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Krishna Kumar Tiwari v. State of Chattisgarh & ors.
The following was filed in the High Court of Chattisgarh headed by Hon'ble Justice Goutam Bhaduri parties involved in the case are for the petitioner Krishna Kumar Tiwari aged 80 years and the Respondent No.1 State of Chattisgarh, Respondent No.2 State of M.P and respondent No. 3 District Industries and Trade Centre, Raipur. The grievance of the petitioner is that the petitioner is aged 80 years and till date, his retiral dues have not been finalised by the Respondents.
According to the submission, the petitioner has retired from the former state of Madhya Pradesh on 31.03.2000 and before 3 days of his retirement a departmental enquiry was started against the petitioner order dated 27.03.2000. The petitioner was served with the charge sheet and department enquiry was completed on 12.12.2005 and enquiry report was submitted by the enquiry officer. After that no conclusion in the enquiry has been arrived, depriving the petitioner of his pensionary benefit along with the benefit of 6th and 7th pay commission and arrears from the dated of retirement.
Learned counsel of the petitioner has submitted that the petitioner has preferred different litigations. Initially, a writ petition was filed in 2015 on the ground that since retiral dues like gratuity and other benefits have not been settled because of pending enquiry, relief was sought for conclusion of the departmental enquiry. In the following writ petition the order passed by the court stated that the end of justice would meet if the respondent takes a final decision on the departmental enquiry if it has not been decided yet and if it has been decided the same must be communicated to the petitioner. The court further said that the authority shall consider the age of the petitioner and also the fact that the petitioner has retired 15 years ago. The authority should make a decision as soon as possible preferably within 4 months from the date of order.
It was further submitted that since the petitioner was not paid the gratuity, again a writ petition was filed in the year 2016, wherein the court passed an order on 25.07.2017. The court in conclusion to the 2017 writ stated that, there can be no justification whatsoever for withholding the gratuity and other retiral benefits for 17 years in the name of pendency of enquiry. Rule 64 of The Rules of 1976 cannot be taken to withhold gratuity for indefinite period. The action of the respondent was held illegal, arbitrary and unsustainable in law. Court ordered the respondent to release the entire gratuity with 10% interest within 90 days.
Against such order the MCC was filed by the State of Madhya Pradesh in which they asked the court that order passed maybe recalled, reviewed and modified because of the weighty reason which was not put forward in last order passed by the court and because of that the authority was not able to conclude the enquiry.
After hearing the learned counsel the court did not find any ground to review or recall the order passed by the court earlier. The fact that the enquiry was submitted in 2005 and still the authority has not concluded the enquiry there is no justification whatsoever for withholding the gratuity and other retiral benefits for 17 years. The petition was therefore dismissed.
The question which arose was whether the gratuity could be withheld indefinitely on account of pendency of an enquiry. According to the provision of Rule 64 of the Rules 1976 entitles the state to withhold 50% of gratuity and at most 50% gratuity may be released in case the departmental enquiry is still pending against the Government servant who has attained the age of superannuation and retired. The provision however doesn't give licence to the authority to stall the departmental enquiry for indefinite period and deprive a retired employee from benefit of gratuity for none of his fault.
High court further stated that even if no specific period for conclusion of the departmental enquiry as specified under Rule 64 so as to continue withholding of gratuity, the provision has to be rational and reasonable, the authority should not withhold gratuity for a reasonable time and not indefinitely. Since, this was not the case were the departmental enquiry was being delayed because of the petitioner. Therefore in such a case, there has to be a reasonable time period for conclusion of the enquiry and if not concluded within reasonable period then the gratuity should be released.
Further, the state of M.P filed a writ petition and later it was withdrawn on 09.03.2018 on the payment of the gratuity already paid. Learned counsel of the petitioner referred to Rule 9(4) of the Rules of 1976 that the departmental enquiry cannot be kept pending after the submission of the report for indefinite time and after expiry of two years, the employee is entitled for the entire pension. Since the report was submitted in 2005, the respondent cannot keep it pending for indefinite period.
With respect to the situation about long pendency of enquiry, the guideline has been given by the Supreme Court in the case of " Prem Nath Bail v. Registrar, High Court New Delhi (2015) 16 SCC 415 with respect to conclusion enquiry within a reasonable time. In this, the court observed that time and again, the court has emphasized that it is the duty of the employer to ensure that the enquiry is concluded within the shortest period. In case an employee is suspended then the employer should try to conclude the enquiry as soon as possible to avoid inconvenience. It should be done under 6 months as an outer limit. If the employer is not able to conclude the enquiry within the given time period due to unavoidable reasons then it should be concluded within a year.
The court referred to sub-clause (4) of Rule 9 of the Ruled,1976 and the provision clause which says that, in case of a government servant who has retired and against whom judicial proceeding is instituted and not completed within a period of one year from the date of institution of departmental enquiry 50% of pension withheld shall stand restored. If the proceeding has not been completed within 2 years from the date of institution then the entire amount of pension should be restored. If the final order is passed to withhold or withdraw pension, the order shall be deemed to take effect from the date of institution. Amount of the pension withheld will be subject to limitations specified in sub-rule (5) of Rule 43.
The court concluded by awarding the entire amount of pension to the petitioner and with the benefit of 6th pay commission. petitioner also to receive an interest of 9% per annum from the date of retirement. The payment to be done by the respondent as early as possible.
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