1. This is an application filed under Section 19 of the Administrative Tribunals Act, 1985 against G.O. (Rt) 6444-97/GAD dated 26.7.1997 (Annexure A-3) issued by the third respondent, 2. The applicant while working as Chief Conservator of Forests (Development), was issued with a suspension order initiating disciplinary proceedings vide G.O. (Rt). No. 5784/ 88/GAD dated 15.7.1988 and was served with charge memo on 22.2.1989 which was replied to by him on 9.3.1989. According to the applicant, he was reinstated in the post of Chief Conservator of Forests on 19.12.1989 and on 2.5.1991 he was promoted as Principal Chief Conservator of Forests and he retired on 30.6.1991. According to him, he made a number of representations for release of his full pension and other benefits and advise him the fate of the enquiry proceedings. On 19.5.1997, the applicant received G.O. (Rt) No. 4006/97/GAD dated 19.5.1997(Annexure A-2) from the third respondent advising him that the disciplinary case initiated against him was dropped for want of connected files which were missing. The applicant stated that after his retirement on 30.6.1991, since the disciplinary proceedings initiated in July, 1988 were not finalised, he was receiving only provisional pension and he had not been given other benefits like DCRG, Commutation of pension and encahsment of earned leave surrender. Applicant stated that he received another G.O. (Rt) No. 6444/97/GAD dated 26.7.1997 (Annexure A-3) from the third respondent stating that he would be treated as on duty from 15.7.1988 to 19.12.1989 except for the purpose of pay and allowances which would be limited to subsistence allowance already paid to him.
Applicant submitted a representation dated 22.8.1997 for early disbursement of all the benefits which he is entitled to receive (Annexure A-4), As he did not receive the payment, he approached the Tribunal by this O.A. seeking the following reliefs: (i) To direct the respondents to disburse all pensionary benefits like DCRG, payment of full pension, encashment of leave surrender and full pay and allowances during the period of suspension along with 18% interest thereto forthwith from 1.7.1991.
(ii) To quash Annexure A-3 order G.O. (Rt) No. 6444/97/Gad Trivandrum dated 26.7.1997 issued by the third respondent with regard to treating the applicant from 15.7.1988 till 19.12.1989 as full duty except for the purpose of pay and allowances which shall be limited to the subsistence allowance already paid to him.
(iii) To direct the third respondent to commute the pension for aperiod of 12 years either from the date of retirement or 12 years from the date of dropping of the enquiry proceedings.
(iv) To pass any other order or orders as this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case.
According to the applicant, non-disbursement of benefits of full pension, DCRG, Commutation of pension, encashment of leave surrender, etc. even after dropping of the disciplinary proceedings for no fault of his was illegal, improper, arbitrary and without any basis.
According to him, the disciplinary proceedings which were initiated against him could have been finalised even before his retirement but was delayed due to the callous nature at which the whole show was conducted by the respondents.
3. Respondent No. 2 filed reply statement and resisted the claim of the applicant. It was stated that as the written statement filed by the applicant in reply to memorandum of charges was not satisfactory, a formal enquiry on the charges was ordered and Shri R. Ramachandran Nair, former Commissioner and Secretary, Forests was appointed as the inquiry officer, It was stated that the Government file pertaining to the disciplinary action against the applicant submitted to the former Commissioner and Secretary on 7.10.1991 was not received back and despite earnest attempts, reconstitution of the file was found impossible. A denovo enquiry against charges against the applicant was not found feasible as the records of the case were not available. It was stated that the order dropping the disciplinary action against the applicant was accordingly issued, as the Government could not proceed with the disciplinary action for want of relevant records. Further in accordance with what was stated in the same order, the suspension period from 15.7.1988 to 18.12.1989 was treated as duty except for the purpose of pay and allowances which was limited to the subsistence allowance already paid to him through the order issued on 26.7.1997 after issuing a show cause notice to him and after considering his objections. The respondent averred that the orders passed on 26.7.1997 was in accordance with Rule 5(B) of All India Services (Disciplinary & Appeal) Rules which stated that the period of suspension was to be treated as duty for all purposes including pay and allowances only if the suspension was held as wholly unjustified and in all other cases, the competent authority had to decide as to the quantum of pay and allowances admissible and that in the instant case, the applicant was placed under suspension for serious lapse on his part and that the disciplinary action was dropped solely because the records were lost and that it was not a decision on merit and therefore, it could not be stated that the suspension of the applicant was wholly unjustified.
Respondent stated that as the disciplinary proceedings were pending against the applicant on retirement on 30.6.1991, the applicant was entitled only for provisional pension as per Rule 6(2) of the All India Services (Death-cum-Retirement Benefits) Rules and the DCRG could not be released to him during the pendency of the disciplinary proceedings.
As regards commutation of pension, it was stated that as per the proviso to Rule 3 of All India Services (Commutation of Pension) Regulations, 1959, a pensioner governed by such rules was not permitted to commute any part of that pension during the pendency of disciplinary proceedings instituted against him. It was submitted that as the D & A action against him was dropped only in 1997, in spite of his retirement on 30.6.1991, he became eligible to commute his pension only in 1997.
They stated that the amount payable on commutation had to be calculated as per Rule 7(2) of the above Regulation and accordingly, the commutation value of the applicant was calculated as Rs. 1,20,235/-. It was submitted that there was no merit in relief No. (iii) sought for by the applicant. It was stated that in the representation dated 22.7.1997, the applicant had prayed for interest @ 12% and after proper consideration, the request for interest was rejected and the same was informed to the applicant vide letter dated 2.2.1998. The respondents submitted that the challenge against Annexure A-3 had no merit and the applicant was not entitled for relief No. (iii).
4. Applicant filed rejoinder wherein apart from he reiterating what was stated in the Original Application, he stated that Mr. Ramachandran Nair, the then Chief Electoral Officer was appointed as the Inquiry Officer, enquiry was started on 17.7.1989 and concluded on 31.7.1989 and the enquiry report was sent to the second respondent. He submitted that no prima facie case could be made out against him and he was reinstated in service on 19.12.1989 and was given additional charge on 14.12.1990 as Managing Director, Kerala Forest Development Corporation.
The applicant claimed that the respondents could not wriggle out from their responsibility in regularising the period of suspension including the pay and allowances on flimsy grounds when the enquiry proceedings had been dropped for want of file, that too after a period of nearly 10 years. He stated that he had not received DCRG amount till the date of filing of the rejoinder on July, 1998. He further stated that the intimation regarding commutation amount dated 15.1.1998 received by him was not correct and he had represented against the same to the Sr.
Accounts Officer, Office of the Accountant General, Trivandrum vide his representation dated 22.2.1998 (Annexure A-6). He also stated that his encashment of leave surrender for 98 days even though this was received by him, he has not received the interest on the same. He also disputed about the amount of commutation received by him and the nonpayment of interest on the amount of encashment of leave surrender in the rejoinder.
5. Heard the learned Counsel for the parties. We have given careful consideration to the submissions made by the learned Counsel and the rival pleadings and have also perused the records.
6. First relief sought for by the applicant is for a direction to the respondents to disburse all his pensionary benefits like DCRG, payment of full pension, encashment of leave surrender and full pay and allowances during the period of suspension along with 18% interest.
From the rejoinder filed by the applicant on 31.7.1998, it would appear that the applicant had not received only the DCRG amount till that date. As respondents had not disputed regarding the payment of retiral benefits and the applicant had not pressed, we presume that the applicant had received the dues by this time. The issue that remains are the claim of interest on DCRG and payment of full pay and allowances for the suspension period. We find that while respondents had quoted the relevant rules for the sanction of provisional pension and for non commuting the pension, no rule or authority had been given for rejecting the request for payment of interest for the pensionary benefits. On going through the All India Services (Death-cum-Retirement Benefits) Rules, 1958 we find that Rule 19-A inserted on 16.7.1983 deals with payment of interest on delayed payment of Gratuity or Death-cum-Retirement Gratuity. The above Rule reads as follows: (1) If the payment and gratuity or death-cum-Retirement gratuity has been authorised after three months from the date when its payment became due, and it is clearly established that the delay in payment was attributable to administrative lapse, interest at the rate of five percent per annum on the amount of gratuity in respect of the period beyond three months shall be paid: Provided that if the cause of delay in payment was attributable to the member of the Service, no interest shall be paid.
(2) If as a result of Government's decision taken subsequent to the retirement of a member of the service, the amount of gratuity or Death-cum-Retirement gratuity already paid on his retirement is enhanced on account of- (i) Grant of emoluments higher than the emoluments on which gratuity or Death-cum-Retirement gratuity was determined; or (ii) Liberalisation in the provisions of these rules from a date prior to the date of retirement of the member of the service concerned. no interest on the arrears of gratuity or Death-cum-Retirement gratuity shall be paid." We notice that in the present case the applicant had retired on 30.6.1991 while a disciplinary proceedings initiated in July, 1988 was pending against him. According to the applicant, he had replied to the charge memo received by him on 22.2.1989 on 9.3.1989, enquiry was conducted in July, 1989, enquiry report was submitted in November, 1989, suspension was revoked in December, 1989 and he was promoted in May, 1991 and he retired on 30.6.1991. As the above were not denied by the respondents, we take it that they agree with the dates of the events. When such is the position, no explanation is given by the respondents as to why the files were again sent back to the enquiry officer on 7.10.1991 after about two years of revocation of suspension and after more than three months of retirement. In any case, we find that the advice regarding the decision of the Government to drop further action was communicated only on 19.5.1997 (Annexure A-2) i.e., after more than six years of the retirement of the applicant. Even after this the DCRG was not paid immediately thereafter for more than one year. As the applicant had not been imposed with any penalty and the memo of charge was not progressed further, we hold that the DCRG has become due on the date following the date of retirement. As there is delay in payment of DCRG and the same is not attributable to the applicant, he is entitled for the payment of interest as per Rule 19-A for the DCRG amount due to him.
7. Applicant's amount of encashment of leave surrender had also been paid to him in 1998 whereas it was due for payment in 1991 immediately after retirement. Respondent has not given any reason for the delay in this payment nor has any rule or order in support of his action been quoted. Here again, the delay in this payment is not on account of any action of the applicant. Therefore, we hold that he is eligible for interest from the date the payment had become due.
8. As far as the commuted value of pension is concerned, no interest is payable on the same as the applicant had been receiving monthly pension till the payment of the commuted value.
9. The second relief sought is for quashing the impugned order at Annexure A-3 to the extent denying full pay and allowances to the applicant for the suspension period from 15.7.88 to 19.12.1989.
Respondent takes the plea that this has been done on the basis of the decision taken by the competent authority holding that the suspension was not wholly unjustified because the decision to drop the memo of charge was taken because of the loss of the concerned file and not on merits. Respondent submits that the decision taken was in terms of the Rule 5(B) of All India Services (Disciplinary & Appeal) Rules. The issue before us is whether the decision to treat the suspension in this case as totally not unjustified is in order or not. Second respondent states that the concerned file was handed over to the enquiry officer Shri R. Ramachandran Nair on 7.10.1991. There is no explanation as to why the file had to be handed over to the enquiry officer on 7.10.1991 when the enquiry officer was appointed on 13.6.1989 and according to the applicant, the enquiry was completed in July, 1989 and enquiry report was submitted in November, 1989. Further, according to the applicant no prima facie case was made out in the enquiry report. These have not been specifically denied in the reply statement by the second respondent. In the order dated 19.5.1997 (Annexure A-2), it is stated that the applicant in his written reply denied the charges, enquiry was ordered, concerned file was not available but however, it is stated without recording any basis that the lapse on the part of the applicant as a supervisory lapse. However, the fact remains that the applicant was promoted as Principal Chief Conservator of Forests. At the relevant time, the concerned file would have been available and if the applicant was blameworthy of any lapse especially supervisory lapse, he would not have been promoted to a still higher supervisory post.
9.1 Further according to All India Services (Disciplinary & Appeal) Rules, 1969 even for imposition of a minor penalty consultation with the UPSC is stipulated. When this protection is available to the members of the All India Services, to conclude that the applicant was guilty of supervisory lapse even without the file and thus treating the suspension as not wholly unjustified appears to be without any basis.
9.2 We find that Rule5(B) of the All India Services (Disciplinary & Appeal) Rules, 1969 is analogous to FR 54-B. Government of India, vide Department of Personnel & Training, O.M. No. 11012/15/85 Est (A) dated 3.12.1985 (Page 260 of Swamy's Compilation of FRSR, Part I, 12th Edition, 1994) had decided that where departmental proceedings against a suspended employee for the imposition of a major penalty finally end with the imposition of a minor penalty, the suspension could be said to be wholly unjustified in terms of FR 54-B and the employee concerned should therefore, be paid full pay and allowances for the period of suspension by passing a suitable order under FR 54-B. In this case, the applicant was not even imposed with a minor penalty and the charge memo was dropped.
9.3 In the light of the detailed analysis above, we cannot sustain the conclusion arrived at by the competent authority that the suspension was not wholly unjustified and therefore, denying full pay and allowances to the applicant. Therefore, that part of the impugned order dated 26.7.1997 is quashed and set aside.
10. The applicant is governed by the All India Services (Commutation of Pension) Regulations, 1959. We find that the commutation of the pension of the applicant had been done in accordance with this Regulation.
Therefore, the applicant is not entitled to the relief sought for regarding the commutation under relief (iii).
11. In the light of the above, this Original Application is allowed partially and the respondents are directed to pay to the applicant simple interest @ 12% per annum on the amounts of DCRG and encashment of leave surrender from 1.7.1991 to the end of the month previous to the month in which the respective amounts were paid and also the difference between the subsistence allowance already paid and the full pay and allowance for the period of suspension from 15.7.1988 to 19.12.1989 within two months from the date of receipt of the copy of this order. Parties shall bear their respective costs.