Withholding of pension/gratuity in the case of minor penalty proceedings

Railway Board Letter No
E[D&A]2009 RG6-18 dated 16.06.2009
RBE No
106/2009
Circular Subject
Withdrawal /withholding /recovery of pension/gratuity in the case of minor penalty proceedings

A copy of Department of Personnel and Training’s O.M. dated 110/9/2003-AVD-1 dated 13.4.2009 on the above subject is sent herewith.  Contents of O.M. dated 13.4.2009 mentioned above, may please be brought to the notice of all concerned on your railway for their information and compliance. O.M. No. 134/10/80-AVD-1 dated 28.2.81 and O.M. dated No. 134/9/86-AVD-1 dated 31.07.81 mentioned in the aforesaid O.M. dated 13.4.2009 have been circulated on the railways under Board’s letter No. E[D&A]81 RG6-26 dated 23.7.81 and No. E[D&A]87 RG6-113 dated 11.11.87.

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Copy of Department of Personnel and Training’s O.M. dated 110/9/2003-AVD-1 dated 13.4.2009

Sub: Withdrawal /withholding /recovery of pension/gratuity in the case of minor penalty proceedings. 

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            The undersigned is directed to refer to this Department’s OM No. 134/9/86-AVD-1 dated 31st July 1987 wherein it was clarified that the Central Government has the power to withhold or withdraw pension even as a result of minor penalty proceedings instituted against a charged officer during his service and which had continued after his retirement provided grave misconduct or negligence is established.  The underlying basis for this OM was that there can be circumstances wherein proceedings initiated for minor penalty could result in establishment of grave misconduct or negligence on conclusion of the proceedings warranting a cut or withholding of pension or recovery of pecuniary loss.  The OM of 31st July 1987 was issued in cancellation of the earlier OM No. 134/10/80-AVD-1 dated 28th  Feb 1981 which inter –alia, stated that grave misconduct or negligence cannot be established as a result of minor penalty proceedings.

 

2.         The OM of 31.7.1987 came for scrutiny before the Central Administrative Tribunal [CAT], Principal Bench, Delhi in OA No. 2068 of 2002 [R.S. Sagar, NOIDA, U P Vs. Union of India], pertaining to the Ministry of Urban Development and Poverty Alleviation.  The Hon’ble Tribunal was considering an application against the order of withholding of gratuity of a charged officer who had retired from service.  The Tribunal,  while considering the said case set aside the said OM of 31st July 1987 of this Department holding it ultra vires the CCS [Pension] Rules, 1972.  The ratio of the decision in this OA was applied to OA No.1222 of 2003 [ I.K. Rastogi Vs. Union of India ] by Principal Bench, Delhi.  This Department was   neither a party nor impleaded in the said OAs at any stage. 

 

3.         The implication of the judgement  of Hon’ble CAT on  this division’s OM  of 31.7.87 was considered in consultation with Department of Pension & Pensioners’ Welfare and Department of Legal Affairs and it was noted that the matter has attained legal finality.

 

4.         In view  of the above and in the light of said order of Hon’ble CAT Principal Bench setting aside the OM of 31st July 1987 this Department’s OM No. 134/10/80-AVD-1 dated 28th  Feb 1981 stands restored and the OM of 31st July 1987 stands withdrawn. 

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Copy of Board’s letter No. E[D&A]81 RG6-26 dated 23.7.81

 

Sub: Minor penalty proceedings against Railway servants who are due to retire from the service – withholding of pension..

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            A copy of the Department of Personnel and Administrative Reforms, Ministry of Home Affairs’ Confidential O.M. No. 134/10/80-AVD.I dated 28.2.81 is sent herewith for your information and guidance.  The orders contained therein apply mutatis mutandis on the Railways.  The Railway Ministry desire that the position indicated in the above O.M. may be brought  to the notice of all the concerned disciplinary authorities. 

           

            Rule 9 of the CCS [Pension] Rules, 1972 corresponds to Rule 2308 –R.II. 

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Copy of Ministry of Home Affairs’, Department of Personnel and Administrative Reforms, Confidential O.M. No. 134/10/80-AVD.I dated 28.2.81

 

Sub: Minor penalty proceedings pending against Government servants who are due to retire from the service.

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         The undersigned is directed  to say that sub-rule [1] of Rule 9 of the CCS [Pension] Rules, 1972 confers on the President the right to withhold or withdraw the pension or a part thereof, either permanently or for specified period, and to order recovery from the pension, of the whole or a part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment  or retirement.  Sub-rule [2] of this rule provides that the departmental proceedings, referred to in sub-rule [1], if instituted before the retirement of a Govt. servant or during his re-employment shall after his final retirement, be deemed to be proceedings under this rule and shall be continued and concluded.  Accordingly, the minor penalty proceedings and the major penalty proceedings, which are instituted against a Govt. servant while in service and which do not get concluded before the date of retirement, automatically become proceedings under rule 9 ibid.  However, since grave misconduct or negligence cannot be established as a result of minor penalty proceedings, action under Rule 9 ibid for withholding or withdrawing pension etc., cannot be taken against a pensioner, in respect of whom minor penalty proceedings had been instituted while in service but which do not get concluded before retirement and have hence continued after retirement.  Such minor penalty proceedings continued beyond retirement,  therefore, do not literally have any effect on the pensioner in the matter of reducing or withholding of his pension.  The disciplinary authorities under the Department of Agriculture etc., are requested to take note of this position and take steps to see that minor penalty proceedings, initiated against  Govt. servants, who are due to retire, are finalized quickly and in time before the date of retirement, so that the need for continuing such minor penalties proceedings beyond the date of retirement does not arise. 

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Copy of Board’s letter No. E[D&A]87 RG6-113 dated 11.11.87.

 

Sub: Minor penalty proceedings initiated against Railway servants while in service – continuation for withholding of pensionary benefits under Para 2308-R.II

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            Attention is invited to Board’s confidential letter No. E[D&A]81 RG6-26 dated 23.07.81 circulating  Department of Personnel’s  confidential O.M. No. 134/10/80-AVD.I dated 28.2.81. 

 

2.         A copy of DOP’s latest confidential O.M. No. 134/9/86.AVD.I dated 31.7.87 is enclosed.  It will be seen therefrom that the contents of Board’s letter dated 23.7.81 referred to above, circulating DOP’s instructions dated 28.2.81, stand cancelled and that it will be in order to continue even minor penalty proceedings in terms of Rule 2038-R.II provided grave misconduct or negligence is established.  Issuing a show cause notice [where no oral inquiry was held] to represent against proposal to effect cut in pension and consultation with UPSC, is,  however, necessary in such cases.

 

3.         The contents of the Department of Personnel’s latest orders may please be brought to the notice of all concerned.  Notwithstanding these orders, disciplinary authorities should endeavour to ensure that minor penalty proceedings are, in fact, concluded quickly and the need for such proceedings arising out of Minor Penalty normally do not arise.

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Copy of Ministry of Personnel ,Public Grievances and Pensions ( Department of Personnel and Training)’s Confidential O.M.No. 134/9/86-AVD.I dated 31st July,1987.

 

            Sub: Minor Penalty proceedings initiated while in service – Question

                    whether it is necessary to hold an oral inquiry for effecting a cut in

                    pension as a result of  -

 

1.            This Department’s Office Memorandum No.134/10/80-AVD.I dated the 28th February,1981 may be treated as cancelled.

 

2.         It is clarified that, in terms of Rule 2308-R.II of the Indian Railway Estt. Code Vol.II, the Central Government has the power to withhold or withdraw pension even as a result of a minor penalty proceedings instituted while the charged officer was in service and which was continued after his retirement, provided grave misconduct or negligence is established.

 

3.         The question whether the procedure followed in the conduct of a minor penalty proceeding would amount to affording a reasonable opportunity to the charged officer so as to impose the penalty of withholding or withdrawing his pension has also been considered. It is clarified that, even though there is no statutory requirement in Rule 2308-R.II ibid for giving a show cause notice, the principles of natural justice would have to be followed. This would require giving an opportunity to the pensioner to represent against the proposed penalty. It would, therefore, be necessary to issue a show cause notice to the pensioner and to take his representation into consideration before obtaining the advise of the Union Public Service Commission and passing the final order. However, there is no need to issue a show cause notice, where an oral inquiry, in which the Railway servant/pensioner has had a reasonable opportunity to defend his case, was held.

 

4.         It is, however, reiterated that it should be the endeavour of the disciplinary authority to see that a minor penalty proceeding instituted against a Railway servant, who is due to retire, is finalized quickly and normally before his retirement so that the need for continuing such proceedings beyond the date of retirement does not arise