N. Sengupta, J.M:— The applicant, who was a doctor serving under the Railways and has been allowed to voluntarily retire, has prayed for the relief's for payment of his pension and arrears with interest, payment of GIS and Provident Fund, DCRG, encashment value of unutilized leave etc.
2. The applicant has stated that he was appointed as an Asst. Surgeon in 1962 through Railway Service Commission, got a gazetted rank on 1.1.66 and was subsequently promoted to Class I on 1.1.73 In 1986, when he was posted as Additional Divisional Medical Officer (ADMO) at Santragachi, the Vigilance Deptt. of the railways registered a case against him for having taken illegal gratification of Rs. 30/- from an employee of the railways. After the registration of that vigilance case, he (the applicant) was suspended on 28.4.86 He was being paid subsistence allowance at the rate of 50% of the pay he last drew prior to the order of suspension. On 18.6.87, he made a representation for reviewing and raising of his subsistence allowance to 75%. This reprsentation was not favourably considered. In the meantime, i.e on 2.6.87, a memo of charge was served on him and he was neither allowed to join nor to have private practice. This was the wrong done to him because on remaining out of practice in treating patients or prescribing medicines he lost much of his technical knowledge by non-use. An Engineer was suspended but as he was a technical person he was taken back to duty but in his case (applicant's) there was a discriminatory treatment. Finding that he may be harassed he gave a notice on 1.7.87 for voluntary retirement with effect from 1.10.87 He was allowed to retire voluntarily. Before that, in August 1987, his subsistence allowance was reduced without any notice to him. So he made a representation on 5.9.87 On his representation, he was allowed to retain the quarters he was in occupation of before suspension, for four months and this period was further extended by another two months. Some blank pension papers were given to him for signature and he signed them but the whole of the pensionary benefits have not been paid to him. Even though he was allowed to retire voluntarily, the disciplinary proceeding is being continued. In the disciplinary proceeding, he asked for inspection of some documents, that prayer was not allowed and he was also not paid any T.A for going to attend die proceeding. On this count, the respondents had not paid any amount for the payment of which he made a representation and submitted bills on 7.10.83 but the bills remained unpaid. On these averments, as stated earlier, the applicant has prayed for the payment of his pension taking his pay scale to be Rs. 2,200- 4,000/- provident fund and GIS money, DCRG amount, encashment value of unutilized leave salary, commuted value of ⅓rd of the pension, all with 18% interest and also the amount for TA. eta for which he submitted bills. The respondents in their reply have stated that the applicant was paid subsistence allowance as per rule 2043 of the Railway Establishment Code, Vol II. After the applicant made a representation, a review about the quantum of subsistence allowance was made and the competent authority decided that, the subsistence allowance would be paid at the rate it was being paid. They have stated that as the applicant was charged with receiving illegal gratification, he had been suspended and could not be taken back to duty, and further that the case of the Addl. Chief Engineer which the applicant has made reference, has no relevance to the facts of the present case as the said Addl. Chief Engineer was allowed to resume duty under the court's order. Their case further is that the applicant before the Fourth Pay Commission's report was accepted, was in the scale of Rs. 700-1600/- and was drawing a basic pay of Rs. 1500/- which on revision of pay scale was fixed at Rs. 3800/-. The applicant was paid arrears but it was subsequently detected that he was paid Rs. 4362,84 p. in excess of the amount due to him. So, it was decided to recover the excess amount in monthly installments of Rs. 700/- from the subsistence allowance and in accordance therewith there was some reduction in the payment to the applicant but the reduction was not really of the subsistence allowance. As the applicant voluntarily retired and the disciplinary proceeding had been started prior to the applicant's giving notice for voluntary retirement, it was decided to continue the disciplinary proceeding. For pendency of the disciplinary proceeding, provisional pension and not final pension could be paid and the applicant is receiving provisional pension. The respondents have denied the allegation of the applicant of not being given an opportunity to inspect the documents. They have further stated that all the documents which were relied on or referred to in the memo of charge were inspected by the applicant and if he desired to inspect any other document he could have asked the permission of the Inquiry Officer for doing so. In para 18 of their reply, the respondents have stated that payment of provisional pension was sanctioned on ⅞.9.88, provident fund amounting to Rs. 39,767/- and GIS amount of Rs. 5,280/- were paid on 14.7.88 The interest on the GIS amount was also paid on 19.8.88 A further amount of Rs. 7,082.81p. was paid to the applicant towards other arrears after deducting the overpayment of Rs. 6628-32p. made earlier. Their case, put in brief, is that there has been no delay at any stage to make payments, which were due to the applicant. Therefore, the applicant is not entitled to any interest.
3. Mr. P.B Mishra, the Ld. counsel for the applicant and Ms. Sikha Dutta Gupta, the Ld. counsel for the respondents have been heard. Ms. Dutta Gupta has drawn out attention to the averments in para 18 of the reply where details about the payment already made to the applicant have been given. She has contended that since provisional pension is being paid and the applicant has been paid his Group Insurance amount, the applicant cannot be entitled to any other relief's because under the rules withholding of DCRG during the pendency of a disciplinary proceeding is permissible. On the other hand, Mr. Mishra had contended that the respondents under item No. 4 of para 18 have not given any break up of the amount of Rs. 7082.81p or of the gross amount of Rs. 13,711.13 p.
4. The applicant's first relief is that he should be paid pension in the pay scale of Rs. 2200-4000/-. From the documents filed by the respondents, it will appear that provisional pension of Rs. 1386/- per month was sanctioned on 22.8.88 From para 12 of the reply, it would be found that in fact the pay of the applicant on the pay scales recommended by the 4th Pay Commission coming into effect, was fixed at Rs. 3800/- in the scale of Rs. 2200-4000/-. It is not the case of the applicant that having regard to the number of years of his qualifying service by 1.10.87, he would be entitled to a higher amount of pension. That being so, we find much substance in the contention of Ms. Dutta Gupta that asking for relief (a) by the applicant is not proper as he has already been allowed provisional pension on his pay in the scale of Rs. 2200-4000/-.
5. The applicant has asked for the payment of commuted value of pension. A commutation of pension can only be made after the pension is finalised but not on provisional pension. We find from the file produced by the respondents that the offer of voluntary retirement by the applicant was accepted on 8.2.88 retrospectively with effect from the afternoon of 30.9.87 and in that order of acceptance it was specifically mentioned that the DA proceeding was to continue even after his retirement. The applicant was, as indicated earlier, under suspension. When a person is under suspension and offers for voluntary retirement, the concerned authorities have the option not to allow such retirement or impose the condition of continuance of the disciplinary proceeding even after the retirement. In this connection, it would be pertinent to refer to the well-known decision of the Supreme Court in the case of D.V Kapoor- v. -UOI reported in 1990 (3) SLR 5 (SC). In that case, the appellant was allowed to retire voluntarily but subject to the continuance of the disciplinary proceeding already initiated against him. It was held by the Supreme Court that merely because the delinquent appellant was allowed to retire, the Govt. does not lack jurisdiction or power to continue the proceedings already initiated to the logical conclusion thereto and that the proceedings are valid in law and they are not abated consequent to voluntary retirement of the appellant. Mrs. Dutta Gupta has also placed reliance on the case of D.V Kapoor (supra) and has contended that the President can withhold or withdraw pension, if the pensioner committed grave misconduct or negligence. The allegation against the applicant in the disciplinary proceeding is acceptance of illegal gratification from a railway employee, if ultimately it is found that the applicant did accept illegal gratification, the conclusion would be inevitable that he was guilty of grave misconduct. Therefore, the President shall have the right to withhold a portion or whole of the pension, which would include also DCRG. This argument of Mrs. Dutta Gupta though appears to be attractive at the first blush, it cannot be accepted as made. In D.V Kapoor's case, their lordships of the Supreme Court stated that the measure of deprivation must be co-relative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to assistance at the evening of the life of a retired person. The Supreme Court further observed that the exercise of the power by the President was hedged with a condition precedent that a findig should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office which should be the subject of the charge. No doubt, in D.V Kapoor's case, withholding of gratuity was ordered as a measure of punishment but nevertheless the observation of the Hon'ble Supreme Court with regard to condition precedent would also apply whenever gratuity is not paid immediately after the retirement of a government servant, voluntarily or on superannuation.
6. Mrs. Dutta, Gupta has drawn out attention to a circular of the Railway Board where the President has reserved to himself the right of withholding of pension of gratuity, either in full or in part, permanently or for a specified period and has contended that since the President has this power, withholding of gratuity during the pendency of the disciplinary proceeding cannot be questioned by the applicant. Apart from the fact that this circular or order of the President was issued in November 1991 long after the retirement of the applicant, in the circular itself it has been specifically mentioned “If in any departmental or judicial proceeding the pensioner is found guilty of grave misconduct or negligence during the period of his service.” We have underlined that portion in order to bring into sharp focus that unless a finding is given, withholding of gratuity cannot be made. It is not the case of the respondents that the applicant caused any loss to the railways by his acts or omissions. Therefore, recovery to make good the loss is out of question. In these circumstances, we are of the opinion that the withholding of payment of the whole of the gratuity is unreasonable and cannot be supported. If ultimately the applicant is found guilty of the charge of grave misconduct and the President thinks it so fit, he would be free to withdraw any part or whole of the pension to be paid to the applicant for any specified period or permanently.
7. The offer of voluntary retirement was accepted in February, 1988, therefore processing of papers for payment of provident fund could commence only ˜ thereafter. The provident fund amount was paid, according to the respondents, to the applicant on 14.7.88 i.e within a period of five months. This period cannot be said to be unreasonably long period taken by the respondents to pay the provident fund amount at the credit of the applicant. We are, therefore, not inclined to grant the applicant's prayer for interest on this amount.
8. It has been stated in the reply that on the same date i.e 14.7.88, the group insurance amount was paid and an interest of Rs. 475/- was sanctioned to be paid on 19.8.88 Since the interest on group insurance amount has already been sanctioned, relief (b) of the applicant has really become redundant.
9. So far as relief (d) is concerned, the applicant has not stated the leave that was at his credit when he voluntarily retired not has he quantified the leave salary payable for unutilised leave. Interest cannot be granted on an unascertained amount. The respondents in their reply have stated that they calculated Rs. 13,711.12p. to be the arrears payable to the applicant, of course, as stated earlier, they have not given its break-up. This amount might have included the leave salary. Since the averments in the application and the reply are not quite clear with regard to whether the respondents have paid the cash value of unutilised leave, we would give a direction to the respondents to pay to the applicant that amount, if not already paid, with interest at the rate of 12% per annum from 1.5.88 This date we fix taking into consideration the time that may be necessary to complete the leave account and make the necessary calculations.
10. Under the rules so long as the disciplinary proceeding is pending, pension cannot be finalised and consequently no commutation of pension can be made. Therefore, the applicant is not at the present moment entitled to relief (e) claimed by him.
11. We have already indicated above that as there has, as yet, not been any finding that the applicant is really guilty of grave misconduct, withholding of payment of gratuity is not supportable in law. Therefore, the applicant is entitled to payment of gratuity with interest at the rate of 12% per annum with effect from 1.5.88 To sum up-the applicant is entitled to the following reliefs only, viz.-(i) If the salary for the unutilized leave has not yet been paid, the said amount of leave salary with interest at the rate of 12% per annum from 1.5.88 is to be paid;
(ii) He should be paid the DCRG amount with interest at the rate of 12% per annum from 1.5.88
(iii) The payment should be made within 60 days from the date of receipt of a copy of this judgment. Interest would be paid till the date of actual payment from the date mentioned above.
(iv) There shall be no orders as to costs.
12. Orders accordingly.