RAMJILAL KUSHWAHA vs CENTRAL RAILWAY on 29 October 2026

ORDER

Per : Shri Umesh Gajankush, Member (J)

The present Original Application has been filed by the applicant seeking the following reliefs: “8(a) The Hon'ble Tribunal will be graciously pleased to call for records and proceedings in respect of the Impugned order dated 23.11.2021 and after going through legality and validity of the same this Hon'ble Tribunal be pleased to quash and set aside the impugned orders issued by the Respondent No.04 (Annexed A/1).

8(b) The Hon'ble Tribunal will be pleased to direct the respondents to immediately release Applicant's settlement dues i.e. DCRG, commutation, leave salary and regular Pension instead of provisional pension with all the consequential benefits in favour of Applicant.

8(c) The Hon'ble Tribunal will be pleased to order payment of interest @ 18% p.a. on the total amount of settlement dues from the date of retirement till the date of final payment, as the delay in payment is solely on account of Respondents.

8(d) The Hon'ble Tribunal will be pleased to pass the orders for payment of cost to the Applicant as the Applicant has been compelled to approach this Hon'ble Tribunal without any reason.

8(e) The Hon'ble Tribunal will be graciously pleased to pass such order and further order as deem fit in the facts and circumstances of the case.

8(f) Any other and further relief which this Hon'ble Tribunal deem proper in the interest of justice and to which the applicant is found entitled may be granted in favour of the Applicant”.

2. Brief facts of the case, as stated by the applicant, are that he was appointed as Khalasi in Group 'D' category on 04th December, 1980 and completed approximately 32 years of sincere and dedicated service. During his service, he was promoted to the post of Senior Wireman (MCM). 2.2

It is stated that, while working as Senior Wireman (MCM), Respondent No. 3 issued major penalty charge Memorandum under Railway Servants (Discipline and Appeal) Rules on 03rd October, 2017 on the charge of demanding and accepting illegal gratification.

2.3

It is further stated that a criminal case bearing Special Case No.ACB/0000033/2017, titled the State CBI ACB Mumbai Vs. Ramjilal N. Kushwaha has also been filed by the ACB against the applicant under Section 7 of the Prevention of Corruption Act, 1988 before the Additional Sessions Judge, Thane and the same is pending. 2.4

After completion of the departmental inquiry, inquiry report was submitted and the applicant has filed representation dated 12th November, 2020 before the Disciplinary Authority. Thereafter, the Disciplinary Authority held the applicant guilty of the charges levelled against him. Further, taking a sympathetic view and considering the applicant's past service record, the Disciplinary Authority decided to impose the penalty of "compulsory retirement with immediate effect with all benefits" vide order dated 19th November, 2020. The said order has been accepted by applicant without challenging it further in appeal under the Railway Servants (Discipline and Appeal) Rules. 2.5

Thereafter, applicant submitted representations dated 17.12.2020, 01.02.2021, 17.02.2021, 01.06.2021, 24.06.2021, and 15.11.2021 for the release of his settlement dues, such as PF, GIS, leave salary, commutation of pension and gratuity. However, PF and GIS amounts were released and provisional pension was sanctioned on 15th July, 2021, instead of regular pension, leaving behind the commutation of pension, leave salary, gratuity, and regular pension. 2.6

It is stated that Respondent No. 1, Law Cell, vide letter dated 22nd August, 2021 advised Respondent No. 3 that no valid and justifiable grounds existed for withholding gratuity or any other settlement dues. Despite this, no action was taken by the respondents, whereas Respondent No. 4 issued a communication dated 23rd November, 2021 (Annexure A1), informing APO (L&W) CSMT, that the case of the applicant was being returned, stating that in view of regular practice due to pendency of the criminal case, no sanction is given for release of DCRG by the competent authority. The aforesaid order is under challenge at the instance of the applicant. 2.7

It is submitted that the withholding of the applicant's settlement dues, DCRG, commutation of pension and regular pension is totally illegal, as the Disciplinary Authority had issued order of penalty of compulsory retirement with immediate effect with all benefits as well as against the Railway Services (Pension) Rules. 2.8

The applicant has also relied upon the judgments of the Hon'ble Supreme Court in the case of State of Jharkhand and others Vs. Jitendra Kumar Srivastava & Anr., reported in (2013) 12 SCC 210; the Hon’ble Delhi High Court in Ashok Kumar Vs. North Delhi Power Ltd. & Anr., W.P. (C) No.510/2012 decided on 05th September, 2013, AISLJ III-2014(1) 325; the judgment of the Principal Bench of CAT, New Delhi in OA No.3910/2016, Sayed Sagar Ali Vs. Govt. of India & Ors., decided on 08th March, 2019, (CAT-PB-ND 2019(5) SLR

141) ; and the judgment of Central Administrative Tribunal, Mumbai Bench in OA No.336/2020, Musa Kasam Jamadar Vs. Union of India & Ors., decided on 09th November, 2021, to contend that post-retirement dues cannot be withheld merely on the ground of pendency of the criminal case.

3. After notice, the official respondents have filed their reply and contested the matter. It is stated that the applicant, Ex. Senior Technician-A (Wireman), Thakurli, working under the Electrical Department, Mumbai Division, was issued a major penalty chargesheet dated 03rd October, 2017, for article of charge that applicant had "demanded and accepted Rs. 2500/- as illegal gratification from Shri. Vijay Bhor, R/o Quarter No. MS RB II F/17, Railway Colony, Kalwa (West), for getting the internal wiring repaired and shifting of electric meter at the new quarter allotted in the name of his wife, Smt. Bharathi Bhor, WPC, RPF, CST and accepted the bribe amount of Rs. 2500/- on 27th May, 2017, from Shri. Vijay B. Bhor." After the departmental enquiry proceeding, the Disciplinary Authority vide letter dated 20th November, 2020, imposed the penalty of "Compulsory retirement with immediate effect with all benefits". The applicant did not file an appeal against the penalty. 3.2

It is further submitted that for the above said misconduct, SPL (CBI) Case No.33/2017 was registered against the applicant and same is pending before the District Judge-4, Additional Sessions Judge, Thane. It is further submitted that the Provident Fund amount Rs.2,10,330/- was passed vide CO7.No.01020820004109 and the Group Insurance Scheme amounting to Rs.56,588/- was also passed vide C07.No.01020920005951 dated 09th February, 2021 and Provisional Pension was sanctioned vide PPO.NO.20217010200124. However, as stated in the preceding paragraphs, the outcome of criminal Case bearing No.SPL(CBI) Case No.33/2017, before the Hon'ble District Judge-4 Addl Sessions Judge Thane, is still pending. Hence, as per Rule 10(C) of the Railway Services (Pension) Rules, 1993, applicant's DCRG and commutation of pension have been withheld. Secondly, as per Rule 550- B(2) of the Indian Railway Establishment Code, Volume I, leave salary can be withheld during the pendency of departmental or criminal proceedings. 3.3

It is further submitted that the Provident Fund amount of Rs. 2,10,330/- was passed vide CO7 No.01020820004109 and the Group Insurance Scheme amounting to Rs.56,588/- was also passed vide C07 No.01020920005951 on 09th February, 2021. Provisional Pension was also sanctioned vide PPO No.20217010200124. However, as stated in the preceding paragraphs, the outcome of criminal case registered No. SPL(CBI) Case No.33/2017 is still pending before the Hon'ble District

Judge-4, Addl Sessions Judge, Thane. Thus, the relevant provisions of the Railway Services (Pension) Rules, 1993, will squarely apply pending the judicial criminal proceeding namely Rule 10 of the said Railway Services (Pension) Rules 1993, which relates to payment of provisional pension and non-payment of gratuity to the railway servant until the conclusion of the judicial proceedings. 3.4

Learned counsel for the respondents has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Western Coal Fields Ltd. Vs. Manohar Govinda Fulzele, Civil Appeal No.2608/2025 decided on 17 February 2025. 3.5

Therefore, on the basis of reply, the official respondents have prayed for dismissal of the Original Application.

4. Thereafter, rejoinder was filed by the applicant elaborating and explaining the stand taken in the OA.

5. I have heard the learned counsel for the applicant and the learned counsel for the respondents and have perused the pleadings on record.

6. Learned counsel for the applicant vehemently argued that, on the one hand, on the allegation of illegal gratification, the Disciplinary Authority initiated departmental proceedings, which was culminated into the punishment order of compulsory retirement with immediate effect with all benefits, whereas, the ACB has also registered a case against the applicant under the Prevention of Corruption Act, which is still pending. Once the Department has issued the punishment order with all benefits, then, on the basis of pendency of the criminal case, the action of the respondents in withholding the post-retirement benefits is illegal and contrary to law.

7. During course of the arguments, the learned counsel for the applicant placed reliance on the judgment of the Hon'ble Supreme Court in State of Jharkhand Vs.

Jitendra Kumar Shrivastava (supra) and also the judgment of the Hon'ble Delhi High Court in Ashok Kumar Vs. North Delhi Power Limited & Another (supra) to submit that withholding terminal benefits, including pension and gratuity, on the ground that criminal case was pending is not proper.

8. On the other hand, learned counsel for the respondents on the basis of reply and Rule 10 of the Railway Services (Pension) Rules, 1993 coupled with Rule 550-B(2) of Indian Railway Establishment Code Volume-1, justified the action of withholding of gratuity and grant of provisional pension, and therefore, it was submitted that OA is liable to be dismissed.

9. After hearing learned counsel for the parties, before adverting to the facts of the present case, it would be relevant to reproduce Rule 10 of the Railway Services (Pension) Rules, 1993, which reads as under:

“10. Provisional Pension where departmental or judicial proceedings may be pending -

(1) (a) In respect of a railway servant referred to in sub-rule (3) of Rule 9, the Accounts Officer shall authorise the provisional pension not exceeding the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the railway servant or if he was under suspension on the date of retirement, upto the date immediately preceedings 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 upto and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.

(c) No gratuity shall be paid to the railway 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 the provisions of the Railway Servants Discipline and Appeal Rules, 1968, for imposing any of the penalties specified in clauses (i), (ii), (iiia) and (iv) of rule 6 of the said rules, the payment of gratuity shall be authorised to be paid to the railway servant.

(2) Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such railway servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period”.

10. Looking to Rule 10(C), on which, reliance has been placed by the respondents, it is provided that no gratuity shall be paid to the railway servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon. In the present case, it is not in dispute that, on the allegation of gratification, apart from the judicial proceedings at the instance of ACB, the Department also initiated departmental proceedings, which are culminated by imposing penalty of compulsory retirement with immediate effect with all benefits, meaning thereby the departmental authority has already passed the final orders.

11. Further, Rule 550-B (2) of Indian Railway Establishment Code, Volume-1 reads as under: “Rule 550-B (2) In case of retirement from service on attaining the age of retirement while under suspension or while disciplinary proceedings are pending against him at the time of retirement: The authority competent to grant leave may withhold whole or part of cash equivalent of both leave on average pay and leave on half average pay in the case of a railway servant who retires from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Railway dues, if any.

Railway Ministry’s decision – Encashment of unutilized leave on average pay and leave on half average pay will be allowed to those Railway servants who are compulsorily retired as a measure of punishment under the disciplinary rules even if a cut in pension (including gratuity) has been ordered. In such cases, the authority competent to grant leave can sanction cash equivalent of leave salary for both leave on average pay and leave on half average pay, if any, at the credit of the Railway servant on the date of such retirement, subject a maximum of 300 days. The cash equivalent payable shall be the same as in sub-rule (A) (1) (b) of Rule 550. (Authority: Railway Board's letter No.F(E)III/2006/LE-1/1 dated 20.3.2006.)”

12. Looking to the aforesaid provision, which talks about grant of cash payment in lieu of leave, and the competent authority is empowered to withhold the whole or part of the cash equivalent of both leave on average pay and leave on half-average pay in the case of a railway servant who retires from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if, in view of such authority, there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. Taking note of the aforesaid provision, so far as disciplinary proceedings are concerned, same have already concluded. However, the criminal proceedings are pending. Further, before withholding the whole or part of the amount, the competent authority is required to form an opinion that there is a possibility of some money becoming recoverable from the employee on conclusion of the proceedings. However, looking to the impugned communication, no such finding has been recorded in the impugned communication dated 23rd November, 2021. Therefore, straightway withholding of the amount under the said head is not in conformity with Rule 550-B(2) of the Indian Railway Establishment Code, Volume-I.

13. On perusal of the impugned communication, it is evident that the authority recorded only in respect of regular practice adopted by the department. The position would have been totally different that on the allegation of illegal gratification, only criminal case was initiated and pending against the applicant. However, in the present case, the department has already exercised its power for initiating department enquiry case and concluded it by

imposing punishment of compulsory retirement with all the benefits. If the Disciplinary Authority has taken a decision to extend all the benefits, then, in such circumstances, impugned communication is unsustainable and liable to be set aside.

14. So far as the judgment relied upon by the respondents in case of Western Coal Fields Ltd. Vs. Manohar Govinda Fulzele (supra) is concerned, firstly, in the said case, the employee concerned was dismissed/terminated from the service, whereas in the present case, departmental authority itself passed order of compulsory retirement with all benefits, and the Hon'ble Supreme Court was pleased to consider the provisions of Payment of Gratuity Act, 1972, whereas in the present case, no provision has been mentioned in the impugned communication, although the department has relied upon its practice. However, in reply, the respondents have relied upon Rule 10(C) of the Pension Rules. Further, in the concluding paragraph, the Hon'ble Supreme Court was pleased to observe as under: “…..15. ………It is trite that even if minimal amounts are misappropriated it would constitute a misconduct warranting termination, as held by this Court. However, on the question of forfeiture of gratuity, we are of the opinion that the Appointing Authority should have taken a more sympathetic approach. We do not propose to send back the matter for fresh consideration but direct the Appointing Authority to limit the forfeiture to 25% of the gratuity payable and release the balance amounts to the respondent employees.”

15. The Hon'ble Supreme Court, in the aforesaid case, permitted forfeiture of 25% of the gratuity. Therefore, the judgment relied by the respondents is not applicable in the present set of facts.

16. Thus, in view of the aforesaid discussion, the impugned communication dated 23rd November, 2021 (Annexure A1) is liable to be quashed and is hereby quashed. The competent authority of the respondents is directed to reconsider the case of the applicant for release of gratuity and leave encashment in accordance with the rules within a period of 90 days from the date of receipt of a certified copy of this order.

17. With the aforesaid directions, the Original Application is allowed to the extent indicated hereinabove. Pending MAs, if any, stand closed. No costs.

(Umesh Gajankush)

Member (J)

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