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Judgment
O R D E R
By Hon’ble Dr.Chhabilendra Roul, Member (A):-The present OA has been filed by the applicant against the order dt. 25.09.2020 rejecting the prayer of the applicant to pay interest on delayed payment of leave encashment.
The applicant was working as Economic Advisor in Department of Pharmaceuticals, Ministry of Chemicals and Fertilizsers; Govt. of India. He superannuated from service on 31.7.2014. At the time of his superannuation, a criminal case under Section 13 (1) (e) of the Preventing of Corruption Act., 1988 pending in respect of CBI case No. RC 55(A) /2005/CBI/ACB/N. Delhi was pending against the applicant for possession of disproportionate assets. In addition, vigilance proceedings were also initiated by the Dept. of Economic Affairs, the cadre controlling authority of the applicant. Applying the provisions of Rule 39(3) of the Central Civil Services (Leave )Rules, 1972, the respondents withheld 50% of leave encashment in respect of the applicant and it was informed to the applicant vide Dept. of Pharmaceuticals dt. 10.11.2014. Subsequently, vide judgment dt. 7.4.2017 in CC No. 17/2011 and RC No. 55(A)/2005/CBI/ACB /N. Delhi in criminal charges for offences u/s 13 (1)(e) read with u/s 13(1) (2) of PC Act read with section 109 of IPC, the applicant was sentenced to four years of rigorous imprisonment and a a fine of Rs. 25 lakhs. Taking the gravity of the charges, Govt. of India proposed to award appropriate penalty under Rule 9 (1) of CCS (Pension) Rules, 1972 and a notice was issued to the applicant by the Dept of Economic Affairs on 28.3.2018. After considering the reply of the applicant, the Department of Economic Affairs, in consultation with Union Public Service Commission imposed the penalty of withholding of 100% monthly pension on permanent basis and withheld the entire gratuity amount due to the applicant. The respondent has already been paid 50% of leave encashment on 14.10.2014.
Being aggrieved by the aforesaid judgment of conviction dt. 7.4.4017 and order of sentence dated 13.4.2017 by the Trial Court, the applicant filed an appeal before the High Court of Delhi. The High Court admitted the appeal and suspended the sentence of the applicant during pendency of the appeal.
The applicant filed OA No. 1193/2020 for release of remaining 50% leave encashment which has been withheld by the respondents. He prayed for 18 % P.A. compound interest till the payment of the remainder 50% of leave encashment. During the pendency of the said OA, the respondents released the remainder 50% of leave encashment and the applicant was informed about the same vide e-mail dt. 28.8.2020. Based on the statement of this fact, the OA was dismissed as infructuous. The Tribunal has specifically passed the following:
“The grievance of the applicant is that his 50% of leave encashment was withheld without any basis. He filed the O.A. with a prayer to direct the respondents to release 50% leave encashment with 18 % compound interest.
The O.A. was earlier listed on 29.7.2020 and Mr. Manjeet Singh Reen, learned counsel for respondents, sought time to obtain instructions. Today, it is represented that 50% leave encashment was released in favour of the applicant yesterday itself.
In view of the above, the OA becomes infructuous and the same is accordingly dismissed. There shall be no orders as to costs.”
On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.
The main ground taken by the applicant in the OA and by his counsel during arguments is that there are several judgments by various High Courts and the Apex court allowing interest on delayed payment of retiral benefits. The series of judgments cited by the counsel for the applicant are as follow; (i) A.S. Randhawa vs. State of Punjab (1997)(4) SLJ 617 (PB& Hry.) ( Para 3). (ii) O.V. Thomas vs. S.S. Sandhawalia (1994) 2 SCC on 5 July, 2012 (iii) Dr. Ums Agarwal vs. State of U.P. & Anr., (1999)(3) SLJ 212 (SC). (iv) Hon’ble Supreme Court in the case of S.K. Dua vs. State of Haryana & Ors., 2008 (3) SLJ 108 (SC). (V) Hon’ble High Court of Delhi in W.P. © No. 5505/2012 decided on 4.9.2012 in the case of NCT of Delhi vs. Nand Lal Singh. (Vi) Government of NCT Delhi vs. S.K.Srivastava, W.P. (C) 1186/2012, decided on 29.2.2012. (Vii) Delhi Police vs. Balwant singh , W.P © No.1227/2017 decided on 13.3.2012. (Viii) Vijay L. Mahrota vs. State of U.P. and Others: JT 2000(5) SC 171. (ix) Brijender Singh vs. Union of India ( decided on 20. September 2011) in OA No.1611/2011 and Kamal Ram Meena vs. Union of India and others (decided on 21.11.2013) in OA No.4109/2012. (x) S.C. Srivastava vs. Secretary, Department of Telecommunication and others (OA No. 746/2011 decided on 4.12.2012 Mumbai Bench) (xi) Dr. Satish Chandra Govil vs. Union of India & Ors. in OA No. 2185/2012 (xii) Dr. (MRS) Nirojini Mallick (Retd) vs. Secretary, Ministry of Labour & Employment & Ors. in OA No.3375/2015.(xiii) Dr. Satya Prakash vs. Union of India and Other, OA No. 4131/2010 decided on 4.8.2011 (PB-ND) (xiv) Urmila Sharma vs. Chief Secretary, GNCT of Delhi and Others. , OA No. 3355/2010 decided by PB-ND on 16.8.2011.(Xv) Brijendra Singh vs. Union of India and others OA No. 1611 of 2011 decided by the Principal Bench of the Tribunal No. 20.9.2011 (xvi) Jagdish Kumar vs. Union of India and others, OA No. 948 of 2011 decided by Principal Bench of the Tribunal on 30.11.2011.
The respondents in their counter affidavit and arguments by their counsel have averred that the judgments relied upon by the applicant are not applicable in the present case because the facts and circumstanced mentioned in the above, mentioned cases are entirely different from the present case. The counsel for the respondents further cited the provisions under Rule 39 (3) of the CCs (Leave) Rules, 1972 as amended from time to time. Rule 39(3) reads as follows:-
39 (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.
The counsel for the respondents averred that the competent authority had held reasonable view that due to the ongoing criminal case, and the pendency of the vigilance proceedings which culminated in withholding 100% of monthly pension and gratuity of the applicant, there was possibility of recovery money from the applicant. Hence, withholding 50% leave encashment was justified. Once, the sentence in criminal case was suspended, the respondents released remainder 50% of leave encashment.
I have gone through the records of the case thoroughly and heard the arguments by the counsel carefully. I agree with the contention of the counsel for the respondents that the facts and circumstances of the present case (Criminal case under PC Act, sentence of 4 years rigorous punishment for the offence mentioned earlier which has been suspended only, vigilance case and subsequent withholding of monthly pension (100%) and gratuity of the applicant ) are quite different from the facts and circumstances in the judgments /orders cited by the applicant in this OA as well as reiterated by the his counsel during arguments. The applicant had agitated for release of remainder 50% of leave encashment with 18% interest par annum on delayed payment of such remainder amount in OA No. 1193/2020. The order dated 28.8.2020 in OA No. 1193/2020 is not limine, but on merit. Substantial relief has been granted to the applicant against his prayers for release of remainder 50% of leave encashment. However, the matter regarding payment of interest on delayed payment of leave encashment was not specifically adjudicated.
The counsel for the applicant has failed to assail the applicability of Rule 39(3) of CCS (Leave) Rules, 1972 under which 50% leave encashment in respect of the applicant was withheld. In view of this, there is no arbitrariness in withholding 50 % leave encashment, and there is no miscarriage of justice in such exercise. The present OA is devoid of merit as well as barred based on doctrine of res judicata.
In view of the above, the OA lacks merit and hence the same is dismissed. No order as to costs.
All pending MAs are also disposed of accordingly.