AI Structured Summary
Not yet generated for this judgment
Judgment
The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-
“(i)Το set the aside impugned order dated 19.11.2021 passed by respondent no.3, Chief Workshop Manager, (C&W Workshop) Railway, Alambagh, Lucknow. Northern
(ii)To issue an order directing the respondent no.3/competent authority to consider the claim of the applicant and pay arrear of salary during suspension period from 23.10.1991 to 19.10.1995 and 04.08.2008 to 12.11.2009, MACP and gratuity to the petitioner.
(iii)Issue any order suitable or direction which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case of applicant.
(iv)To award costs of this application to the applicant”.
The brief facts of the case are as follows:-The applicant was appointed as Khalasi in the Northern Railway on 11.01.1984 and was subsequently promoted to the post of Tech. Carpenter-II. He retired on 31.01.2020. In connection with Case Crime No. 182 of 1991 under Sections 147, 148, 149 and 302 IPC, he remained under suspension from 23.10.1991 to 20.10.1995. He was reinstated on 21.10.1995 and continued in service until his conviction by the trial court on 04.08.2008. Thereafter, the Hon’ble High Court suspended the execution of his sentence and granted him bail. He was reinstated on 13.11.2009 and continued in service until retirement. His representation seeking arrears of salary for the suspension periods, MACP and gratuity was rejected by the competent authority vide order dated 19.11.2021. Hence, the present O.A. has been filed challenging the said order.
The respondents have filed a counter affidavit opposing the applicant’s claim. They submit that the applicant was convicted and sentenced to life imprisonment with a fine of Rs. 50,000/- vide judgment dated 04.08.2008. Although the Hon’ble High Court granted him bail and suspended the execution of the sentence during the pendency of Criminal Appeal No. 5194 of 2008, the conviction remained in force. Relying upon Rule 10(1)(c) of the Railway Services (Pension) Rules, 1993, and the Railway Board’s letter dated 06.06.1994, the respondents contend that the claim for gratuity and related benefits can be considered after the final decision in the criminal appeal. They state that the impugned order dated 19.11.2021 was passed in accordance with the applicable rules and instructions and pray for dismissal of the O.A.
A rejoinder affidavit has also been filed by the applicant, in which the facts stated in the Original Application have been reiterated and the contents of the counter affidavit have been denied. Nothing new has been stated in the rejoinder affidavit.
I have heard Shri Tarkeshwar Mishra, learned counsel for the applicant and Shri S.C. Mishra, learned counsel for the respondents and perused the record.
Submission of learned counsel for the applicant is that the impugned order dated 19.11.2021 has been passed illegally and without proper consideration of the applicant’s claim. It is submitted that the applicant was appointed in the Railway service on 11.01.1984 and continued to serve the department until his retirement on 31.01.2020. During his service, he remained under suspension for the periods from 23.10.1991 to 19.10.1995 and from 04.08.2008 to 12.11.2009. He was reinstated in service after being released on bail and thereafter continued to perform his duties until his retirement. Learned counsel for the applicant further submitted that, although the applicant was convicted by the trial court vide judgment and order dated 04.08.2008, he challenged the said judgment before the Hon’ble High Court by filing Criminal Appeal No. 5194 of 2008. During the pendency of the appeal, the Hon’ble High Court suspended the execution of the sentence and granted bail to the applicant. Learned counsel for the applicant further submitted that the applicant’s claim for arrears of salary for the suspension periods, grant of MACP and payment of gratuity has not been properly considered by the competent authority. The applicant had submitted a representation dated 06.03.2021 and this Tribunal, vide order dated 10.09.2021 passed in O.A. No. 330/00686/2021, directed the competent authority to decide the representation by passing a reasoned and speaking order. It is also contended that the mere pendency of a criminal appeal should not result in the denial of all the service and retirement benefits claimed by the applicant without examining the applicable rules governing each benefit. The applicant has a right to have his claim considered in accordance with the relevant rules and instructions. Therefore, prayer was made to allow the original application and set aside the impugned order dated 19.11.2021 and the respondents be directed to consider and release the admissible arrears of salary, MACP and gratuity to the applicant in accordance with law. In support of his contention, learned counsel for the applicant relied upon following case laws:-
Hari Om Vs. Union of India and others decided in OA No. 641 of 2022 on 20.08.2026 by Allahabad CAT;
Sharda Prasad Vs. Union of India and others decided in OA No. 100/2018 on 26.04.2018 by the Lucknow Bench of CAT.
Learned counsel for the respondents, on the other hand, opposes the claim of the applicant and submits that the impugned order dated 19.11.2021 has been passed in accordance with the applicable rules and instructions. It is submitted that the applicant was convicted and sentenced to life imprisonment along with a fine of Rs. 50,000/- under Sections 147, 148, 149 and 302 IPC by the Additional Sessions Judge (FTC-III), Gorakhpur, vide judgment and order dated 04.08.2008 passed in Sessions Trial No. 167 of 1994. Learned counsel for the respondents further submitted that the applicant filed Criminal Appeal No. 5194 of 2008 before the Hon’ble High Court and was granted bail during the pendency of the appeal. However, the grant of bail and suspension of the execution of the sentence do not amount to setting aside the conviction. Unless the conviction is set aside by the appellate court, it continues to remain in force in the eyes of law. Learned counsel for the respondents placed reliance upon Rule 10(1)(c) of the Railway Services (Pension) Rules, 1993, and the Railway Board’s letter dated 06.06.1994, circulated vide NRPS No. 10889. It is submitted that under the aforesaid provisions and instructions, the claim for gratuity and other related service benefits cannot be decided without considering the effect of the pending criminal proceedings. According to the respondents, the decision regarding release of gratuity and other admissible benefits can be taken after the final decision in the criminal appeal. It is further submitted that the applicant’s claim for arrears of salary during the suspension periods and for MACP also cannot be accepted merely on the ground that he was reinstated in service or the execution of his sentence was suspended. The admissibility of these benefits has to be examined in accordance with the applicable service rules and the circumstances of the case. Learned counsel for the respondents further contended that the competent authority considered the relevant rules and instructions and rejected the applicant’s representation vide the impugned order dated 19.11.2021. The said order does not suffer from any illegality or procedural irregularity warranting interference by this Tribunal. Accordingly, learned counsel for the respondents prays that the Original Application be dismissed.
I have considered the submissions of learned counsel for both the parties and perused the record. The applicant has claimed arrears of salary for two suspension periods, MACP and gratuity. These claims require separate consideration under the applicable rules.
It is not disputed that the applicant was convicted and sentenced to life imprisonment by the trial court on 04.08.2008. His criminal appeal is pending before the Hon’ble High Court, which suspended the execution of the sentence and granted him bail. However, suspension of the sentence does not, by itself, set aside the conviction.
The main question for consideration is whether the respondents were justified in rejecting all the claims of the applicant on the ground that the criminal appeal against his conviction is pending before the Hon'ble High Court. It is clarified at this stage that no disciplinary proceeding has been initiated against the applicant. However, release of retiral benefits and pension depends on good conduct of the employee concerned.
As far as release of gratuity to the applicant, the respondents have relied upon Rule 10(1)(c) of the Railway Services (Pension) Rules, 1993, and the Railway Board's letter dated 06.06.1994, circulated vide NRPS No. 10889. Rule 10(1)(c) of the Railway Services (Pension) Rules, 1993, as applicable to the impugned order, provides as follows:
“No gratuity shall be paid to the railway servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon; provided that where departmental proceedings have been instituted under the provisions of the penalties specified in clauses (i), (ii), (iii-a) and (iv) of Rule 6 of the said rules, the payment of gratuity shall be authorised to be paid to the railway servant”
The aforesaid Rule, therefore, prohibits payment of gratuity until the conclusion of the relevant departmental or judicial proceedings and the passing of final orders thereon. The Rule also contains a specific exception relating to certain departmental proceedings initiated under the Railway Servants (Discipline and Appeal) Rules, 1968. That exception does not appear to be applicable to the present case, which concerns a criminal prosecution and a conviction by the trial court.
In Union of India v. Sukumar Maity, decided by the Hon’ble Calcutta High Court on 31.08.2016 in WPCT No. 168 of 2016, the Hon’ble High Court held as under:-
“Records reveal that before ordering for withholding of the respondent's gratuity, he was not afforded any opportunity of hearing. It is well settled that if a decision of a body or authority affects individual rights or interests, it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard. Gratuity and the benefits of commutation of pension are not any bounty payable on the sweet will and pleasure of the petitioners and the right of an employee to receive it is a right to property under Article 300A of the Constitution and without issuance of any reasoned order upon due application of mind to the facts involved, the said benefits could not have been withheld”.
Thus, case of Sukumar Maity (supra) supports the proposition that gratuity may be withheld in accordance with the rule while the relevant judicial proceedings remain pending.
Similarly, in Mohan Lal Balotia v. Ministry of Railways, decided by the Central Administrative Tribunal, Chandigarh Bench on 01.03.2019 in OA 060/ 01046/2016, the Tribunal considered the claim of a railway employee who had been convicted by a criminal court and whose appeal was pending before the Hon’ble High Court. The Tribunal applied Rule 10 of the Railway Services (Pension) Rules, 1993, in relation to withholding gratuity during the pendency of the criminal appeal. The aforesaid decisions support the respondents' contention that gratuity cannot be released contrary to the express prohibition contained in Rule 10(1)(c) of Railway Services (Pension) Rules, 1993.
In Hari Om v. Union of India (supra), the Tribunal observed that, although Rule 10 of the Railway Services (Pension) Rules, 1993, provides for withholding of gratuity during the pendency of judicial proceedings, the nature of the criminal cases was also relevant. The pending cases in that matter concerned theft and the Gangster Act and were not connected with the employee’s official duties. There was also no evidence that the delay in those proceedings was attributable to the employee. The Tribunal allowed the O.A., set aside the impugned order dated 22.04.2022 and directed the respondents to release DCRG, commutation of pension, regular pension and other admissible retirement benefits.
Similarly, in Sharda Prasad v. Union of India (supra), the Tribunal observed that, in the facts of that case, the pendency of criminal proceedings relating to matters unconnected with the employee’s official duties could not be used to deny his legitimate retirement benefits. Relying upon State of U.P. v. Dhirendra Pal Singh, (2017) 1 SCC 49, and Radhey Shyam Shukla v. State of U.P. & Others, 2010 (1) LLJ 480, the Tribunal allowed the O.A. and directed payment of gratuity, final pension and commutation of pension in accordance with the rules within three months.
Similar issue in analogues provision of Rules came up for consideration before the Full Bench of Hon’ble High Court, Allahabad in the case of Shivgopal and others Vs. State of U.P and 4 others – 2019 Law Suit (All) 867, it has been observed that pension and gratuity are earned service benefits and cannot be withheld without authority of law. However, where departmental or judicial proceedings are pending against a retired government servant, the applicable statutory rules permit provisional pension, while death-cum-retirement gratuity may be withheld until conclusion of the proceedings and passing of the final order by the competent authority.
In view of the above and having regard to Rule 10(1)(c) of the Railway Services (Pension) Rules, 1993, as applicable to the impugned order, this Tribunal finds no ground to direct immediate release of gratuity while the relevant judicial proceedings remain pending. The applicant’s claim for immediate release of gratuity is, therefore, rejected at this stage. It is, however, clarified that the applicant’s entitlement to gratuity shall remain subject to the applicable rules and the final outcome of the judicial proceedings. The respondents shall deal with the matter further in accordance with the rules once the proceedings conclude and the final orders are passed.
As regards arrears of salary for the suspension periods from 23.10.1991 to 19.10.1995 and 04.08.2008 to 12.11.2009 is concerned, Rule 10(1)(c) of the Railway Services (Pension) Rules, 1993 does not determine the applicant’s entitlement. The claim is required to be examined under the applicable provisions governing suspension-period pay, including Fundamental Rule 54-B, as applicable to Railway servants. In Greater Hyderabad Municipal Corporation v. M. Prabhakar Rao, (2011) 8 SCC 155, the Hon’ble Supreme Court has held as under:-
“ 11. Yet, the Tribunal has found fault with the order dated 17.11.2008 of the competent authority and has held that the suspension of the respondent was unjustified. The reasons given by the Tribunal in its order are that the prosecution has failed to prove the case beyond reasonable doubt about the demand and acceptance of the bribe and the criminal court has acquitted the respondent and it was open for the authorities to proceed against the respondent departmentally, but no such departmental proceedings were initiated to prove the misconduct of the respondent. The approach of the Tribunal, in our considered opinion, was not correct. Sub-rule (3) of F.R. 54-B does not state that in case of acquittal in a criminal proceedings the employee is entitled to his salary and allowances for the period of suspension. Sub-rule (3) of F.R. 54-B also does not state that in such case of acquittal the employee would be entitled to his salary and allowances for the period of suspension unless the charge of misconduct against him is proved in the disciplinary proceedings. Sub-rule (3) of F.R. 54-B vests power in the competent authority to order that the employee will be paid the full pay and allowances for the period of suspension if he is of the opinion that the suspension of the employee was wholly unjustified. Hence, even where the employee is acquitted of the charges in the criminal trial for lack of evidence or otherwise, it is for the competent authority to form its opinion whether the suspension of the employee was wholly unjustified and so long as such opinion of the competent authority was a possible view in the facts and circumstances of the case and on the materials before him, such opinion of the competent authority would not be interfered by the Tribunal or the Court.
12.In the result, we allow this appeal and set-aside the order of the Tribunal and the impugned order of the High Court and dismiss the original application filed by the respondent before the Tribunal. There shall be no order as to costs”.
The case in. M. Prabhakar Rao (supra) supports the principle that reinstatement does not automatically entitle an employee to full salary for the suspension period. The competent authority must determine the admissible pay and allowances in accordance with the applicable rules and pass a reasoned order. However, the said case concerned an employee who had been acquitted, whereas the applicant in the present case was convicted by the trial court and his criminal appeal is pending. Therefore, the facts are distinguishable, though the principle governing determination of suspension-period pay remains relevant.regarding consideration of the same.
The applicant’s claim for MACP is also required to be examined independently under the applicable MACP Scheme and Railway Board instructions. Rule 10(1)(c) of the Railway Services (Pension) Rules, 1993 deals with gratuity and cannot, by itself, decide the applicant’s entitlement to MACP. The competent authority must examine his qualifying service, previous financial upgradations and eligibility under the relevant instructions.
In view of the discussions made hereinabove, the Original Application is partly allowed. The impugned order dated 19.11.2021 is set aside to the extent that it rejects the applicant’s claims for salary arrears for the suspension periods and MACP without proper consideration under the applicable rules and instructions. The competent authority is directed to reconsider both claims and pass a reasoned and speaking order within three months from the date of receipt of a certified copy of this order. The claim for immediate release of gratuity is rejected at this stage, subject to the applicable rules and the outcome of the pending judicial proceedings. There shall be no order as to costs. All associated MAs, if any, stand disposed of.