Legally Bharat

Jharkhand High Court

Ajay Kumar Singh vs The Union Of India Through The Secretary on 12 November, 2024

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad, Navneet Kumar

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        W.P.(S). No. 5927 of 2022
                                    ------
     Ajay Kumar Singh, aged about 65 years, son of Late Dhananjay
     Prasad Singh, resident of 406, Madhuri Palace, Bartand, P.O. &
     P.S. Dhanbad, District Dhanbad, Jharkhand.
                                                ... ... Petitioner

                                    Versus
     1.    The Union of India through the Secretary, Ministry of
           Science and Technology, Technology Bhawan, New
           Mehrauli Road, P.O. and P.S.-Mehrauli, New Delhi,
           110016.
     2.    CSIR-Central Institute of Mining and Fuel Research (in
           short "CIMFR"), through its Director, having its Office at
           Barwa Road, P.O. & P.S. Dhanbad, District Dhanbad,
           Jharkhand.
     3.    The Finance and Accounts Officer, CSIR-CIMFR, having
           its Office at Barwa Road, P.O. & P.S. Dhanbad, District
           Dhanbad, Jharkhand.
     4.    The Administrative Officer, CSIR-CIMFR, having its
           Office at Barwa Road, P.O. & P.S. Dhanbad, District
           Dhanbad.
     5.     Section Officer, CSIR-CIMFR, having its Office at Barwa
           Road, P.O. & P.S. Dhanbad, District Dhanbad, Jharkhand.
                                           ...    ...     Respondents
                                     -----

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
       HON'BLE MR. JUSTICE NAVNEET KUMAR
                                --------
   For the Petitioner    : Mr. Rupesh Singh, Advocate
   For the Respondent(s) : Mr. Radhan Krishan Gupta, CGC
                           Mr. K.S. Khoya, CGC
                           Mr. Abhay Prakash, Advocate
                           Mr. Durgesh Agarwal, Advocate
                                --------

     07 / Dated: 12th November, 2024
     Per Sujit Narayan Prasad, J.

Prayer:

1. The writ petition under Article 226 of the Constitution of
India wherein the order dated 21.10.2022 passed by the learned
Central Administrative Tribunal (CAT), Patna Bench, Circuit
Bench at Ranchi in O.A. No. 771/2019 has been challenged by
which the grievance of the writ petitioner for disbursement of
gratuity has been declined to be granted in favour of the writ
petitioner with a cost of Rs.5,000/-.

Factual Matrix:

2. The brief facts of the case as per the pleading made in the
writ petition which requires to be enumerated herein, reads as
under:

The petitioner had joined the respondent organization as
Scientist in Grade-B in the month of March, 1988 and thereafter
promoted to Grade-C in the month of March,1991 and finally up
to Grade-E-1 in the month of March, 1996. Till the year 2003
there was no any complaint against the satisfactory service
rendered by the petitioner but unfortunately an F.I.R. bearing No.
RC1(A)/2003/D7 was registered on 28.01.2003 on the
allegations that the officials / employees of CISR-CIMFR
including the petitioner, have indulged in misconduct amounting
to loss of approximately Rs. 50,00,000/- to the organization in
purchase of chemicals, other consumable items and equipments.

The prosecution after investigation submitted charge sheet
against the accused persons being Charge Sheet No.3 dated
19.04.2006 and the petitioner as on date is facing the criminal
prosecution in the aforesaid case registered under Section 120-B,
420, 467 and 471 of the Indian Penal Code read with Section
13(2) and 13(1) (D) of the Prevention of Corruption Act, 1988.

The petitioner was simultaneously proceeded against
under departmental proceeding and two memorandums of
charges dated 22.11.2002 and third Memorandum of Charge
dated 31.12.2002 under Rule- 14 of the Classification, Control

2 WP(S) No.5927 of 2022
and Appeal Rules, 1965 (as adopted with modifications) were
served upon the petitioner for the alleged misconduct in capacity
of member of SPC-1 resulting in purchase of items leading to
loss to the organization.

In the aforesaid charge sheet dated 31.12.2002 and other
two charge sheets dated 22.11.2002, the applicant was held to be
guilty of charges levelled against him vide orders dated
11.09.2006, 14.09.2006 and 15.09.2006 which was issued by the
Adhoc Disciplinary Authority, inflicting punishment of reduction
of one lower stage in the time scale of pay for a period of one
year which will have the effect of postponing the future
increments of pay of the applicant.

The petitioner moved before the appellate-authority but on
account of non-disposal of the appeal, he filed Ο.Α. No.
179/2006 before the Hon’ble Central Administrative Tribunal,
Patna Bench at Ranchi, which was disposed vide order dated
17.01.2007 directing the appellate-authority to decide the appeal
within a period of three months.

The appellate-authority upheld the order of disciplinary
authority vide order dated 20.04.2007 without referring to the
issues and point raised by the petitioner and therefore, the
petitioner again moved before the Hon’ble Central
Administrative Tribunal Ο.Α. No. 180/2007 bringing on record
the relevant materials which after appreciation, the Hon’ble
Tribunal set aside the appellate order vide judgment dated
16.04.2009 and directed the petitioner to prefer an additional
appeal. Accordingly, the petitioner preferred the additional
appeal on 29.04.2009.

The appellate-authority after hearing the petitioner was
pleased to modify the order of penalty dated 11.09.2006,

3 WP(S) No.5927 of 2022
14.09.2006 and 15.09.2006 to that of the minor penalty of
censure vide order dated 22.12.2009 in which all the three
departmental proceedings were conjointly dealt with by the
Appellate Authority.

The petitioner being aggrieved of the order of censure
passed by the appellate-authority in spite of finding of only
casualness against the petitioner, the petitioner again challenged
the same before the Hon’ble Central Administrative Tribunal in
O.A. No. 253/2010 and the Hon’ble Central Administrative
Tribunal after hearing the parties was pleased to remand the
matter back to the Appellate Authority for fresh consideration.
Accordingly, the Appellate Authority vide order dated
01.05.2014 was pleased to modify order of punishment of
censure to that of warning.

The petitioner had participated in one of the meetings of
SPC-I held on 29.04.1999 in the capacity of Scientist Member in
Standing Purchase Committee and in the said meeting dated
29.04.1999, as per petitioner nothing had concluded with respect
to the tender process for purchase of material / equipment and
the petitioner had subsequently resigned from the post of
Scientist Member in Standing Purchase Committee- I before the
next meeting could be held.

In the meantime, the petitioner while facing, as on date,
the agony of trial in the aforesaid criminal case registered by the
C.B.I. has attained the age of superannuation on 30.06.2017 and
retired from the services of the respondent.

The petitioner was not being released his admitted post-
retirement benefits as such he made several representations
before the Respondent No.2 and also before the Chairman of the
Local Grievance Committee, CSIR-CIMFR, Dhanbad. The

4 WP(S) No.5927 of 2022
respondent vide letter bearing reference no. 471 dated
13.07.2017 was pleased to release the Provident Fund dues of the
petitioner and the same has been released in his favour. The
petitioner is also in receipt of his monthly provisional pension
which was sanctioned vide P.P.O. No. 2251/ CIMFR / 2017
dated 04.07.2017.

The petitioner made an application before the Chairman,
Local Grievance Committee on 23.01.2018 due to non- payment
of leave encashment and gratuity. He also made an application
on 04.05.2018 raising the grievance with respect to non-payment
of leave encashment and gratuity and when nothing substantial
came out of the aforesaid representation, the petitioner again
represented before the respondent on 30.05.2018.

On account of large number of employees / officers /
Scientists facing the criminal trial under the C.B.I. cases
aforesaid, several applications / representations were made by
the affected persons raising their grievance for non-payment of
aforesaid benefits and accordingly, CSIR-CIMFR vide Memo
No.783 dated 12/13.06.2018 constituted a Five Member
Committee to look into the grievance of eight persons, all retired
Scientists including the applicant.

The said Committee constituted vide Memo dated
12/13.06.2018 and was reconstituted vide Memo No. 1092 dated
20.11.2018 wherein the 6th member was inducted in the said
Committee. That, when nothing substantial came out from the
said Committee, the applicant again made a representation to
CISR-CIMFR on 24.12.2018.

The respondents vide Memo No. 203 dated 31.01.2019
had released the amount of leave encashment for 300 days in
favour of the petitioner. However, the said Office Memorandum

5 WP(S) No.5927 of 2022
further reads that in the light of the Committee Report, the
competent authority was pleased to direct withholding of Rs.
35,110.23/-. Resultantly, the petitioner is now in receipt of his
Earned Leave Encashment amount after deduction of
Rs.35,110.23.

A perusal of the minutes of the meeting dated 10.12.2018
enclosed to the aforesaid Memorandum dated 31.01.2019 would
disclose that the Committee has taken into consideration a total
loss of Rs. 64,00,000/- (Rupees Sixty Four Lacs) by the
organization and recommended to withhold the maximum value
of loss in respect of seven individual accused Scientists against
the admissible Leave Encashment including that of the applicant
on pro-rata basis. There are other employees also who are not
Scientists and are facing allegation of causing loss to the
employer organization upon whom rest of the alleged loss may
be saddled by the respondents in future.

In the light of grievance raised by the petitioner before the
Chairman, Local Grievance Committee, after appreciating the
facts and circumstances of the case was pleased to record that for
withholding of the amount of leave encashment, the entire matter
be placed before the competent Authority i.e. the Director CSIR-
CIMFR, Dhanbad. Accordingly, the same was placed before the
Director, who in the light of the minutes of meeting dated
10.12.2018 had directed to withhold the amount of Rs.
35,110.23/- in respect of the petitioner.

The grievance of the petitioner relating to non-payment of
Gratuity was not paid heed to by the Respondents in spite of
several requests.

Under such circumstances, the petitioner move before the
Hon’ble Central Administrative Tribunal, Patna Bench at Ranchi

6 WP(S) No.5927 of 2022
vide O.A. No.771/2019 praying for direction upon the
respondents to release the entire gratuity amount as also the
amount deducted from the leave encashment of the petitioner.
The Hon’ble Central Administrative Tribunal, Patna Bench at
Ranchi issued notice upon the respondents and the respondents
filed their written statement in the matter.

The O.A. No.771/2019 was finally disposed by
pronouncement of the order / judgment on 21.10.2022, whereby
the Hon’ble Central Administrative Tribunal, Patna Bench at
Ranchi has dismissed the Original Application with cost of
Rs.5,000/-.

3. It is evident from the factual aspects that the writ
petitioner while in service had been dealt with a departmental
proceeding under Section 14 of the Civil Services Classification
and Conduct Rule, 1965.

Simultaneously, a criminal proceeding has also been
instituted being RC-1(A)/2003/D7.

The petitioner on superannuation after attaining the
normal age of superannuation has got the pension in view of the
provision of Rule 9(2)(b) of the Central Civil Services (Pension)
Rules, 1972 (hereinafter referred as the “Rule 1972”) but the
gratuity has been declined to be released in view of the embargo
as provided under Rule 69(1)(c) of the Rule, 1972.

The pension has been paid but when the gratuity has not
been paid, the representation was filed for disbursement of the
gratuity and in course of pending decision by the authority
concern, the petitioner has approached to the learned Tribunal for
disbursement of the amount of gratuity on the ground that in the
meanwhile, the departmental proceeding has been concluded by
inflicting punishment of censure but the learned Tribunal has

7 WP(S) No.5927 of 2022
rejected the Original Application with a cost of Rs.5,000/-.

The writ petitioner being aggrieved with the said order has
approached to this Court by filing this writ petition.
Submission of the learned counsel for the petitioner:

4. Learned counsel for the petitioner has taken following
grounds assailing the order passed by the learned Tribunal:-

(i) The learned Tribunal has failed to appreciate the
position of law that once the pension has been decided to
be disbursed in favour of the petitioner, then there was no
occasion or reason to withhold the gratuity.

(ii) The ground has been taken that the justice demand
that the law as provided under Rule 69(1)(c) is required to
be followed with flexibility herein depending upon the
facts and circumstances of the case particularly in the
factual scenario of the present case wherein even though
departmental proceeding has been concluded with warning
but on the garb of pending judicial proceeding which is
lying pending in the competent court of criminal
jurisdiction since the year 2003, the amount of gratuity has
not yet been paid in the garb of the rider as provided under
Rule 69(1)(c) of the Rule 1972. The learned Tribunal
being the constitutional forum ought to have taken into
consideration this aspect of the matter, having failed so,
the impugned order suffers from an error, hence, the
present writ petition.

(iii) Third issue is that the leave encashment which has
been withheld by the authority in view of the provision of
Rule 39(3) of CCS(Leave) Rules, 1972 and the Tribunal
has declined to pass positive direction in favour of the writ
petitioner.

8 WP(S) No.5927 of 2022

Submission of the learned counsel for the respondents:

5. Per contra, Mr. Abhay Prakash, the learned counsel
appearing for the respondent by defending the impugned order
has submitted that there is no error in the impugned order reason
being that the Tribunal has taken note of the statutory provision
as provided under Rule 69(1)(c) of the Rule, 1972 which put
barrier in disbursement of the amount of gratuity either in course
of pending departmental proceeding or judicial proceeding.

6. The ground has been agitated that the said Rule 1972 has
been adopted by the respondent-CIMFR and as such what has
been argued on behalf of the writ petitioner that the statutory
provision ought to have been considered with flexibility cannot
be said to be acceptable in view of the fact that the moment
statutory provision has been legislated, the same is required to be
followed in its strict sense and the moment there will be any
relaxation in the statutory provision, the same will be said to be
arbitrary exercise of the power of the authority.

7. The learned Tribunal by taking into consideration the
aforesaid aspect of the matter and considering the restriction in
view of the provision of Rule 69(1)(c) of the Rules, 1972, it has
rejected the claim of the writ petitioner for disbursement of the
amount of gratuity, the same cannot be said to be suffered from
an error.

Analysis:

8. We have heard the learned counsel for the parties and gone
across the finding recorded by the learned Tribunal in the
impugned order and factual aspect as available in the pleading.

9. So far as third issue as has been raised by the petitioner in
his submission is concerned i.e. the leave encashment which has
been withheld by the authority in view of the provision of Rule

9 WP(S) No.5927 of 2022
39(3) of CCS(Leave) Rules, 1972 is concerned which has been
declined by the Tribunal to passed positive direction in favour of
the writ petitioner, this Court has gone through the provision as
contained under Rule 39(3) of CCS (Leave) Rules, 1972 and
found there from that the power has been conferred to the
authority to withhold the leave encashment in view of the
provision of Rule 39(3) of CCS (Leave) Rules, 1972.

10. For the reference, Rule 39(3) of CCS (Leave) Rules, 1972
is referred herein:-

“(3) The authority competent to grant leave
may withhold whole or part of cash equivalent
of earned leave in the case of a Government
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
Government dues, if any.”

11. This Court after having referred the statutory provision
and adverting to the finding so recorded by the learned Tribunal
is of the view that if the positive direction has not been passed by
the learned Tribunal with respect to the issue of leave
encashment, the same cannot be said to be suffered from any
error in view of the provision as contained under Rule 39(3) of
CCS (Leave) Rules, 1972.

12. The question which requires consideration in the present

10 WP(S) No.5927 of 2022
writ petition is as to whether the Tribunal while rejecting the
claim of the writ petitioner on the basis of the provision of Rule
69(1)(c) of the Rules, 1972 has erred?

13. This Court before considering the said issue needs to refer
herein the undisputed fact and the law which is applicable to the
parties concerned.

14. Central Civil Services (Pension) Rules, 1972 is the central
legislation to look into the issue of pension/gratuity of the public
servant working under the Central Government. The respondent-
CIMFR although which is not a central government
establishment but under the control of the central government i.e.
under CSIR registered under the Co-operative Society Act. The
CIMFR is to run on the basis of the decision which is to be taken
by the Governing Body. Herein the Governing Body has taken
decision to adopt the CCS (Pension) Rules, 1972.

15. The CCS (Pension) Rules, 1972 since has been adopted by
the CIMFR and the present writ petitioner was working under
the CIMFR and the moment Rule 1972 was adopted, the same
will bind the writ petitioner also since he was an ex-employee of
the CIMFR.

16. Moreover, the issue of adoption has never been challenged
by the writ petitioner before any forum which also clarifies that
the adoption of Rule 1972 will be applicable for all the
employees working under the CIMFR so long as the adoption is
in acceptance.

17. The CCS (Pension) Rules, 1972 deals with the issue of
pension and gratuity that with respect to disbursement and
withholding the benefits of the pension or gratuity. Two Relevant
provisions are necessary to be quoted herein. The first is Rule 9
and the second is Rule 69 thereof.

11 WP(S) No.5927 of 2022

18. Rule 9 deals with the issue of pension while Rule 69 put a
rider.

19. Rule 69 particularly (1)(c) put a rider in disbursement of
the amount of the gratuity, for the ready reference, Rule 9 and
Rule 69 are being referred herein:

“9. Right of President to withhold or withdraw
pension-[(1) The President reserves to himself the
right of withholding a pension or gratuity, or
both, either in full or in part, or withdrawing a
pension in full or in part, whether permanently or
for a specified period, and of ordering recovery
from a pension or gratuity of the whole or 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 service, including
service rendered upon re-employment after
retirement :

Provided that the Union Public Service
Commission shall be consulted before any final
orders are passed :

Provided further that where a part of pension is
withheld or withdrawn the amount of such
pensions shall not be reduced below the amount
of rupees three hundred and seventy-five per
mensem.]
(2) (a) The departmental proceedings referred to
in sub-rule (1), if instituted while the Government
servant was in service whether before his
retirement or during his re-employment, shall,

12 WP(S) No.5927 of 2022
after the final retirement of the Government
servant, be deemed to be proceedings under this
rule and shall be continued and concluded by the
authority by which they were commenced in the
same manner as if the Government servant had
continued in service :

Provided that where the departmental
proceedings are instituted by an authority
subordinate to the President, that authority shall
submit a report recording its findings to the
President.

(b) The departmental proceedings, is not
instituted while the Government servant was in
service, whether before his retirement, or during
his re-employment, –

(i) shall not be instituted save with the sanction of
the President,

(ii) shall not be in respect of any event which took
place more than four years before such
institution, and

(iii) shall be conducted by such authority and in
such place as the President may direct and in
accordance with the procedure applicable to
departmental proceedings in relation to the
Government servant during his service
(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

13 WP(S) No.5927 of 2022
sub-rule (2), a provisional pension as provided in
[Rule 59] shall be sanctioned.

(5) Where the President decides not to withhold
or withdraw pension but orders recovery of
pecuniary loss from pension, the recovery shall
not ordinarily be made at a rate exceeding one-

third of the pension admissible on the date of
retirement of a Government servant.

(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

(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.”

……..

69. Provisional pension where departmental or
judicial proceedings may be pending ”

(1) (a) In respect of a Government servant
referred to in sub-rule (4) of Rule 9, the Accounts
Officer shall authorize the provisional pension
equal to the maximum pension which would have

14 WP(S) No.5927 of 2022
been admissible on the basis of qualifying service
up to the date of retirement of the Government
servant, or if he was under suspension on the date
of retirement up to the date immediately
preceding the date on which he was placed under
suspension.

(b) The provisional pension shall be authorized
by the Accounts Officer during the period
commencing from the date of retirement up to 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 Government
servant until the conclusion of the departmental
or judicial proceedings and issue of final orders
thereon :

1Provided that where departmental proceedings
have been instituted under Rule 16 of the Central
Civil Services (Classification, Control and
Appeal) Rules, 1965, for imposing any of the
penalties specified in Clauses (i), (ii) and (iv) of
Rule 11 of the said rules, the payment of gratuity
shall be authorized to be paid to the Government
servant.

(2) Payment of provisional pension made under
sub-rule (1) shall be adjusted against final
retirement benefits sanctioned to such
Government servant upon conclusion of such
proceedings but no recovery shall be made where
the pension finally sanctioned is less than the

15 WP(S) No.5927 of 2022
provisional pension or the pension is reduced or
withheld either permanently or for a specified
period.”

20. The admitted position herein is that the amount of
pension, has already been finalized in view of the applicability of
the provision of Rule 9(2)(b) of the CCS (Pension) Rules, 1972.

21. Further, admitted position herein is that the writ petitioner
was dealt with by initiation of the departmental proceeding
which culminated into an order of warning. Simultaneous to the
initiation of the departmental proceeding, a criminal case was
also instituted being RC-1A/2003/D7 which has been reported to
be still pending before the competent Court of criminal
jurisdiction at Dhanbad.

22. The writ petitioner has been disbursed with the pension.
The writ petitioner had made a representation for disbursement
of the amount of gratuity questioning the authority that the
amount of gratuity cannot be withheld. The writ petitioner had
approached to the Tribunal when the authority has taken no
decision on the claim which was agitated by filing the
representation for disbursement of the amount of gratuity. The
said claim was rejected by the learned Tribunal after agreeing to
the objection raised on behalf of the respondents with respect to
the applicability of the provision of Rule 69(1)(c) of the
(Pension) Rules, 1972.

23. The law is well settled that if any statutory provision is
there, the same is to be complied with in its strict sense and the
action is to be taken based upon the statutory provision without
any deviation. Therefrom, a reference in this regard made to
Judgment rendered in the case of State of Uttar
Pradesh v. Singhara Singh, reported in AIR 1964 SC 358,

16 WP(S) No.5927 of 2022
wherein it has been held at paragraph 8 as under:

“….its result is that if a statute has conferred a
power to do an act and has laid down the method
in which that power has to be exercised, it
necessarily prohibits the doing of the act in any
other manner than that which has been
prescribed. The principle behind the rule is that if
this were not so, the statutory provision might as
well not have been enacted….”

Reference has also made to the judgment rendered by the
Hon’ble Apex Court in the case of Babu Verghese v. Bar Council
of Kerala, reported in (1999) 3 SCC 422, wherein it has been at
paragraphs 31 & 32 as under:

“31. It is the basic principle of law long settled that
if the manner of doing a particular act is
prescribed under any statute, the act must be done
in that manner or not at all. The origin of this rule
is traceable to the decision
in Taylor v. Taylor which was followed by Lord
Roche in Nazir Ahmad v. King Emperor who
stated as under:

“[W]here a power is given to do a certain thing in a
certain way, the thing must be done in that way or
not at all.”

32. This rule has since been approved by this Court
in Rao Shiv Bahadur Singh v. State of V.P. and
again in Deep Chand v. State of
Rajasthan.
These cases were considered by a
three-judge bench of this Court in State of
U.P. v. Singhara Singh and the rule laid down

17 WP(S) No.5927 of 2022
in Nazir Ahmad case was again upheld. This rule
has since been applied to the exercise of
jurisdiction by courts and has also been
recognized as a statutory principle of
administrative law.”

24. Reference to the judgment rendered by the Hon’ble Apex
Court also needs to be made in the case of Commissioner of
Income Tax, Mumbai v. Anjum M.H. Ghaswala, reported
in (2002) 1 SCC 633, wherein it has been held at paragraph 27
as under:

“….. it is a normal rule of consideration that when a
statute vests certain power in an authority to be
exercised in a particular manner then the said
authority has to exercise it only in the manner
provided in the statute itself….”

25. Reference is also made to the judgment rendered by the
Hon’ble Apex Court in the case of State of Jharkhand v. Ambay
Cements, reported in (2005) 1 SCC 368, wherein it has been
held at paragraph 26 as under:

“….it is the cardinal rule of interpretation that
where a statute provides that a particular thing
should be done, it should be done in the manner
prescribed and not in any other way. It is also
settled rule of interpretation that where a statute
is penal in character, it must be strictly construed
and followed …..”

26. Reference is also made to the judgment rendered by the
Hon’ble Apex Court in the case of Zuari Cement
Ltd. v. Regional Director ESIC Hyderabad (in Civil Appeal
No. 5138-40/2007), reported in (2015) 7 SCC 690, wherein it

18 WP(S) No.5927 of 2022
has been held at paragraph 14 as under:

“14. As per the scheme of the Act, the appropriate
Government alone could grant or refuse
exemption. When the statute prescribed the
procedure for grant or refusal of exemption from
the operation of the Act, it is to be done in that
manner and not in any other manner. In State of
Jharkhand v. Ambay Cements, it was held that :

(SCC p. 378, para 26)

26…. it is the cardinal rule of interpretation that
where a statute provides that a particular thing
should be done, it should be done in the manner
prescribed and not in any other way.”

27. It is the settled position of law that a thing is required to
be done strictly in pursuance to the provisions of law, if any
deviation, then ultimately the provision as contained under the
statute will have no effect.

Herein the pension has been disbursed in favour of the writ
petitioner, in view of the provision of Rule 9.

28. We have considered the provision of Rule 9 wherein there
is no embargo in disbursement of the pensionary benefit either in
course of pending departmental proceeding or judicial
proceeding. Therefore, while finalizing the pension, the
authorities have acted in terms of the provision of Rule 9(2)(b) of
CCS (Pension) Rules, 1972 but while making a position to the
claim of the gratuity before the Tribunal, the reference of
provision of Rule 69(1)(c) of the CCS (Pension) Rules, 1972 has
been raised.

29. This Court has gone through the provision as contained
under Rule 69 which consists of three sub-provision,

19 WP(S) No.5927 of 2022
1(a)(b)(c)& 2. Herein the facts and circumstances, the (1)(C) is
relevant when the embargo has been created in disbursement of
the amount of gratuity in case of either the pending departmental
proceeding or judicial proceeding.

30. Herein admittedly, a departmental proceeding has been
culminated by passing an order of warning but the fact about
pending judicial proceeding is admitted one. Therefore, if the
learned Tribunal has accepted the objection so raised by the
respondent before it by making reference of provision of Rule
69(1)(c) of the CCS (Pension) Rules, 1972 which according to
our considered view cannot be said to be suffer from an error, in
view of the principle that if the statute provides a provision, the
same is to be adhered to in its strict sense.

31. This Court is conscious with the power which is to be
exercised under Article 226 of the Constitution of India as has
been laid down by Hon’ble Apex Court in the case of L.
Chander Kumar Versus Union of India, (1997)3 SCC 261and
its para 99 needs to be referred herein:-

“99. In view of the reasoning adopted by us, we hold
that clause 2(d) of Article 323-A and clause 3(d) of
Article 323-B, to the extent they exclude the
jurisdiction of the High Courts and the Supreme
Court under Articles 226/227 and 32 of the
Constitution, are unconstitutional. Section 28 of the
Act and the “exclusion of jurisdiction” clauses in all
other legislations enacted under the aegis of Articles
323-A and 323-B would, to the same extent, be
unconstitutional. The jurisdiction conferred upon the
High Courts under Articles 226/227 and upon the
Supreme Court under Article 32 of the Constitution is
a part of the inviolable basic structure of our
Constitution. While this jurisdiction cannot be ousted,
other courts and Tribunals may perform a
supplemental role in discharging the powers
conferred by Articles 226/227 and 32 of the
Constitution. The Tribunals created under Article

20 WP(S) No.5927 of 2022
323-A and Article 323-B of the Constitution are
possessed of the competence to test the constitutional
validity of statutory provisions and rules. All
decisions of these Tribunals will, however, be subject
to scrutiny before a Division Bench of the High Court
within whose jurisdiction the Tribunal concerned
falls. The Tribunals will, nevertheless, continue to act
like courts of first instance in respect of the areas of
law for which they have been constituted. It will not,
therefore, be open for litigants to directly approach
the High Courts even in cases where they question the
vires of statutory legislations (except where the
legislation which creates the particular Tribunal is
challenged) by overlooking the jurisdiction of the
Tribunal concerned. Section 5(6) of the Act is valid
and constitutional and is to be interpreted in the
manner we have indicated.”

32. The High Court under Article 226 of the Constitution of
India is to consider the propriety or impropriety of the order
passed by the Tribunal under the power of judicial review and
the judicial review has been interpreted by the Hon’ble Apex
Court that is there is any error apparent on face of order, then
such order needs to be interfered with.

33. The error apparent on the face of the order means that if
the order appears on its face having with error, then only the
power of judicial review is to be exercised.

34. In the case of West Bengal Central School Service
Commission v. Abdul Halim, (2019) 18 SCC 39, their Lordships
have been pleased to hold at paragraph-30 that the power of
judicial review must be exercised by the Court after determining
that the impugned order is vitiated by an error apparent on the
face of the record and not the same has been established by a
process of reasoning. Paragraph-30 of the aforesaid judgment is
being referred as under:

“30. In exercise of its power of judicial review, the

21 WP(S) No.5927 of 2022
Court is to see whether the decision impugned is
vitiated by an apparent error of law. The test to
determine whether a decision is vitiated by error
apparent on the face of the record is whether the
error is self-evident on the face of the record or
whether the error requires examination or argument
to establish it. If an error has to be established by a
process of reasoning, on points where there may
reasonably be two opinions, it cannot be said to be
an error on the face of the record, as held by this
Court in Satyanarayan Laxminarayan
Hegde v. Millikarjun BhavanappaTirumale
[Satyanarayan Laxminarayan Hegde v. Millikarjun
Bhavanappa Tirumale, AIR 1960 SC 137]. If the
provision of a statutory rule is reasonably capable of
two or more constructions and one construction has
been adopted, the decision would not be open to
interference by the writ court. It is only an obvious
misinterpretation of a relevant statutory provision, or
ignorance or disregard thereof, or a decision founded
on reasons which are clearly wrong in law, which can
be corrected by the writ court by issuance of writ of
certiorari.”

35. Similarly, the Hon’ble Apex court in the case of
Municipal Council, Neemuch v. Mahadeo Real Estate (2019)
10 SCC 738 has held as under : (SCC p. 746, para 16)
“16. It could thus be seen that an interference by the
High Court would be warranted only when the
decision impugned is vitiated by an apparent error of
law i.e. when the error is apparent on the face of the

22 WP(S) No.5927 of 2022
record and is self-evident. The High Court would be
empowered to exercise the powers when it finds that
the decision impugned is so arbitrary and capricious
that no reasonable person would have ever arrived
at. It has been reiterated that the test is not what the
Court considers reasonable or unreasonable but a
decision which the Court thinks that no reasonable
person could have taken. Not only this but such a
decision must have led to manifest injustice.”

36. Further, In the case of T.C. Basappa v. T. Nagappa, (1954) 1
SCC 905 : (1955) 1 SCR 250, their Lordship have held that the
patent error in a decision can be corrected by writ of certiorari,
when it is manifested by the error apparent on the face of the
proceedings. The relevant portion of the aforesaid judgment is
quoted hereunder:

“11. … An error in the decision or determination
itself may also be amenable to a writ of certiorari
but it must be a manifest error apparent on the face
of the proceedings e.g. when it is based on clear
ignorance or disregard of the provisions of law. In
other words, it is a patent error which can be
corrected by certiorari but not a mere wrong
decision…..”

37. Thus, on the basis of the aforesaid settled legal position it
is evident that the power of judicial review can be exercised, if
error on the face of the order impugned, challenged under the
Article 226 of Constitution of India, appears to be there.

38. This Court based upon the discussion made herein above
and taking into consideration the fact that the Tribunal after
considering the statutory provision as contained under Rule

23 WP(S) No.5927 of 2022
69(1)(c) of the CCS (Pension) Rules, 1972, since has declined to
pass positive direction in favour of the writ petitioner which
according to our considered view cannot be said to suffer from
an error and as such in view of the power of judicial review, such
order needs no interference.

39. At this juncture, Mr. Rupesh Singh, learned counsel
appearing for the writ petitioner has submitted that the writ
petitioner has approached to the Tribunal, however, the Tribunal
has rejected the Original Application with a cost of Rs.5000/-

40. He has questioned the said part of the order that why cost
if the forum has been created under the Constitution, nobody can
be debarred from approaching the forum irrespective of the
results and imposing cost of Rs.5000/- is nothing, rather, by way
of penalty.

41. This Court on consideration of the said submission is of
the view that the petitioner even though conscious with the
statutory provision as provided under Rule 69(1)(c) of the CCS
(Pension) Rules, 1972 if he has approached to the learned
Tribunal, the exercise is said to be sufficient by the concerned
forum by answering the issue on merit and imposing cost by the
forum will amount to depriving such litigant concerned to
approached the Court of law for the purpose of consideration of
the grievance by raising the points for its consideration. The
points may not be said to be positive consideration or it may go
negative to the litigant concerned but imposing cost will be said
to be deterrent that as to why such litigant has approached to the
Court of law.

42. The cost can be imposed if the forum has been approached
on misconceived ground or by way of making a misleading
statement but we after having heard the learned counsel for the

24 WP(S) No.5927 of 2022
writ petitioner and going through the pleading has tried to justify
the claim that when the pension has been given why not gratuity.
However, the said aspect of the matter we have already dealt
with hereinabove.

43. This Court is therefore, of the view that part of the order
by which the cost of Rs.5000/- has been imposed needs to be
interfered with.

44. Accordingly, that part of the order of imposing cost of
Rs.5000/- is hereby set aside.

45. The instant writ petition stands disposed of.

46. Pending IAs, if any, also stands disposed of.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.)
Basant/S.Das

25 WP(S) No.5927 of 2022

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