Central Administrative Tribunal - Lucknow
Subhash Chandra Agrawal vs Union Of India on 23 August, 2022
CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH
Original Application No. 332/00051/2013
Order reserved on : 04.04.2022
Order pronounced on : 23.08.2022
CORAM
HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A),
HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER (J)
Subhash Chandra Agrawal (Staff No. 90377) aged
about 62 years, son of Late Nanak Chandra Agrawal,
Resident of - M-46, Sanjay Gandhi Puram, Faizabad
Road, Lucknow.
..Applicant
By Advocate: Shri Dharmendra Awasthi
VERSUS
1. Union of India through- Secretary, Ministry of
Communication & IT, Govt. of India, Department of
Telecommunications, Sanchar Bhawan, 20, Ashoka
Road, New Delhi.
2. Senior Deputy Director General (BW), Department of
Telecommunications, Sanchar Bhawan, 20, Ashoka
Road, New Delhi.
3. Bharat Sanchar Nigam Limited through-Chairman-
cum Managing Director, 4th Floor, Bharat Sanchar
Bhawan, Janpath, New Delhi.
4. Union Public Service Commission, Dholpur House,
Shahjahan Road, New Delhi through-Secretary.
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CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors.
5. The Principal Chief Engineer (Civil), UP(E) Circle,
Bharat Sanchar Nigam Limited, Laplace Building,
Lucknow.
..Respondents
By Advocate: Shri Shatrohan Lal
ORDER
Per Hon'ble Mr. Devendra Chaudhry, Member (A) This Original Application (OA) is filed against the order dated 14.08.2012 issued by the respondent no. 1 whereby the penalty of withholding 100% monthly pension on permanent basis as well as forfeiture of entire gratuity has been imposed.
2. Per applicant, brief facts are that he was appointed initially on the post of Sectional officer in the then Postal and Telegraph Department in the U.P. Circle, Lucknow which post was later re-designated as Junior Engineer (Civil) in 1986. He was promoted to the post of Assistant Engineer (Civil) in 1989 and was posted in Bhubaneswar, Orissa. In 1995 there was raid by CBI at his residence and a case under Prevention of Corruption Act, 1988 [P.C. Act] was registered against him. Separately the respondents issued Charge Sheet under Rule 14 of CCS (CCA) Rules, 1965 on 16.08.1999 and the punishment that the pay be reduced by one stage in the time scale of pay for a period of one year with immediate effect and that shri S C Agarwal, AE, will not earn increments of his pay Page 2 of 26 CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors. during the period of such reduction and, on expiry of the period, the reduction will have the effect of postponing the future increments of his pay was imposed vide order 10/11/2006. The applicant attained superannuation from the post of Assistant Engineer (Civil), UP (East) Circle, Lucknow and has been granted retiral dues except Gratuity and Commutated value of pension. Provisional pension has also been granted. The applicant was convicted in the case registered under P.C. Act vide order dated 10/03/2011 of the CBI court against which he appealed before the Hon‟ble High Court, Orissa, Cuttack, which was pleased to admit his case and called for LCR while realizing the applicant on bail.
Consequently, the respondent no. 1 has issued a Memorandum dated 27/06/2011 under Rule 9 (1) of CCS (Pension) Rules, 1972 pursuant to the judgment of conviction through a covering letter dated 12/08/2011. The applicant replied to the same vide 06.01.2012. The respondent no.1 requested the respondent no. 4, UPSC to tender its advice in the matter who advised for imposing withholding of 100% monthly pension on permanent basis and forfeiture of 100% gratuity as punishment vide advice dated 06.07.2012. That the respondent no. 1 thereupon without inviting any further objections or application of own mind acted on the advice of UPSC and issued the punishment order dated 14.08.2012. Page 3 of 26
CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors. The grounds taken per para-5 by the applicant in the O.A. are as under:
Reproduce para-5 of O.A. "5.1 Because, the advice tendered by the respondent no. 4 to the respondent no. 1 has not been supplied to the applicant before passing of the order dated 14.08.2012, though it has been fully relied by the respondent no.1.
5.2 Because, the punishment order dated 14.08.2012 is bad in the eyes of law as it amounts to Double-Jeopardy to the applicant as the applicant has earlier punished by the respondents for almost for the same charges vide order dated 10.11.2006.
5.3 Because, the punishment order dated 14.08.2012 is bad in the eyes of law as the Special Judge (CBI) has himself grant four months time for preferring the appeal by the applicant, if any, before Appellate Court and the applicant preferred Criminal Appeal No. CRLA No. 184 of 2011 before Hon‟ble High Court, Orissa, Cuttack against order dated 10.03.2011 passed by Learned Special Judge (CBI), Bhubaneswar in TR No. 137/05 of 99/98 on 23.03.2011.
5.4 Because, Hon‟ble High Court, Orissa, Cuttack has been pleased to Admit and Call for the LCR in the Criminal Appeal No. CRLA No. 184 of 2011 and further been pleased to Stay the realization of fine and the applicant has been released on bail.
5.5 Because, the judgment dated 10.03.2011 passed by Learned Special Judge (CBI), Bhubaneswar has never been executed as the Hon‟ble High Court, Orissa, Cuttack has been pleased to Admit and Call for the LCR in the Criminal Appeal no. CRLA No. 184 of 2011 and further been pleased to Stay the realization of fine and the applicant has been released on bail.
5.6 Because, the applicant has not been send behinds the bar even for a single day as the judgment passed by Learned Special Judge (CBI), Bhubaneswar has been found erroneous by the Hon‟ble High Court, Orissa, Cuttack and accordingly been pleased to stay the realization of fine and the applicant has been released on bail.
5.7 Because, the order dated 14.08.2012 is contrary to the provisions of CCS (Pension) Rules, 1972 as the rules do not provide withholding of 100% monthly pension on permanent basis though it provides right of Hon‟ble President to withhold or withdraw pension but it do not include by way of punishment.
5.8 Because, the impugned order is violative of Article 14, 20 and 21 of the Constitution of India and as such the same is liable to be quashed out rightly.Page 4 of 26
CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors. 5.9 Because, any provision of any Rule, Law and Constitution on the earth of India do not provide power to any authority to snatch the source of livelihood even from the hard core criminals without any judicial order passed by competent court of law to do so. 5.10 Because, the punishment order is too excessive, if the applicant will not get the pension monthly, he will not be able to survive even for single year and probably the respondents have not think this aspect of the matter before passing the order dated 14.08.2012.
5.11 Because, the applicant has full faith and belief in judiciary and is of the firm belief that he will get justice from Hon‟ble High Court, Orissa, Cuttack but till then respondents may be stooped to snatch the source of livelihood from the applicant. 5.12 Because, the impugned order is against the law laid down by the Hon‟ble Supreme Court in the case of S.K. Kapoor. 5.13 Because, the respondent no. 1 without application of its mind issued the punishment order dated 14.08.2012." Hence, the O.A.
3. Respondent Nos. 1, 2 and 4 have filed counter in which they have rebutted the assertion of the applicant on the grounds that -
(i) the advice of Respondent No. 4 which is the UPSC is a quasi-judicial in nature and is as per Rule 9(1) of the Pension rules laid down for conduct of disciplinary proceedings for a superannuated employee against whom disciplinary proceedings are undertaken;
(ii) the competent authority after consideration of all facts and circumstances on the case and consideration also of the advice of UPSC imposed the impugned punishment, meaning thereby that the disciplinary authority has not acted mechanically on UPSC‟s advice but applied his/her own mind and arrived at the independent conclusion with regards to the punishment, Page 5 of 26 CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors.
(iii) the competent authority before issuing the final penalty order dated 14.08.2012 provided full opportunity to the applicant vide the memorandum dated 27/06/2011 for furnishing his defense to which the applicant replied vide 06/01/2012
(iv) the earlier penalty order dated 10.11.2006 was issued by the competent disciplinary authority after conclusion of departmental disciplinary under CCS (CCA) Rules, 1965 and the impugned order is under Rule-9(1) and Rule-6(b) of the CCS (Pension) Rules, 1972 per the conviction of the applicant by the CBI judge‟s order dated 10.03.2011 and so, the earlier penalty order dated 10.11.2006 has no relevance in the context of the impugned order dated 14.08.2012. Therefore, there is no relation between the two processes as they are under different Rules
(v) the Hon‟ble High Court has only suspended the jail sentence and not set aside the conviction itself beyond any doubt and so mere filing of appeal or stay of execution of sentence does not take away the effect of conviction as per law laid down by the various courts and so the applicant is still liable for punishment
(vi) since the applicant has superannuated in the meanwhile hence the action under Rule 9 of CCS (Pension) Rules, 1972 whereby the President reserves himself the right of Page 6 of 26 CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors.
withholding the pension or gratuity or both in full or in part, or withdrawing of pension in full or in part, whether permanently or for a specified period and finally (vii), the applicant has not exhausted all the remedies inasmuch that per rule 29-A of the CCS (CCA) Rules, 1965, the applicant has a remedy to file Review Petition for consideration of President but the same has not been done and hence the applicant has not exhausted all remedies and so the OA is not admissible. 3.1 The respondent nos. 3 and 5 have also filed counter in which the similar facts reiterated apart from filing application for deletion of their names from the array of the parties. The applicant has also filed rejoinder, wherein, while denying the assertions made in the counter, it is further submitted that (a) the impugned order is bad in eyes of law per the judgment and order dated 14.08.2013 passed by Hon‟ble Supreme Court in the matter of State of Jharkhand & Others vs. Jitnedra Kumar Srivastava & Another, (b) a charge sheet under Rule 14 of the CCS (CCA) Rules, 1965 was issued against the applicant vide memo dated 16.08.1999 for almost the same charges as have been alleged by the CBI and so the punishment order dated 14.08.2012 amounts to double jeopardy, (c) the impugned order is also bad in the eyes of law because contrary to the CCS (Pension) Rules, 1972 there is no provision to withhold Page 7 of 26 CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors. 100% monthly pension on permanent basis and finally (d) the punishment order is too harsh and excessive.
Supplementary counter reply has been filed to the rejoinder filed by the applicant in which it is submitted that (i) the prosecution sanction was issued in the year 1997 when the applicant was in service but since after the judgment of CBI Court vide March, 2011, the applicant had already retired from service by then, hence punishment had to be lawfully imposed which lawfully is not possible under Rule 19 of CCS (CCA) Rules, 1965 as is done in the normal cases of conviction where government servant are still in service, therefore, action was taken under Rule 9/6(b) of CCS (Pension) Rules, 1972, (ii) the first disciplinary action was initiated on the basis of specific charges mentioned in the said Charge Sheet and penalty order dated 10.11.2006 which was issued accordingly by the competent disciplinary authority whereas the second order dated 14.08.2012 was issued by the disciplinary authority after the conviction of the applicant by the CBI and as per Rule 6(b) of the CCS (Pension) Rules, 1972, (iii) the President has full right withhold 100% monthly pension as per Rule 9 (1) of the CCS (Pension) Rules, 1972 and the suspension of the sentence is not setting aside of the conviction and as per DoPT OM dated 04.03.1994 the applicant is liable for punishment.
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CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors. Supplementary rejoinder has also been filed by the applicant in which it is stated that the supplementary counter reply need not be read because it is not filed with due permission of the Court. The supplementary rejoinder reiterates the points made in the rejoinder reply.
4. Heard the ld counsels for both the parties at length and perused all the pleadings filed carefully.
5. The key issues are (i) whether the applicant has been imposed punishment tarnished by the effect of double jeopardy, (ii) whether the punishment of withholding of 100% pension is lawful.
6. As regards consultation with UPSC the same is provided for in the Proviso to Rule 9(1) of the Pension rules as may be seen in the extracts below. Therefore, the respondents / disciplinary authority has not erred by consulting the UPSC. Rule 9(1) CCS (Pension) Rules, 1972 "..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:Page 9 of 26
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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..."
6.1. As regards the plea that 100% withholding of monthly pension cannot done by the President, the same unfortunately is misreading of law by the applicant. Rule 9 of the Pension rules extracted above makes it abundantly clear. Evidently, the punishment of full withholding of pension and commutation amount can be imposed by the President after compliance of the due process of law. Therefore, the punishment order is valid on this ground.
6.2 As regards double jeopardy, it is to be first of all noted that two Charge Sheet have never been issued. What has been in fact issued is - (a) the only Charge Sheet issued is of date 16/08/1999 which was in the aftermath of the CBI raid but the Charges per the Inquiry report dated 04/04/2006 (Annexure A-2) supplied by the applicant do not allude to the charges framed by the CBI at all. For clarity the relevant portions of the Charges [copy of Charge Sheet not supplied by the applicant or the respondents] as stated in the Inquiry report dated 04/04/2006 reproduced herein below:
"..CHARGES THAT WERE FRAMED IN RULE -14 CASE AGANST SHRI S.C. AGARWAL, AE (CIVIL) VIDE CGMT (O) MEMO No. Vig/8-138/98 dated 16.08.99 Shri S.C. AGARWAL while working as AE, Telecom Civil Sub- Division-II Page 10 of 26 CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors.
Bhubaneswar during 1990-1995 acquired the following immovable and movable properties in his name and in the name of his wife Smt. RENU AGARWAL.
01. Constructed a building on Plot No. M/46 at SANJOY GANDHI PURAM, PAIZABAD ROAD, LUCKNOW valued Rs.6,73,750/- in the name of his wife.
02. Purchased a piece of plot from UNITECH AT SOUTHI CITY LUCKNOW in his name for Rs.88,427/-.
03. Purchased a piece of plot from NAVAJIVAN GRIHANIRMANA SAHAKARI SAMITI, JAIPUR, RAJASTHAN in the name of his wife.
04. Purchased one TVS SUZUKI from M/S ASHIRBAD, JANPATH, BHUBANESWAR at Rs.17,596.80 in his own name.
05. Made investment of Rs.25,000/- each in his name & in the name of wife in Cumulative fixed deposit of EMPIRE FINANCE CO LTD.
06. Made investment of Rs.25,000/ each in his name & in the name of wife in SRIRAM INVESTMENT SPECIAL DEPOSTTS.
07. Made investment of Rs.36,710/- in his own name & in the name of wife in UTI US-64
08. Shri. S.C. AGARWAL did not intimate the transactions of the above movable and immovable properties to his competent authority, thereby committed grave misconduct by violating provisions of Rule- 18 (2) & (3) of CCS Conduct Rules- 1964..."
The Charge Sheet itself was issued vide Disciplinary Proceedings under CCS (CCA) Rules, 1965 („CCS Rules‟ in short hereinafter), and there was no connection with the CCS (Pension) Rules, 1972 [hereinafter referred to as „Pension Rules‟] because the applicant was still in active service. On the other hand, what has to be clearly kept in mind is that the Memorandum dated 27/06/2011 has been issued as a consequence of the applicant‟s retirement resulting in action under Rule-9(1) and Rule 9(6)(b). It is important here to examine rule-9 as a whole is extracted below:
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Rule 9 of the CCS (Pension) Rules, 1972
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, 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, if 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 which an order of dismissal from service could be made in relation to the Government servant during his service.Page 12 of 26
CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors. (3) omitted (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 sub-rule (2), a provisional pension as provided in Rule 69 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.
Clearly, Rule-9(6)(b) provides for what is a deemed judicial proceeding and Rule 9(1) provides for the President to be able to impose punishment in any judicial proceedings. The key point is that the President can impose punishment under Rule 9 either on account of a Judicial proceedings. This is the crux inasmuch that the Memorandum of 2011 was issued per the Pension Rules as aforesaid and the Charge Sheet of 1999 was issued per the CCS (CCA) Rules, 1965. That no two Page 13 of 26 CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors. Charge Sheets were ever issued. The Memorandum of 2011 was as per Pension Rules and there was no fresh inquiry or Charge Sheet or Disciplinary Proceedings and that, the action of issue of Memorandum was only and only under the Pension Rules under which the opportunity of hearing was given to the applicant vide the Memorandum and there is neither any provision to frame fresh charges etc if action is being taken on the basis of a judicial proceedings in which there is a clear conviction by the competent court and so there was no occasion for any charges much less duplication. The CBI framed its own charges and carried its own burden of proving them. Once the same were proven per the judgement of the CBI court vide 10/03/2011, the proceedings were taken up under Pension Rules as the applicant had superannuated by then and no proceedings could have been undertaken under the CCS (CCA) Rules, 1965 - para-4 of the supplementary counter reply. Thus, the assertion that there is a case of double jeopardy on account of similarity of charges in the punishment imposed vide Charge Sheet 16/08/1999 and Memorandum of 27/06/2011 is misplaced and misconceived. It is indeed a tricky situation and there can be reasons to get confused as to the precise application of the provisions of the CCS (CCA) Rules, 1965 and the CCS (Pension) Rules, 1972, moreso, in the context of judicial proceedings vis-à-vis Page 14 of 26 CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors. departmental proceedings. Under the CCS (Pension) Rules, 1972 there is no need to draw up fresh Disciplinary Proceedings and action is provided for per the judicial proceedings should there be conviction. The earlier Disciplinary Proceedings were drawn under the CCS (CCA) Rules, 1965 as the applicant had not retired and the same were also concluded before he retired implying thereby that there was no occasion to continue any enquiry post retirement of the applicant and which is why once the conviction was born by the order of the CBI court in 2011 proceedings were taken up by way of issue of Memorandum to the applicant before imposing the said punishment under the impugned order. Thus, as there could not have been a continuation of the Disciplinary Proceedings also after superannuation of the earlier Disciplinary Proceedings and so fresh Memorandum was issued under the CCS (Pension) Rules, 1972 which is very much per law. Hence there is no case of double jeopardy and the point of the applicant cannot be held forth. As regards the advice of the UPSC, the same was required to be taken per the Rule 9 of the CCS (Pension) Rules, 1972 and so there can be no faulting of the respondents on that count. Rules as given have to be interpreted as given. Thus the Hon Apex Court in the matter of Chief Justice of Andhra Pradesh v. L.V.A. Dixitulu (1979 (2) SCC 34), held as under:
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"The primary principle of interpretation is that a constitutional or statutory provision should be construed "according to the intent of they that made it" (Coke). Normally, such intent is gathered from the language of the provision. If the language or the phraseology employed by the legislation is precise and plain and thus by itself proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean or evocative or can reasonably bear meanings more than one, the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the Court to go beyond the arid literal confines of the provision and to call in aid other well-recognised rules of construction, such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light, on the rest, the purpose of the legislation, the object sought to be achieved, and the consequences that may flow from the adoption of one in preference to the other possible interpretation.
Further the Hon Apex Court in the matter of Union Of India And Another vs Tulsiram Patel And Others on 11 July, 1985, Equivalent citations: 1985 AIR 1416, 1985 SCR Supl. (2) 131 - Bench: Chandrachud, Y.V. ((Cj), Tulzapurkar, V.D., Pathak, R.S., Madon, D.P., Thakkar, M.P. (J) held as under:
"..Again in Union of India v. Col. J.N. Sinha and another [1971] 1 S.C.R. 791, it was said (at page 794-5):
"As observed by this Court in Kraipak and Ors. v. Union of India the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it. It is true that if a statutory provision can be read consistently with the principles of natural justice, the courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excluded the application of any or all the principles of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should Page 16 of 26 CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors.
be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power"
The applicant has been given adequate opportunity of hearing by way of the Memorandum per the CCS (Pension) Rules, 1972 and that the Memorandum contained the punishment which was proposed to be imposed as is evident from the words and para of the Memorandum (Annexure A-7). The relevant portions read as under:
" AND WHEREAS the President has come to a tentative conclusion that the gravity of the charge is such that it warrants the imposition of the penalty of withholding of pension on permanent basis as well as forfeiture of gratuity otherwise admissible to the said Shri Subhash Chandra Agarwal..."
Thus, the criterion of opportunity of hearing is also met as also that the respondents had applied their own mind with regards to possible punishment and not acted on mere advice of the UPSC.
Further it trite to observe that unless the conviction is set aside the conviction stands and bail by appellate court etc do not have any effect whatsoever on the conviction. Thus the Hon' High Court Allahabad has in the matter of Brahma Dev Son Of Sri Ram Kumar vs Life Insurance Corporation Of ... on 28 February, 2006 observed as under:
"...14. It has also been held by the Apex Court in the same judgment that in cases where an employee is convicted on a criminal charge, the appropriate course would be in all such cases to take action and not to wait for the result of the appeal or revision as the case may be. It is always open to the authorities to Page 17 of 26 CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors.
revise its order and reinstate the Government Servant with all the benefit if in appeal or other proceedings the Government Servant accused is acquitted..."
The Hon Apex Court in the matter of Union Of India (Uoi) vs V.K. Bhaskar on 30 January, 1996 Equivalent citations: JT 1998 (9) SC 301, (1997) 11 SCC 383 has held as under:
"..4. Rule 19(i) of the Rules is based on Clause (a) of the proviso to Sub-article (2) of Article 311 of the Constitution construing the said proviso to Article 311(2), this Court, in Dy. Director of Collegiate Education (Admn.) v. S. Nagoor Meera has held : (JT pp. 34-36, paras 7-10).
This clause, it is relevant to notice, speaks of conduct which has led his conviction on a criminal charge. It does not speak of sentence or punishment awarded. Merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be operative. Section 389 of the CrPC, 1973 empowers the appellate court to order that pending the appeal 'the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. Section 389(1), it may be noted, speaks of suspending the execution of the sentence or order, it does not expressly speak of suspension of conviction.
** ****** * * * * * We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal of reduction in rank of a government servant who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said government servant-accused has been released on bail pending the appeal.
The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under Clause (a) of the second proviso to Article 311(2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under Clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If. however, the government servant-accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court, It should be remembered that the action under Clause (a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is; such that it deserves any of the three ma jor punishments mentioned in Article Page 18 of 26 CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors.
311(2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311(2).
******** ** * * What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellate or other higher court, it may not be advisable to retain such person in service. As stated, above, if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice.
5. The Tribunal was, therefore, not right in holding that the respondent could not be dismissed by invoking the provision of Rule 19(i) of the Rules because the appeal filed by him against the conviction and sentence is pending in the High Court.
The Hon Madhya Pradesh High Court in the matter of Jamna Prasad vs State Of M.P. And Ors. on 10 October, 2002, Equivalent citations: 2003 (1) MPHT 77, relying on law laid down by the Hon Apex Court held has under:
"....The ratio of the judgment has been approved by the Court in K.C. Sareen's case (supra). Thomas, J., speaking for the Court, said in Paragraph 11 that-
"The legal position, therefore, is this : though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389 (1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction the Court should not suspend the operation of the order of conviction. The Court has a duty to look all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position that we have to examine the question as to what should be the position when a public servant is convicted of an offence under the PC Act. No doubt when the Appellate Court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the Superior Court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the filing of the appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, de hors the sentence of imprisonment as a sequel thereto, is a different matter."
Though the legal position may be that there may be power to suspend an order of conviction apart from the order of sentence under Section 389(1) of the Code but its exercise should be limited to very exceptional cases, after the Court looks to all aspects Page 19 of 26 CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors. including the ramifications of putting the conviction in abeyance. Apex Court has recorded extensive reasons in Paragraphs 12 and 13 of the judgment as under:--
"12. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant is found guilty of corruption after a judicial adjudicatory process conducted by a Court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a Superior Court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public interest which suffers and sometimes, even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fallout would be one of shaking the system itself. Hence, it is necessary that the Court should not aid the public servant who stands convicted for corruption charges to hold only (sic) public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a Court order suspending the conviction.
13. The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when conviction is on a corruption charge against a public servant, the Appellate Court or the Revisional Court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision."
Thereafter, in Paragraphs 14 and 15, the Apex Court said that:-- "14. We are fortified in holding so by two other decisions of this Court. One is Dy. Director of Collegiate Education (Admn.) v. S. Nagoor Meera. The following observations of this Court are apposite Page 20 of 26 CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors. now: (SCC p. 281 para 9) 'The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2) once a Government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the accused Government servant is acquitted on appeal or other proceeding, the order can always be revised and if the Government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a Criminal Court.' I5. The other decision is State of T.N. v. A. Jagannathan, which deals with the case of some public servants who were convicted, inter alia, of corruption charges. When the appeal filed by such public servants was dismissed, the High Court entertained a revision and ordered suspension of the sentence as well as the order of conviction, in exercise of the powers under Section 389(1) of the Code, taking cue from the ratio laid down in Rama Narang v. Ramesh Narang. But when the State moved this Court against the order of suspension of conviction, a two-Judge Bench of this Court interfered with it and set aside the order remarking that in such cases the discretionary power to order suspension of conviction either under Section 389(1) or even under Section 482 of the Code should not have been exercised."
Aptly, we may refer to the decision of Apex Court in State of T.N. v. A. Jagannathan (AIR 1996 SC 2449) holding that suspension of conviction and sentence during the pendency of appeal or revision under Section 389(1) read with Section 482 of the Code should not be ordered without taking into consideration moral conduct of convicts and the consequences which may follow in case suspension of conviction is not ordered. Precisely, the Court said:--
"3. The respondents in these four appeals are the Government employees. All the four were convicted by the Judicial Magistrate, Erode for various criminal offences and sentenced to undergo various sentences. The said conviction and sentences were affirmed by the Sessions Judge/Special Judge, Erode. The respondents then approached the High Court in criminal revision accompanied with an application under Section 389(1) Cr.PC for suspension of conviction as well as the sentences. The High Court after considering the ambit and scope of the provisions contained in Sections 374 and 389 (1) of the Code of Criminal Procedure and the relevant provisions of law and relying on the decision of this Court rendered in Rama Narang v. Ramesh Narang, (1995) 2 SCC 513, took the view that for the reasons to be recorded in writing by the Appellate Court, the conviction or order of sentence can be suspended during the pendency of the same. The High Court also took the view that the power of the Appellate Court or the High Court to suspend the conviction or sentence is always inherent and can be exercised at arty stage, subject to the condition that the Appellate Court should be approached and satisfied with the reasonings to be recorded in writing and further, if any one wants to stop the proceedings which have been initiated for disqualification or removal from service or reduction in rank in Page 21 of 26 CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors.
respect of a public servant, one has to look into the moral conduct very much involved in such a case and only when the Court is satisfied with such conduct, then the remedy provided under different statute can not at all be stopped. After taking the aforesaid view and on consideration of the fact that the respondents will loose the meagre stipend, if the prayer for suspending the conviction during the pendency of the revisions is not granted, passed the impugned orders suspending the conviction as well as the sentences awarded to the respondents. It is against these orders that the State has filed these appeals. The submission of the learned Counsel appearing for the State is that the High Court has passed the impugned orders relying on the decision in Rama Narang's case (supra) wherein this Court took the view that in appropriate cases the conviction and sentences can be suspended in exercise of powers under Section 482, Cr.PC. After going through the decision referred to above and the facts of the present case, we find that the decision relied upon has no application to the facts of the cases before us. In Rama Narang's case (supra) the conviction and sentences both were suspended on the reasoning that if the conviction and sentences are not suspended the damage would be caused which would not be undone if ultimately the revision of the appellants of that case was allowed. But in the present case, we find that in the event of the revisions against their conviction and sentences are allowed by the High Court the damage, if any, caused to the respondents with regard to payment of stipend etc. can well be revived and made good to the respondents. If such trifling matters are taken into consideration, we think, then every con-- viction will have to be suspended pending appeal or revision involving the slightest disadvantage to a convict. That being so the facts of the decision relied on have no application to the present case. This apart, the High Court, though made an observation but did not consider at all the moral conduct of the respondents inasmuch as respondent- Jagannathan who was the Police Inspector attached to Erode Police Station has been convicted under Sections 392, 218 and 466, IPC, while the other respondents who are also public servants have been convicted under the provision of Prevention of Corruption Act. In such a case, the discretionary power to suspend the conviction either under Section 389(1) or under Section 482, Cr.PC should not have been exercised. The orders impugned thus can not be sustained."
7. In Union of India and Ors. v. Ramesh Kumar (AIR 1997 SC 3531), the Apex Court happened to deal with the situation similar to the present case where the Central Administrative Tribunal by order dated March 2, 1990 set aside the order of dismissal dated August 30, 1983 and directed inter-alia to treat the period beginning from the date of dismissal of the respondent till the disposal of criminal appeal filed by the respondent in the Delhi High Court as the period of suspension for which the respondent would be entitled to get normal subsistence allowance in accordance with the relevant rules. While serving as Inspector of Food & Civil Supplies Department of the Delhi Administration, respondent was arrested by Anti-corruption Branch for accepting illegal gratification. Consequently, he was placed under suspension. The Special Sub-Judge, Delhi convicted him Page 22 of 26 CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors. under Section 5(2) of the Prevention of Corruption Act, 1947 on July 30, 1983 and sentenced him to undergo imprisonment for three years and fine of Rs. 500.00 with default clause, to further undergo six months' imprisonment. After conviction by Special Sub-Judge, disciplinary authority dismissed him from service under Rule 19 of the CCS (CCA) Rules, 1965 read with the provisions of Vigilance Manual. The respondent filed criminal appeal with prayer for bail against conviction and sentence recorded by Special Sub-Judge, Delhi before the High Court of Delhi. Admitting the appeal, the High Court passed the following order:--
"Pending hearing of the appeal, the execution of the sentence shall remain suspended and he shall be released on furnishing a personal bond in the sum of Rs. 5,000/- with one surety in the like amount to the satisfaction of the Trial Court."
Respondent filed an application before Central Administrative Tribunal, New Delhi under Section 19 of the Administrative Tribunals Act, 1985 for quashing the order of dismissal and seeking direction to the appellants to grant subsistence allowance for the period beginning from the date of dismissal till the filing of criminal appeal in the High Court. The Tribunal allowed the application and granted the relief prayed for taking the view that by suspension of the execution of sentence, the conviction and dismissal lost efficacy and he was to be treated under suspension till the final judgment of High Court in appeal preferred by him. The Apex Court found that the view taken by the Tribunal was neither borne out from the rules applicable to the respondent nor by any judicial decisions cited before the Tribunal. Examining CCS (CCA) Rules, 1965 read with the provisions of Vigilance Manual, the Court said in Paragraph 7 that :--
"7. A bare reading of Rule 19 shows that the disciplinary authority is empowered to take action against a Government servant on the ground of misconduct which has led to his conviction on a criminal charge. The rules, however, do not provide that on suspension of execution of sentence by the Appellate Court the order of dismissal based on conviction stands obliterated and dismissed Government servant has to be treated under suspension till disposal of appeal by the Appellate Court. The rules also do not provide the disciplinary authority to await disposal of the appeal by the Appellate Court filed by a Government servant for taking action against him on the ground of misconduct which has led to his conviction by a Competent Court of law. Having regard to the provisions of the rules, the order dismissing the respondent from service on the ground of misconduct leading to his conviction by a Competent Court of law has not lost its string merely because a criminal appeal was filed by the respondent against his conviction and the Appellate Court has' suspended the execution of sentence and enlarged the respondent on bail. This matter may be examined from another angle. Under Section 389 of the Code of Criminal Procedure, the Appellate Court has power to suspend the execution of sentence, and grant bail to an accused the effect of the order is that sentence based on conviction is for the time being postponed, or kept in abeyance during the pendency of the appeal. In other words, by suspension of execution of sentence under Section Page 23 of 26 CAT, Lucknow Bench- OA-51/2013 S C Agrawal V. UoI & ors.
389, Cr.PC, an accused avoids undergoing sentence pending criminal appeal. However, the conviction continues and is not obliterated and if the conviction is not obliterated, any action taken against a Government servant on a misconduct which led to his conviction by the Court of law does not lose its efficacy merely because Appellate Court has suspended the execution of sentence. Such being the position of law, the Administrative Tribunal fell in error in holding that by suspension of execution of sentence by the Appellate Court, the order of dismissal passed against the respondent was liable to be quashed and the respondent is to be treated under suspension till the disposal of criminal appeal by the High Court."
Rule 19 of the M.P. Civil Service (Classification, Control and Appeal) Rules, 1966, envisages-
"19. Special Procedure in certain cases.-- Notwithstanding anything contained in Rule 14 to Rule 18 :--
(i) Where any penalty is imposed on a Government servant on the ground of misconduct which has led to his conviction on a criminal charge; or
(ii) Where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these rules; or
(iii) Where the Government is satisfied that in the interest of the security of the State, it is not expedient to hold any enquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit:
Provided that the Commission shall be consulted where such consultation is necessary before any orders are made in any case under this rule."
Order in the present case has been passed under Rule 19 (i) after his conviction on a criminal charge. (See : Union of India v. V.K. Bhaskar [(1997) 11 SCC 383J. Finally we may refer to Apex Court decision in B.R. Kapur v. State of T.N. and Anr. [(2001) 7 SCC 231J. In Paragraph 44, the Court said :--Page 24 of 26
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"44. Lastly, in this connection, our attention was drawn to the case of Vidya Charan Shukla v. Purshottam Lal Kaushik. The Court held that if a successful candidate was disqualified for being chosen, at the date of his election or at any earlier stage of any step in the election process, on account of his conviction and sentence exceeding two years' imprisonment, but his conviction and sentence were set aside and he was acquitted on appeal before the pronouncement of the judgment in the election petition pending against him, his disqualification was retrospectively annulled and the challenge to his election on the ground that he was so disqualified was no longer sustainable. This case dealt with an election petition and it must be understood in that light. What it laid down does not have a bearing on the question before us: the construction of Article 164 was not in issue. There can be no doubt that in a criminal case acquittal in appeal takes effect retrospectively and wipes out the sentence awarded by the Lower Court. This implies that the stigma attached to the conviction and the rigour of the sentence are completely obliterated, but that does not mean that the fact of the conviction and sentence by the Lower Court is obliterated until the conviction and sentence are set aside by an Appellate Court. The conviction and sentence stand pending the decision in the appeal and for (SIC) purposes of a provision such as Section 8 of the Representation of the People Act are determinative of the qualifications provided for therein."
8. What emerges out of the aforesaid discussion is that Appellate Court and Revisional Court can, in exercise of power under Sections 389(1)/482, Code of Criminal Procedure, 1973, stay the execution of sentence or order capable of execution but stay of conviction can be passed in exceptional cases after Court carefully examines the conduct of accused, facts of the case and possible ramifications or avoiding irretrievable consequences. However, in both the cases, the conviction and sentence can not be effaced. It is the irretrievable consequence in the former case and execution of sentence in the latter case which can be stayed. With regard to Government servant, competent authority can terminate the services after conviction by Criminal Court. Stay of execution of sentence will not debar it from doing so unless conviction is also stayed in exercise of power in light of principles laid down by the Apex Court in K.C. Sareen 's case (supra). Further, on termination order having been passed, master and servant relationship terminates and filing of appeal and stay of execution of sentence do not revive it. He can not be taken to be under suspension from the dale of termination following conviction by Trial Court till the date of judgment by the Appellate Court. Therefore, he would not be entitled to claim subsistence allowance for this period..." Page 25 of 26
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7. In summum bonnum, after analysis per the foregoing discussions, the applicant has no case and the OA being devoid of merits is liable to be dismissed and is hence dismissed.
8. O.A. dismissed.
9. No costs.
(Swarup Kumar Mishra) (Devendra Chaudhry)
Member (J) Member (A)
JNS
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