Wp/1870/2005 Of The President Of Income Tax Appellate Tribunal v. Abdul Razack

THE HON’BLE SMT.JUSTICE T.MEENA KUMARI AND THE HON’BLE SRI JUSTICE P.LAKSHMANA REDDY WRIT PETITION No.1870 OF 2005 Dt:03.10.2005 Between: The President of Income Tax Appellate TribunalRep.by its Registrar, 10[th] & 11[th] FloorsLok Nayak Bhavan, NDMC Complex, Khan MarketNEW DELHI 110 001 and another … PETITIONERS AND Shri Abdul Razack S/o.Late Sri Abdul AzizOcc: Retd.Juidicial MemberIncome Tax Appellate TribunalR/o.H.No.6-3-629/1, Ravindernagar colony Khairatabad, Hyderabad 500 004 … RESPONDENT THE HON’BLE SMT.JUSTICE T.MEENA KUMARI AND THE HON’BLE SRI JUSTICE P.LAKSHMANA REDDY WRIT PETITION No.1870 OF 2005 ORDER: (per the Hon’ble Smt. Justice T.Meena Kumari) This Writ Petition is filed by the petitioners-respondents to quash the Order dated12.10.2004 in O.A.No.722 of 2004 and the Order dated 07.01.2005 in R.A.No.4108of 2004 on the file of the Central Administrative Tribunal, Hyderabad. The petitioners herein are the respondents and the respondent herein is theapplicant in the above mentioned O.A. The above O.A. was filed by the respondent-applicant to quash the order dated10.07.2003 passed by the first petitioner- President of Income Tax AppellateTribunal, New Delhi and to direct him to comply with the directions given by theTribunal in its common order dated 01.03.2001 in O.A.Nos.1774 of 1999 and 93 of2001; to regularize his service period of 357 days and to treat the same as qualifyingservice for the purpose of payment of pension and gratuity as per the Central CivilServices (Pension) Rules, 1972 (for short ‘the Rules’) . The petitioners havecontested the O.A. by way of filing counter-reply. The Tribunal after hearing thearguments of the learned counsel for both the sides and after considering thematerial placed before it, allowed the O.A. holding that the period from the date ofsuspension of the respondent-applicant till the date of his retirement onsuperannuation shall be counted for the purpose of qualifying service in terms ofRule 27(1)(c) of the Rules and as such, the respondent-applicant is eligible forpension and pensionary benefits as he is covered under the Rules by fulfilling morethan ten years of qualifying service as a Member of the Income Tax AppellateTribunal and it directed the petitioners to pass necessary orders granting pensionarybenefits to the respondent-applicant and to pay the pension payable to him underthe Rules after his retirement on 14.02.2003. Aggrieved by the same, the presentWrit Petition has been preferred. It is the case of the petitioners that the respondent-applicant joined as JudicialMember on 24.09.1991 in the Income Tax Appellate Tribunal, Kolkata and retired on14.02.2003 while he was under suspension on attaining the age of superannuation.According to the petitioners, as per the Rules, the minimum service required for thepurpose of superannuation pension is ten years and as per Rule 21 of the Rules, theextraordinary leave other than the extraordinary leave granted on medical certificatecannot be counted as qualifying service for pension. As the respondent-applicantwas granted the extraordinary leave of 357 days without medical certificate, the saidperiod cannot be counted towards qualifying service and as such he did not have It is the case of the petitioners that the respondent-applicant joined as JudicialMember on 24.09.1991 in the Income Tax Appellate Tribunal, Kolkata and retired on14.02.2003 while he was under suspension on attaining the age of superannuation.According to the petitioners, as per the Rules, the minimum service required for thepurpose of superannuation pension is ten years and as per Rule 21 of the Rules, theextraordinary leave other than the extraordinary leave granted on medical certificatecannot be counted as qualifying service for pension. As the respondent-applicantwas granted the extraordinary leave of 357 days without medical certificate, the saidperiod cannot be counted towards qualifying service and as such he did not have the required minimum ten years of service for the purpose of grant of superannuationpension and the same was intimated to him by letter dated 10.07.2003. Questioningthe same, he filed the above mentioned O.A. It is their further case that the totalqualifying service of the respondent-applicant excluding the period of 357 days ofextraordinary leave has been calculated to be eight years six months and five days.Since the respondent-applicant was under suspension from 20.03.2001 till hisretirement on 14.02.2003, the said period also cannot be counted as qualifyingservice for the purpose of grant of pension and pensionary benefits. It is also theircase that in terms of Rule 23 of the Rules, the period of suspension shall be countedas qualifying service for grant of pension only where, upon conclusion of thedepartmental inquiry, if the Officer is totally exonerated or the suspension is held tobe wholly unjustified. In other cases, the period of suspension shall not be countedas qualifying service unless the competent authority expressly declares that it shallbe counted to such extent as he may declare. In the case of the respondent-applicant, the departmental proceedings are still in progress even though the inquiryis completed in view of the fact that in O.A. No.184 of 2004, filed by the respondent-applicant challenging the inquiry conducted by the Inquiring Authority on the groundthat it is inferior in rank to the respondent-applicant and is biased towards him, theTribunal has granted stay on 16.02.2004 stating that the Disciplinary Authority shalltake no action on the Inquiry Report till the next date of hearing and the same is stillin force. It is the contention of the learned Assistant Solicitor General appearing for thepetitioners that the Tribunal erred in law while directing the petitioners to passnecessary orders granting pensionary benefits to the respondent-applicant and topay the pension payable to him after his retirement on 14.02.2003 in terms of Rule27(1) (c) of the Rules which is contrary to the provisions of Rule 23 of the Rulesbecause inquiry has been conducted and the inquiry report has already beensubmitted and at that stage, the Tribunal by its interim Order dated 16.02.2004 inO.A.No.184 of 2004 directed that no further action be taken by the disciplinaryauthority on the inquiry report submitted till the next date of hearing and since thesame is still in force. In view of the fact that the departmental proceedings are stillpending, any decision on the question of treating the period of suspension asqualifying service or not can be taken only upon conclusion of the said departmentalproceedings. In view of this, the direction of the Tribunal to grant pension to therespondent-applicant even before the conclusion of the departmental proceedings is piteously perverse. It is submitted by the learned counsel for the respondent-applicant that therespondent is deprived of his provisional pension and also gratuity for which he isentitled to, which cannot be withheld even there are any charges pending againsthim. piteously perverse. It is submitted by the learned counsel for the respondent-applicant that therespondent is deprived of his provisional pension and also gratuity for which he isentitled to, which cannot be withheld even there are any charges pending againsthim. As the matter is subjudice in O.A.No.184 of 2004 and even though the respondenthas retired on 14.02.2003 while he was under suspension and since the suspensioncannot be treated as punishment, we modify the Order of the Tribunal to the effectthat the petitioners shall pay the provisional pension and the gratuity to therespondent-applicant as per his entitlement within a period of three months from thedate of receipt of a copy of the order. It is also made clear that the respondent-applicant can revive his request for payment of full pension after the disposal ofO.A.No.184 of 2004. O.A to be disposed of within three months. The Writ Petition is accordingly disposed of. (T.MEENA KUMARI, J) (P.LAKSHMANA REDDY, J) Dt:03.10.2005 bsv/lvl