2014 (3) TMI 1046 - Tri - Central Excise

Tribunal upholds pension cut, orders interest on delayed payments.

The Tribunal upheld the penalty of withholding 30% of the applicant's monthly pension for five years, finding no reason to interfere with the disciplinary ... Negligence and complete lack of devotion to duty - applicability of Rule-9 of the CCS(Pension) Rules, 1972 - Held that:- From perusal of provision of Rule-9 as well as findings of the disciplinary authority, it is clear that the applicant has been found guilty on the ground of negligence and complete lack of devotion to duty. Thus, the allegation of the applicant that the grounds taken in his report were not considered by the disciplinary authority while imposing the punishment is not valid as the disciplinary authority while coming into conclusion has elaborately discussed the IO's report, disagreement note as well as contention of the applicant. As this Tribunal cannot sit as a appellate forum on the fact findings of the disciplinary authority , we cannot interfere with the findings of the disciplinary authority as per decision of Hon'ble Apex Court in the case of Nand Kishore Prasad Vs. State of Bihar reported in (1978 (4) TMI 235 - SUPREME COURT) wherein it is held that standard of proof required in disciplinary proceeding is preponderance of probability and not proof beyond reasonable doubt as in a criminal case. In the instant case, the disciplinary authority while coming into conclusion has given his reasoning and raised reasonable doubt and thereafter come into conclusion that though there may not be any ulterior motive but there is clear negligence and devotion of duty on the part of the applicant. Thus, the findings of the disciplinary authority cannot be termed as perverse. Accordingly, we do not find any reason to interfere with the decision of the Disciplinary Authority. With regard to interest on the amount of gratuity, leave encashment and commutation of pension, which was due at the time of retirement, we are of the opinion that as per Rule-9 , the President reserves the right of withholding pension or gratuity or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part , if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service. As in the instant case, the President has only imposed penalty of 30% of monthly pension for five years under Rule-9, but no adverse order was passed with regard to gratuity, leave encashment etc., we hold that the gratuity and leave encashment are due from the date the applicant was allowed to superannuate and if any payment is made thereafter is liable for interest. Thus, the applicant is entitled for 8% interest on the due amount of gratuity and leave encashment from the date of superannuation till the date of final payment. However, interest of commutation of pension is not admissible as it has to be calculated on the basis of final order. Issues Involved:1. Validity of the order dated 17th/18th April, 2012, withholding 30% of the applicant's pension for five years.2. Entitlement to 18% interest on delayed payment of gratuity, leave encashment, and commutation of pension.Issue-wise Detailed Analysis:1. Validity of the Order Withholding Pension:The applicant contested the order dated 17th/18th April, 2012, which imposed a penalty of withholding 30% of his monthly pension for five years. The applicant argued that the disciplinary authority's disagreement note was beyond the scope of the chargesheet and that there was no contradictory evidence to support the findings of the disciplinary authority against the enquiry officer's report. The applicant also claimed that the grounds taken in his representation were not considered while imposing the punishment.The Tribunal noted that the disciplinary proceedings were converted into Rule-9 proceedings after the applicant's superannuation in 2003. The enquiry officer submitted a report, but the disciplinary authority, not convinced with the report, issued a disagreement note which was duly served upon the applicant. The disciplinary authority, after considering the enquiry officer's report, the disagreement note, and the applicant's representation, held the applicant guilty and imposed the penalty under Rule-9 of the CCS(Pension) Rules, 1972.The Tribunal emphasized that judicial review can only interfere with the findings of the disciplinary authority if the order is passed in violation of natural justice or if the findings are perverse. It was noted that the disciplinary authority had agreed that there was no ulterior motive on the part of the applicant but found him guilty of negligence and a complete lack of devotion to duty. The Tribunal concluded that the disciplinary authority had rightly imposed the penalty after a thorough consideration of all relevant aspects, and the findings were not perverse. Thus, the Tribunal did not find any reason to interfere with the decision of the disciplinary authority.2. Entitlement to Interest on Delayed Payment:Regarding the applicant's claim for 18% interest on the delayed payment of gratuity, leave encashment, and commutation of pension, the Tribunal examined the provisions of Rule-9 of the CCS(Pension) Rules, 1972. The Tribunal observed that the President has the right to withhold or withdraw pension or gratuity if the pensioner is found guilty of grave misconduct or negligence during the period of service.In this case, the President imposed a penalty of withholding 30% of the applicant's monthly pension for five years but did not pass any adverse order regarding gratuity and leave encashment. Therefore, the Tribunal held that the applicant was entitled to interest on the delayed payment of gratuity and leave encashment from the date of superannuation until the final payment. The Tribunal directed that 8% interest be paid on the due amount of gratuity and leave encashment. However, the Tribunal denied interest on the commutation of pension, as it had to be calculated based on the final order.Conclusion:The Tribunal upheld the penalty of withholding 30% of the applicant's monthly pension for five years, finding no reason to interfere with the disciplinary authority's decision. The Tribunal also directed the respondents to pay 8% interest on the delayed payment of gratuity and leave encashment from the date of superannuation until the final payment. The OA was disposed of with these directions, and no order as to costs was made.