Ccs pension rule - reg.
Vasudevan
(Querist) 02 June 2020
This query is : Resolved
Respected Learned Expert,
I am governed under CCS Pension Rule. I am receiving provisional pension for the last 3 years consequent to a Departmental enquiry which was ended with the order of compulsory retirement. (There is no mention on the quantum of pension and gratuity in the order).At the time of compulsory retirement, a criminal case filed by CBI-ACB is pending before the court on the same facts of Departmental Enquiry. Hence, I have been sanctioned with provisional pension from the date of my compulsory retirement. Meanwhile, I have been convicted by the CBI court. The order of the CBI court is challenged in the High Court which is pending till date. I have been issued with the Memorandum by my department as to why a reduction in pension can't be made as I was convicted in the Trial Court. I had tendered my explanation which is pending before the Competent Authority. Is there any time limit to pass the order by the Competent Authority on the reply filed by me against the Memorandum. I have been not paid with Gratuity and Commutation of Pension for the last 3 years as the matter is pending on the said issue. Please clarify on the time limit available to the Competent Authority to dispose my reply to the Memorandum for reduction of pension. Thanks in advance.
Rajendra K Goyal
(Expert) 02 June 2020
Taking decision in the matter may take some time due to system applicable in such matters in the department. You have replied the Memorandum, let them take decision.
Sudhir Kumar, Advocate
(Expert) 02 June 2020
al;ready replied at
https://www.lawyersclubindia.com/experts/Ccs-pension-rule-interest-on-delayed-payment-of-pension--717241.asp
Sudhir Kumar, Advocate
(Expert) 02 June 2020
There is no time limit for decision on the same. The delay is in your favour.
In this case the pension (including gratuity /leave encashement) cut can be upto 100%. So better not provoke anyone.
Raj Kumar Makkad
(Expert) 02 June 2020
Until and unless your appeal is not decided finally, you cannot expect to get the gratuity of commuted pension and there is no such rule to compel the competent authority to decide the representation/reply submitted by you against the memorendum intending to reduce you provisional pension. The delay is in you favour.
Dr J C Vashista
(Expert) 03 June 2020
Wait for final decision on appeal, till then you will ,have to carryon with provisional pension (which is equal to pension).
However, commutation of pension and gratuity shall be released as per outcome and finality of the case.
P. Venu
(Expert) 03 June 2020
The judicial proceedings has come to en d with the decision of the trail court. As such, there is no justification is further withholding the Gratuity and Commutation of Pension ( and Leave Encashment, if not already paid).
As already suggested, the delay on the part of the authorities in deciding reduction in Pension is to your advantage.
Raj Kumar Makkad
(Expert) 03 June 2020
Central Administrative Tribunal - Delhi
Vijay Kumar Sharma vs Union Of India on 2 February, 2012
Central Administrative Tribunal
Principal Bench
OA-3689/2011
New Delhi this the 2nd day of February, 2012
Honble Mr. A.K. Bhardwaj, Member (J)
Vijay Kumar Sharma
Retired Assistant, IARI
S/o Sh. D.R. Sharma
R/o E-24, IARI Campus,
New Delhi-110012. . Applicant
(By Advocate: Shri Anil Singal)
Versus
1. Union of India
Through Secretary
Dept. of Agriculture Research & Education
Govt. of India-cum-Director General
ICAR, Krishi Bhawan, New Delhi-1.
2. The Director
IARI, Pusa, New Delhi
3. Chief Administrative Officer(Pension)
IARI, PUSA, New Delhi.
4. Chief Finance & Accounts Officer
IARI, PUSA, New Delhi. . Respondents
(By Advocate: Shri Piyush Sharma) Order(Oral) Honble Mr.A.K.Bhardwaj:
Applicant has filed the present Original Application seeking issuance of directions to respondents to release his regular pension with other retiral benefits.
2. In the detailed reply filed by respondents it is contended that an FIR No.141/04 was lodged in the police by Shri Arvind Kumar and Shri Vijay Kumar Sharma and other officials. The said FIR is still pending, thus in terms of provision of Rule 69 of Pension Rules, 1972, pensionary benefits i.e. gratuity and leave encashment etc. could not be released.
3. Learned counsel appearing for applicant relied upon decision of this Tribunal in the case of TejPal Singh Tuli Vs. UOI & Ors.(OA-3312/2009) wherein it was held that there has to be nexus between allegation in criminal case and official duty of concerned employee in the absence of which there may be no justification to carry on departmental proceedings against employee. Para 9 of the said judgment read as under:-
9. I find that this Tribunal in OA-2411/2007 has as recently as on 19.12.2008. I the case of Jogeshwar Mahanta Vs. UOI relating to matrimonial discard, in which the applicant had been proceeded under Rule 14 of the CCS (CCA) Rules, 1965 by issue of chargesheet on the basis of allegations made by the wife, decided that there has to be a nexus with official duty and whereas the applicant may be still embroiled in matrimonial dispute with his wife, them would be no justification to carry on with the departmental proceedings against him. The charge memo was therefore quashed and the application was allowed.
4. In the case of I.Yesudanam OA-2281/2009 it was held that the leave encashment and other retirement benefits could not be withheld on the ground of pendency of judicial proceedings. In the said case this Tribunal viewed that even during pendency of judicial proceedings, Govt. servant is entitled to release of leave encashment, CGIES and GPF amount payable to him. Relevant excerpt of the order passed in said case read as under:-
11. A perusal of the order passed by the Tribunal in OA-2154/2002, relied upon by the applicant, shows that Sh. J.P. Sharma was suspended on 26.02.2001 under Rule 10(1)(b) of the CCS(CCA) Rules, 1965 and superannuated on 31.03.2002 whereupon a provisional pension in terms of Rule 69 of CCS(Pension) Rules, 1972 was granted to him. He had sought payment of all retiral dues such as gratuity, leave encashment, full pension etc. with interest although he was involved in a case of embezzlement of government money and FIR was filed with respect to offences under Section 120-B, 420, 468, 477-A, IPC and 13(2) r/w 13(1)(c) of P.C. Act, 1988. Having considered the submissions made and provisions of the various Rules the Tribunal found that while no judicial proceedings could be said to have been instituted or deemed to be so, the applicant having been suspended, departmental proceedings would be deemed to have been instituted against him as per Rule (9)(6)(a) of CCS(Pension) Rules, 1972 and therefore on.ly a provisional pension could be paid. Further by reference to Rule 9(4) and 3(o) of the CCS (Pension) Rules, 1972 and keeping in view the judgment of the Apex Court in D.V. Kapoor Vs. UOI and Ors., (1990) 4 SCC 314, the Tribunal noted that use of the term pension was in contradistinction to gratuity, and thus gratuity would be payable. Again by a reference to CCS (Leave) Rules, 1972, particularly Rule 39(3) thereof it was noted that the competent authority could withhold cash equivalent of earned leave in such a case if there was a possibility of some money becoming recoverable on conclusion of the criminal/disciplinary proceedings. It was held that in absence of such satisfaction of the concerned authority having been expressed by an order in writing, the leave encashment could not have been withheld. In this background the applicant was found to be entitled to leave encashment and gratuity and also to provisional pension only.
12. When this matter was taken to the Honble High Court of Delhi in CWP No. 6465/2003 the Court took note of Rule 10 of the CCS (CCA) Rules, 1965 and Rules 9 and 69 of the CCS (Pension) Rules, 1972. The question of leave encashment was not entertained and notice was issued limited to the question of release of gratuity. The Court referred to relevant citations and in particular noted that criminal proceedings start after the filing of the chargesheet before the Court. Having examined the matter from various angles the Court came to the conclusion that in the facts of the case it could not be said that departmental proceedings had been instituted against the applicant therein, as Rule 10(1)(b) relates to suspension in a case where criminal offence is under investigation, inquiry or trial and the suspension which was ordered could not be considered to be relevant to departmental proceedings. Further, the date of suspension viz. 26.02.2001, could not be treated as the date of institution of judicial proceedings either. Thus, to give only provisional pension was found to be unjustified. But, the validity of Rules 9(4) and 69(1) of CCS (Pension) Rules, 1972, was not found to be questionable. I am therefore not persuaded that these judgments would be of any assistance to the applicant in the facts of the present case, which are at variance, so far as claim for payment of gratuity is concerned.
13. In the present case the applicant admits that he was suspended under Rule 10(1)(b) of the CCS CCA Rules, 1965. Noticeably the order of suspension enclosed at Annexure A/1, page 22 of the paperbook, shows that powers had been exercised under Rule 10(1) to place the applicant under suspension which would therefore not exclude the applicability of sub clause (b) thereof. Besides, the respondents say in their counter reply that judicial proceedings stood instituted against the applicant as charge sheet had been filed by CBI in the Court and the requirement of Rule 9(6)(b) of CCS(Pension) Rules, 1972 was satisfied. Such contention has not been rebutted nor any rejoinder filed to the reply. However, reliance has been placed mainly on the judgments of the Tribunal and that of the Honble High Court noted above, which do not support the applicants case for release of gratuity.
14. In so far as the claim for commutation of pension is concerned, I am in agreement with the respondents that such commutation of provisional pension authorized under Rule 69, would not be admissible to a government servant against whom departmental or judicial proceedings, as referred to in Rule-9 of the Pension Rules, have been instituted before retirement or afterwards. This finds support from Rule-4 of the CCS(Commutation of Pension) Rules, 1981 at Appendix-I to Swamys Compilation of CCS (Pension) Rules, 1972.
15. The claim of the applicant for leave encashment on the other hand is found to be similar to the claim raised in the case of J.P. Sharma (supra) to which the applicant therein was found to be entitled in the light of the following observations in para-15 thereof:-
The learned counsel for the applicant has further stated that even leave encashment of the applicant is not being permitted. He relied upon sub-rule (3) to Rule 39 of the Central Civil Services (Leave) Rules, 1972. The said Rule unfolds itself in the following words:-
39. Leave/Cash payment in lieu of leave beyond the date of retirement, compulsory retirement or quitting of service. (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.
One of the necessary condition to be satisfied in this regard is that the authority competent to grant leave can withhold whole or part of the cash equivalent of the earned leave if in the view of such authority, there is possibility of some money becoming recoverable from him on conclusion of the proceedings against him. This satisfaction of the concerned authority necessarily has to be in writing. Our attention has not been drawn that any such view has been expressed by the authority competent to grant the leave by passing an order to withhold the same for reasons referred to above. In the absence of any such opinion having been expressed, we are of the considered opinion that leave encashment could not have been withheld that was due to the applicant.
16. In the present case as well there is no material on record to show that any decision has been recorded by the competent authority expressing satisfaction that there were sufficient reasons for withholding the grant of leave encashment. As such I am of the view that the applicant would be entitled to the release of the amount admissible to him by way of leave encashment.
17. It is noticed from GOI decision (5) 2 (g) under Rule 68, CCS (Pension) Rules, 1972 that the Department of Pension and Pensioners Welfare by O.M. dated 05.10.1999 circulated the decision that payments under CGEGIS cannot be termed as terminal benefit and also that payment of the same cannot be withheld nor any government dues recovered therefrom except the amount claimed by financial institutions as due from the employees on account of loans taken for house building purpose. In so far as the claim for release of the GPF amount is concerned, the same enjoys protection in terms of the Provident Funds Act, 1925 as expressed therein and it is the duty of the authorities to release the same in accordance with the Rules.
18. The applicant is therefore found entitled to payment of leave encashment. Further, since the respondents have stated that the case for payment of CGEGIS amount as well as GPF amount has been taken up with the authorities, the same be finalized also keeping in view the above observations, and admissible amounts released. Since the applicant has retired on 30.06.2009, the interest shall be payable for delayed payment as admissible in accordance with law. This exercise be completed within three months from the date of receipt of a certified copy of this order and applicant informed by passing appropriate orders. The applicant is not entitled to payment of gratuity and to commutation of pension. Since it has been stated in Para 5.3 of the OA that a review has been filed by the respondents with regard to the orders of the Honble High Court of Delhi in the case of J.P. Sharma (supra), which has not been controverted by the respondents, the present directions shall be subject to the final outcome thereof.
19. The O.A. is disposed of as above. No costs.
5. In the case of UOI Vs. J.P.Sharma WP(C) 6465/2003 Honble Delhi High Court viewed that the gratuity of retired Govt. servant could not withheld for any length of time to await the instituton of departmental or judicial proceedings even after his retirement. The Relevant extract of said judgment of Honble High Court read as under.
22. This leads us to the question, as to what is the inter play of the rights of the Government and the retired Government servant with regard to the fixation of provisional pension and the withholding of the gratuity of the retired Government servant by the Government. Is it, that in every case where neither departmental proceedings nor judicial proceedings are instituted, as contemplated by Rule 9(6) as on the date of retirement of the Government servant, he immediately becomes entitled to receive full pension and gratuity? In such a situation, if departmental or judicial proceedings are instituted after the lapse of sometime from the date of the retirement of Government servant, but within the time permissible under Rule 9(2)(b)(ii) or otherwise within the period of limitation, would the Government not be entitled to fix the provisional pension and, in case by then the gratuity has not been paid to the retired Government servant would the Government not be entitled to withhold the gratuity in terms of Rule 9 (4) and Rule 69(1)(c) of the Pension Rules?
23. We may note that unlike for the initiation of
departmental proceedings, for the initiation of judicial
proceedings, there is no time limit prescribed under the Pension Rules within which the same can be initiated after the retirement of the government servant. However, judicial proceedings, be they civil or criminal, would be subject to the laws of limitation. A perusal of Rule 9(4) would show that the said Rule is applicable, inter alia, to every case where a departmental or judicial proceedings is instituted against the retired government servant. The said sub-rule(4) does not say that the departmental or judicial proceedings have necessarily to be in existence on the date of superannuation of the government servant. This means that even when the departmental or judicial proceedings are validly instituted subsequent to the date of superannuation, a provisional pension as provided in Rule 69 would be sanctioned in favour of the government servant.
24. The pension of a government servant, who is due to retirement, is required to be fixed well in advance, so that there is no delay in payment of pension to him immediately upon his retirement. Reference may be made to the provisions contained in Chapter VIII and in Rules 83 & 85 of the Pension Rules. Consequently, it follows that in respect of a government servant to whom Rule 9(4) of the Pension Rule does not apply, the Government is obliged to fix and pay the full pension and continue to pay the same, until a situation arises (with the institution of valid proceedings) as contemplated in Rule 9(4). Once a situation covered by Rule 9(4) arises, the government would become entitled to henceforth fix the provisional pension and continue to pay the same until the conclusion of the proceedings, and subject to the final outcome of the proceedings. While the right to receive monthly pension accrues immediately upon retirement, and the same is to be paid vide Rule 85(2) monthly on or after the last working day of the month to which the pension relates...................., so far as gratuity is concerned, there is no specific Rule with regard to disbursement thereof. Rule 85(1) states Except as otherwise provided in these Rules, a gratuity shall be paid in lump sum. While in respect of pension a statutory right exists, to receive pension immediately upon retirement month by month. There is no time bound prescription with regard to release of gratuity to the retired government servant. This also appears to be the scheme as evident from Rule 9(1) of the Pension Rules. The question of withholding pension or gratuity or both either in full or in part by the President can arise only in a situation where the same has in fact not been paid to the retired government servant. From the aforesaid analysis of the Pension Rules, we draw the following conclusions:-
(i) In a case where neither departmental proceedings nor judicial proceedings are instituted as contemplated by Rule 9(6) of the Pension Rules as on the date of retirement of the Government servant, he immediately becomes entitled to receive the full pension.
(ii) If departmental or judicial proceedings are instituted validly after the retirement of the Government servant, but within the time permissible under Rule 9(2)(b)(ii) or otherwise within the period of limitation, the government would become entitled to fix provisional pension to be paid henceforth till the conclusion of the proceedings and would abide by the final decision arrived at in the proceedings in relation to the payment of the pension.
(iii) While a Government servant does become entitled to receive gratuity upon retirement (when proceedings as contemplated by Rule 9(6) are not in existence on the ate of his retirement),there is no rule that the same is payable immediately upon retirement. If proceedings are validly instituted after the date of retirement of the Government servant, but prior to the disbursement of the gratuity to him, the Government servant cannot claim release of gratuity till so long as the proceedings are not concluded, and the final decision with regard to disbursement of gratuity would abide by the outcome of the proceedings.
25. Does it mean that the gratuity of a retired government servant can be withheld for any length of time to await the institution of the departmental or judicial proceedings even after his retirement? In our view the answer to this question has to be in the negative. In case departmental proceedings are not instituted within the time granted by Rule 9(2)(b) against a retired government servant i.e. within four years of the commission of the misconduct, the same cannot be instituted at all. Similarly, judicial proceedings, would have to be initiated within the period of limitation. If no judicial proceedings are initiated against the retired Government servant within the period of limitation, it would be impermissible for the Government to institute them later, or even to withhold the full pension or gratuity of the retired government servant. The power to withhold the grant of gratuity in contemplation of disciplinary or judicial proceedings cannot be permitted to be misused or abused by the Government. The same cannot become an instrument of harassment of the retired government servant in the hands of the Government. At the same time, the Government cannot lightly be divested of its right to withhold the gratuity in respect of a retired government servant in a deserving case. Therefore, in every case where the Government withholds gratuity in respect of a retiring/retired Government servant, the Government shall be obliged to pass an order disclosing the grounds with reference to the particular cases in respect of which Rule 9(4) and Rule 69 of the Pension Rules are sought to be invoked against the Government servant.
26. Coming to the facts of this case, we find that the RC/FIR in the present case was registered on 6.2.2001. Neither a complaint was lodged, nor a challan filed till even four years after the date of registration of the FIR against the respondent. Consequently, in our view the respondent could not be denied the gratuity due to him.
27. Having said that we may, however, clarify that the right of the President under Rule 9(1) is not in any way fettered by the mere fact that the government servant is released his gratuity and pension, since it is always open to the President to withdraw the pension in full or in part and to order recovery from the pension or gratuity of whole or any part of the pecuniary loss caused to the government, as may be established in the departmental or judicial proceedings. With these observations, we dismiss this petition leaving the parties to bear their respective costs.
6. In the impugned order dated 5.1.2011 it is indicated that a decision to release the retirement benefits regular pension to applicant could be taken as per the outcome of Honble Court. It is correct that the relevant rules permit the Govt. to withheld certain amount of terminal benefits payable to Govt. servant on his retirement, but the provision of such rules should not be applied in a mechanical manner and each case should be dealt with on its own merit keeping in view the nature of charge against the Govt. servant i.e. whether those are related to financial irregularities committed by the Govt. servant while in service or grave in nature. It is submitted by learned counsel appearing for respondents that allegation against applicant is of joining a group of person and beating one Shri Arvind Kumar an accounts officer in office, thus no leniency can be shown in dealing with him in any manner. A perusal of impugned order reveal that the same is passed in a mechanical manner. When a Govt. servant make a representation to authority competent to decide the same for redressal of his grievances, it is expected that the contention raised by him in such representation are dealt with and when certain benefit claimed by the govt. servant are not admissible to him in terms of rules, instruction or notifications, the same should be duly referred to in the order itself.
7. Keeping in view aforementioned circumstances, I deem it appropriate to dispose of the present OA with the direction to the respondents to decide the claim of applicant for terminal benefits keeping in view of aforementioned decisions of Honble High Court and this Tribunal. Such decision shall be communicated to applicant by way of speaking order within a period of two months from the date of receipt of a copy of this order.
8. OA stands disposed of. No costs.
(A.K. Bhardwaj) Member(J) /rb/
Rajendra K Goyal
(Expert) 03 June 2020
Agree with the expert Sudhir Kumar, wait, there can be loss to if eagerness is shown.
P. Venu
(Expert) 03 June 2020
In spite of my best efforts, I am unable to discern any relevance of the above decision to the facts and issues posed by the author. The author's pension and other retirement benefits were not sanctioned keeping in view pf the provisions of Rule 69 of the CCS (Pension) Rules:
69. Provisional pension where departmental or judicial proceedings may be pending
(1) (a) In respect of a Government servant referred to in sub-rule (4) of Rule 9, the Accounts Officer shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension.
(b) The provisional pension shall be authorized by the Accounts Officer during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.
(c) No gratuity shall be paid to the Government 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 Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for imposing any of the penalties specified in Clauses (i), (ii) and (iv) of Rule 11 of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant.
(2) Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.
Now that the Judicial Proceedings have been concluded, his pension is liable to be reduced in view of the provisions of Rule 9 ibid:
9. Right of President to withhold or withdraw pension
[(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing 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, 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 pensions shall not be reduced below the amount of rupees three hundred and seventy-five per mensem.
(2) (a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service :
Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President.
(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment, -
(i) shall not be instituted save with the sanction of the President,
(ii) shall not be in respect of any event which took place more than four years before such institution, and
(iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.
(4) In the case of Government 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 69 shall be sanctioned.
(5) Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.
(6) For the purpose of this rule, -
(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date ; and
(b) judicial proceedings shall be deemed to be instituted -
(i) 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, and
(ii) in the case of civil proceedings, on the date the plaint is presented in the court.
Now that the judicial proceedings have been completed and the Show Cause Notice is confined to the reduction of pension and no recovery from gratuity is involved, there need not be any further delay in finalizing retirement benefits other than the pension.
Vasudevan
(Querist) 03 June 2020
Thanks for all the learned Experts who have shared their valuable knowledge on the query. I most respectfully submit my sincere thanks to S/Shri Raj Kumar Makkad and P. Venu for their detailed reply along with CAT judgement and Rule Provisions. Regarding Learned Expert Sudhir Kumar reply, I have a doubt whether the Competent Authority can enhance the rate of reduction of pension that was mentioned in Memorandum. I had been issued with Memorandum for cut in pension @ 40%. Whether the same can be enhanced by the Authority? Please clarify.
Sudhir Kumar, Advocate
(Expert) 03 June 2020
why you are giving facts on installment basis.
Are you here to take viva of experts.
It is only now you have narrated the SCN is for reduction @40%.
Rajendra K Goyal
(Expert) 04 June 2020
In light of the information from you, you can wait the decision from your department.
P. Venu
(Expert) 04 June 2020
I am in agreement with Mr,Sudhir Kumar that authors should not post facts and issues in peace-meal; this would not enable us to make meaningful suggestions.
Now that the SCN is only for the reduction of pension by 40% the Authority cannot further enhance the penalty. How long is the proposed period of reduction?
Incidentally, was it the same incident that led to the departmental proceedings as well the judicial proceedings?
What is the ground you had relied in the reply to the SCN?
Raj Kumar Makkad
(Expert) 04 June 2020
The questions raised by expert P. Venu are of worth mentioning which I could not raise and require reply from the author.
Vasudevan
(Querist) 05 June 2020
Respected Learned Experts S/Shri P. Venu and Raj Kumar Makkad, I regret for the omission of the rate of reduction in my earlier post. I had not intentionally hide the fact. The error is due to oversight. While I am typing my query, I was with the opinion that all the facts were mentioned. But when gone through the replies, I found that I had incidentally omitted the rate of reduction. This is neither willful nor wanton. Hence I pray all the Learned Experts to condone my mistake and oblige. Learned Expert Shri P. Venu, I am to submit that the departmental proceedings and judicial proceedings were based on the same facts. I had replied to the SCN that I may not punished further as I had already suffered two punishments on one incident. I further added that the reduction proposed is too much excessive. Much obliged.
Raj Kumar Makkad
(Expert) 05 June 2020
If your representation stands declined then you have no other option but to challenge the order vide which you stand doubly punished.
Rajendra K Goyal
(Expert) 05 June 2020
You have replied the SCN.
May represent next higher authority in case declined.
P. Venu
(Expert) 05 June 2020
Yes, it is a substantial ground that two punishments, from the department side, for one and the same incident amounts to double jeopardy. Let us wait for the decision.
P. Venu
(Expert) 05 June 2020
Mr. Goyal:
The decision in this context is to be taken in the authority of the President of India. Who is the next authority to whom the representation could be made? Kindly enlighten.
Raj Kumar Makkad
(Expert) 06 June 2020
How the next authority is only President? Can Mr. Venu clarify it?
P. Venu
(Expert) 06 June 2020
Let us await for the enlightened suggestion from Mr. Goyal!
Sudhir Kumar, Advocate
(Expert) 06 June 2020
No there is no double jeopardy.
court proceeded for criminal allegation under PC Act and procedure laid down in CrPC.
(statutory) court is not competent to deal with the departmental wrong.
department proceeded for violation of CCS (Conduct) Rules procedure laid in CCS(CC&A) Rules.
(statutory) deptt is not competent to deal with the criminal wrong.
Now coming to the question of cur in pension. Termianl benefits of retired employee (except provisional pension/ GPF/ CGGIS) are not released if any departmental/criminal case is pending which was the case here.
Now the criminal case is decided in a decision other than exoneration. Reduction of pension is now a separate statutory process.
Raj Kumar Makkad
(Expert) 06 June 2020
I do agree with the wise analysis of Mr. Sudhir. Departmental and criminal actions are two separate issues and it cannot be concluded that the employee has doubly been punished in a single matter.
Vasudevan
(Querist) 06 June 2020
Much obliged by the replies of the all the Learned Experts. As all of the Learned Experts has unanimously suggested to wait for the decision, I remain calm till the disposal of the matter. Once again thank you one and all for sharing your knowledge in the interest of this poor cursed person.
Rajendra K Goyal
(Expert) 06 June 2020
You are welcome, may revert in case of any further question on the query.
P. Venu
(Expert) 12 June 2020
It is unequivocal that departmental and criminal proceedings are separate and there is no element of double jeopardy in proceedings under these two classes of actions for same incident/facts. However, the moot question is whether there could be two separate punishments, departmentally, for the same offence. Admittedly, the departmental proceedings has already been concluded with compulsory retirement. Now, once again another punishment is proposed on the conclusion of the criminal proceeding arising from the same incident. The question is, whether such double punishment is legally permissible. To my knowledge, the situation is without precedence.
Yes, it is a possible view that the earlier punishment was under the provisions of CCS(CCA) Rules whereas the punishment presently proposed is under the provisions of the CCS(Pension) Rules. And Rule 9 of the latter Rules confers upon the right upon the President to take a step. But could such an action could be unreasonable? In this context, it cannot be overlooked that CCS(Pension) rules are framed under the provisions of Article 309:
309. Recruitment and conditions of service of persons serving the Union or a State:
Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.
Obviously, the right that is vested in the Competent Authority is subject to the provisions of the Constitution; it is discretion coupled with duty and not an absolute discretion. As such, every decision adversely affecting the civil rights of a person needs to be based on reason, logic and legal principles.
Vasudevan
(Querist) 13 June 2020
Learned Experts, Thank you very much for your well detailed analysis of my case. I assure you all that I shall report the out come of the order to this Respectable forum on its receipt without fail. My special thanks to Shri P. Venu for his valuable suggestions. Once again thanks to one and all in the forum.
Rajendra K Goyal
(Expert) 13 June 2020
You are welcome, may revert in case of any new development in the case.
Raj Kumar Makkad
(Expert) 15 June 2020
You are always welcome and revert in case of any legal requirement.
