G P SRIVASTAV Vs. UNION OF INDIA

JUDGEMENT

(1.) A Government servant, who sought voluntary retirement in January 1980 challenges Notice No.5110/DO-(2)-881-952 dated 2.4.1985 seeking to forfeit 3/4th amounts of pension of the Petitioner being arbitrary, illegal, without jurisdiction and unconstitutional. The petitioner also prays for the release of pay and regular pension as admissible under the Rules; release and payment of death-cum-retirement gratuity; release and payment of salary, special pay, HRA, CCA and other allowances admissible at a cadre post in the senior scale of IAS between 27.6.1978 to 12.1.1980; payment of full pay and allowances admissible on the post of Chairman-cum-Managing Director, DSIDC between 11.4.1977 to 26.6.1978; release and payment of missing credits in GPF Account No.GAU-8762 and the exemplary compensation for the alleged continuous harassment caused to the petitioner.

(2.) On 17.11.1950 the petitioner was appointed to U.P. Civil Service (UPCS) on the basis of competitive examination and posted on probation. On 7.11.1952 the petitioner was confirmed in UPCS on due date and remained in service of the State Government till 12.6.1964. In May 1964 the petitioner was selected for deputation to Government of India (Ministry of Home Affairs) and appointed to various assignments under Ministry of Home Affairs, Ministry of Commerce, Department of Food, Central Government, etc.; that on 14.8.1972 the petitioner was appointed as Managing Director, DSIDC (respondent No.4) initially in scale equivalent to Selection in Grade of IAS; that on 23.10.1972 the petitioner was notified under Companies Act, as the Managing Director of DSIDC. In December 1975 the petitioner was appointed Chairman-cum-Managing Director, DSIDC in the scale of Rs.2500.00-3000.00 equivalent to Schedule C post; that in April 1975, the petitioner was decorated "LAGHU UDYOG RATNA" by the President of India for outstanding service to the cause of development of Small Industries and Enterpreneurship Development, particularly under Half a Million Jobs Programme; that the petitioner in March 1973 exercised his option for being permanently absorbed in DSIDC and the petitioner sent his resignation letter from the services of UP Government in accordance with the proforma resignation, copy send by the UP Government. The same was sent by DSIDC to the State of U.P. The State of U.P. did not recall the petitioner nor did they send any intimation terminating the deputation and the .career of the petitioner remained in a limbo inasmuch as the DSIDC had also conveyed to the State Government that leave and pensionery contribution as also GPF contribution in respect of the petitioner was being discontinued with effect from December, 1974 in view of impending absorption of the petitioner in DSIDC. As nothing transpired further, he continued to remain in DSIDC as its Chief Executive during the entire period; that on Sunday, the 10th April, 1977 the Lt.Governor of Delhi issued a Notification stating that the petitioner had proceeded on leave w.e.f. 11.4.97. This was done by the Lt.Governor under the instructions of the Home Ministry without taking in confidence or even informing the State Government of U.P. in this behalf. In the mean time, the petitioner was.due for being placed in the select list of State Government Officers for Promotion to IAS in accordance with the IAS (Appointment by Promotion) Regulations, 1955; that the petitioner's name had already been included in the list of December 1976/1977; that the name of the petitioner appeared at Serial No.2 in the letter dated 10.3.1978 from the State Govt. of U.P. to the Department of Personnel and Administration Reforms, Ministry of Home Affairs, New Delhi, which was in connection with five officers out of the select list, who were not appointed to a Senior IAS Cadre post and thus, in respect of these officers, the said Government was supposed to furnish a certificate that had such officers not been on a non-cadre post, they would have bn appointed to a senior IAS scale cadre post under the State Govt; that another certificate has also been annexed against the name of the petitioner in the said letter; that the petitioner being senior to Shri Chitrangad Singh, whose name has been included in the select list of December 1977, the petitioner should have been appointed to the cadre post of IAS prior to Chitrangad Singh as the petitioner was given provisional seniority of the year 1973 in the IAS; that the gradation list demonstrated the name of the petitioner at Serial No.81 whereas the name of Chitrangad Singh appears at Serial No.89; that in all fairness to the petitioner, his name should have appeared in between serial No.83 and 84 in the Select List of 1977; that in June 1976 State Government of U.P. posted the petitioner as officer on special duty at New Delhi directing him to join the post immediately; that the petitioner reported for duty on 27.6.1978 under protest; that no terms of posts of OSD were stipulated either in the Wireless Message or even thereafter for more than one year; that in sheer disgust the petitioner had to proceed on leave w.e.f. 20.11.1978 after being harassed, humiliated and having been continuously kept in a state of uncertainty, inasmuch as neither the petitioner was provided any office space nor had been paid any salary nor the terms of his appointment were conveyed him.; that the indifferent attitude of the respondents caused mental strain on the health of the petitioner, who fell sick and the period of his sickness lasted 297 days; that in September 1979 vide telex message of the State Govt of UP, the petitioner was posted as Director, Manpower Planning, Govt of U.P. and was directed to join the post immediately; that the petitioner accordingly proceeded to Lucknow to join the charge of new post but when the petitioner reported for duty, he was once again kept on forced waiting till 12.10.1979; that the petitioner was made to face an extremely humiliating situation as long as the petitioner remained at new place of posting i.e. at Lucknow that he was not provided any residential accommodation and had no funds to eke out his living at Lucknow and that the petitioner had per force to submit his letter of conditional voluntary retirement under F.R.56 on 12.10.1979 stating therein that it was clear that the Government, was not interested to retain the petitioner in service as evidenced by series of events appearing in the past. The petitioner was not conveyed the decision of the Government in regard to the acceptance of his notice of voluntary retirement within the stipulated period of three months. It was only after about an year that the Government vide letter dated 17.12.1980 conveyed to the petitioner that his notice for voluntary retirement had been accepted w.e.f. 12.1.1980; that in between the State Government arbitrarily sought the period between 11.9.1979 to 12.10.1979 and 12.10.1979 to 12.1.1980 to be treated as period spent on leave admissible. The petitioner protested against this high-handed action of the respondent, clarifying that the petitioner had reported for duty on expiry of medical leave and thereafter reported to join the post of Director, Man Power Planning and thus, he had to be deemed on duty for the entire intervening period and it was no fault of the petitioner in case the respondents failed to provide the office accommodation and kept the petitioner on forced waiting; that though respondents were bound to fix provisional/ regular pension of the petitioner forthwith consequent upon the acceptance of his voluntary retirement no action was taken by the respondent in this behalf; that at the relevant time, the petitioner was under no cloud of facing any disciplinary proceeding or any judicial proceeding and no such departmental or judicial proceedings were even contemplated against the petitioner, which could form legitimate basis for not paying regular pension to the petitioner; that even in such cases, where a retiree is facing disciplinary/ judicial proceedings, provisional pension is always immediately fixed and continues to remain payable to him till the conclusion of the disciplinary/judicial proceedings; that vide letter dated 1/8.4.1982, the Accountant General, U.P. wrote to the State Government raising certain queries to be answered by the State Govt. so that the pension of the petitioner could be fixed. There was an endorsement to the effect that an amount of Rs.5000.00 being motor car advance was outstanding against his name and this amount was sought to be recovered alongwith interest; that the petitioner, at no point of time, applied for or obtained any motor car advance of the sum of Rs.5000.00 or any other amount and the perfunctory manner in which the A.G., U.P.directed that the said amount be recovered from the petitioner demonstrates the indifferent and casual approach of the respondents towards the retirees; that during the period of five years, the petitioner relentlessly pursued his case of pensionery dues and other service benefits as had accrued to him but the respondents turned a deaf ear to the petitioner and not a single penny was paid to the petitioner; that after 6.4.1978 which was the date from which officers juniors to the petitioner put in the Select List of IAS were appointed to IAS, the petitioner is deemed to be a member of !AS and entitled to all benefits as admissible to an officer of IAS including retirement/retiral benefits and all such benefits have to be paid to him in accordance with the rules and regulations governing the conditions of All India Service Officers; that instead of settling the dues of the petitioner, the State Govt of U.P. vide their letter dated 2.8.1985 called upon the petitioner to show cause within one month of the receipt of such notice as to why his 3/4 pension be not curtailed under Article 470(b) of the Civil Services Regulations as it had been tentatively decided by the Government on the ground of the CBI report in respect of certain events imputing lapses on his part during petitioner's tenure in DSIDC during the period 1974-75 and stating further that on the whole his service had not been found thoroughly satisfactory relying on certain stale matters relating to antiquity and which were nonest; that the proposed action of the respondent was in respect of events, which occurred more than four years prior to the date of retirement of the petitioner and as provided in the Rules, it was not open to the respondent to have issued a show cause notice in respect of such events and stale matters; that the petitioner was not given adequate time to furnish his reply and to clarify his position even though it took nine years for CBI to investigate the charges and it took another three years for the State Government to furnish to the petitioner some extracts of the same CBI report, even then the petitioner submitted his reply within the stipulated time of 15 days; that the petitioner obtained a copy of the CBI report, which was denied to the petitioner by the State Government; that in the CBI report two persons were charge-sheeted under Sections 120B and 420 Indian Penal Code; that the petitioner was never arraigned as an accused in the said case and the petitioner was at the top in the list of prosecution witnesses and while framing charge the court heavily relied on the statement of the petitioner; that the other points raised in the said show cause notice are not sustainable, stale, nonest and against the prescribed Rules and Government Policy Circulars, Government Orders, Nazul Mannual etc. and washed out otherwise by acts of the State Government in giving select and unprecedented assignments and promotions to the petitioner soon after some of the said adverse commentaries were made and no refuge can be taken by the respondent on these matters for denying to the petitioner his legitimate right to the pensionery benefits and dues.

(3.) Respondent No. 4-DSIDC filed counter-affidavit admitting that the petitioner, an officer of U.P. cadre was appointed as Managing Director of respondent-Corporation w.e.f. 14.8.1972 and subsequently he was appointed as the Chairman-cum-Managing Director of the respondent- Corporation vide communication dated 9.12.1974; that thereafter Mr.Ashok Pradhan, IAS was appointed Managing Director of respondent-Corporation in pursuance of the notification dated 10/11.4.1997, whereupon the petitioner proceeded on leave; that the petitioner sought permanent absorption in the respondent-Corporation and tendered resignation from the U.P. Civil Service vide letter dated 27.9.1974 to be effective from the date of acceptance of the resignation. His option for permanent absorption in the respondent-Corporation was forwarded by the Chief Secretary, Delhi Administration to the Secretary of U.P. Govt vide letter dated 15.3.1973; that the petitioner proceeded on leave on 10/11.4.1977. It is denied that the respondent conveyed to the State Govt that leave and pensionery contribution as also GPF contribution in respect of the petitioner was being continued w.e.f. December 1974 in view of the impending absorption of the petitioner in Public Sector Organization-respondent DSIDC; that Govt of U.P. vide its letter dated 22.6.1977 conveyed rejection of the request of the petitioner for permanent absorption in respondent-Corporation. Thereafter Services Department, Govt. of Delhi, vide its order dated 26.11.77 placed the services of the petitioner at the disposal of the U.P. Government; that the petitioner was paid salary upto 31.7.1977; that after his repatriation from the respondent-Corporation, the petitioner withdrew his contribution from P.F. along with employer's share; that the answering respondent approached the Service Department of respondent No.1 with a request to examine the matter and advice suitably for further course of action in this matter vide its letter dated 23.10.1997; that as on today, nothing has been heard in the matter from the Service Department of respondent No.1.