Central Administrative Tribunal - Jaipur
Balbir Singh vs M/O Communications on 12 May, 2022
(OA No.129/2021)
(1)
Central Administrative Tribunal
Jaipur Bench, Jaipur
O.A.No.129/2021
Reserved on:05.05.2022
Pronounced on:12.05.2022
Hon'ble Mr. Dinesh Sharma, Member (A)
Hon'ble Mrs. Hina P. Shah, Member (J)
Balbir Singh S/o Late Sh Ram Dev Singh, aged about 61
years, R/o 12/56, New Housing Board, ShivSingh Puri, Sikar,
Rajasthan Superannuated as Deputy Director General,
Telecom Security, Gujrat, Senior Administrative Grade-I,
Indian Telecommunication Services.
...Applicant.
(By Advocate: Ms.Parmeshwari Choudhary)
Versus
1. Union of India through its Secretary, to the
Government of India, Ministry of Telecommunications,
Sanchar Bhawan, 20, Ashok Marg, New Delhi-01.
2. Senior Deputy Director General, Gujrat License Service
Area (LSA), Ahmadabad, Department of
Telecommunications, 1st Floor, P&T Administrative
Building, Khanpur, Ahmedabad, Gujarat-380001.
...Respondents.
(By Advocate: Shri Anand Sharma)
ORDER
Per: Dinesh Sharma, Member (A):
In this OA, the applicant has prayed for apparently unconnected diverse reliefs, such as, non-functional upgradation along with persons of his batch, from the year 2019, release of full salary for the period of his suspension (10.04.2019 to 08.10.2019) and release of gratuity and (OA No.129/2021) (2) other retiral dues on his superannuation on 31.07.2020. The reason for clubbing all these reliefs is that all these actions of the respondents are apparently a result of the applicant's conviction by a criminal court, for an alleged offence Under Sections 498A & 304B of the IPC. The applicant has alleged that he has already filed an appeal before the Hon'ble High Court which has stayed the conviction and also suspended the sentence. In any case, the punishment is for an offence unconnected with his official work and has caused no pecuniary loss. Hence, denial of Non-Functional Upgradation or the pay for the period of suspension, or the gratuity and any other retiral benefits, is not permissible in law. It is also against the judicial pronouncements in this matter.
2. The respondents have denied the claims made by the applicant. It is stated that the case of the applicant for Non- Functional Upgradation was considered by the concerned committee. Their advice about his suitability for the same as been kept in a sealed cover, due to the conviction of the applicant for a serious offence involving moral turpitude and the pendency of his appeal against such conviction. No decision can be taken on the matter of pay during his deemed suspension on account his conviction and going to jail, till a final decision is taken by the Hon'ble High Court on the conviction (which is only stayed and not set aside). The (OA No.129/2021) (3) applicant had been served with a notice under Rule 19 (i) of the CCS (CCA) Rules, 1965 asking him to show cause why he should not be punished with dismissal from service on account of his having been convicted by a criminal court for a serious offence of dowry death. No further action could be taken on this notice, too, on account of the stay on conviction and punishment of sentence by the Hon'ble High Court. The gratuity has been withheld following Rule 69 (1) (C) of the CCS (Pension)Rules, 1972 since no final orders have been passed in the judicial proceedings.
3. The applicant filed a rejoinder reiterating the claims made in the OA and also correcting a typographical error in the OA (Non-Functional Upgradation instead of Functional Upgradation)
4. The matter was finally heard on 05.05.2022. The learned counsel of both the parties reiterated the respective stands taken in their pleadings. The learned counsel for the applicant filed the following decisions, at the end of the arguments, in support of her arguments:
i) H.R.Choudhary vs. C A T Jaipur and Others decided by the Rajasthan High Court on 27.01.2017 in D.B.Civil Writ Petition No.12437/2012.
(OA No.129/2021) (4)
ii) Syed Sagar Ali vs. Govt. of India through Secretary & Others decided by the Principal Bench of this Tribunal on 08.03.2019 in OA No.3910/2016.
5. We have gone through the pleadings, heard the arguments and also gone through the judgments produced by the learned counsel for the applicant in detail. There is no dispute over facts in this case. The applicant has been punished by a criminal court for a serious offence, for his complicity in the death of his daughter in law, that was found by the trial court as a dowry death. The applicant was punished with imprisonment for life and fine for Rs.50,000. This conviction and punishment have been stayed by the order of the Hon'ble High Court, which is annexed at Annexure-6. The applicant claims that this punishment is no bar for his promotion, release of full salary during the period of suspicion and release of his full retirement dues since, firstly, the conviction has been stayed by the Hon'ble High Court, and secondly, the offence for which he has been punished is not related to his official work and he has not caused any financial loss to the Government which may warrant stopping his gratuity. The respondents have quoted Rules [Rule 69 1 (C) of the CCS (Pension)Rules, 1972, Rule 19 (i) of the CCS (CCA) Rules, 1965 and rules relating to sealed cover procedure under which they have taken all those actions challenged by the applicant. The applicant has (OA No.129/2021) (5) not challenged the vires of any of these rules. His claim is thus, mainly based on the judicial pronouncements produced by him to support his claims. Though given time, no decisions were produced by the respondents in support of their claim. Thus, to sum up the two sides' arguments in a concise (though perhaps not very exact) way, the respondents' claim is supported by written rules while the applicant's claim is based on the decisions of the Courts/Tribunal on this matter. Needless to mention, both these form the law of the land. We are bound to follow the rules, as interpreted by the higher courts, under similar circumstances.
6. The Rule 69 1 (C) of the CCS (Pension) Rules, 1972 forbids release of gratuity and other benefits on retirement if any disciplinary or judicial proceedings are pending against a person, till a final order is passed in those disciplinary/judicial proceedings. Rule 19 (i) describes circumstances when a punishment can be imposed on a person without following the process of disciplinary inquiry, if a person has been convicted by a court of law. There are rules/directions about following the sealed cover procedure if any disciplinary action is pending against a person at the time of consideration of promotion, and a "sealed cover procedure" is prescribed. This sealed cover is opened only if (OA No.129/2021) (6) a person is exonerated at the end of such disciplinary/criminal proceeding. Since there is no serious dispute about these rules quoted by the respondents, we are not reproducing them here to avoid needlessclutter. The applicant has questioned the applicability of these rules in his case on account of the decisions of the courts cited by him. These are discussed in the next paragraph.
7. The first decision is that of Hon'ble Rajasthan High Court in H.R. Choudhary vs. CAT and Ors. (supra). The facts of that case, it is argued by the learned counsel for the applicant, are very similar to the case before us. In that case, too, like in the present case, the petitioner was convicted on a criminal charge for the death of his daughter- in-law(under Section 306 IPC, conviction on 16.12.2004). The petitioner retired on 31.12.2004. The gratuity of petitioner was not released quoting the same rule (as in the present case) and the petitioner was also issued notice under Rule 19 (i) on his conviction (as done in the present case). In that case, too the appeal against the conviction was still pending (till the year of that judgment in 2017). The Hon'ble High Court, under those circumstances, held the withholding of full pension and gratuity to be arbitrary and illegal. The Hon'ble High Court, in the course of arriving at that judgment, found the issue of notice under Rule 19 of (OA No.129/2021) (7) the CCS Rules as completely misconceived. We are quoting that portion of the judgment verbatim here:
"...It is therefore apparent that penalty leading to conviction on a criminal charge under Rule 19(i) has to be with regard to a conduct associated with discharge of government duties. The show cause notice under Rule 19 of the CCS Rules was therefore completely misconceived."
8. The Hon'ble High Court has made similar observation in the context of Rule 69 also, and we are reproducing that portion also, verbatim:
"Rule 69 of the Pension Rules provides for grant of provisional pension where departmental or judicial proceedings are pending. Even if the appeal against conviction preferred by the Petitioner be treated as a continuation of the criminal case, the words "judicial proceeding" will naturally have to be read in the context of the rules as being confined to a proceedings related to conduct in service which led to conviction on a criminal charge. To read into it the pendency of an appeal preferred by the petitioner against his conviction under Section 306 IPC to withhold full pension would be doing complete violence to Rule 69 and shall be completely beyond its jurisdiction and scope. In (2009) 3 SCC 709 (Paul Enterprises v. Rajib Chatterjee & Co.) it was observed as follows:-
"24. In a situation of this nature, the interpretation clause should be given a contextual meaning. It is not exhaustive. It is trite that when a statutory enactment defines its terms, the same should govern what is proved, authorized or done under or by reference to that enactment..."
The counter affidavit filed by the Respondents before the Tribunal is a bundle of contradictions reflecting a state of complete apathy unconcerned with the duty to assist the Tribunal in dispensation of justice. The Respondents acts through its (OA No.129/2021) (8) officers who are reposed power in trust to be used in good faith to protect (6 of 7) [CW-12437/2012] the interest of the Respondents and not to involve it in unnecessary litigation frittering away time and money. We are constrained to observe that the trust has been completely belied by action reflecting complete non application of mind if not in abuse of the trust placed. The shifting stands taken in official orders and that before the Tribunal has resulted in illegal denial of full pension and gratuity to the petitioner since his superannuation in the year 2004. Regrettably, the Tribunal failed to grasp issues for consideration properly.
A superannuated employee has no other source of income. Any deprivation of superannuation benefits therefore has serious consequences for the retired employee and his family. He may have to garner resources at this stage at considerable cost to maintain his standard of living or alternately be forced to reduce his standard of living for no fault of his. Pension and gratuity are not bounty but constitute a right to property under Article 300A of the Constitution which cannot be deprived except in accordance with law."
9. The learned counsel for the applicant argued that in the light of such clear verdict, under almost similar circumstances, the Tribunal has no option but to follow the verdict and decide the OA in favour of the applicant. We do not deny that there is a frightening similarity in the facts of the two cases since both the cases, regrettably, relate to unfortunate loss of lives of young daughters-in-law, for which the fathers in law (who were Government employees and by a strange co-incidence, belong to the same parent Department (Telecom) and also perhaps the same community). However, we are relieved to see that the (OA No.129/2021) (9) similarities end here and we see enough distinctions in the facts of that case and the case before us to allow us to take a decision not exactly bound by the decision of the case cited. In the cited case, the incident happened in the year 2004 and the matter lingered, without a final decision, till the year 2017. A long delay of 13 years would have itself given a sufficient justification to the Hon'ble High Court to take a lenient view. We also do not see any mention, in that case, that there was a charge of causing dowry death (Section 304 B of the IPC). Seeking, receiving or abetting seeking and receiving of dowry is not just a personal misconduct, it is also an official misconduct (under Rule 13- A) of the Civil Services Conduct Rules. Causing dowry death, within one year of the marriage (an offence for which the applicant has been convicted, after trial by a criminal court), cannot, by any stretch of rules, be taken away from the purview of actions attracting disciplinary action. Such action cannot be put under the level of private failings of a criminal nature (which may include, under certain circumstances, even serious crimes like murder (as happened in the other case cited by the applicant, Syed Sagar Ali), since that action may not strictly come within the purview of a misconduct attracting disciplinary action against a public servant.
(OA No.129/2021) (10)
10. Thus, we are fully convinced that the facts and circumstances of the present case, though appear to be similar, are vastly different from those of H.R. Choudhary case (supra) cited by the applicant. In that case, the conviction was for abetment to suicide. Though this was also one of the alternate charges against the applicant in the present case, he has been punished under 304 B (dowry death), a very heinous crime involving moral turpitude and also one that is clearly against the Conduct Rules, attracting severe punitive action including dismissal. The action for such dismissal was initiated against the applicant and has been stayed only because of the stay granted by the Hon'ble High Court. The Hon'ble High Court have themselves made it clear in their order staying the conviction, that it is to spare the applicant, during the period the matter remains sub- judice, from such dismissal (refer page 7 of the decision at Annexure-6). The action taken for dismissal, is therefore, correctly kept in abeyance by the respondents. We cannot ask them to give him promotions and other benefits, which the rules clearly prohibit release of (or direct to be kept in sealed cover) on account of pending disciplinary or criminal proceedings. The criminal proceedings in the present case are on account of an action of the applicant which is clearly prohibited under the official conduct rules. Since a penalty of dismissal (which may even debar a person from getting (OA No.129/2021) (11) pension), on conclusion of such cases, when initiated during the service, is not barred by law, not releasing gratuity, as clearly prescribed under the rules, under these circumstances, cannot be interfered with. To conclude, pension and gratuity, or a claim to maintain a certain standard of living, is not a fundamental right. A person can, sometimes, be deprived of these, as mentioned by the Hon'ble High Court in the concluding part of the paragraph quoted above, in accordance with law. Since the actions taken by the respondents are strictly as per the laws and rules, and since the decision cited by the applicant does not apply on the facts of the present case (conviction on account of causing dowry death), we see no reason to interfere with the decisions of the respondents.
11. The other case [Syed Sagar Ali case (supra)] cited by the applicant is a decision by a co-ordinate, (Single) Bench of this Tribunal. We are not, by law, bound to follow such decision. The decision, in any case, is in a matter of a criminal act (murder) under circumstances totally unconnected with official dealings. Though it may be said that the Civil Service Conduct Rules, do require civil servants to be law-abiding (and not to be murderous), it is not an act specifically mentioned (like not accepting, receiving or abetting dowry is) in the conduct rules. Hence, there might (OA No.129/2021) (12) be some justification for the treatment given to the applicant in Syed Sagir Ali case. In any case, we respectfully disagree with the findings of the Coordinate Bench (expressed in Para 14 of that judgment) that withholding of dues is permissible "only if certain action on the part of the employee has caused certain losses to the department". There could be a bigger loss (than just financial loss) to the society and to the reputation of the Government, if the Government servants routinely indulge in social evils like dowry (and dowry killing), and keep enjoying the fruits of Government service. Any intervention, based on such limited interpretation of a provision to only cases involving financial loss, in the context of the facts of the present case, is,in our humble opinion, not justified.
12. For reasons given, in detail, in the previous paragraphs, the OA is not allowed. No costs.
(Hina P. Shah) (Dinesh Sharma) Member (J) Member (A) /kdr/