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Judgment
Justice K.Haripal, Judicial Member
Applicant was a senior officer in Lakshadweep Administration belonging to the Delhi, Andaman and Nicobar Island Civil Services (DANICS), who retired from service on superannuation on 31.03.2019. He is aggrieved by non-granting of his retiral benefits like gratuity, commutation benefits and leave encashment, and seek a direction to the respondents to pay the amounts with interest at the rate of 12% from the date of retirement.
According to the applicant, while retiring, he was holding the post of Secretary (Education) besides holding additional charges of about ten departments like Secretary Sports and Youth affairs, Secretary Panchayat, Secretary Art and Culture, Secretary Tourism, Secretary Social Welfare and Tribal Affairs, Secretary Woman and Child Development, Secretary Rural Development, Secretary Kala Academy, Managing Director Sports and Managing Director Lakshadweep Tourism Development Corporation. His name was considered for induction in the Indian Administrative Service cadre.
Retiral benefits have been withheld on account of pendency of two criminal cases; he has already been acquitted in one case and the CBI has taken leave from the Hon'ble High Court for preferring the appeal. According to him, CC 1/2010 was registered under the influence of a prominent business group, Casino Group of Hotels, a very influential and prominent group in hospitality sector in India, who had been managing Bangaram Island Resorts. On the belief that as Director of Tourism he was responsible for evicting them from Bangaram Island Resorts, they had been behind the initiation of CC 1/2010 alleging that he has unaccounted wealth disproportionate to known sources of income to the tune of Rs.37,39,367/-. After detailed examination of material evidence, the Special Judge (CBI), Kavaratti found him not guilty and acquitted of the charges by judgment dated 31.08.2016, three years prior to his retirement. Challenging the judgment of acquittal, the CBI filed Criminal Leave Petition No.2671/2017 before the Hon'ble High Court seeking leave to appeal under Section 378(3) of the Code of Criminal Procedure, which remained defective for long. After curing the defect he was served with a notice. Even though he had seriously opposed the application, after a span of four years leave has been granted. However, that Crl.Appeal has not yet been admitted.
Secondly, it is submitted that even prior to the acquittal from CC 1/2010, FIR No.RC I(A)/2009 of CBI Kerala was registered against several persons including the applicant alleging that certain persons had utilised the subsidised rate of fuel available for Lakshadweep and the persons who were granted licence in Lakshadweep had sold off the fuel in the Lakshadweep quota in mainland itself, thereby made unlawful enrichment. During that period, the applicant was the Director of Ports, the allegation levelled against him was that he had provided cargo space in Government barges to the 1st and 2nd accused persons to transport their cargo including oil to the islands. CBI submitted final report in the above crime on 15.02.2012 alleging offences punishable under Sections 7 and 11 of the Prevention of Corruption Act, 1988. The applicant is the 3rd accused in the final report. Even after 11 years of filing the charge sheet, so far charge has not been framed by the Court.
Referring to clause 6(b) of Rule 9 of the CCS(Pension) Rules, 1972, though it is stated that judicial proceedings shall be deemed to be instituted in the case of criminal proceedings on the date on which the complaint or report of a police officer of which the Magistrate takes cognizance is made. But referring to the decision in Union of India v. S.Janaki Raman [(1991) 4 SCC 109] he submits that mere taking cognizance is not sufficient. There must be framing of charge in the criminal case or filing of charge memo in departmental proceedings. Here, no disciplinary proceeding has been initiated against him and charges have not been framed by the CBI Court. Merely for the reason that the charge sheet has been filed by the CBI, his pensionary benefits cannot be withheld.
The applicant also wanted to say that he had been a senior officer in the DANICS, he was considered for appointment by promotion in the AGMUT cadre of the IAS. Moreover, even before his retirement he was considered to be engaged as Chief Consultant cum Advisor to the Administrator on contract basis from 01.04.2019, the date following the date of retirement. However, he was not inclined to take up the assignment.
Till the date of his retirement his APAR contained 'outstanding' remarks and the Administrator of the Union Territory of Lakshadweep had absolute confidence and faith in him. There is no doubt on his integrity, capacity and calibre. That prompted the Administrator to offer him the post of Chief Consultant cum Advisor on contract basis. According to the applicant, there is no justification in withholding his gratuity, commuted value of pension and leave encashment. Therefore, he has approached the Tribunal with the aforestated reliefs.
On behalf of the respondents, Administrative Officer, Lakshadweep Office, Kochi filed reply statement challenging the very maintainability of the O.A. According to him, on conclusion of investigation, the CBI has filed Annexure-R1(a) charge sheet against the applicant and others under Section 120B read with Section 420 IPC and Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act before the Special Judge-III for CBI Cases, Ernakulam, on 15.02.2012. Referring to R1(b) it has been informed that the CBI has preferred an appeal before the High Court against acquitting the applicant in CC 1/2010. Crl.Appeal No.513/2022 is pending before the High Court. It is also pointed out that since criminal cases are pending, he has been granted provisional pension as provided under Section 69 of the CCS(Pension) Rules, 1972. Similarly, it is submitted that even though he was proposed to be engaged as Chief Consultant cum Advisor to the Administrator on contract basis by Annexure-R1(e) order, initially, even before retirement, that order was kept in abeyance and later it was cancelled. It is also submitted that an amount of Rs.6,37,332/- has already been paid to him towards GPF. According to the respondents, since criminal cases are pending against him, the amounts claimed cannot be released and the O.A. is sought to be dismissed.
We heard Sri.S.Radhakrishnan, learned counsel for the applicant and Sri.Prenjith Kumar, learned Standing Counsel for the Lakshadweep Administration, in detail.
While the learned counsel for the applicant has placed reliance on Janaki Raman, quoted supra, referring to Venu P v. Union of India and others [2020(1) KHC 382], learned Standing Counsel has submitted that the authority of the President to withhold pension or gratuity or both either in full or in part, permanently or for a specified period and ordering recovery from pension or gratuity as part of any pecuniary loss caused to the Government cannot be challenged by the applicant. Similarly, he placed reliance on Kunjappan v. Cochin Port Trust [1996 KHC 284] and submitted that if the pensioner is found guilty of grave misconduct or negligence during the period of service the question of pecuniary loss caused to the Government is relevant and material. The said right of the President to withhold pension or part thereof does not depend upon any pecuniary loss caused to the Government. If the authority specifies that the pecuniary loss caused to the Government by the misconduct or negligence of the pensioner, then recovery can be effected. He also submitted that a Criminal Appeal is pending against the applicant and that the Special Judge CBI-III, Ernakulam has already framed charges against him.
Admittedly, the applicant was a DANIC service officer in the Lakshadweep Administration. He retired from service on superannuation on 31.03.2019 while holding the post of Secretary (Education) and holding additional charges of numerous other departments and organisations. He was the accused in CC 1/2010 before the CBI Court, Kavaratti where charges under Sections 13(1)(c) read with Section 13(2) of Prevention of Corruption Act were levelled alleging that he had amassed wealth to the tune of Rs.37,39,367/- during the period from 01.01.2008 to 08.04.2009. He stood the trial and ultimately was found not guilty and acquitted by the Special Judge. Against that judgment, CBI has preferred appeal before the Hon'ble High Court. Annexure-R1(b) indicates that the Criminal Appeal No.513/2022 preferred against the order of acquittal has already been preferred on grant of special leave by the High Court.
Secondly, he is the 3rd accused in CC 37/2014 pending before the (SPE/CBI)-III Court, Ernakulam. The charge sheet in that case was filed on 15.02.2012 (Annexure-R1(a)). The O.A. was filed on 15.03.2024. Applicant had submitted that till the filing of the O.A., charges were not framed. So, basing on Janaki Raman, quoted supra, it was urged that mere filing of the charge sheet is not sufficient to draw adverse inference against the applicant. But, on his own showing, it is clear that sub-Rule 6(b) of Rule 9 of the CCS(Pension) Rules 1972 indicates that judicial proceedings shall be deemed to be instituted on the filing of final report before the Magistrate. Here, it being a case triable by the Special Judge, by filing Annexure-R1(a) on 15.02.2012 the said embargo is attracted.
In this connection, as rightly pointed out by the learned Standing Counsel, Janaki Raman, quoted supra, deals with the matter of promotion. But here, the question is, on account of pendency of such criminal proceedings, the applicant is entitled to get gratuity, commuted value of pension and leave encashment.
Sub-clause 1(c) of Rule 69 of the CCS(Pension) Rules, 1972 imposes a statutory injunction on the payment of gratuity to a Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon. The learned counsel for the applicant wanted to say that Criminal Appeal pending before the High Court cannot be taken seriously as double presumption of innocence is available in his favour since he has already been acquitted by the trial Court. It may be true that he may be able to claim double presumption in his favour. All the same, pendency of the Criminal Appeal clearly bars release of gratuity during the pendency of the proceedings.
Added to this, the pendency of CC 37/2014 before the Special Court (SPE/CBI)-III, Ernakulam is a hindrance in the release of gratuity. Charges framed by the Special Judge indicate that there were two specific allegations against the applicant attracting Sections 7 and 11 of the Prevention of Corruption Act. 5th and 6th charges are as shown below:
“Fifthly, that during the period 2006-2009, third accused among you, while working as a public servant in his capacity as Port Officer and also as the Head of a Committee, constituted in January, 2008 to plan and monitor the movement of essential commodities and petroleum products from the main land to the Islands, accepted or obtained from A1 and A9, representing M/s. M.M. Associates, following illegal gratification other than legal remuneration, worth about ₹7,50,000/-on different occasions as a motive or reward in the exercise of his official functions, to not report the shortcomings in the import of HSD by A1, at Lakshadweep Islands and to issue a certificate dated 04.01.2006 to M/s. M.M Associates, in his capacity as Port Officer stating that M/s. M.M Associates were the recognized dealers of petroleum products, building materials and consumer goods etc. vide Administrator's order and that the major requirements of the people of Lakshadweep are being transported by them through vessels and cargo barges and to further issue or get issued through the Port Assistants of his Department at Beypore office of Port Department, the permissions in favour of M/s. M.M Associates to transport by barges of Government, the general cargo and HSD and to facilitate A1 and A9 in the commission of fraud and thereby, you, third accused committed offence punishable u/s.7 of Prevention of Corruption Act and within the cognizance of this Court;
Sixthly that during the period 2007-2009, third accused among you, while working as a public servant in his capacity as Port Officer and also as the Head of a Committee, constituted in January, 2008 to plan and monitor the movement of essential commodities and petroleum products from the main land to the Islands, accepted or obtained during 2007-2009, valuable things worth ₹7,50,000/- on different occasions, without consideration from A1 and A9, representing M/s. M.M Associates, whom A3 knew to have been concerned in his official business and having connection with his official functions as the Port Officer, Lakshadweep Ports, and as the Head of Committee to monitor the movement of essential commodities and petroleum products from mainland to the Islands of Lakshadweep, showed favours to M/s. M.M Associates and facilitated A1 and A9 in the commission of fraud and thereby, you, third accused committed offence punishable u/s.11 of Prevention of Corruption Act and within the cognizance of this Court.”
Charges XXI and XXII containing details such as dates, description of the items and amounts, totalling Rs.7,50,000/- on different occasion, without consideration.
He is also facing charges of criminal conspiracy with other accused and cheating, attracting offences under Sections 120B read with 420 IPC. Annexure-R1(a) final report under charge-I reads thus:
“That, A-3, Shri. Hamza also joined in the conspiracy in 2006 and in pursuance of the conspiracy issued a certificate dt. 4.1.2006 to M/s MM Associates, represented by A-1 and A-9, stating that M/s MM Associates were the recognised dealers of Petroleum products, building materials and consumer goods etc. vide Administrator's order and that 'the major requirements of the people of Lakshadweep are being transported by them through vessels and cargo barges and also issued or got issued through the Port Assistant, Lakshadweep Port Department at Beypore office, the permissions to M/s M.M Associates for transporting cargo, general as well as HSD in the barges of Lakshadweep Government on the basis of which M/s M.M Associates represented by A-1 and A-9 filed false applications to export at Beypore port. A-3 further, knowing well that M/s M.M Associates were purchasing materials including HSD on subsidy from mainland did not report to the shortcomings in the import of HSD by M/s M.M Associates in the guise of purchase of HSD for use in Lakshadweep. A-3, knowing well that M/s M.M Associates were connected in his official functions accepted from M/s M.M Associates, represented by A-1 and A-9 about Rs. 8,03,248 during June 2007 to February, 2009 in the form of cash or kind as illegal gratification other than legal remuneration directly or through the staff of M/s M.M Associates for favouring M/s M.M Associates.”
The second component is the release of commuted value of pension, which is governed by Central Civil Services (Commutation of Pension) Rules. Rule 4 of the Rules reads thus:
“4. Restriction on commutation of pension
No Government servant against whom departmental or judicial proceedings as referred to in Rule 9 of the Pension Rules, have been instituted before the date of his retirement, or the pensioner against whom such proceedings are instituted after the date of his retirement, shall be eligible to commute a ¹[percentage] of his provisional pension authorized under Rule 69 of the Pension Rules or the pension, as the case may be, during the pendency of such proceedings.”
Here also, release of commuted value of pension to a Government servant facing departmental or judicial proceedings is barred.
In the circumstances, the applicant cannot justifiably claim release of gratuity and commuted value of pension during the pendency of the criminal proceedings.
It has come out that no departmental proceedings has been initiated against him. The learned counsel also submitted that the Administrator had full faith and confidence in him and that made him to engage him as Chief Consultant cum Advisor to the Administrator from the date following his date of superannuation. But, it has come out that such an order was initially put on hold and later cancelled by the Administration.
Turning to the request for release of leave encashment, it is governed by the CCS(Leave) Rules. Sub-Rule 3 of Rule 39 of the CCS(Leave) Rules reads thus:
“3)The authority competent to grant leave may withhold whole or part of cash equivalent of earned leave in the case of a Government servant who retires from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Government dues, if any.”
On this aspect, the learned counsel has submitted that after retirement, the applicant has suffered numerous health issues, in 2022 he had undergone a cardio vascular and thoracic surgery, in 2023 he underwent angioplasty, and even now he is undergoing intensive treatment in various hospitals. He has been granted only provisional pension, which is hardly sufficient to meet such exigencies. Even though it was submitted that he had not caused any loss to the Government, so long as gratuity and commuted value of pension are not released, the respondents may not lay hand on the leave encashment as well. According to him, such a payment in lieu of surrender of earned leave is deferred wages.
From the extract of charges there seems to be no specific allegation that the applicant had caused any loss to the Government even though it is alleged that he had received bribe to the tune of Rs.7,50,000/- in the deal and had indulged in criminal conspiracy with other accused persons. Going by the sub-Rule 3 quoted above, if the applicant is found guilty and fined by the Special Court, any amount if at all found recoverable can be mulcted on the applicant from other two components, gratuity and commuted value of pension. Having regard to the medical contingencies submitted by the applicant, we deem it appropriate that the leave salary should be disbursed to the applicant. Ordered accordingly.
In the result, the prayer for release of gratuity and commuted value of pension is rejected. However, the Original Application is allowed in part to the extent of directing the respondents to release leave encashment within a period of 60 days from the date of receipt of a copy of this order. No costs.
The Original Application is allowed in part.