Full Text
HIGH COURT OF DELHI
CM(M) 848/2022 & CM APPL.36713/2022, CM
RAMESH CHANDER GUPTA ..... Petitioner
Through: Mr.Ankur, Adv. with petitioner in person
Through: None
JUDGMENT
24.08.2022
1. CS CSJ 248/22 was instituted by the petitioner Ramesh Chander Gupta against the Delhi Transport Corporation (DTC, Respondent 1 herein) and three other defendants. Respondents 2, 3 and 4 in the present petition were Defendants 2, 3 and 4 in the suit. Respondents 2 and 3 are stated, in the plaint, to be the disciplinary authorities of the petitioner, in the office of Respondent 1.
2. The petitioner’s allegation in the suit was that unsubstantiated, unjustified and malicious disciplinary proceedings had been initiated against the petitioner by Respondents 2 and 3, in conspiracy with Respondent 4. There are various allegations against Respondents 2, 3 and 4 in the plaint, which need not detain us in the present petition, as they are sub-judice and pending consideration before the learned Civil Judge. The disciplinary proceedings were alleged, in the plaint, to 2022:DHC:3318 have been instituted by Respondents 2 and 3 on the complaint of Respondent 4, who is admittedly visually challenged. The plaint also alleges that, at the instigation of Respondents 2 and 3, Respondent 4 attempted to murder the petitioner. These allegedly unjustified proceedings are stated, in the plaint to have damaged the reputation of the petitioner and subjected him to needless harassment. For these reasons, the plaint sought a decree in favour of the petitioner and against the respondents jointly and severally for ₹ 2 lakhs alongwith interest @ 12% per annum from the date of filing of suit till realisation of the claimed amount alongwith costs.
3. The aforesaid suit is presently pending trial before the learned Civil Judge.
4. During the pendency of the suit, the petitioner moved an application, purportedly under Rule 69(1)(c) of the Central Civil Services (Pension) Rules 1972[1] [the CCS (Pension) Rules], for issuance of a direction to Respondent 1-DTC to withhold the gratuity of Respondents 2 and 3. The justification for such an extraordinary prayer is to be found in paras 3 to 6 of the said application, which read thus:
5. Additionally, the application asserts that Rule 69(1)(c) of the CCS (Pension) Rules mandates withholding of gratuity of a government servant till conclusion of departmental or judicial proceedings and issuance of final decision thereon. The application purported to seek directions, from the learned Civil Judge, to obey the aforesaid mandate of Rule 69(1)(c) of the CCS (Pension) Rules.
6. The learned Civil Judge has rejected the aforesaid request, by the impugned order dated 6th August 2022. In doing so, he has held the decisions of the Division Bench of this Court in Naveen Garg v. Rajrani Garg[2] and of a learned Single Judge in Prabhu Lal v. BSES Yamuna Power Ltd.[3] to be distinguishable. The reasoning of the learned Civil Judge, in rejecting the petitioner’s request, reads as under: “Rule 69 (1) (c) of CCS Pension Rule, 1972 cannot be given such a wider interpretation that any civil proceedings whether merit or meritless, would ultimately lead to withholding of gratuity. In any case, the decision to withhold the gratuity is in discretion of the employer and plaintiff cannot as a matter of right seek such direction especially when nothing has been proved against defendant no. 2 to 4. It is also relevant to note Section 13 of The Payment of Gratuity Act, 1972 which provides that no gratuity can be attached in execution of any Decree or Order of Civil Court. It is also relevant to note Section 60 (g) of CPC, which provides that gratuities allowed to pensioners shall not be liable for attachment. It is apparent that intention of the legislature, was not that by initiation of any civil proceeding without any disciplinary enquiry or criminal proceeding, it will automatically give a right to the plaintiff to halt the gratuity of the defendants.
7. Aggrieved by the aforesaid order dated 6th August 2022 of the learned Civil Judge, the petitioner has invoked the jurisdiction vested in this Court by Article 227 of the Constitution of India. (2015) 222 DLT 797 (DB)
8. Mr.Ankur, learned Counsel has, on instructions from the petitioner who is present in person, pressed this petition.
9. Mr. Ankur, relying on Prabhu Lal[3], submits that withholding of the gratuity of a person who is facing judicial proceedings is the mandate of Rule 69(1)(c) of the CCS (Pension) Rules and that, therefore, the learned Civil Judge fell in gross error in rejecting the petitioner’s application. He has no other submission to offer.
10. To my mind, having seen the facts and perused the documents on record, the application of the petitioner was completely misconceived and nearly tantamounts to an abuse of process of the Court.
11. Invocation of Rule 69(1)(c) of the CCS (Pension) Rules is a matter between an employer and an employee. It is not open to any third party, howsoever he may be aggrieved by the acts of the employee concerned, to insist on taking of punitive action against the said employee.[4]
12. Rule 69(1) of the CCS (Pension) Rules, with its clauses a, b, c reads this: “Rule 69 - Provisional pension where departmental or judicial proceedings may be pending (1) (a) In respect of a Government servant referred to in Sub-rule (4) of Rule 9, the Accounts Officer shall authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service 2017 SCC OnLine Del 7552 Refer Mandepudi Sambasiva Rao vs. Govt. of A.P, MANU/AP/0169/1981 up to the date of retirement of the Government servant, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension. (b) The provisional pension shall be authorised by the Accounts Officer during the period commencing from the date of retirement up to and including the date on which, after the conclusion of the departmental or judicial proceedings, final orders are passed by the competent authority.
(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon: Provided that where departmental proceedings have been instituted under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for imposing any of the penalties specified in Clauses (i), (ii) and
(iv) of Rule 11 of the said rules, the payment of gratuity shall be authorised to be paid to the Government servant.” Clearly, Rule 69(1)(a) applies in respect of a government servant referred to in Rule 9(4) of the CCS (Pension) Rules. The use of the words “the government servant” in Rule 69(1)(c) indicates that the government servant to whom Rule 69(1)(c) refers, is the government servant to whom reference is made in Rule 69(1)(a). All the three clauses of Rule of 69(1) of the CCS (Pension) Rules, therefore, apply only to government servants who are covered by Rule 9(4) of the CCS Pension Rules.
13. Rule 9(4) of the CCS Pension Rules reads thus: “(4) Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.”
14. It is obvious, therefore, that Rule 69(1) has no application to a government servant who is still in service.
15. Admittedly, Respondents 2 and 3 are still in service with Respondent 1. It is not possible for this Court to believe that the petitioner, who claims to have been a senior government functionary, was unaware of this position. The Court is therefore constrained to observe that a deliberate attempt has been made by the petitioner to pressurize Respondents 2 and 3 by seeking initiation, against them, of proceedings which would cause serious civil prejudice to them, without the slightest justification therefor, at a stage when the provisions that the petitioner seeks to invoke against the said respondents are not even applicable.
16. That apart, a reading of para 4 of the application filed by the petitioner indicates that it proceeds on a premise that the respondents are jointly and severally liable to pay damages to the petitioner. No liability towards the petitioner, whatsoever, can be said to exist till the petitioner’s suit is decided, or any interlocutory order, directing such payment is passed by the Trial Court. Even if an interlocutory order were to be passed, directing interim payment, that could not be said to be in the nature of determination of liability, of the respondents, to pay the petitioner, as it would only be in the nature of an interim arrangement. The very basis on which the petitioner has sought to mulct Respondents 2 and 3 with proposed proceedings to withheld their gratuity, to which they would, if at all, become entitled in future, is completely misconceived.
17. That apart, as has already been observed, actions which are to be taken against employees by employers are matters between the employers and the employee concerned. No third party can seek directions to an employer to institute such proceedings against the employee. Least of all could such a prayer has been made in an interlocutory application in a proceeding seeking damages from the respondents, as the prayer in the interlocutory application has nothing to do with the prayer in the main suit. It is trite that interlocutory applications can only seek reliefs which are incidental too, and are aimed towards securing the final relief sought in the suit[5]. The final relief in the suit being a claim for damages, I am completely at a loss to understand how the petitioner could, in an interlocutory application in the said suit, seek issuance of a direction to Respondent 1 to withhold the gratuity of Respondents 2 and 3, as and when they retire from service.
18. The learned Civil Judge has also correctly relied on Clause (g) of the proviso to Section 60 (1) of the CPC which specifically reads thus: “60. Property liable to attachment and sale in execution of decree (1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other Refer K.P.M. Aboobuckeh v. K. Kunhamoo, AIR 1958 Mad 287; Cotton Corpn. of India Ltd. v. United Industrial Bank Ltd., (1983) 4 SCC 625; State of Orissa v. Madan Gopal Rungta, 1952 SCR 28 buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf: Provided that the following particulars shall not be liable to such attachment or sale, namely: (g) stipends and gratuities allowed to pensioners of the Government 3 [or of a local authority or of any other employer], or payable out of any service family pension fund 4 notified in the Official Gazette by 5 [the Central Government or the State Government] in this behalf, and political pensions;”
19. Mr. Ankur, learned Counsel for the petitioner, submitted that the prayer for withholding of the gratuity of Respondents 2 and 3 was being made so as to facilitate execution of the final decree to which his client, as he hopes, would be the beneficiary. This submission too, is purely hypothetical and is no more than wishful thinking. Even if a decree were to be passed in favour of the petitioner – which, as on date, is entirely a matter of conjecture –the decree could not be executed by attaching the gratuity of Respondents 2 and 3, in view of the proscription contained in Clause (g) of the proviso to Section 60 (1) of the CPC.
20. Adverting, now, to the judgment of the learned Single Judge of this Court in Prabhu Lal[3], on which Mr. Ankur placed reliance, a bare reading of the decision reveals that the reliance on the decision is completely misconceived. Prabhu Lal[3] was a case in which the employer BSES Yamuna Power Ltd (BSES hereinafter) had passed an order dated 22nd February, 2017, withholding the gratuity of Prabhu Lal pending conclusion of departmental or judicial proceedings against him. Prabhu Lal challenged the said order before this Court, invoking, for the purpose, Article 226 of the Constitution of India. This Court noted that a criminal case was pending against Prabhu Lal. The learned Single Judge of this Court relied on the judgment of the Division Bench of this Court in Tulsi Ram Arya v. Chairman, Delhi Transco Ltd.[6] and BSES Yamuna Power Ltd. v. Tulsi Ram Arya[7], to hold that, as a criminal case was pending against Prabhu Lal, he could not claim to nurture any legitimate grievance against the withholding of his gratuity under Section 69 of the CCS (Pension) Rules.
21. Why the decision in Prabhu Lal[3] would not apply in the present case is painfully obvious. Prabhu Lal[3] was a case in which the employer took action against the employee under Section 69. The employee challenged the action before this Court, and failed.
22. The said decision therefore, is no authority for the proposition that a third party can seek an interlocutory direction from a Civil Court, in judicial proceedings instituted by him, to withhold the gratuity of the officers against whom he had instituted the judicial proceedings, especially while the officers are still in service, though
2013 SCC OnLine Del 3234 Mr. Ankur submits that Respondent 3 is due to retire in a month. The fact remains, however, that, as on the date of filing of the aforesaid application by the petitioner and even today, both Respondents 2 and 3 continue to be in the service of Respondent 1.
23. As the application of the of the petitioner is, in my view, a deliberate attempt to harass the respondents, this petition is dismissed in limine with costs of ₹ 25,000/- which shall be paid by way of a crossed cheque favouring “Delhi High Court Staff Welfare Fund, SB A/c No. 15530110074442, UCO Bank, Delhi High Court Branch, New Delhi” within a period of two weeks from today. Pending applications also stand disposed of.
C. HARI SHANKAR, J
AUGUST 24, 2022