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2014 Supreme(Cal) 415
IN THE HIGH COURT AT CALCUTTA
Dipankar Datta, J.
Surajit Roy
vs.
Registrar General, High Court at Calcutta & ors.
W.P. No. 834 of 2013
Decided on : July 22, 2014
Advocate Appeared:
For the petitioner:Mr. Durga Prasad Dutta, Advocate Mr. Kaustav Chandra Das, Advocate
For the :Mr. Sandip Bhattacharya, Advocate respondent no. 3
For the other :None respondents
The word "pension" in Rule 14 of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 does not include gratuity, and an employee against whom a criminal proceeding for moral turpitude is pending on the date of retirement is entitled to gratuity until his conviction.
Headnote:
GRATUITY - PENDING CRIMINAL PROCEEDING - ENTITLEMENT - EMPLOYEE - DCRB RULES - INTERPRETATION: The term "pension" in Rule 14 of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 (DCRB Rules) has to be understood in contradistinction to "gratuity". Hence, an employee against whom a criminal proceeding for moral turpitude is pending on the date of retirement is entitled to gratuity until his conviction.
Fact of the Case:
The petitioner, an employee of the Calcutta High Court, retired on September 30, 2010, while serving as the Deputy Registrar (Judicial), Appellate Side. He filed a writ petition seeking release of his retiral benefits, including gratuity, which was withheld due to a pending criminal proceeding against him under Sections 403 and 406 of the Indian Penal Code.
Finding of the Court:
The court held that the word "pension" in Rule 14 of the DCRB Rules, which prohibits sanctioning of pension to a retired government servant until the termination of a pending criminal proceeding, does not include gratuity. The court interpreted the rule in the context of other provisions of the DCRB Rules and concluded that Rule 14 is intended to apply to pension, not gratuity.
Issues: 1. Whether the word "pension" in Rule 14 of the DCRB Rules includes gratuity? 2. Whether an employee against whom a criminal proceeding for moral turpitude is pending on the date of retirement is entitled to gratuity?
Ratio Decidendi: 1. The definition of "pension" in Rule 7(f) of the DCRB Rules includes gratuity only when the term "pension" is not used in contradistinction to gratuity. 2. Rule 14 of the DCRB Rules, which prohibits sanctioning of pension to a retired government servant until the termination of a pending criminal proceeding, uses the term "pension" in contradistinction to gratuity. 3. The object and spirit of the DCRB Rules, and the nature of gratuity as a reward for continuous unblameworthy service, support the interpretation that Rule 14 does not include gratuity.
Final Decision: The court allowed the writ petition and directed the respondents to release the gratuity in favor of the petitioner within four weeks from the date of the judgment. The petitioner was also entitled to interest @ 9% p.a. thereon till actual payment.
1. The petitioner was an employee of this Court. He entered service in September, 1969 as a Lower Division Assistant and ultimately, after rendering more than 4 decades of service, retired on attaining the age of superannuation on September 30, 2010 while he was the Deputy Registrar (Judicial), Appellate Side.
2. In this writ petition dated August 13, 2013, the petitioner has voiced his grievance arising out of inaction and/or refusal of the respondents, which includes his pension sanctioning authority i.e. the Registrar General of this Court, to release his retiral benefits and, accordingly, prayed for orders on the respondents to work out his retiral benefits in terms of the provisions contained in the West Bengal Services (Death cum Retirement Benefit) Rules, 1971 (hereafter the DCRB Rules) and to release the same at an early date.
3. It is not in dispute that the petitioner is an accused in connection with a criminal proceeding, the FIR whereof was registered under Sections 403 and 406, Indian Penal Code. The said criminal proceeding is the subject matter of challenge before this Court in its criminal revisional jurisdiction and further proceedings thereof have been stayed.
4. In course of hearing, by an order dated September 13, 2013 I had called for an affidavit from the Principal Accountant General (A & E), being the third respondent, to place on record the submission made on his behalf by Mr. Bhattacharya, learned advocate that the right of the Governor to withhold pension conferred by Rule 10 of the DCRB Rules as well as pension referred to in Rule 14 thereof would include gratuity. An affidavit dated September 19, 2013 was filed. The relevant portions thereof read as follows:
“7. I say that provisional pension is ordinarily in the domain of the employer, the Head of Department of the retired employee, who to his satisfaction can sanction the payment of provisional pension to the retired employee without any authority for such act from my office under Rule 137 but expectedly taking into consideration Rule 14 of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971.
8. I thus submit that gratuity being inclusive of the definition of the terms of pension and as such without finalisation of pension, there is no finalisation of the gratuity amount unless the certification under Rules 11 and 14 of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 are made available from the Head of Department of the retired employee and the gratuity would have the same meaning under Rule 10 of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971.”
5. In terms of further orders passed by the Court, the amount of provisional pension that the petitioner was entitled to was worked out and he is in receipt thereof. Obviously, whether or not the petitioner would be entitled to full pension is dependent on the outcome of the criminal proceeding.
6. However, at this stage, the question that survives for decision is, whether the petitioner is entitled to gratuity in full or any part thereof or whether payment of gratuity would stand deferred until he secures an acquittal in connection with the criminal proceeding.
7. Mr. Dutta, learned advocate for the petitioner while arguing that the word ‘pension’ used in Rule 14 cannot include gratuity relied on several decisions, viz.
(i) (1990) 4 SCC 314 : D. V. Kapoor vs. Union of India;
(ii) AIR 1992 SC 767: All India Reserve Bank Retired Officers Association and ors. vs. Union of India and ors.;
(iii) (1994) 2 SCC 729 : State of U.P. vs. U.P. University Colleges Pensioners’ Association;
(iv) (2005) 13 SCC 161 : State of A.P and anr. vs. A.P. Pensioners Association and ors.;
(v) AIR 2013 SC 3383 : State of Jharkhand and ors. vs. Jitendra Kumar Srivastava and anr.;
(vi) unreported decision of the Division Bench of this Court dated February 14, 2013 in WPCT 49 of 2011 (Comptroller and Auditor General of India and ors. vs. Ram Debabrata Ghosh and anr.);
(v
