ups_01243 — Exhaustion of administrative remedy under Section 20 of the Administrative Tribunal's Act is a must before approaching the Tribunal

Exhaustion of administrative remedy under Section 20 of the Administrative Tribunal's Act is a must before approaching the Tribunal — The chunk provided discusses the ruling of the Tribunal in a case involving an employee's claim for retirement benefits, specifically DCRG (Death-cum-Retirement Gratuity) and commutation of pension. ... — Facts: Per Applicant, he was appointed in October, 1987 as Postal Assistant and thereafter during course of service in April, 2016 transferred to Balrampur Head Post Office from Bishunpur Bairiya. While working at Bishunpur Bairiya Post Office, an incident regarding fraudulent opening of deposit account and withdrawal from the same to the tune of ₹ 10,58,854 happened in which his id and password were allegedly used by a third private person by name Shri Indra Prakash Mishra, R/o. Village and Post Malari, Bishunpur Bairiya, Gonda. When the fraud came to light, the Applicant was first suspended vide Order, dated 1-6-2016 and then disciplinary proceedings initiated. The suspension order was revoked by the Respondents on their own. A charge-sheet was issued in September, 2016. Following an inquiry, punishment of recovery of an amount of ₹ 3,366 from the salary of the Applicant and reduction in pay from ₹ 55,200 to ₹ 50,500 by 3 stages for a period of 7 months with effect from 1-4-2018 to 31-10-2018 was imposed. Subsequently, vide Order, dated 8-5-2018, the Applicant was retired unconditionally. It is the submission of the Applicant that-

(i) the suspension period should be regularized and salary paid for the period as the suspension has been revoked and the final punishment also imposed vide Order, 28-3-2018 and

(ii) the DCRG benefits should also be released as there is now no disciplinary proceedings pending against him and even if a criminal proceeding has been initiated by lodging of a FIR, dated 13-6-2018 (Annexure A-4), but since no charge-sheet is yet filed in the criminal proceedings, therefore, per the CCS (Pension) Rules, 1972 [ 'Pension Rules' in short hereinafter ] the DCRG etc., cannot be withheld. Therefore, it is contended that the DCRG, GIS, commutation amount, etc., benefits should be forthwith released more so since the Applicant has been directed to be superannuated by the order of the Respondents themselves unconditionally vide Order, dated 8-5-2018 along with grant of provisional pension and GPF release. That since the same has not been done, hence the OA. Per contra, the Respondents have filed counter affidavit, in which it is asserted that withholding the DCRG and other retiral benefits as claimed, is as per law because under Rule 69 of CCS (Pension) Rules, 1972, the DCRG benefits cannot be released once an FIR is lodged in a criminal proceedings against an employee. That while Applicant has been allowed to retire institution of the FIR against him and as per Rule 69, the DCRG benefits cannot be released in the pendency of the criminal case. Accordingly, Applicant cannot be given DCRG benefits. Hence OA lacks merit and is therefore, liable to be dismissed. First as to salary for the period of suspension. In this regard, since the suspension is revoked and the disciplinary proceedings finalized, therefore, the assertion of the Applicant with regards to suspension period salary payment needs to be decided upon by the Respondents specifically. However, in this regards, it is also seen that Applicant nowhere filed any representation with respect to claiming this part of relief for payment of salary. Therefore, on this relief, it is directed that Applicant shall file a representation to the Competent Authority amongst the Respondents with regards to salary payment for the suspension period given the fact that disciplinary proceedings have been completed and the period of suspension has also been regularized vide Letter, dated 20-7-2020. As regards release of final pension, commutation amount, DCRG benefits, it is first of all noted that the Order, dated 8-5-2018 is a circular to seven employees on the verge of superannuation of which Applicant is one and whose name is stated at sl. 6 with the date of superannuation specified as 31-10-2018. Now, to seek protection of this Circular to claim full permanent pension, commutation, DCRG, etc., is not justifiable because it does mention in its bottom that – "In case of any vig./loss or fraud / disciplinary case is pending or contemplated against any of the above officials, their retirement will be subject to Rule 9 of CCS (Pension) Rules, 1972." What this implies is that, while the Applicant is still to reach the date of superannuation which is a good five months after the issue of the said Circular, the Circular itself is by way of intimation of date of superannuation of the concerned employees. It is no longer res integra that no separate orders need to be passed with regards to actual superannuation of a Government employee. The point is that, just because the Order / Circular of 8-5-2018 is issued does not tantamount to superannuation as a carte blanche nor does it give a licence to the Applicant that no disciplinary proceedings or judicial proceedings can be initiated even without Presidential sanction before the age of his superannuation which in the case of the Applicant is 31-10-2018. Therefore, per se the order of 8-5-2018 gives no protection to the Applicant in his pursuit of logic that just because the said order / Circular was issued so no disciplinary proceedings / criminal proceedings be initiated or pension, etc., cannot be withheld. More so because release of pension is governed by pension rules and not by a Circular issued intimating the date of superannuation which is at best a prior information to the employee concerned with regards to his impending superannuation. Even in the said Circular, it is stated that Rule 9 shall operate and so the Circular is subject to operation of Rule 9 and cannot be read independent of it. Hence the assertion of the Applicant that the Circular of 8-5-2018 estoppels the Respondents from withholding pension and DCRG is held in the negative. The prayer of the Applicant is as under:- "1. To release the DCRG and Commutation of Pension along with interest at 12% per annum from the date of due till the date of actual payment. 2. To revise pension and pensionary benefits while regularizing the suspension period from 1-6-2016 to 7-10-2016 and release arrears/difference thereof alongwith interest at 12% per annum from the date of due till the date of actual payment.