dofp2024_00825 — All final settlement dues of a retired Government servant cannot be withheld if the charge-sheet is issued and served on him even the next day of his retirement

All final settlement dues of a retired Government servant cannot be withheld if the charge-sheet is issued and served on him even the next day of his retirement — The Respondents issued a memo cancelling the applicant's retirement, placed him under suspension, and argued that his final settlement dues could be withheld due to pending disciplinary proceedings. ... — Facts: The Applicant herein who joined as a Phone Mechanic on 12-6-1978 was promoted to various higher grades and lastly he was promoted as Senior Accounts Officer in Bharat Sanchar Nigam Limited (BSNL). The Applicant is to retire on 31-12-2012. Till the date he retired from service, he was not issued with any charge-sheet. On 7-5-2010, he was issued with a questionnaire which related to the period 2007 to 2009 when he was working as a Senior Accounts Officer (CA&FA) in the office of GMTD, Hamirpur. After examining the files, he submitted a comprehensive reply to the questionnaire on 16-6-2010. His date of retirement was also informed in the internet as 31-12-2012 (AN) on superannuation. He was allowed to retire on that date vide memo, dated 31-12-2012 by the Divisional Engineer (H.R.) of GMTD, Hamirpur. But on 1-1-2013,a memo was issued cancelling his retirement as noted above. By letter, dated 31-12-2012, GMTD H.P. Circle, Shimla placed him under suspension under Rule 30 (1)

(a) of BSNL, CDA Rules, 2006. Hence, the present OA is filed to direct the Respondents to release his retiral dues like Gratuity, Commutation Value of Pension, Leave Encashment with 18% interest. The Respondents state that under Rule 39 (3) of CCS (Leave) Rules, 1972, the Authority concerned has powers to withhold part or full equivalent of earned leave while an employee retires from service on superannuation or disciplinary or criminal proceedings are pending against him till he is exonerated. No gratuity is also payable until the conclusion of departmental or judicial proceedings as per Rule 69

(c) of Pension Rules,1972. Further disciplinary proceedings are deemed to have been initiated from the date of suspension , i.e., 31-12-2012 as per Rule 61 (4) (5) of BSNL CDA Rules, 2006. Hence the impugned orders cannot be questioned. The Applicant also submitted that the departmental proceedings had been started for the incident of 2007-09 after elapse of over 4 years and hence the present proceedings stand elapsed as per rule. The main argument of the Applicant is that, his final settlement dues cannot be withheld as the charge-sheet was issued to him only the next day of his date of retirement and suspended him from that date only. Hence the retiral benefits cannot be withheld. He relies on various other Apex Court judgments to sustain his claim. But the Respondents stick to their view as per their version noted above. The Tribunal considered the case. It said that retiral benefits such as pension is not a bounty payable on the will of the Respondents. For stating so, the Tribunal relied on the judgment of D.V. Kapoor v. Union of India and others [1990 (4) SCC 314] wherein it was held that the right to receive pension and other retiral dues is a valuable right granted to a Government servant which cannot be withheld except by process under relevant rules. In the case of State of Kerala v. M. Padmanabhan Nair, [ 1985 (1) SCC 429 ] also agrees with the above view. In this case, the Applicant was allowed to retire on 31-12-2012 (AN). The impugned order cancelling his retirement order, dated 31-12-2012 is issued to him on 1-1-2013 after his retirement. Hence the impugned order, received by the Applicant on 1-1-2013 is after relationship between master and servant ended. Hence no prejudicial order to the right of the employee can be passed after his retirement. Hence "the impugned order, dated 1-1-2013 cancelling the order of retirement and placing the Applicant under suspension does not sustain in the eyes of law". The reason for stating so is further elaborated and held that retiral dues cannot be withheld under Rule 61 (4) (5) of BSNL CDA Rules, 2006. The question arises that when the departmental proceedings can be said to be initiated against a Government servant℃ This question can be answered in the case of Union of India v. K.V. Janakiraman, [ 1991 (2) Scale 423 ], wherein it is said that "the departmental proceedings can be said to be in motion only when the chargesheet has been issued to an employee. As the charge-sheet to the employee was issued after his retirement on 31-12-2012 (AN), no departmental proceeding is said to be pending against the Applicant on the date of his retirement. The said view of the Apex Court is verbatim reproduced in the judgment. It is concluded in that judgment that "to deny the said benefit (retiral benefits), they (departmental authorities) must be at the relevant time pending at the stage when charge-memo / charge-sheet has already been issued." When no charge-sheet is issued to the Applicant whether withholding of pensionary benefits is permissible or not is answered in the case of D.V. Kapoor v. Union of India and others [ 1990 (4) SCC 314 ]. It is said that if no charge-sheet has been issued before retirement, then retiral benefits cannot be withheld. In the case of Santosh Verma v. National Capital Territory of Delhi, Department of Training and Technical Education and others, [ 1998 (1) ATJ 215 ] considering Pension Rules 69, it was held that Rule 69 does not cover a situation where action under Rule 9 of Pension Rules is merely contemplated and as one who retires without being issued a charge-sheet, the entire retiral benefits are to be released. Principal Bench in the case of Dr. Anil Mehra v. GNCT, New Delhi [ O.A. No. 1818 of 2008 ] decided on 3-12-2008 followed the above dictum of the Apex Court. The full explanation to state so by the Principal Bench is reproduced in the judgment. In the case of GNCTD of Delhi and another v. K . Srivatsan [ W.P. No. 2495 of 2012 ] decided on supra 30-4-2012, the Delhi High Court also held that retiral benefits cannot be withheld if there is no charge-sheet. As no charge-sheet is pending against the Applicant on the date of his retirement and also in the absence of pending departmental proceedings, the Respondents cannot withhold the retirement benefits. In M.A. No. 191 of 2003, filed by the Respondents, it is stated that they have already released the retiral benefits except leave encashment and gratuity. Hence for reasons stated above, those dues are also to be released within a month of receipt of this judgment. The second reason for directing the Respondents to release the retiral benefits is the noting of the Applicant in the file that he followed the approval of CGMT., H.P which was ignored by the Respondents when withholding his final settlement dues. In view of the above, the ignoring of various points by department is a colourable exercise of powers by the Respondent. The department failed to charge-sheet the Applicant before his date of retirement.