Pendency Of Vigilance Clearance is not Grounds To Withhold the Release Of Pensionary Benefits For An Indefinite Period: CAT New Delhi

Background Facts

Dr. Sarbesh Bhattacharjee (Applicant) joined as a Medical Officer in the Ministry of Health and Family Welfare (Respondent) in 1976. The Applicant was suspended on 02.11.2011 and the Applicant filed an Original Application against the order of suspension. The Tribunal, quashed the suspension order by an order dated 23.12.2011. However, the operation of the order of the Tribunal was stayed by the Delhi High Court by an interim order dated 13.01.2012. The Applicant superannuated on 31.01.2012. The Delhi High Court dismissed the writ petition against the order of the Tribunal as infructuous in 2013 since the Applicant had already superannuated.

Before his superannuation, the Anti-Corruption Bureau of Delhi had filed two FIRs against the Applicant under the Prevention of Corruption Act and IPC. Another FIR was filed against the Applicant on 16.02.2013 after he superannuated from service. However, all three FIRs were quashed by the Delhi High Court in 2022.

After superannuation of the Applicant, the Respondents through an order dated 11.07.2012 sanctioned a provisional pension in favour of the Applicant. In 2017, the Applicant had made multiple representations before the Respondents to release his pensionary benefits but the same not released due to the FIRs pending against him. However, after the Delhi High Court order in 2022, the Applicant once again submitted an application seeking payment of the pending retirement benefits. However, the Respondents neither released to him the final pension nor the gratuity amount and the leave encashment. Thus, the Original Application was filed.

It was contended by the Applicant that the sanction of provisional pension was violative of Rule 9 (4) of the CCS (Pension) Rules, 1972 as there was no disciplinary or judicial proceeding pending against the Applicant at the time of superannuation. The Respondents should have granted him regular pension and they should have released gratuity and leave encashment to the Applicant immediately after his retirement. Further the Delhi High Court had quashed the 3 FIRs on account of delay in investigation and filing of charge sheet. Thus, there was no institution of criminal proceedings because the competent magistrate had not taken cognizance of the offences after filing of the charge sheet.

It was further contended by the Petitioner that even though the Applicant was under suspension till the date of his retirement i.e. 31.01.2012, the suspension order was quashed by CAT and the Delhi High Court had dismissed the writ petition against the said order as infructuous after the Petitioner had superannuated. Thus, the Applicant could not be said to be under deemed suspension after the order of the Delhi High Court in 2013

On the other hand, it was contended by the Respondent that they were informed by the Vigilance Wing that the Applicant was not clear from a vigilance angle and thus the Respondents were not in a position to clear the retirement benefits of the Applicant. Further, the Applicant was under “deemed suspension” as the order of suspension against the Applicant was valid at the time of his retirement. The Order of the CAT quashing the suspension order had been stayed by the Delhi High Court and since the Applicant was under “deemed suspension”, Departmental Proceedings were deemed to be instituted on the date on which the Applicant was placed under suspension under Rule 9(6)(a) of the CCS (Pension) Rules, 1972.

Findings of the Tribunal

The Tribunal observed that under Rule 9(6)(a) of the CCS (Pension) Rules, 1972, Departmental Proceedings are instituted against the Applicant from the date of his suspension i.e. 02.11.2011. Thus, since the Applicant was under suspension on the date of his superannuation, the order of provisional pension by invoking Rule 9(4) of the CCS (Pension) Rules, 1972 was legally valid.

The Tribunal further observed that although the issuance of the provisional pension order was legal, the force of the suspension did not exist after the writ petition, against the order of CAT which quashed the suspension order of the Applicant, was held to be infructuous by the Delhi High Court in 2013. Accordingly, the Respondent was bound to release the gratuity, finalize the pension as well as release the leave encashment.

The Tribunal further observed that:

Mere pendency of FIRs is no statutory condition under which the government can withhold pensionary benefits of its employees.

The Tribunal held that for withholding gratuity, the President needs to pass a specific order under rule 9 (1) of the CCS (Pension) Rules, however, no such order was passed against the Applicant. Similarly, under Rule 39(3) of the CCS (Leave) Rules, 1972, the competent authority needs to pass a specific order for withholding leave encashment, however no such order was passed against the Applicant by the competent authority as well.

The Tribunal further held that the Respondents failed to show any statutory provision which states that the pension of a particular government servant cannot be finalized or his gratuity or leave encashment could be withheld in absence of vigilance clearance. The Tribunal observed that this could lead to a hypothetical possibility that a vigilance wing of a department may withhold vigilance clearance in respect of a government servant for an indefinite period and the government servant would suffer due to that. The Tribunal thus held that:

Mere pendency of vigilance clearance from the vigilance wing cannot justify withholding release of pensionary benefits for an indefinite period.

With the aforesaid observation, the Tribunal allowed the Original Application

Case No.- O.A./3859/2022 & M.A./3911/2022

Case Name- of Dr. Sarbesh Bhattacharjee vs UOI & Anr

Counsel for Petitioners- Ms. Arundhati Katju with Ms. Ritika Meena, Ms. Shristhi, Mr. Sagar Saxena and Mr. Pakhi, Advocates

Counsel for Respondents- Mr. Amit Anand and Dr. Ch. Shamsuddin Khan, Advocates