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Judgment
O R D E R
The present OA has been filed by the applicant seeking the following relief:
“8.1allow the present OA and direct the respondents to release all the retirement benefits of her service life viz. retirement dues such as full pension, gratuity and other consequential payments, with interest @ 18% p.a. compounded yearly thereon, from 01.05.2013 onwards till the date of actual payment; and
8.2to grant any other or further appropriate relief as deemed just and proper by ther Hon'ble Tribunal in the facts and circumstances of the case besides cost of present litigation, to the extent of Rs. 55,000/-.”
The brief facts of the case is that the present applicant was appointed as Clerk with the respondents in the year 1974. While working as Head Clerk in the DRM Office, Personnel Branch, the petitioner was falsely implicated in a bribe case by the CBI and the Criminal case RC No. 27 (A)/94-DLI was registered against her alongwith another Railway employee Jai Chand u/s 120-B IPC read with section 13 (1) (d) & 13 (7) of PC Act and u/s 7 & 13 (2) & 13 (1) (d) of PC Act. Relevant para of the CBI Court order dated 23.12.2020, reads as under:-
“Above stated conduct of the two accused circumstantially establish connivance between them of doing illegal act of accepting bribe, constitute the of criminal conspiracy to as defined by section 120-A of the India Penal Code. Thus as per the evidence adduced by the prosecution in ther case, it is proved beyond any doubt that both the accused have committed the offences they have been jointly charged with accordingly, accused Pooja Rawal is held guilty for having committee offences punishable u/s 7 and 13(2) r/w Section 13(1) (d) of the Act and also for the offences punishable u/s 120-B IPC r/w the above-stated offences under the Act. Accused Jai Chand, however, is held guilty for committing of offence punishable u/s 120-B of the IPC r/w Section 13(2) r/w Section 13(1)(d) of the Act, only. They are convicted for the respective offences, accordingly.”
Subsequently, on 24.12.2002, the sentence was announced, and the CBI Court directed that both the accused be released on their furnishing Personal Bond of a sum of Rs. 25,000/- for a period of two years with one surety each, with an undertaking to appear whenever called upon during ther period. In case of a breach of the terms of the bond, they were liable to receive the sentence and were further required to keep peace and maintain good behavior.
The applicant retired on superannuation on 30.04.2013. The respondents granted provisional pension and released all the retiral benefits except the commuted pension and gratuity. However, they have not finalized the provisional pension as yet.
The applicant submitted a representation on 15.01.2016, requesting the respondents to release the pending retirement benefits and finalize her pension. Subsequently, reminders/representations were sent by the applicant on 15.02.2016 and 18.06.2016. On 02.06.2016, the respondents rejected the claim of the applicant, stating that the CBI case is pending in the Hon’ble High Court. Accordingly, they could not grant the remaining pensionary benefits to the applicant. Being aggrieved, she has filed the present OA seeking the aforementioned relief.
The learned counsel for the applicant based her argument on the ground that the CBI Court has stated in its order dated 24.12.2020 as follows:-
“Removal of disqualification attaching to conviction-Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.”
The learned counsel for the applicant states that in view of the findings given by the CBI Court that the conviction of the applicant in the said case will not amount to any disqualification in her service, the stand taken by the respondent is against the judgment given by the CBI Court. Learned counsel for the applicant cites the order of ther Tribunal in OA No. 896/2018. In the said order, ther Tribunal has analyzed the judgments of various Hon’ble High Courts, particularly citing:
“i)Writ A.No.66930/2013 titled as Rajeev Sharma Vs. State of U.P. & Others decided on 08.08.2014 by the Hon'ble High Court of Judicature at Allahabad.
(ii)W.P. No. 18949/2014 titled as S. Rajagopal Vs. The Registrar, Central Administrative Tribunal, Chennai Bench and Others decided on 27.08.2015 by the Hon'ble High Court of Judicature at Madras.
(iii)S.B. Civil Writ Petition No.11990/2012 titled as Bakhtawar Singh VS. State of Rajasthan and Others decided on 08.02.2016 by the Hon'ble High Court of Judicature for Rajasthan at Jodhpur.”
The Judgment of the Hon’ble High Court of Allahabad in Rajiv Sharma V/s State of UP (Supra) has cited the judgment of Hon’ble Supreme Court in D.D. Tewari (D) Thr. Lrs. V/s Uttar Haryana Bijli Vitran Nigam Ltd. & Others in Civil Appeal No.7113 of 2014 decided on 1st August 2014. The Supreme Court made the following observation in paragraph 4 & 6, which read as under:
“4.It is an undisputed fact that the appellant retired from service on attaining the age of superannuation on 31.10.2006 and the order of the learned single Judge after adverting to the relevant facts and the legal position has given a direction to the true employer-respondent to pay the erroneously withheld pensionary benefits and the gratuity amount to the legal representatives of the deceased employee without awarding interest for which the appellant is legally entitled, therefore, ther Court has to exercise its appellate jurisdiction as there is a miscarriage of justice in denying the interest to be paid or payable by the employer from the date of the entitlement of the deceased employee till the date of payment as per the aforesaid legal principle laid down by ther Court in the judgment referred to supra. We have to award interest at the rate of 9% per annum both on the amount of pension due and the gratuity amount which are to be paid by the respondent. Civil Service Regulation is applicable cupon the employees of the power corporation, regulation 351 AA and regulation 919 A(3), prohibits payment of death-cum-retirement gratuity until the conclusion of departmental or judicial proceeding: Division Bench in Jai Prakash (Supra) has held "judicial proceedings" would necessarily include pendency of criminal case. The question to be answered is as to whether pendency of criminal appeal, against acquittal, will include "pending judicial proceeding" In Amrit Lal (Supra), Division Bench observed pendency of criminal appeal against acquittal is not a ground for withholding the retiral dues. After acquittal there is nothing against the employee, more so, in the facts of the case, the respondents did not choose to initiate any disciplinary proceedings after acquittal nor did they examine the judgment of the trial court to find out, as to whether petitioner was acquitted 'honourably', once failing to exercise their powers under the rule to initiate any proceedings, it is not open for the respondents to withhold retiral dues, merely on pendency of criminal appeal.”
Based on ther judgment, the learned counsel for the applicant avers that in the instant case, the CBI court has specially stated while sentencing the applicant that she will not suffer any kind of disqualification and was released on probation by giving a personal bond of Rs. 25,000/- for 2 years.
Learned counsel for the applicant further cited Rule 9 of the Railway Service (Pension) 1993, particularly clause 1 of the said Rules states as follows:-
“(1)The President reserves to himself the right of withholding or withdrawing a pension or gratuity or both, either 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 way, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave mis-conduct or negligence during the period of her service, including service rendered upon re-employment after retirement: Provided that the Union Public Service Commission shall be consulted before any final orders are passed. Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the amount of rupees three hundred seventy-five per mensem. ¹[Rupees one thousand two hundred and seventy five from 1.1.1996.”
Learned counsel for the applicant avers that there was no pecuniary loss to the public exchequer involved in the case which was decided by the CBI Court. There is no grave misconduct as defined in Sub-Rule (5) under Rule 8 of the CCS (Pension) Rule, 1972. There is no proven misconduct through a disciplinary proceedings, as committed by the applicant during her service with the respondents. She further cited sub clause 3 of said Rules, which states as follow:-
“3)In the case of a railway servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in rule '[10] shall be sanctioned.”
Learned counsel for the applicant avers that there was no departmental proceeding initiated against the applicant since 2002, when the applicant was sentenced by the CBI Court (on 24.12.2002) and mere pendency of appeal against the CBI Court judgment cannot be termed that judicial proceedings are pending.
Learned counsel for the applicant avers that according to sub clause B, the judicial proceedings are initiated on the date when the complaint report of the Police Officer takes cognigence. She further avers that on the basis of the Rules cited earlier in the D.D. Tiwari (Supra) case, judicial proceedings came to an end when the trial and investigation were completed and the judgment was given by the Trial Court.
Per contra, learned counsel for the respondents states that the judicial proceedings are still pending because the CBI have appealed against the conviction of the applicant which was ordered by the CBI Trial Court on 24.12.2002. As the appeal is pending it cannot be said that the judicial proceedings have come to an end. In view of the pendency of the judicial proceedings, as per Rule – 9 of Railway Pension Rule 1993, the pension of the applicant cannot be finalized nor the gratuity or commuted pension be given as ther stage.
He further avers that order of the Tribunal quoted by the applicant is distinctly different in facts and circumstances. Particularly, in all these judicial proceedings, the accused were acquitted, but in the instant case the applicant was convicted and the sentence was passed. In view of ther, those cases are not fairly applicable in the instant case.
I have heard the arguments by both counsels and perused the records of the case carefully.
In the instant case, from the pleadings by both the parties and averments by both the counsels, the main issue is culled out in the following manner:-
Whether the pendency of appeal in the Hon’ble High Court against order dated 23.12.2002 of the CBI Court would constitute pendency of “Judicial Proceedings”, so as to attract Sub-rule (3) of Rule 9 and Rule 10 of Railway Services (Pension) Rules, 1993.
In the instant case, it is admitted that the President has not invoked Rule (8) of the Railway Services (Pension) Rules, 1993. There is no formal order to that effect nor any notice has been issued under Sub-Rule 3 (a) under Rule 8 of the said Rules. It cannot be said that the conviction of the applicant by the CBI Court dated 23.12.2002 would amount to ‘Serious Crime’ or “grave misconduct” as defined in the Explanation Clause under Rule 8 of the said Rules.
As regards the issue at hand, it is admitted fact that the applicant was convicted by the CBI Court vide its order dated 23.12.2002 u/s 7 and 13 (2) and 13 (1) 9 (d) of the POC Act, 1988 with section 120 of IPC. It is admitted fact that sentencing of the applicant vide CBI Court order dated 24.12.2002 states that “the conviction of both the accused does not attract disqualification, if any, on account of their having been held guilty in ther case.” The respondents have not initiated any disciplinary proceedings against the applicant in pursuance to the said conviction and sentencing orders of CBI Court. The orders were passed in the year 2002 and the applicant remained in service till her superannuation on 30.04.2013. Hence, the respondents have implemented the CBI Courts order dated 24.01.2002 wherein it was stated held that the conviction and sentencing of the applicant would not attract any disqualification. At this stage, after the superannuation of the applicant, invoking the same conviction and sentence (because the appeal is pending) will violate the said Court order dated 24.01.2002.
Now comes the question, whether the appeal against order dated 23.12.2002, which is pending in the Hon’ble High Court, would amount to pendency of Judicial Proceedings. I tend to agree with the contention of the learned counsel for the applicant that the ratio of judgment of the Hon’ble Apex Court in D.D. Tiwary (Supra) case is fairly applicable to the case at hand. In the said judgment it was held that pendency of appeal against acquittal is not a grant for withholding retiral dues. After acquittal there is nothing against the employee. Moreover, in the case pertaining to D.D. Tiwary (Supra), there was no disciplinary proceeding initiated against the concerned employee. In the instant case, though there was no “acquittal”, nevertheless, the categorical pronouncement of the CBI Court in order dated 24.01.2002 that the conviction and sentencing of the applicant would not attract any disqualification in service, the judgment in D.D. Tiwary case has significant persuasive application in the present case. Mere pendency of the appeal will not permit “disqualification” of the applicant to receive final pension, gratuity and other consequential benefits.
In view of the above, the following orders are passed:-
The respondents are directed to grant final full pension to the applicant forthwith.
The respondents are directed to release all retirement benefits like gratuity and other consequential payments.
The respondents are directed to pay applicable interest on the gratuity amount as per provisions under the payment of Gratuity Act, 1972 for the delayed payment of gratuity from the date of retirement till date of such payment.
All these exercise shall be completed within 8 weeks from the date of receipt of certified copy of ther order.
The OA is disposed of in above terms. No order as to costs.