Jammu, May 11: In Original Application No. 1237/2023 after hearing HON’BLE MR. RAJINDER SINGH DOGRA, MEMBER (J) HON’BLE MR. RAM MOHAN JOHRI, MEMBER (A)in case titled 1. Sh. Sanjay Kumar represented by Advocate F.A.Natnoo VERSUS 1. UT of Jammu & Kashmir Through Principal Secretary to Government, Finance Department J&K Government ordered as under:-
ORDER Per: - Ram Mohan Johri, Administrative Member:
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: - a) Allow this Original application of the applicant. b) Direct the respondents more particularly the respondent no.2 to immediately send the case of the applicant to the office of the Accountant General for the purpose of fixation of monthly pension and also release of gratuity and commutation. c) Direct the respondents more particularly respondents no. to process and settle the case of the applicant for release of the pensionary benefits viz. GP Fund, Cash in lieu of Leave Salary in favour of the applicant. d) Any other relief which this Hon'ble Tribunal may deem just and proper in the given facts and circumstances of the case may also be passed in favour of the applicant and against the respondents.”
2. The facts of the case as averred by the applicant in his pleadings, are as follows: -
a) The applicant, Sh. Sanjay Kumar, was initially appointed as Accounts Assistant in the Finance Department in the year 1987, more particularly on 02.12.1987. During the course of his service career, he earned various promotions and came to be promoted as Accountant, Assistant Accounts Officer, Accounts Officer and thereafter Chief Accounts Officer. After rendering about 35 years and 5 months of service, the applicant retired on attaining the age of superannuation on 30.04.2023. b) The applicant submits that his retirement was duly notified by respondent No. 2 vide order dated 09.02.2023 issued in terms of Article 285-A(1) of the Jammu and Kashmir Civil Service Regulations, wherein his name figured at Serial No. 23 amongst the officers/officials due to retire during the calendar years 2023, 2024 and 2025.
As per the said order, the applicant was due to retire in April, 2023, i.e., on 30.04.2023. c) The grievance projected by the applicant is that despite completion of his pension case in all respects, along with requisite No Objection Certificates and No Demand Certificates, the respondents failed to forward the same to the office of the Accountant General, J&K, for fixation and release of his pension.
According to the applicant, the pension papers were prepared by respondent No. 3 well before his date of superannuation, yet the same were not submitted to the Accountant General, resulting in non-release of his monthly pension, gratuity and commutation benefits. d) It is further pleaded by the applicant that the respondents also failed to process and release other retiral benefits, including GP Fund and cash in lieu of leave salary, despite the lapse of more than five months from the date of his retirement.
The applicant asserts that the withholding of such benefits has caused serious financial hardship to him and his family, especially when the said benefits were earned by him after rendering long and continuous service in the department. e) The applicant has further stated that initially the processing of his pension case was delayed on account of an enquiry relating to certain alleged irregularities. However, according to him, the enquiry had already been completed and the enquiry report was submitted in the month of April, 2023 itself, before his retirement.
It is therefore contended that there was no justification for the respondents to sit over his pension case or to withhold his pensionary benefits indefinitely. f) The applicant has also pleaded that even assuming that some departmental enquiry was pending, the respondents were legally bound to release provisional pension in his favour in accordance with the applicable rules.
However, no such provisional pension was released initially, compelling him to approach this Tribunal. The applicant, therefore, seeks a direction to the respondents, particularly respondent No. 2, to forward his pension case to the office of the Accountant General for fixation of monthly pension and release of gratuity and commutation. He also seeks processing and release of other pensionary benefits, including GP Fund and cash in lieu of leave salary. g) The applicant has assailed the action/inaction of the respondents as arbitrary, illegal and violative of Articles 14, 16 and 21 of the Constitution of India. He contends that pension is not a bounty but a statutory right earned by an employee for the service rendered, and the respondents cannot deprive him of the same without any lawful justification.
3. The respondents have filed their written statement wherein they have averred as follows: - a) The respondents have submitted that the applicant is not entitled to claim release of all pensionary benefits as a matter of right without completion of the required procedure, particularly in view of the departmental enquiry initiated against him for alleged irregularities committed during his tenure as Financial Advisor/Chief Accounts Officer in the Prisons Department.
According to the respondents, they are under a legal duty to ensure that all necessary proceedings relating to the applicant’s conduct are completed before final pensionary benefits are sanctioned. b) The respondents have further pleaded that the applicant has not approached the Tribunal with clean hands and has suppressed material facts.
It is asserted that the delay, if any, in forwarding the pension case to the Accountant General or in releasing certain retiral benefits is not due to any malafide or arbitrary action on the part of the respondents, but is directly attributable to the pending departmental proceedings. c) On merits, the respondents have admitted that the applicant retired on superannuation on 30.04.2023. However, they have denied that he rendered an unblemished service.
It is submitted that while posted as FA/CAO in the J&K Prisons Department, certain serious irregularities were reported against him by the Director General of Prisons, J&K, vide communication dated 24.02.2023. d) As per the respondents, the first allegation against the applicant was that during October, 2022, while functioning as FA/CAO at Prison Headquarters, he passed a bill amounting to Rs. 5,55,607/- in favour of M/s Smart Learning, Karan Nagar, Srinagar, relating to repair/replacement of CCTV cameras in District Jail, Kupwara.
It is alleged that the said payment was made without proper processing of the bill on file, despite the fact that the CCTV surveillance system at District Jail, Kupwara was already covered under a Comprehensive Maintenance Contract with the same firm up to December, 2022. The respondents contend that the applicant, being fully aware that the claim was not admissible, passed the bill on his own, thereby extending undue benefit to the firm. e) The second allegation is that the applicant passed another bill amounting to Rs. 34,39,549/- in favour of the same firm towards Annual Maintenance Charges of CCTV surveillance systems in various jails of J&K for the period from 01.10.2022 to 31.12.2022. According to the respondents, the said payment was released in violation of the terms and conditions of the contract agreement, without proper processing on file and without ensuring satisfactory service certificate regarding upkeep and maintenance of the CCTV surveillance system. It is alleged that the said payment amounted to advance payment without approval of the competent authority. f) The respondents have submitted that on the basis of the report of the Director General of Prisons, a departmental enquiry was initiated against the applicant vide Government Order No. 80-F of 2023 dated 07.04.2023.
The enquiry officer, after examining the documentary evidence and witnesses, submitted his report. As per the findings of the enquiry officer, the applicant had not exercised due diligence in processing the bill of Rs. 5,55,607/- and had released payment which was otherwise not due, as the work was already covered under the Annual Maintenance Contract. However, it was also noticed that the firm subsequently refunded the amount and, therefore, no resultant loss to the State exchequer was ultimately caused. Still, the enquiry officer found that a grave irregularity had been committed by the applicant. g) With regard to the second payment of Rs. 34,39,549/-, the enquiry officer found that the applicant had failed to exercise due diligence and had committed irregularity by releasing advance payment without seeking prior approval of the competent authority and contrary to the terms and conditions of the contract. h) The respondents have further submitted that the enquiry report is under consideration in the department and, till the departmental proceedings are concluded and final orders are passed, the applicant cannot claim release of final pension, gratuity and other retiral benefits.
According to the respondents, negligence in performance of official duties on the part of the applicant cannot be ruled out in view of the enquiry findings. i) It has also been stated that the applicant was transferred and attached in the office of the Directorate of Accounts and Treasuries, Jammu, vide Government Order No. 22-F of 2023 :: 12 :: O.A. No. 1237/2023 dated 06.02.2023, soon after the incident was reported by the Prisons Department.
During the period of attachment, he retired from service on 30.04.2023. j) The respondents have further pleaded that since departmental proceedings had not concluded, only provisional pension was admissible to the applicant under Article 168-D of the Jammu and Kashmir Civil Service Regulations.
The respondents have relied upon Article 168-D, which provides that where departmental or judicial proceedings are pending against a retired officer, he shall be paid provisional pension from the date of retirement till the conclusion of such proceedings, but gratuity or death-cum-retirement gratuity shall not be paid until the conclusion of the proceedings and issuance of final orders. k) It is further submitted by the respondents that pursuant to the order dated 19.10.2023 passed by this Tribunal directing consideration of release of provisional pension, the respondents sanctioned provisional pension in favour of the applicant vide Government Order No. 116-F of 2024 dated 22.03.2024.
Thus, according to the respondents, the applicant’s plea that he has been left without any means of livelihood is factually incorrect. l) The respondents have denied the allegation that they are illegally sitting over the applicant’s pension case. They maintain that the release of final pensionary benefits, including gratuity and commutation, is subject to the outcome of the departmental proceedings.
It is their stand that they have acted strictly in accordance with the applicable rules and there is no violation of Articles 14, 16 or 21 of the Constitution of India. m) The respondents, therefore, pray for dismissal of the Original Application on the ground that the applicant is not entitled to final pensionary benefits before conclusion of the departmental proceedings.
4. In the rejoinder to the reply statement, the petitioner has averred with various issues: - a) In rejoinder, the applicant has denied the stand taken by the respondents and has reiterated the averments made in the Original Application. The applicant submits that the controversy involved in the case is limited to the question whether the respondents can withhold his pension and pensionary benefits in the name of an enquiry, when the enquiry report had already been submitted before his retirement. b) The applicant has emphasized that the enquiry officer submitted his report in April, 2023 itself, and despite that, the respondents failed to take a final decision in the matter. According to the applicant, the respondents cannot keep the enquiry pending indefinitely and thereby deprive him of his lawful retiral dues. c) With regard to the payment of Rs. 5,55,607/-, the applicant has explained that the bill was submitted by M/s Smart Learning and was duly verified by the Superintendent Jail, Kupwara.
The Superintendent had certified that the items mentioned in the bill had been repaired/replaced at District Jail, Kupwara and entered in the concerned stock register. The applicant submits that he processed the payment on the basis of such verification and authentication by the competent field officer.
It is further submitted that when it was later found that the payment had been mistakenly claimed by the firm, the amount was refunded and deposited back in the Government exchequer. d) In respect of the second payment of Rs. 34,39,549/-, the applicant submits that the payment related to Annual Maintenance Charges up to 31.12.2022. He asserts that during the pre-budget discussions, the then Director General of Prisons had directed that expenditure on account of Annual Maintenance Charges up to 31.12.2022 be cleared, as the expenditure under the relevant head was low and there was apprehension that the department may not receive adequate budget allocation under the said head. The applicant further claims that the payment was made under telephonic approval of the then Director General of Prisons, Sh. H.K. Lohia, IPS, who unfortunately passed away in October, 2022. e) The applicant submits that the enquiry officer noticed his explanation but did not properly reflect the same in the concluding portion of the enquiry report. He further asserts that the enquiry report itself shows that no financial loss was caused to the State exchequer in either of the transactions. Therefore, according to the applicant, there is no justification for withholding his pensionary benefits. f) The applicant also contends that even if some irregularity was alleged, the respondents were duty-bound to conclude the proceedings expeditiously. He submits that the enquiry was initiated on 07.04.2023 and the report was submitted on 28.04.2023, yet the respondents have not taken any final decision for a long period. Such delay, according to the applicant, is deliberate and has caused him unnecessary harassment. g) The applicant further states that it was only because of the intervention of this Tribunal that provisional pension was sanctioned in his favour.
He submits that the respondents cannot rely upon their own delay to deny him the benefit of final pension and retiral dues, particularly when the alleged irregularities have not resulted in any loss to the Government. h) The applicant, therefore, prays that the respondents be directed to finalize the departmental proceedings within a fixed time frame and thereafter release all admissible pensionary/retiral benefits, including final pension, gratuity, commutation, GP Fund and leave encashment, in accordance with law. 5. Heard learned counsel for the parties and perused the pleadings made by them.
6. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking a direction to the respondents to forward his pension case to the office of the Accountant General, J&K, for fixation and release of monthly pension, gratuity and commutation, and also to release all other retiral benefits including GP Fund and cash in lieu of leave salary.
7. It is not in dispute that the applicant retired on 30.04.2023 after rendering about 35 years and 5 months of service. It is also not in dispute that the enquiry was initiated vide Government Order dated 07.04.2023 and the enquiry report was submitted on 28.04.2023, i.e., before the date of retirement of the applicant. It is further not disputed that in respect of the first amount of Rs. 5,55,607/-, the amount was refunded by the firm and deposited in the Government exchequer. Thus, the enquiry officer himself noticed that no resultant loss to the State exchequer was caused.
8. The respondents have attempted to justify withholding of pensionary benefits only on the ground that the applicant did not exercise due diligence and that some irregularity was committed in processing/releasing the payments. However, the fact remains that the allegation of financial loss to the Government does not survive once the enquiry report itself records that no loss has been caused to the public exchequer. In service jurisprudence, pension and gratuity cannot be withheld as a matter of routine or as a means of keeping a retired employee under indefinite uncertainty.
There must be a lawful, rational and proportionate basis for withholding such benefits. 9. Pension is not a bounty payable at the sweet will of the employer. It is a valuable right earned by an employee for long and faithful service. The Hon’ble Supreme Court in Deokinandan Prasad v. State of :: 19 :: O.A. No. 1237/2023 Bihar, (1971) 2 SCC 330, held that the right to receive pension is a right to property.
Subsequently, the Hon’ble Supreme Court in State of Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210, reiterated that pension and gratuity are not bounty and cannot be withheld except by authority of law.
The right to receive pension is protected under Article 300-A of the Constitution of India.
10. In Hira Lal v. State of Bihar, AIR 2020 SC 1027, the Hon’ble Supreme Court again observed that pension and gratuity are earned by an employee by virtue of long and continuous service and the same cannot be deprived except in accordance with law. Thus, the legal position is well settled that pensionary benefits cannot be withheld arbitrarily, particularly where the employee has already retired and where no quantified loss has been established against him.
11. In the present case, the respondents have not placed on record any final order imposing any penalty upon the applicant. The enquiry report was admittedly submitted before the date of retirement of the applicant.
If the respondents were of the view that any action was warranted, they were expected to take a final decision within a reasonable time. Instead, the matter was kept pending, and the applicant was compelled to approach this Tribunal even for provisional pension. Such an approach cannot be approved.
12. It is equally important to notice that the applicant is a retired government servant who has already completed more than 35 years of service. Retiral benefits are not meant to be released as a matter of grace. They are meant to provide financial security and dignity to a retired employee and his family. Withholding of such benefits after retirement has serious civil consequences.
Therefore, the respondents were required to act with promptitude, fairness and reasonableness. 13. The respondents have relied upon Article 168-D of the Jammu and Kashmir Civil Service Regulations. There can be no dispute that where departmental or judicial proceedings are pending, provisional pension may be sanctioned and gratuity may be withheld till conclusion of proceedings.
However, the said provision cannot be read as authorizing the department to keep the proceedings pending indefinitely even after the enquiry report has been submitted. The power to withhold gratuity or other pensionary benefits must be exercised reasonably and only where the circumstances legally justify such withholding. 14. In the present case, the enquiry report does not establish any loss to the public exchequer.
The first amount was refunded and deposited back in the Government account. As regards the second amount, the allegation is essentially of release of payment without prior approval or without completing formalities, but there is no finding that the applicant misappropriated any amount or caused any actual financial loss to the Government. The material on record does not justify continued withholding of the applicant’s pensionary benefits.
15. We are of the considered view that once no loss has been caused to the public exchequer, and once the enquiry report had already been submitted before the applicant’s retirement, the respondents could not indefinitely sit over the applicant’s pension case. Such withholding of pensionary benefits defeats the very object of pension and violates the applicant’s constitutional and statutory rights.
16. The applicant cannot be made to suffer merely because the respondents have failed to take a timely final decision after receipt of the enquiry report. Administrative delay cannot become a ground to deny retiral dues to a retired employee. If the department chooses not to pass any final order within a reasonable time, the retired employee cannot be kept without his lawful benefits for an indefinite period.
17. In the facts of the present case, we find that the action of the respondents in withholding the pensionary benefits of the applicant is arbitrary and unsustainable in law. The applicant is entitled to release of all admissible pensionary and retiral benefits in accordance with rules.
18. Accordingly, the Original Application is allowed. The respondents are directed to forward the complete pension case of the applicant to the office of the Accountant General, J&K, for sanction/fixation of final pension, gratuity, commutation and all other benefits requiring approval of the Accountant General, within a period of three months from the date of receipt of a certified copy of this order.
19. The Accountant General, J&K, on receipt of the pension case from the respondents, shall process and authorise the admissible pensionary benefits of the applicant, including final pension, gratuity and commutation, within a further period of 08 weeks.
20. The respondents are further directed to release all retiral benefits which do not require approval of the Accountant General, including GP Fund, cash in lieu of leave salary and any other admissible dues, within a period of 08 weeks from the date of receipt of a certified copy of this order.
21. The provisional pension already released in favour of the applicant shall be adjusted against the final pensionary benefits payable to him in accordance with rules.
22. In case the aforesaid benefits are not released within the stipulated period, the applicant shall be entitled to interest at the rate of 6% per annum on the delayed payment from the date the amount became due till its actual release.
23. With the aforesaid directions, the Original Application stands allowed. No order as to costs
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