A somewhat similar issue came to be considered by this very Bench of the Tribunal in O.A.No.060/00888/2018 titled PRADEEP KUMAR BHAGAT VS. THE ADMINISTRATOR, U.T. CHANDIGARH & OTHERS, decided on 4.7.2019, and similar view was taken. The relevant portion of the decision is reproduced as under :-
“12.The Court finds merit in the plea taken by the learned counsel for the applicant that in terms of pointed Rule 2.2(b) and 2.2 (c) of the PCS Rules, the amount of gratuity and leave encashment due to the applicant could not have been withheld as on the date of retirement no charge-sheet had been served upon him. This was the view taken by Hon’ble Jurisdictional High Court in the case of RAM NARAIN DUA VS. DAKSHIN HARYANA BIJLI VITRAN NIGAM LTD. & OTHERS, 2007(1) SCT 161. Not only that, similar view was taken in NARINDER DEV SHARMA VS. STATE OF PUNJAB AND ANOTHER, 1996(1) SCT 623 as also another judgment in L.R. DHAWAN VS. STATE OF HARYANA AND OTHERS, 1996(3) SCT 11. In the case of L.R. Dhawan's (Supra), the Court has held in the following terms:-
"Gratuity due to an employee is payable to him on the date of retirement. Payment of the gratuity can be deferred in a case where the employee is under cloud at the time of his retirement, namely, in a case where he is facing departmental inquiry or judicial proceedings. If no inquiry or judicial proceedings is pending on the date of retirement of the employee, the Government/employee does not have any authority to withhold the payment of gratuity. Similarly, full pension payable to an employee can be withheld during the pending of the departmental inquiry or judicial proceedings. The Government is also possessed with the power to withhold the pension or a part thereof or recover any pecuniary loss caused to the Government from the pension payable to an employee in case such Government servant is found guilty of grave misconduct or negligence in the discharge of his duties during the course of service. Deduction from the pension can be made even on the basis of an inquiry which may be initiated against the employee after his retirement but subject to the fulfillment of the conditions enumerated in proviso to Rule 2.2(b). However, proceedings initiated against an employee under proviso to Rule 2.2 (b) cannot be made a ground for Withholding of death-cum-retirement gratuity or the pension payable to an employee on the date of his retirement. In the case in hand, no inquiry was pending against the petitioner on the date of his retirement. The proceedings have been initiated against him after over three years and nine months of his retirement from service. That may ultimately lead to the withholding of the pension or part thereof or recovery there from in terms of Rule 2.2(b) but there does not appear to be any legal justification for withholding of death-cum-retirement gratuity payable to the petitioner on the ground that inquiry has been initiated against him under Rule 2.2(b) with the issue of notice dated 26.12.1986."
13. Similarly, a Division Bench of this Tribunal in O.A. No. 1480-PB-2014 titled VIJAY KUMAR SHARMA VS. UOI ETC. decided on 16.4.2015 (authored by me) has decided the similar issue in the following terms :-
“10. A perusal of the above extraction makes it clear that the legislature has given power to the respondents to withhold the pension/DCRG of a retiree, if any pecuniary loss is caused to the government and in a departmental or judicial proceedings, it is established that the pensioner is found guilty of grave misconduct or negligence during his service including service rendered on re-employment after retirement. Therefore, it can safely be concluded that if on date of retirement, the inquiry is pending or he has already been held guilty of charges on a pecuniary loss to the department, then the respondents can withhold the amount of DCRG otherwise under the above rule, they are precluded from doing so. The above Rule 2.2 (b) of the PCS Rule, came for interpretation before the Hon’ble High Court in case of L.R. Dhawan’s case (supra), wherein the Hon’ble High Court in para 4 has recorded a categorical finding that if a departmental proceeding has been initiated, after retirement of employee, then in terms of 2.2(b) of the PCS Rules, the respondents cannot withhold the amount of DCRG as it is due on the date of retirement because on that date there was nothing against an employee. Following the above law, subsequently, in case of Rajinder Kumar Dania’s case (supra) action of the respondents therein was quashed and direction was issued to the department to release the amount as same had been withhold without there being pendency of any inquiry/judicial proceeding against the applicant on the date of retirement. The commencement of criminal proceeding or departmental proceeding has also been decided in case of Atma Bodh Sharma’s case (supra) wherein the Hon’ble Division Bench have laid down that in terms of 2.2(b) of the PCS Rules, the department can withhold the amount if the employee is found guilty of grave mis-conduct or guilty of causing pecuniary loss to the department during the service. Explanation of 2.2(b) of PCS Rules provides that departmental proceeding can be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner or the officer has been placed under suspension from an earlier date, on such date and a judicial proceedings shall deemed to be instituted (i) in the case of criminal proceedings on the date on which the complaint on which Magistrate takes cognizance, is made and (ii) in the case of civil proceeding, on the date of presentation of the plaint in the court.
11. In the light of the above legal proposition, we have considered the present case. It is clear that there was nothing against the applicant on date of his retirement i.e. 31.08.2012. After a period of nine months, for the first time, the respondents issued a letter asking the applicant to hand over the record. Subsequently, on 27.09.2013, the respondents passed the order to withhold the DCRG till further orders. During the pendency of the O.A, the competent authority accorded the sanction to withhold the gratuity and DCRG. Suffice to record that on date of retirement of applicant, there was nothing against
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him, therefore, in terms of 2.2(b) of the PCS Rules, the respondents could not withhold the amount of DCRG as held in case of L.R. Dhawan’s (supra) and subsequently, in case of Rajinder Kumar Dania(supra).” 14. The learned counsel for the respondents have not denied the fact that on the date of retirement of the applicant, no charge-sheet had been issued to him. On the contrary, they submit that even as on date, no charge sheet has been issued and amounts have been withheld only on the ground of non release of vigilance clearance. Considering the well settled principle that the initiation of departmental proceedings takes effect from the date a charge-sheet is served upon an employee/retiree, there was no justification, at all, from any angle, with respondents to withhold the indicated pensionary benefits of the applicant which is in violation of rules aforesaid. The other decisions quoted by applicant, and noticed above, also support the case of the applicant. 15. In view of the aforesaid discussion, this O.A. is allowed. The impugned orders to the extent of withholding of retiral dues are quashed and set aside. The respondents are directed to release full retiral dues of the applicant, after adjusting the amounts deposited by applicant and requested by him for adjustment, within a period of one month from the date of receipt of a certified copy of this order. The parties are, however, left to bear their own costs.” 13. The questions of facts and law decided in the aforesaid case apply on all fours to the facts and question of law raised in this case as well. 14. In the wake of aforesaid discussion, this O.A. is allowed. The respondents are directed to release full retiral dues of the applicant within a period of one month from the date of receipt of a certified copy of this order. The parties are, however, left to bear their own costs.