Union of India and others v. Sri Sukhram Purty

be segregated into two parts; firstly, there is an embargo in payment of gratuity to the railway servant until the conclusion of the departmental or judicial proceeding and the final order to be passed thereon; secondly, even if the departmental proceeding initiated and/or 5 instituted under the relevant Rules for imposing any of the penalties specified therein, the gratuity should not be withheld but to be paid to the railway servant. Our endeavour has failed to find out from the nature of the penalty imposed by the disciplinary authority, as reflected in the Presidential Order dated 22nd February 2022, that the respondent comes within the peripheral of the exceptions laid down in the said provision. The statute has to be read as a whole and not in a piecemeal. The moment the statutory provision creates an embargo in payment of gratuity with an exception, unless the exception is satisfied, it does not confer inchoate right into the delinquent to have the gratuity or interest on the delayed payment of gratuity under the aforesaid Rule. Admittedly, the departmental proceeding was initiated during the currency of the service and achieved the logical end upon issuance of the Presidential Order dated 22nd February 2022. We may hasten to add that the nature of penalty imposed upon the respondent does not come within the four corners of Rule 6 of the disciplinary Rules yet we can safely proceeded on the basis that it neither comes within the ambit of the specified clause creating an exception. The respondent did not challenge the order of the disciplinary authority, more particularly, the Presidential Order dated 22nd February 2022. The Tribunal was approached simplicitor for the relief that the gratuity, is required to be paid on the date of superannuation, having not paid, the awarding interest on delayed payment of gratuity inevitable and recognized in the statutory provision. On harmonious reading of both the provisions 6 contained in Section 10 of the Act and Rule 87 of the Pension Rules would leave no ambiguity in our mind that in the event there is no departmental or judicial proceeding pending against the railway servant, any delayed payment of gratuity would attract the interest thereupon but converse is not true. In the event the disciplinary proceeding or judicial proceeding is pending against the railway servant, the gratuity would not be paid unless such departmental proceeding is initiated contemplating the penalty specified in clause (i), (ii), (iiia) and (iv) of the disciplinary Rules. The Tribunal appears to have been relied upon a circular being Estt. Srl. No. 101/91 dated 17.05.1991 enclosing RBE No. 76/1991 issued subsequently in relation to the payment of gratuity and the interest thereupon. The extract of the said circular has been depicted in the said order and it appears from clause (c) thereof that in the event the railway servant is not fully exonerated on conclusion of disciplinary/judicial proceeding and where the competent authority decided to allow the payment of gratuity, the payment of gratuity shall be deemed to have fallen due on the date of issuance of order by the competent authority. What can be reasonably inferred from the aforesaid clause that even in case where the delinquent is fully exonerated from the charges or the penalty has been imposed, which obviously is not a major penalty, in such event the competent authority may direct the payment of gratuity. The right to get the gratuity accrued from the date of an order and not from the date prior thereto. The payment of gratuity from anterior date i.e. the date of superannuation was put at halt by virtue of the provisions contained in Section 10 of the Railways Act and embargo was lifted on issuance of the Presidential Order dated 22nd February, 2022. The said clause is 7 explicit to the extent that in the event the gratuity is not paid from the date of the order and there appears to be a delay because of the administrative lapses, it would attract interest thereupon, as the Railway Administration cannot be exonerated from their statutory responsibilities for payment of interest on delayed payment of gratuity. There is no incongruity between Section 10 of the Railways Act, Rule 87 of the Pension Rules and the clause (c) of the aforesaid circular as we find that the legislative intend is laudable and can be harmonized in specific circumstances. As a gasping resort, respondent sought to contend that the aforesaid penalty is not contemplated in the disciplinary Rules, which we do not find to be available to the respondent, as the Tribunal was approached for a singular relief in the form of interest to be granted over the delayed payment of the gratuity. The respondent may waive or acquiesce the right known to him and the moment the penalty is accepted, it is not permissible to take a rebound and seek something, which has not been sought for before the Tribunal. It has been brought to our notice that the gratuity had already been disbursed to the respondent before the date of the Presidential Order. The justification is sought to be made that such payment was made under the mistaken advise or on non-disclosure of the relevant facts, but we do not think that the aforesaid facts would deter us in upholding the law and harmonizing the various provisions. Even the Presidential Order exposes the intention of the competent authority in directing the payment of gratuity to the respondent and in view of clause (c) of the said circular, the right accrues from the date of the said order. If the payment is made prior thereto, it does not confer any right on the delinquent to 8 get the gratuity, which accrued on the date of the said order. Even those facts are taken into account, it does not countenance the factor that the interest is not payable to the respondent and, therefore, the Tribunal has acted in excess of jurisdiction conferred upon it by ignoring the statutory provisions. The impugned order is, thus, set aside; consequently, the Tribunal application filed by the respondent stands dismissed. The writ petition is, thus, disposed of. There shall, however, be no order as to costs. (Harish Tandon, J.) (Prasenjit Biswas, J.)