Union of India & Others v. Elizabeth Peter

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941** ## **OP (CAT).No.307 OF 2019** **AGAINST THE INTERIM ORDER IN O.A.673/2019 DATED 25-09-2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONERS/ RESPONDENTS IN O.A.:** - **1 THE DIRECTOR POSTAL SERVICES, CENTRAL REGION (KERALA CIRCLE), KOCHI-682 020.** - **2 THE SENIOR SUPERINTENDENT OF POST OFFICES, ERNAKULAM DIVISION, KOCHI-682 011.** - **3 THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM-695 033.** - **4 UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF COMMUNICATIONS, NEW DELHI-110001.** **BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA.** ## **RESPONDENT/ APPLICANT IN O.A.:** **ELIZABETH PETER, AGED 60 YEARS** **W/O RAJAN T JACOB RETIRED LSG SUPERVISOR (SBCO), ERNAKULAM HPO KOCHI-682 011, RESIDING AT OLIKKARA, KADAVIL ROAD, THAIKOODAM, VYTTILA P.O.KOCHI-19.** **R1 BY ADV. SMT.ANITHA MENON. ADV. SRI.S.RADHAKRISHNAN,** _**AMICUS CURIAE**_ **.** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 27.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **- 2 -** **OP (CAT).No.307 of 2019** **==> picture [48 x 9] intentionally omitted <==** **K.Vinod Chandran & V.G.Arun, JJ. ----------------------------------O.P(CAT) No.307 of 2019-Z ----------------------------------Dated this the 27[th] day of November, 2019** ## **JUDGMENT** ## **K.Vinod Chandran,J:** **This Original Petition (CAT) is filed by Union of India and the Postal Department, challenging the interim order of the Tribunal directing payment of pensionary benefits of the respondent/applicant after deducting an amount of Rs.6,00,000/- finding that the liability attributable against the applicant as loss suffered by the Government, even according to the Department, as decipherable from the Charge Memo, was only Rs.5,44,267/-.** **2. The respondent/applicant was aggrieved with the non-disbursal of her entire pensionary benefits. It is submitted that after the order impugned in the Original Petition was passed, full pension has been granted to her; but, however, she has to be issued with the Commuted Value of Pension, Death-cum-Retirement Gratuity ['DCRG' for short] as also Wages on Leave Surrender.** **3. On facts, it has to be noticed that just two days prior to the retirement of the respondent/applicant, a charge memo was issued against her and since there was no** **- 3 -** **OP (CAT).No.307 of 2019** **disbursal of the pensionary benefits, the applicant approached the Tribunal. In the impugned order the Tribunal found that amounts attributable towards the respondent/ applicant on the allegation of supervisory lapse in detecting embezzlement of Government money by M.T.Sreemathi (late) was Rs.5,44,267/-. The petitioners were directed to release the pensionary benefits after withholding an amount of Rs.6,00,000/-.** **4. We took the assistance of Sri.S.Radhakrishnan, learned Counsel, to understand the provisions better. The issue of disbursal of pensionary benefits is regulated by Rule 9 & 69 of the Central Civil Services (Pension) Rules, 1972 ['CCS (Pension) Rules' for short] and Rule 4 of the Central Civil Services (Commutation of Pension) Rules, 1981 ['CCS (Commutation of Pension) Rules' for short]. A Division Bench of this Court in** _**S.Purushothaman v. Union of India & Others [2016 SCC OnLine Ker.33522**_ **] has also held that it is the absolute discretion of the Government insofar as withholding of any of the pensionary benefits.** **5. In fact, we notice that CCS (Pension) Rules, by Rule 9(4) and Rule 69(b), permits grant of provisional pension to those persons proceeded with departmentally and it is the submission of the learned Assistant Solicitor** **- 4 -** **OP (CAT).No.307 of 2019** **General of India that a provisional pension may even include full pension. In the case of the respondent/ applicant, it is submitted, full pension has been granted to her. However, even a withholding of other pensionary benefits would require a reasoned order. The learned ASG would specifically point to the Rules and argue that the same cannot be done.** **6. 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 is taken care of 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** **OP (CAT).No.307 of 2019 - 5 -** **or negligence during the period of service. Hence, it cannot be said that the pecuniary loss alleged to have been caused to the Government, as seen from the charge memo, alone needs to be withheld 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.** **7. Further, we also notice Rule 69(c) of the CCS (Pension) Rules, which is 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 CCS (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** **- 6 -** **OP (CAT).No.307 of 2019** **should be the maximum pension on the basis of qualifying service. This has been sanctioned in the case of the respondent/applicant. The rider of it being provisional, is only to reserve the right of the Government to recover from the pension as a recovery of pecuniary loss caused or withhold or withdraw even as a punishment.** **8. We notice the Division Bench decision of the High Court of Delhi in** _**Union of India & Anr. v. Shri J.P. Sharma [ILR (2009) 1 Delhi 344**_ **], wherein Their Lordships have held that though there is power conferred on the Government to withhold the gratuity, all the same the said power cannot be permitted to be misused or abused and the Government is obliged to pass an order disclosing the grounds with reference to the particular cases in respect of which Rule 69(c) of the CCS (Pension) Rules is sought to be invoked against the Government servant. We respectfully agree with the same.** **9. In so far as Rule 9(4) of the CCS (Pension) Rules is concerned, now the respondent/applicant has been disbursed with the provisional pension at the maximum reckoned on her qualifying service and there need be no disturbance caused to it as of now. However, with respect to the withholding of the other pensionary benefits,** **- 7 -** **OP (CAT).No.307 of 2019** **including encashment of Earned Leave, the appropriate authority under the Union of India, being either of the petitioners 1 to 3 herein, shall pass a reasoned order showing the reasons why her other pensionary benefits, including leave encashment, are withheld, within a period of three months from the date of receipt of a certified copy of this judgment.** **10. The learned Counsel for the respondent/ applicant has certain compelling arguments against the allegations raised in the charge memo itself. It is contended that the alleged misappropriation of funds carried out by one another official, who is now no more, occurred during the period 13.07.2006 to 21.05.2010. Without admitting the fact that the applicant was in supervision of the particular employee, it is pointed out that even as per the charge memo the applicant is said to have been in charge only between January 2006 to May, 2007. Further, the misappropriation itself occurred in a four year period, almost a decade back. Despite the embezzlement having come to the notice of the authorities in the year 2012, as is clear from the statement in Article No.I that the fraud was detected in the Kaloor Post Office on 06.01.2012, the authorities did absolutely nothing to** **- 8 -** **OP (CAT).No.307 of 2019** **recover the embezzled amounts or initiate a disciplinary proceeding for long years totalling seven. The applicant was proceeded with, just on the eve of her retirement. In fact, the applicant relies on Annexure A6 produced in the O.A. to contend that she was not in charge of the Postal Assistant-III, which charge was on one another employee. The specific contention taken up was that she was charge of PA-IV, unconnected with the person who has committed embezzlement of Government money.** **11. We have to notice that the O.A. itself is against non-disbursal of pensionary benefits and not against the initiation of departmental proceedings. Neither could we consider the above contention at this stage when only a charge-sheet has been issued. The applicant is entitled to raise all contentions before the appropriate authority conducting the enquiry proceedings or challenge the findings in the enquiry. Considering the entire facts and circumstances, we are of the opinion that the enquiry proceedings should be expedited and should be completed at least within a period of six months from the date of receipt of a certified copy of this judgment. An order as directed above showing the reasons to withhold the retirement benefits other than pension shall be passed** **- 9 -** **OP (CAT).No.307 of 2019** **within a period of three months. It is also made clear that this judgment shall not result in any interference to the provisional pension sanctioned to the applicant; which is subject only to the final orders passed at the enquiry ordered.** **The Original Petition (CAT) is allowed, setting aside the impugned order and in the nature of the findings entered into by us, we are of the opinion that the Original Application before the Tribunal can be closed. The respondent/applicant's right to challenge the orders passed by the Government are reserved. Parties are left to suffer their respective costs.** **We place on record our immense appreciation and gratitude to Sri. S. Radhakrishnan for enlightening us on this particular aspect by his incisive analysis of the provisions.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** **vku/-** **- 10 -** **OP (CAT).No.307 of 2019** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORIGINAL APPLICATION IN OA NO.180/00673/2019 DATED 5.9.2019** **EXHIBIT P1(A1) TRUE COPY OF THE MEMORANDUM OF CHARGES DATED 27.8.2019** **EXHIBIT P1(A2) TRUE COPY OF THE NOTICE DATED 30.7.2019 EXHIBIT P1(A3) TRUE COPY OF THE MEMO DATED 30.8.2019 EXHIBIT P1(A4) TRUE COPY OF THE REPLY SUBMITTED BY THE APPLICANT DATED 2.8.2019** **EXHIBIT P1(A5) TRUE COPY OF THE REPLY SUBMITTED BY THE APPLICANT DATED 5.8.2019** - **EXHIBIT P1(A6) TRUE COPY OF THE MEMO OF DISTRIBUTION OF WORK DATED 19.4.2005** **EXHIBIT P1(A7) TRUE COPY OF THE DIRECTOR OF POSTAL ACCOUNTS COMMUNICATION TO EFFECT DATED 20.8.2019** **EXHIBIT P1(A8) TRUE COPY OF THE APPLICANTS REPLY TO CHARGE SHEET DATED 3.9.2019** **EXHIBIT P2 TRUE COPY OF THE ORDER IN OA NO 673/2019 DATED 25.9.2019** **EXHIBIT P3 TRUE COPY OF THE MISC APPLICATION DATED 7.11.2019** **EXHIBIT P3 (MA-1) TRUE COPY OF THE ORDER DATED 25.9.2019 ON OA 673/2019** ## **[TRUE COPY]**