Chief General Manager Gujarat Telecom Circle, Bharat Sanchar Nigam Ltd. & Ors vs Manilal Ambalal Patel & Anr

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.1681 OF 2019 (Arising out of SLP(C) No.31739/2016)

CHIEF GENERAL MANAGER GUJARAT TELECOM CIRCLE,BHARAT SANCHAR NIGAM LTD. & ORS. APPELLANT(S)

VERSUS

MANILAL AMBALAL PATEL & ANR. RESPONDENT(s)

J U D G M E N T

K.M. JOSEPH, J.

1. This appeal by special leave is directed against

the judgment of the High Court in Special Civil

Application filed under Articles 226 and 227 of the

Constitution of India by the appellants wherein

appellants challenged the order dated 29.10.2013

passed by the Central Administrative Tribunal

(hereinafter referred to as the "Tribunal"). The

Signature Not Verified Tribunal by the impugned order quashed order dated Digitally signed by SANJAY KUMAR Date: 2019.03.08 13:17:18 IST Reason: 12.03.2013 and directed the appellants to pay interest

at the rate applicable to the Provident Fund deposits

1 for the delay occurred in payment of DCRG and Commuted

Value of Pension (hereinafter referred to as the

"CVP") from 01.08.2008 till the date of payment.

2. The first respondent (hereinafter referred to as

the "applicant"), who filed the application before the

Tribunal was granted provisional pension by proceeding

dated 04.08.2008. It reads as follows:-

“Sub: Retirement on superannuation of 31.7.2008 A/N- Cases of officers of STS of Executive Grade (Ad-hoc) Regarding.

In accordance with BSNL New Delhi order No. 35/1/2007 Pers-1 date 3.7.2008 and on approval of the competent authority, the following officers of STS of Executive Grade) adhoc permanently abscribed in BSNL are permitted to retire from BSNL services on attaining the age of superannuation w.e.f. 31.7.2007 (A/N).

Sl. Name of Officer Staff No./ERP Present No. No. working unit

1. Sh. J.R. Sathwara, DE 10913/7005735 PGMTD Ahmedabad

2. Sh. B.P. Mishra, DE 12277/7021009 PGMTD Vadodara

3. Sh. P.P. Panchal, DE 11560/7016759 PGMTD Vadodara

4. Sh.N.N. Chaniyara, DE 13808/7025957 GMTD – Rajkot

5. Sh. M.A. Patel, DE 11719/7021051 PGMTD Surat

2. The BSNL C.O. ND has intimated that the vigilance clearance in respect of Shri M.A. Paatel, (SL. No. 5) DE, O/o PGMTD Surat has not received from Vigilance Cell of BSNL and therefore the officer shall be given only provisional pension and the DCRG and CVP shall be withheld till the conclusion of the vigilance/ disciplinary case as per CCS (Pension) rules 1972. 2

3. It may please be ensured that there is no Vig/ Disc case pending or contemplated against any of the above officer mentioned above as on the date of retirement. If any such case comes to notice, only provisional pension shall be granted to the officer

(s) and his DCRG and CVP shall be withheld till the Vigilance clearance is accorded.

4. Copy of the charge relinquishing report may be sent to this office in respect of all concerned.”

Though, the Anti-Corruption Bureau (hereinafter

referred to as the "ACB") had registered a case

against the applicant, the investigating officer,

however, had found no evidence against him.

Investigating officer had submitted A-summary before

the Principal District Sessions, Judge, Banaskantha,

Palanpur, who refused to accept the summary. The State

of Gujarat thereupon challenged the order. On

30.03.2012 the criminal revision application, filed

by the State, was allowed according sanction to the

investigating officer to file A-summary report before

the trial Court. The applicant applied for interest

on pensionary benefits i.e. DCRG and CVP, which, was

rejected, on the basis that the criminal revision

petition, filed by the State, against the order of the

trial Court refusing to accept the A-summary was

disposed of and that after the order of the High Court

3 and Vigilance clearance the amounts were paid. He

approached the Tribunal and the Tribunal directed

payment of interest. The High Court in the writ

petition, filed by the appellants, has reasoned that

on 01.08.2008 (the applicant was to retire on

superannuation on 31.07.2008), there were no criminal

proceedings against him. The High Court, inter alia,

held as follows:

“We are unable to accept the said submission as narrated hereinabove. There were no criminal proceedings on 01.08.2008. All that the High Court in its order has done directing the authority below, which is produced at page no.219 at Para 14, which read as under;

14. The report made to the Court below by the investigating officer was, therefore, made under Section 173 of the Code and the Court was required to pass an order under Section 173(4) of the Code, which the Special Court has failed to do. The order passed by the learned Principal District and Sessions Judge, Banaskantha at Palanpur, dated 03.05.2006 is, therefore, set aside. The prayer sought by the investigating officer for Summary “A” is allowed. Accordingly, present revision application is allowed. Rule is made absolute to the aforesaid extent. Muddamal currency note be confiscated to the State.

It will relate back to the date of filing of A-Summary, which is prior to the date when the 4 respondent retired. More particularly, in the year 2007, when the Criminal Revision Application was filed before this High Court.”

3. It was found that it related back to the A-

summary, which is prior to the date, when the

applicant retired, more particularly, in the year

2007, when the revision was filed in the High Court.

4. This we understand to mean that the High Court

takes the view that the investigating officer

submitted A-summary report, which is initially not

accepted by the District Court which on revision by

the State was directed to be accepted by the High

Court. The report submitted by the agency, finding no

material against the applicant, would date back to the

date on which the report was submitted which would

further mean that as on the date when the applicant

retired, there was no criminal proceeding against the

applicant. Thereafter, the High Court reasoned that

there is a delay of huge period and the applicant was

given clearance by the Vigilance that there was no

case pending as the State has already filed A-summary 5 in the ACB trap case. There was no disciplinary action

taken by the State. It was against Article 14 of the

Constitution of India and the interest also was found

not unreasonable. The High Court, in the petition

filed under Article 227, found no infirmity in the

order of the Tribunal and dismissed the same.

5. We heard the learned counsel for the appellants

as well as the learned Additional Solicitor General.

Though service is complete on the applicant, none

appears on his behalf.

6. Learned counsel for the appellants drew our

attention to the Central Civil Services (Commutation

of Pension) Rules, 1981 (hereinafter referred to as

the "Commutation Rules"). Therein he relied upon Rule

4 of the Commutation Rules.

7. It is his contention that in so far as judicial

proceeding was pending against the applicant and the

same came to be disposed of only in the year 2012,

applicant cannot claim interest as the applicant is

not even entitled to commutation of pension as is 6 clear from Rule 4 of the Commutation Rules. He further

submits that the District and Sessions Judge did not

accept the A-summary report which led to the revision

before the High Court in the year 2007 and the revision

petition was pending as on 01.08.2008 when the

applicant superannuated. Therefore, there was a

judicial proceeding and this disentitled the applicant

to CVP within the meaning of Rule 4. It is the further

case that due to the pendency of the vigilance

clearance, DCRG and CVP was withheld and only

provisional pension was granted vide order dated

04.08.2008 and later sanction was accorded for

provisional pension vide order dated 02.09.2008. When

the criminal revision was allowed by the High Court

and the request for summary-A was allowed by judgment

dated 30.03.2012, the respondent No.1 was accorded

vigilance clearance and vide order dated 25.10.2012,

approval was granted to regularize his pension and to

release other retirement benefits. Thereafter, it is

the case of the appellants that, as seen from the

written submissions, by order dated 17.10.2012 the

applicant was permitted to retire on attaining the age

7 of superannuation w.e.f his date of retirement i.e.

31.07.2008. The said order was also produced before

us. It is the further case that the applicant

thereupon made an application dated 01.11.2012 under

the Commutation Rules seeking commutation. The said

application was also produced along with the written

submissions. It is submitted that, accordingly, the

applicant was paid the CVP and retirement gratuity

vide revised pension calculation sheet dated

31.12.2012. It is the case of the appellants that the

application made for commutation by the applicant was

within the period of one year, as contemplated in Rule

13(1) proviso (a). CVP is only an advance payment of

pension and does not accrue as of right and is governed

by the relevant Rules. Applicant was paid provisional

pension which is the maximum admissible pension since

his retirement and there was no monetary loss.

8. The learned Additional Solicitor General made two

further submissions apart from apparently adopting the

arguments advanced by the learned counsel for the

appellants. It is submitted that Court may notice that

8 the applicant has been given provisional pension and

provisional pension has been enjoyed by the applicant

right from the beginning. Therefore, necessary

adjustment would have to be made even if the arguments

based on Rule 4 is not found acceptable. In other

words, commutation of pension involves the payment of

a lump sum in lieu of monthly payments in the future

by way of pensionary benefits. When the applicant was

in receipt of provisional pension, necessarily

adjustments would have to be made by reckoning the

amount and then calculating the CVP. Therefore, when

the applicant was in receipt of the provisional

pension, in the same breath ordering the appellants

to pay interest would amount to conferment of double

benefit on the applicant. In other words, applicant

cannot on the one hand enjoy the provisional pension

and also cannot be given interest on CVP. The second

argument, which is pressed before us, was that there

were departmental proceedings against the applicant.

This is on the basis of the concept of departmental

proceedings to be found in Rule 9 of the CCS (Pension)

Rules, 1972 (hereinafter referred to as the "Pension

9 Rules"). Rule 9(6)(a) of the Pension Rules reads as

follows:

"9(6)(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and

9. Learned ASG would point that the applicant has

been placed under suspension and therefore that would

suffice to deny the benefit of commutation of pension

in which case interest could not be ordered to be

paid.

10. There is no dispute that CVP has been paid to the

applicant after the conclusion of the vigilance

proceedings, clearing the applicant, but the question

to be considered by us as to whether the applicant was

entitled to be paid interest for the period

immediately after retirement till the date on which

the CVP was actually paid to him. The scheme of the

Pension Rules, inter alia, indicate that under Rule

59, the authorities are duty bound to set in motion,

the proceedings for calculating and paying the pension

by the due date. Rule 59 would indicate that the said 10 procedure is divided into three stages; first stage -

verification of service; second stage – making good

omission in the service book; third stage - as soon

as the second stage is completed, but not later than

eight months prior to the date of retirement of the

Government servant various steps are to be undertaken.

Rule 61 contemplates that after complying with the

requirement of Rules 59 and 60, pension papers are to

be forwarded to the accounts officer. Rule 64

contemplates provisional pension being paid for

reasons other than departmental or judicial

proceedings.

11. In the backdrop of these provisions, let us

examine the scheme of the Commutation Rules. Rule 12

of the Commutation Rules declares who are the eligible

persons to apply for commutation of a percentage of

the pension without medical examination. In fact, Rule

11 provides that the Chapter applies to those who are

eligible to commute their pension without medical

examination. The person may be a person who is

authorized to receive a superannuation pension under

11 Rule 35 of the Pension Rules. Likewise, superannuation

pension is defined in the Pension Rules and Rule 35

of the Pension Rules declares that superannuation

pension shall be granted to a Government servant who

is retired on attaining the age of compulsory

retirement. Rule 12 of the Commutation Rules further

renders eligible a person who has been given a

retiring pension under Rule 36 of the Pension Rules.

A retiring pension under Rule 36 of the Pension Rules

is granted, inter alia, to a Government servant who

retires or is retired in advance of the age of

compulsory retirement. The next person who is declared

eligible is a person to whom pension is authorized on

his absorption in or under a corporation or company

or body in terms of Rule 37 of the Pension Rules and

who elects to receive monthly pension and retirement

gratuity. The next category of persons rendered

eligible to commute is a person authorized to receive

compensation pension on abolition of a permanent post

under Rule 39 of the Pension Rules. Finally, under

Rule 12 of the Commutation Rules, a person authorized

to receive pension in whole or in part on the

12 finalization of departmental or judicial proceedings

referred to in Rule 9 of the Pension Rules and issue

of final orders is entitled to commute the pension.

12. Rule 13 provides for the application to be made

for commutation of pension. We will advert to the Rule

when it is found necessary at a later stage. Under

Rule 14 of the Commutation Rules on receipt of

application under Rule 13, the Head of Office has to

take action as provided therein. Rule 15 provides for

authorization of commuted value by the Accounts

Officer. He is to verify whether the information

furnished by the Head of Office is correct and

applicant is eligible to commute a percentage of his

pension without medical examination. Sub-rule (2) of

Rule 15 provides that the Accounts Officer shall after

necessary verification issue authority for payment of

CVP to the Disbursing Authority, inter alia.

13. Rule 18 of the Commutation Rules deals with

another category of officers who are declared entitled

to apply for commutation of their pension. The

13 difference between Rule 12 which we have referred to

and the persons mentioned in Rule 18 is that in the

case of persons rendered eligible under Rule 18, they

must undergo a medical examination whereas persons

mentioned in Rule 12, as aforesaid, do not have to

undergo any medical examination. Under Rule 18 of the

Commutation Rules, the following categories of pension

qualify:

(1) Invalid pension under Rule 38 of the Pension

Rules.

(2) Pension granted under Rule 40 of the Pension

Rules to a person who is compulsorily retired from

service as penalty.

(3) Compassionate allowance given under Rule 41

of the Pension Rules.

14. Be it noted that compassionate allowance under

Rule 41 of the Pension Rules is contemplated in

respect of a Government servant who is dismissed or

removed from service. Rule 41 of the Pension Rules

gives power to the authority competent to dismiss or

remove a Government servant from service to sanction

14 a compassionate allowance, if the case is deserving

of special consideration and the sum is not exceeding

two-thirds of the pension or gratuity or both which

would have been admissible to him if he had retired

on compensation pension. Compensation pension is dealt

with in Rule 39 of the Pension Rules. It, inter alia,

provides that if a Government servant is selected for

discharge owing to the abolition of his permanent post

then unless he is appointed to another post which is

deemed equal to that of his own, the Government

servant will have the option to take compensation

pension for the service he had rendered. The last

category of persons under Rule 18 of the Commutation

Rules, who is declared eligible to commute after

undergoing medical examination, is a Government

servant who has retired from service on one of the

pensions which are mentioned in Rule 12 but his

application for commutation has not been received by

the Head of Office within one year of his retirement.

There are other provisions which deal with the action

to be taken which include provision for medical

examination of the applicant falling under Rule 18,

15 appeal against the finding of medical authority,

withdrawal of his application etc.

15. The above discussion relate to the persons who

are eligible to commute and the pension which qualify.

As we have noted ordinarily by the time the person is

to retire, papers are to be got ready so that he

becomes entitled to the CVP. Thus, if application is

made and if all goes well, a person eligible, on his

applying, as provided in the Rules, would become

entitled to the pension without delay after the

retirement.

16. There are two situations which may result in a

Government servant not being sanctioned the final

pension upon his retirement. Rule 3(l) of the

Commutation Rules defines provisional pension to be

the pension referred to in Rule 64 or 69 of the Pension

Rules, as the case may be. Rule 64 of the Pension

Rules provides for sanctioning provisional pension in

a case where there is no departmental or judicial

proceeding. In other words, Rule 64 of the Pension

16 Rules contemplates a situation where the pension is

not finalized for reasons other than departmental or

judicial proceeding. When a person is so granted

provisional pension under Rule 64 of the Pension Rules

then Rule 9 of the Commutation Rules provides for

commutation of a fraction of the provisional pension

which is to be subject to the limit specified in Rule

5. It may be noticed that Rule 5 of the Commutation

Rules, inter alia, provides that a Government servant

shall be entitled to commute for a lump sum payment

of an amount not exceeding forty percent of his

pension. Therefore, this limit is applicable in

respect of full pension and also cases of provisional

pension. Even if a person is in receipt of only

provisional pension but which is granted under Rule

64, which as explained earlier, deals with a case

which is not covered by a departmental or judicial

proceeding, the Government servant is entitled to

commute fraction of the provisional pension subject

to the limit, as provided under Rule 5 of the

Commutation Rules. Rule 31 of the Commutation Rules

provides that when final assessment of the pension is

17 done in regard to an employee to whom commuted value

of the percentage of the provisional pension has been

given under Rule 9, then he will be paid the difference

of the amount between commuted value determined on

final assessment of the pension and the commuted value

already paid.

17. Time is now ripe to notice Rule 4 of the

Commutation Rules, which is relied upon by the

appellant and the Government of India. The same reads

as follows:

"4. Restriction on commutation of pension –

No Government servant against whom departmental or judicial proceedings, as referred to in Rule 9 of the Pension Rules, have been instituted before the date of his retirement, or the pensioner against whom such proceedings are instituted after the date of his retirement, shall be eligible to commute a percentage of his provisional pension authorised under Rule 69 of the Pension Rules or the pension, as the case may be, during the pendency of such proceedings."

18. Rule 4 deals with a case where provisional pension

has been granted under Rule 69 of the Pension Rules.

Rule 69 of the Pension Rules contemplates sanctioning

provisional pension when there is a departmental or

judicial proceeding against the Government servant. 18 It is when provisional pension is granted under the

said Rule on account of the fact that there is a

departmental or judicial proceeding pending that Rule

4 declares that the Government servant will not be

entitled to commute the provisional pension so granted

under Rule 69 during the pendency of the proceeding.

19. In this case, admittedly the applicant was

sanctioned a provisional pension under Rule 69 on the

basis that there was a judicial proceeding pending.

We have set out the broad scheme of the Commutation

Rules. First we should ascertain what is the nature

of CVP. Is there legal right to receive CVP? Can

there be cases where for delayed payment of CVP,

interest can be ordered? Is there any provision which

provides for interest?

20. A scanning of the Commutation Rules reveals that

there is no provision which contemplates payment of

interest. In fact, the appellants have produced Office

Memorandum dated 05.10.1999 and the contention appears

to be raised that it does not contemplate the grant

19 of interest. We have gone through the said Office

Memorandum. On the one hand the Office Memorandum does

not contemplate grant of interest when CVP is paid

belatedly. But on the other hand, we notice that the

order does not declare that no interest shall be

payable when CVP is paid belatedly.

21. The next exercise is to ascertain the true nature

of CVP. As we have noticed from the Commutation Rules

that CVP is inter-linked with pension. Pension is not

a bounty. It is a legal as well as a fundamental right

of a Government servant to receive his pension. It is

not an act of grace by the employer but it is the

right of the Government servant who has put in the

required number of years of service. This is subject

no doubt to Rule 9 of the Pension rules under which

there is power to withhold and recover part or whole

of the pension. In regard to pension, it is beyond

dispute that for belated payment of pension, interest

can be ordered to be paid. What is the position as far

as CVP is concerned?

20

22. Commutation of pension is nothing but payment of

a portion of the pension calculated on a formula

provided in the Rules, the result of which is that the

employer will be absolved from payment of the pension

to the extent it is commuted and the employee will

receive the value of commuted pension in a lump sum

at one go. No doubt after a certain number of years

(15 years) the full pension gets restored. Therefore,

CVP flows out of his right to receive pension. In

fact, it is a part of his pension which is paid in

lump sum to the employee. Having culled out the

essential nature of CVP, we must consider whether

there is a legal right to receive the CVP or is it

discretionary and it may be withheld.

23. It is undoubtedly true that it is entirely

optional for the officer to commute a part of his

pension. In that sense it can be said that without an

application, he has no right to get commuted value.

But that does it mean, when an application is made,

as contemplated in the rules, no right is enshrined

in the rules to get the committed value?

21

24. It is important to advert to Rule 13 in its

entirety. Rule 13 provides for the application to be

made by the eligible persons falling under Rule 12,

whereas Rule 19 deals with the application, to be made

by persons, who are eligible under Rule 18. It will

be remembered that Rule 12 deals with persons who are

eligible for commutation of their pension without

medical examination, whereas Rule 18 deals with

persons who are in receipt of pension or other amounts

and who become eligible only on undergoing medical

examination.

25. Coming to Rule 13 it reads as follows:

“13. Application for commutation of pension -

(1) An applicant, who is in receipt of any pension referred to in Rule 12 and desires to commute a percentage of that pension any time after the date following the date of his retirement from service but before the expiry of one year from the date of retirement, shall-

(a) apply to the Head of Office in Form 1 after the date of his retirement;

(b) ensure that the application in Form 1, duly completed , is delivered to the Head of Office as early as possible but not later one year of the date of his retirement :

22 Provided that in the case of an applicant -

(a) referred to in Clause (iii) of Rule 12, where order retiring him from Government service had been issued from a retrospective date, the period of one year referred to in this sub-rule shall reckon from the date of issue of the retirement orders ;

(b) Referred to in Clause (v) of Rule 12, the period of one year referred to in this sub-rule shall reckon from the date of the issue of the orders consequent on the finalization of the departmental or judicial proceedings.

(2) An applicant who applies for commutation of pension within one year of the date of his retirement but his application in Form 1 is received by the Head of Office after one year of the date of his retirement, shall not be eligible to get his pension commuted, without medical examination. Such an applicant, if he desires to commute a fraction of his pension, shall apply afresh in Form 2 in accordance with the procedure laid down in Chapter IV.

(3) Government servant who is due to retire on superannuation and desires payment of the commuted value of pension being authorized at the time of issue of the pension payment order, shall be eligible to apply for commutation of a fraction of pension along with pension papers prior to the date of retirement provided that -

(a) the Government servant retires on superannuation pension only;

(b) the application is submitted to the Head of Office in Form 1-A, so as to reach the Head of Office not later than three months before the date of superannuation ;

(c) no such application shall be entertained if the period is less than three months from the date of superannuation of the Government servant ; and

23

(d) the Government shall have no liability for the payment of the commuted value of pension if the Government servant dies before the date of superannuation or forfeits claim to pension before such retirement.

26. Rule 13(1) contemplates that the applicant for

commutation may be a person who is in receipt of

pension under Rule 12 and he is desirous of commuting

a percentage of pension mentioned in Rule 12. The Rule

further provides that in such a contingency he may at

any time after the date following the date of his

retirement from service but before the expiry of one

year from retirement apply in Form 1 to the Head of

Office. He must ensure that the application duly

completed is delivered to the Head of Office at the

earliest but not later than one year of date of

retirement. Sub-rule (3) of Rule 13 on the other hand

picks out one out of the several categories falling

in Rule 12, namely, a person who retires on

superannuation pension for a special treatment. Sub-

rule (3) of Rule 13 contemplates that the Government

servant who is due to retire on superannuation and

desirous that the payment of the CVP be sanctioned or

authorized at the time of the pension payment order

24 shall apply for commutation along with pension papers.

He must apply prior to the date of retirement. The

application is to be submitted in Form 1A. It is to

reach the Head of Office not later than three months

before the date of superannuation. Secondly, he must

actually retire on superannuation pension only.

27. At this juncture, it is necessary to notice Rule

6. Rule 6 provides for the time when the commutation

of pension is to become absolute. It reads as follows:

“6. Commutation of pension to become absolute-

(1) The commutation of pension shall become absolute in the case of an applicant referred to-

(i) in sub-rule (1) of Rule 13, on the date on which the application in Form 1 is received by the Head of Office ;

(i-a) in sub-rule (3) of Rule 13, on the date following the date of his retirement;

(ii) in Chapter IV, on the date on which the medical authority signs the medical report in Part III of Form 4;

Provided that -

(a) in the case of an applicant who is drawing his pension from a treasury or Accounts Officer, the reduction in the amount of pension on account of commutation shall be operative from the date of receipt of the commuted value of pension or at the end of three months after issue of authority by the Accounts Officer for the payment of commuted value of pension, whichever is earlier, and

25

(b) in the case of an applicant who is drawing pension from a branch of a nationalized bank, the reduction in the amount of pension on account of commutation shall be operative from the date on which the commuted value of pension is credited by the bank to the applicant's account to which pension is being credited.

(c) in the case of an applicant governed by sub- rule (3) of Rule 13 in whose case the commuted value of pension becomes payable on the day following the date of his retirement, the reduction in the amount of pension on account of commutation shall be operative from its inception. Where, however, payment of commuted value of pension could not be made within the first month after the date of retirement, the difference of monthly pension for the period between the day following the date of retirement and the date preceding the date on which the commuted value of pension is deemed to have been paid in terms of Rule 49 of the Central Government Accounts (Receipts and Payments) Rules, 1983, shall be authroized by the Accounts Officer]

(2) In the case of an applicant referred to in Rule 9 or Rule 10, the commuted value is paid in two or more stages, the reduction in the amount of pension shall be made from the respective dates of the payments as laid down in Clause (a) or Clause (b) of the proviso to sub-rule (1).

(3) The date on which the payment of the commuted value of pension was made to the applicant or the commuted value was credited to the applicant's account shall be entered in both halves of the Pension Payment Order by the disbursing authority under intimation to the Accounts Officer who authorized the payment of commuted value of pension.” (Emphasis Supplied)

28. Rule 6 declares that the commutation in regard to

a person covered by Rule 13(1) is to become absolute

when Form 1 is received by the Head of Office. In the

case of application under sub-rule (3) of Rule (13), 26 it becomes absolute on the date following the date of

his retirement. We are not to be detained by Chapter

4 which deals with cases where medical examination is

necessary. It is important to notice Clause (c) to the

proviso to Rule 6. It clearly contemplates that in the

case of person who applied under Rule 13(3), the CVP

becomes payable on the date following the date of his

retirement. This interpretation is inevitable having

regard to the express language of the said Rule. In

fact, it contemplates that the reduction in the amount

of pension on account of commutation shall be

operative from its inception. This means that

consequent upon commutation, the full pension which

he would otherwise receive would suffer a diminution

and it is to take effect from the very first day

following his retirement. In fact, Clause (c) proviso

to Rule 6 does contemplate a situation where the CVP

is not made within the first month from the date of

retirement as it provides that the difference of

monthly pension for the period between the day

following the date of retirement and the date

preceding the date on which the CVP is deemed to have

27 been paid in terms of the Central Government Account

(Receipts and Payments) Rules, 1983.

29. We have noticed the Rules. We have found out that

the Rules declare the categories of pension which

would qualify for commutation. In other words, those

persons who fall in Rule 12 of the Commutation Rules,

without undergoing any medical examination can apply

for commutation, as provided in Rule 13, which

includes a person who receives superannuation pension.

If such a person applies under Rule 13, well within

the time, he is indeed conferred a legal right under

the Statutory Rules to receive commutated pension. It

does not lie in the mouth of Government which is

excepted to act as a model employer to sit over the

papers and delay the sanctioning or the payment of the

CVP.

30. Therefore in a case where Rule 13(3) applies

and the Government servant who is due to retire on

superannuation applies for getting CVP along with

pension papers, prior to the date of his retirement

as provided and he actually retires on superannuation 28 and his application is within time, the CVP must be

paid immediately after the retirement. It may be true

that in the case of a person covered by Rule 18 which

deals with the cases, which we have mentioned, like

invalid pension, pension under Rule 40 of the Pension

Rules on being compulsorily retired by way of penalty

or compassionate allowance on being dismissed or

removed he must undergo a medical examination.

Therefore, applications by a person covered under

Rules 12 and 18 stand on a different footing. As far

as application by a person governed by Rule 12,

provided he makes an application as contemplated under

Rule and the application gives details of the amount

of percentage of commutation which he requires subject

to the maximum of forty percent, he is entitled to

demand the payment of CVP. We have already noticed

that the Rule does not provide the payment of

interest. The Office Memorandum dated 05.10.1999 does

not prohibit payment of interest. The question would

then arise on what basis the Government servant can

seek interest.

29

31. In S.K. Dua Vs. State of Haryana and another,

(2008) 3 SCC 44, this Court was dealing with a case

where the appellant was paid provisional pension but

other retirement benefit were not given including CVP,

leave encashment, gratuity etc. There was a

disciplinary proceeding and ultimately the appellant

was found exonerated from all the charges. In the said

circumstances, the benefits were given after four

years. As regards the question, as to on what basis

interest would be granted for delayed payment, we

notice the following statement of law made by this

Court:

"14. In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well- founded that he would be entitled to interest on such benefits. If there are Statutory Rules occupying the field, the appellant could claim payment of interest relying on such Rules. If there are Administrative Instructions, Guidelines or Norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence Statutory Rules, Administrative Instructions or Guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of bounty is, in our opinion, well-founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents."

(Emphasis Supplied)

30

32. Coming to the facts of this case, we notice

that the applicant was given provisional pension under

Rule 69 of the Pension Rules. This immediately

attracts Rule 4 of the Commutation Rules prohibiting

commutation of the provisional pension. In fact, Rule

69 of the Pension Rules contemplates sanctioning of

provisional pension which is to be equal to the

maximum pension which would have been admissible on

the basis of the qualifying service upto the date of

retirement of the Government servant or if he was

under suspension on the date of retirement upto the

date immediately before being placed under suspension.

This brings us to Rule 9(4) of the Pension Rules,

which is the basis for applying Rule 69. Rule 9(4)

reads as follows:

"9(4). In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub- rule (2), a provisional pension as provided in Rule 69 shall be sanctioned.

33. To fully appreciate the scheme of the Rules,

we may also refer to Rule 9(6), which reads as follows:

31 "9(6) For the purpose of this rule -

(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and

9(6)(b) judicial proceedings shall be deemed to be instituted-

(i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the magistrate takes cognizance, is made, and

(ii) in the case of civil proceedings, on the date the plaint is presented in the Court.”

34. The learned counsel for the appellants and the

learned ASG are no doubt correct in contending that

there is prohibition against commuting of pension but

we must notice one aspect. What Rule 4 taboos is

commutation of provisional pension which is granted

under Rule 69 during the pendency of the proceedings.

35. As we have noticed, there are three situations.

The first category is where the pension is finalized

immediately upon retirement and on the basis of the

application, the commutation as permissible subject

to the limit of forty percent, is ordered. The second

category is where there is provisional pension granted

under Rule 64. In such a case also commutation is 32 permissible but of the provisional pension again

subject to the limit under Rule 5. In the third

category where provisional pension is sanctioned on

account of pendency of judicial or departmental

proceeding Rule 4 applies and it forbids the

commutation of "the provisional pension" granted under

Rule 69. Since, in this case the applicant was

admittedly sanctioned provisional pension, while the

provisional pension was in place, the applicant could

not have sought commutation of the provisional pension

granted under Rule 69 in view of the embargo against

such commutation contained in Rule 4.

36. On 17.10.2012, the following order was passed:

"Subject: Retirement on superannuation on 31.07.2008 (A/N) - Case of officers of STS of Executive Grade (Adhoc) - Regarding.

In continuation to this office Order No.354- 1/2007-Pers-I dated 31.07.2008, the following officer of Adhoc STS of Executive Grade (Telecom/TTS/TFS) permanently absorbed in BSNL is permitted to retire from BSNL Services on attaining the age of superannuation w.e.f. the date indicated against his name.

S. No. Staff No./ Name/Desgn. Circle DOB Date of HR No. of the Retirement officer 1. 11719 Shri M.A. GUJ 01.08.48 31.07.2008 Patel, DE (A/N)

33

2. It has been certified that retirement order is being issued on the basis of Vigilance Clearance received from the CVO, BSNL.

3. This has the approval of the Competent Authority.

4. Copy of Charge Relinquishing report may be sent to this office in respect of all concerned."

37. On the basis of the same, apparently the applicant

moved application on 01.11.2012 where he sought

commutation of pension without medical examination.

He showed his date of retirement as 31.07.2008. He

sought the maximum admissible fraction as the proposed

commutation. On the basis of same, the appellant was

admittedly sanctioned CVP in December, 2012. If the

application dated 01.11.2012 is taken as the basis of

sanctioning of the CVP then there can be no ground at

all to give any interest as CVP has been given within

a reasonable time.

38. The question, however, arises whether as has been

found by both, the Tribunal and the High Court, this

should be treated as a case where the applicant should

be granted interest from the date of his retirement

on account of the fact that on the date of his

34 retirement there was neither the departmental

proceeding nor a judicial proceeding.

39. As far as the argument of the learned ASG that

there was a departmental proceeding pending by virtue

of the fact that an order of suspension was passed

within the meaning of Rule 9(6), which we have already

referred to, we are of the view that there is no merit

in the said contention. While the applicant was placed

under suspension, in the year 1997, it is equally

indisputable that the said suspension was revoked in

the year 1999 well before the date of superannuation

of the applicant. It is not the law that to constitute

a departmental proceeding that a Government servant

has been placed under suspension at some point of time

of his career. What is contemplated is that there must

be a suspension when the applicant would have

otherwise retired on superannuation. In this case the

suspension stood revoked several years prior to his

date of superannuation. Therefore, the suspension

which was subsequently revoked cannot constitute

suspension within the meaning of Rule 9(6)(b) of the

35 Pension Rules and we have no hesitation in repelling

the argument of learned ASG.

40. A case under the Prevention of Corruption Act was

lodged against the applicant. However, the ACB, in the

course of investigation apparently was not able to

muster enough material to prosecute the case. This

resulted in the agency filing what is described as A-

summary. The A-summary came to be dealt with in the

following manner by the Sessions Judge:

"Heard.

Accused is traceable. There is no question of granting "A" Summary. it is nobody's case that accused is absconding. If at all, I.O. fact that evidence is not sufficient to prosecute the accused. He may apply under Section 169 of Cr.P.C. Hence rejected as it is not tenable at law."

41. This order was passed prior to the date of

superannuation of the applicant. It is, therefore,

that Criminal Revision Application No.52 of 2007 came

to be filed before the High Court of Gujarat. By order

dated 30.03.2012, the revision came to be allowed. It

is noticed that the applicant opposed the revision.

The A-summary was to be given in a case where the case

is found to be true but the accused is absconding. 36 Further, if the evidence against the accused is not

sufficient to prosecute the accused, also A-summary

could be given. The High Court took the view as

follows:

"The report made to the Court below by the investigating officer was, therefore, made under Section 173 of the Code and the Court was required to pass an order under Section 173(4) of the Code, which the Special Court has failed to do. The order passed by the learned Principal District and Sessions Judge, Banaskantha at Palanpur, dated 03.05.2006 is, therefore, set aside. The prayer sought by the investigating officer for Summary "A"

is allowed. Accordingly, present revision application is allowed. Rule is made absolute to the aforesaid extent. Muddamal currency note be confiscated to the State."

42. It is true that well before his retirement the

agency which had no doubt conducted a trap against the

applicant, had itself found that there was no material

in view of subsequent developments. It could be said

that this is a case where the applicant was exonerated

by the agency well before the date of his retirement.

No doubt this is not a case where the applicant has

been acquitted honourably after trial. In fact, there

was never a trial and the case was not sent up for

trial in view of the submission of A-summary.

37

43. The other question also must be considered and

that question is whether there was a judicial

proceeding pending at the time of the retirement. A

perusal of Rule 9 of the Pension Rules would show that

Government had a right to withhold the pension or

gratuity or both either in full or in part or withdraw

a pension in full or in part either permanently or for

the specified period. Government is also authorized

to order recovery from pension or gratuity of the

whole or in part of any pecuniary loss caused, if in

any departmental or judicial proceeding, the pensioner

is found guilty of grave misconduct or negligence

during the period of his service which includes

service after reemployment. Thereafter, sub-rule 9(6)

deals with what constitutes when a departmental or a

judicial proceeding will be deemed to commence.

Judicial proceedings are divided into two categories.

First category is a criminal proceeding. Second

category is civil proceeding. As far as civil

proceeding is concerned, it is deemed to be instituted

when a plaint is presented. In other words, upon

presentation of a plaint in a civil case judicial

38 proceeding commences. In the case of a criminal

proceeding by the deeming provision, it is deemed to

have been instituted for the purpose of Rule 9 when

the complaint or report of a police officer is made,

but that is not sufficient. In a case where a complaint

or a report of a police officer is made to a Court,

it should culminate in cognizance being taken by the

Magistrate, for the department to contend that the

date of the complaint or report is to be the date of

institution of the proceedings.

44. From the order of the Sessions Judge which alone

is produced, it is not clear that cognizance was

taken. The criminal revision is a criminal proceeding.

But the case was about the ‘A’ diary not being

accepted. If the criminal revision was dismissed then

the matter would have been proceeded with by the

Sessions Judge. It is in the region of conjecture as

to what would have followed suit. At the time of the

retirement, the authorities could not have divined

what would happen in the revision. No doubt, the

purport of the revision petition was that the State

39 wanted the ‘A’ Summary to be accepted. The acceptance

of ‘A’ Summary which, in fact, was ordered by the High

Court would have brought the litigation as against the

applicant to an end. In so far as, we later propose

to render our finding on the effect of no application

being filed under Rule 13(3) and also keeping in mind

that the applicant did not take steps to challenge the

order dated 04.08.2008, we would think that much may

not turn on our even accepting the view of the High

Court, that there was no criminal proceeding as on the

date of the retirement. It also must be noted that the

present is not a case where the authorities acted

without any material at all even. We proceed on the

basis that the criminal revision petition is not

criminal proceeding under Rule (9) of the Pension

Rules. A view was taken by the authorities regarding

the same at the point of time which could not be said

to have been taken without any basis at all. This, we

say as the basis for interest on CVP can only be state

action which is arbitrary. It is relevant to note that

both sides proceeded on the basis that there was a

proceeding within the meaning of Rule 9 and 69 of the

40 Pension Rules. Further, even at the time when the

order dated 04.08.2008 was passed it was open to the

applicant to complain that there was no judicial

proceeding, having regard to the nature of the

proceeding pending in the High Court. The applicant

instead chose not to question the sanctioning of

provisional pension under Rule 69 and continued to

receive the provisional pension. We will notice the

consequences of the said order on his right to apply

under Rule 13(1).

45. We have noticed that a claim for interest in

regard to CVP may lie when an application has been

made in time under rule 13(3) and the payment is

delayed. But in a case where application is made under

Rule 13(1) which can be made within a period of one

year from the date of retirement, the same would have

to be processed and undoubtedly at the earliest it

must be brought to its logical culmination as per the

rules. But certainly, in a case falling under Rule

13(1) there can be no question of paying interest from

the date of retirement as the application itself is

41 predicated after the date of retirement. No doubt the

question as to payment of interest even in such cases

would arise based on the date of application and the

reasonableness of the time taken in processing it and

the arbitrariness in a particular case in delaying the

matter. This we say for the reason that as held in

by this Court in S.K. Dua (supra) the premise on which

interest can be granted in the case of CVP also is the

breach of Articles 14 and 21 and it is a matter to be

decided on the facts of each case.

46. It is significant to note that in this case the

applicant has no case even that he made an application

within the meaning of Rule 13(3) of the Commutation

Rules as contemplated before three months of his

retirement. Nothing stood in the way of the applicant

applying under Rule 13(3) apparently. If on the other

hand, there was any legal impediment which stood in

the way, then also he cannot claim the CVP on

retirement. Without having made such an application

under the Commutation Rules, it is clear that there

can be no question of even becoming entitled to

42 commute pension w.e.f. first day following his

retirement. The Tribunal and the High Court have

completely overlooked the conspectus of the Rules. The

Tribunal, in fact, has proceeded to consider the

matter from the standpoint of interest payable on

gratuity which also was claimed by the applicant and

has not focused on the question relating to the point

of time when CVP becomes payable, and that the nature

of CVP being one dependent entirely on an application

from the Government servant and therefore we have no

hesitation in coming to the conclusion that the

direction to pay interest on the CVP, as ordered by

the Tribunal, from the date of retirement from

01.08.2008 is clearly erroneous. Now, as far as Rule

13(1) is concerned, it enables a person who is in

receipt of a pension under Rule 12, to apply after

retirement but within one year thereof for CVP. It is

true that the applicant was not in receipt of any

pension under Rule 12 and therefore, he could not have

applied under Rule 13(1). This is for the reason that

as per order dated 04.08.2008, he was to be given

provisional pension which as we have noted was under

43

Rule 69 of the Pension Rules. The applicant, however,

proceeded to accept the provisional pension. It is

true that the effect of the order dated 04.08.2008 of

the sanctioning of the provisional pension under Rule

69, was that he was precluded from applying for

commuting the provisional pension, in view of Rule 4

and on the other hand, as he was not in receipt of

superannuation pension, he could not have filed an

application under Rule 13(1). Thus, a question may

arise. Having issued order dated 04.08.2008, the

effect of which we have clarified, should interest be

ordered on the basis that the applicant was prevented

from applying for CVP under Rule 13(1). We have

already found that the applicant was not precluded

from making any application under Rule 13(3). Had he

done so, his claim for interest from the date of

retirement could have been considered under Articles

14 and 21. We also take note of the fact that the

applicant did not challenge the order dated 04.08.2008

and he continued to accept the provisional pension

sanctioned thereunder. There could be no question of

granting interest from the date of retirement in view

44 of the absence of any application under Rule 13(3).

We make it clear that we are not pronouncing about the

liability to interest on DCRG amount which is not

subject matter of controversy before us and the

direction to pay interest on gratuity is not being

interfered with.

47. In the light of this, we are of the view, the

appeal is to be allowed as above. We do so. The

impugned order will stand set-aside and the order of

the Tribunal directing payment of interest on CVP

shall stand set-aside. No order as to costs.

......................J. (ASHOK BHUSHAN)

......................J. (K.M. JOSEPH)

New Delhi, March 8, 2019.

45