Central Administrative Tribunal - Delhi
Shri Suresh Chand Verma vs Union Of India Through on 11 May, 2011
Central Administrative Tribunal Principal Bench OA No.3144/2010 New Delhi, this the 11th day of May, 2011 Honble Dr. Ramesh Chandra Panda, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Shri Suresh Chand Verma Asstt. Director Trg. (Retd.), PTC R/o 116/2, Shivlok, Kenkerkhera, Meerut Cantt. . Applicant. (By Advocate : Shri B. R. Sharma) Versus Union of India through Secretary-cum-Director General Posts, Min. of Communications & IT Dept. of Posts, Dak Bhawan, Sansad Marg, New Delhi. . Respondent. : O R D E R : Dr. Ramesh Chandra Panda, Member (A):
The Applicant is retired Assistant Director (Training), Postal Training Centre, Saharanpur who has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985. In this OA, he assailed the Presidential Order dated 29.06.2010 (Annexure-A1) whereby he was inflicted the penalty of withholding of 10% (Ten percent) of the monthly pension otherwise admissible to him for a period of 5 years. He has prayed to quash the said order dated 29.06.2010 and to allow interest on the amount of gratuity at 12% from the date of withholding (1.1.2010) to the date of release (10.07.2010).
2. We may briefly state the factual matrix of the case which led the Applicant to file the present OA.
3. The Applicant was issued a Charge Sheet under Rule 14 of the CCS (CCA) Rules, 1965, vide Memo dated 6.6.2008 (Annexure-A2) with two charges. Consequent to his retirement on 31.12.2009, the said charge sheet was deemed to be the proceedings under Rule 9 of the CCS (Pension) Rules, 1972. The statement of imputation of misconduct in support of two articles of charges framed against him reads as follows:-
Article-I That Shri Suresh Chand while working as SPOs Hoshiarpur w.e.f. 01.07.2004 to 28.11.2004 recommended the inspection-cum-verification of Dasuya HO for the first half of 2004 on 01.09.2004 continued it on 02.09.2004 and completed the same on 15.09.2004. This was left incomplete by the then SSPOs Shri Jarnail Singh who retired on superannuation on 30.06.2004, Shri Suresh Chand failed to check the cash and stamp balances for at least 2 days in each month from the date of last inspection as required vide clause 9 of rule 239 of Postal Manual Vol. VIII.
Had Shri Suresh Chand checked cash and stamp balances for at least 2 days in each month from the date of last inspection the fraud amounting Rs.10590298.94 could have been detected earlier. Even during the period of Shri Suresh Chand w.e.f. 01.07.2004 to 28.11.2004, the misappropriation of Rs.688210/- on following dates for non checking of cash and stamp balances occurred:-
Date Amount 10.07.2004 Rs.138210/- 24.08.2004 Rs.500000/- 09.09.2004 Rs. 50000/- Total: Rs.688210/-
Lapses on the part of Shri Suresh Chand led to non-detection of fraud and gave opportunity to the offender to continue the fraud further.
Thus the said Shri Suresh Chand is alleged to have failed to maintain devotion to duty thereby violating the provision of Rule-3 (1) (ii) of CCS (Conduct) Rules, 1964.
Article-II That the said Shri Suresh Chand while working as SPOs Hoshiapur w.e.f. 01.07.2004 to 28.11.2004 recommended the inspection-cum-verification of Dasuya HO for first half of 2004 on 01.09.2004 continued it on 02.09.2004 and completed it on 15.09.2004. This was left incomplete by the then SSPOs Shri Jarnail Singh who retired on superannuation on 30.06.2004. The said Shri Suresh Chand failed to attempt question 33 relating to Treasurers Cash Book and thus violated the provision contained in clause 2, 3 and 14 to 22 of Rule-239 of Postal Manual Vol. VIII. Had Shri Suresh Chand attempt question no.33 relating to Treasurer Cash Book of Inspection Questionnaire of HO and the fraud amounting Rs.10590298.94 could have been detected earlier. Even during the tenure of the said Shri Suresh Chand w.e.f. 01.07.2004 to 28.11.2004 department had sustained the loss of Rs.688210/- for non attempting question no.33 of questionnaire of HO as detailed below:-
10.07.2004 The said Shri Suresh Chand failed to tally the Treasurers Cash Book with H.O. Summary due to this supervisory laxity on his part. The amount of Rs.47950/- irregularly deducted in the closing balance of the HO. Treasury and amount of Rs.90260/- irregularly added by the treasurer in details of closing balance of Treasurers Cash Book could not be detected, resulting into pecuniary loss of Rs.138210/- to the department.
24.08.2004 The said Shri Suresh Chand failed to check the entries of subsidiary Treasurers Cash Book with the entry of main cash book, due to which the amount of advance of Rs.521000/- given to TC-II and subsequently shown as Rs.21000/- only, deleting the digit 5 irregularly and addition of no.1 in the number of currency notes of Rs.500/- denomination i.e. no.661 was shown as 1661 could not be detected due to which the offender Shri Hardev pocketed Rs.500000/- for his personal use and department sustained a pecuniary loss of Rs.500000/-.
09.09.2004 The said Shri Suresh Chand failed to check the entries of subsidiary Treasurers Cash Book with the entry of main Treasurers Cash Book due to which the amount transferred from Shri Sukhvir Singh TC-II was shown as Rs.13665/- while actual amount was Rs.63665/-. Thus, the loss of Rs.50000/- could not be detected.
Lapses on the part of Shri Suresh Chand led to non-detection of fraud and gave opportunity to the offender to continue further fraud. During inspection, if had Shri Suresh Chand checked Treasurers Cash Book properly as per questionnaire then the fraud would have detected earlier and the loss of Rs.688210/- of his tenure would not have been sustained by the department. Thus in doing so he violated the provision contained in clause 2 3 and 14 to 22 of Rule-239 of Postal manual Vol. VIII.
Hence it is alleged that the said Shri Suresh Chand violated the provisions of Rule-239 of Postal Man. Vol. VIII and thereby failed to maintain devotion to duty and acted in a manner which is unbecoming of a Government Servant as required 3 (1) (ii) & (iii) of CCS (Conduct) Rules, 1964.
4. As the Applicant in his statement of defence dated 16.06.2008 denied the charges, the Inquiry Officer (IO) was appointed to enquire into the charges. The IO submitted his report dated 15.04.2009 (Annexure-A5) holding both the charges as proved. On receipt of the copy of the IOs report, the Applicant submitted his representation dated 4.05.2009. It is the case of the Applicant that though IOs report was available in April, 2009, and he reminded on 27.08.2009, 4.12.2009 and 11.12.2009, the Disciplinary Authority to pass final orders as he was due to retire on 31.12.2009, no order was passed before his retirement. Being aggrieved, he filed the OA No.3652/2009 which was decided on 21.12.2009 with the directions to pass final order within two weeks. Since the Respondents did not decide, he moved a Contempt Petition (CP No.83/2010). While deciding the CP, this Tribunal granted time to the Respondents as the proceedings were being finalized under Rule 9 of CCS (Pension) Rules. The Applicant retired on 31.12.2009. The competent authority to decide the case on behalf of the President being Minister of State (C&IT), all relevant documents including IOs report, the Applicants representation were placed before him. After analysis of the evidence, it was recorded tentatively that the charges proved against the Applicant were grave in nature as the lapses on his part led to non-detection of fraud and gave to the offender the opportunity to continue the fraud of over Rs.1.00crore. The mandatory advice of Union Public Service Commission (UPSC) was sought vide letter dated 11.03.2010. The UPSC after analyzing the evidence and the relevant documents noted that the proved charges established against the Applicant constituted grave misconduct on his part and tendered the following advice to the Respondents vide letter dated 1.06.2010 (Pages 22-27).
5. The Commission have observed that a careful examination of the records indicate that the charges against the CO are proved to the extent that he failed in his supervisory duties.
6. In the light of observations and findings as discussed above and after taking into account all other aspects to the case, the Commission note that the charges established against the CO constitute grave misconduct on his part and consider that the ends of justice would be met in this case if the penalty of withholding of 10% (Ten percent) of the monthly pension otherwise admissible to him for a period of five years is imposed on Shri Suresh Chand, the CO. The gratuity admissible to him may be released if otherwise not required. They advise accordingly.
7. A copy of the order passed by the Ministry in this case may be endorsed to the Commission for perusal and records.
5. After careful consideration of the above advice of the UPSC and taking into account the facts, and evidence on record and the Applicants representation, accepted the advice of UPSC and passed the order dated 29.06.2010 imposing penalty of withholding of 10% pension of the monthly pension for a period of 5 years. The relevant paragraphs of the said order are extracted below:-
7. The President has carefully considered the advice of the Union Public Service Commission with reference to the facts and circumstances of the case, the evidences on record and submissions made by the said Shri Suresh Chand in his representation dated 4.5.2009 against the I.Os Report and found that the Commission have adequately taken into consideration all relevant aspects in detail and discussed all the charges vis-a-vis evidences related to the case at length. The President has found the Commissions advice reasonable.
8. The President, therefore, accepts the advice of the Union Public Service Commission, and in exercise of the powers conferred by Rule 9 of the CCS (Pension) Rules, 1972, hereby orders imposition of the penalty of withholding of 10% (Ten percent) of the monthly pension otherwise admissible to him for a period of five years on Shri Suresh Chand with immediate effect and to release the gratuity admissible to him of otherwise not required.
6. Feeling aggrieved by the above order and impugning the same, the Applicant is before the Tribunal in the present OA.
7. Shri B. R. Sharma, learned Counsel for the Applicant referring to the background of the allegation put forward his main contention that the alleged misconduct was not grave enough warranting penalty under Rule 9 of the CCS (Pension) Rules. He submits that the alleged misconduct can at best be termed as supervisory lapse as stated by the UPSC in Paragraph 7 of its advice letter. Referring to the views expressed by UPSC, Shri Sharma contends that Charge-I was held as not proved and the Charge-II was held as proved. He, therefore, submits that there is no conclusive proof of the charges framed against the Applicant and in support thereof, he places his reliance on the judgment of Jodhpur Bench of this Tribunal in the case of Ram Das Singh Vs. UOI & Ors. decided on 14.02.1990 and reported in 1990-13-ATC-136. His contention is that all the charges having not been conclusively proved, the Tribunal has held that the punishment is illegal and not sustainable in the eyes of law. He took another contention to indicate that grave misconduct has been defined under the Rule 8 of CCS (Pension) Rules. The Applicant being responsible for supervisory lapse, the same cannot be brought under the nomenclature of grave misconduct attracting the provisions of Rule 9 of CCS (Pension) Rules. Further, he submits that the Applicant is not directly responsible or involved in the fraud and the loss to the Department. His misconduct is mainly due to non-inspection and not answering question No.33. But terming such lapses as grave is based on presumptions and assumptions which are not sustainable in the eyes of law. In this context, he relies on the judgment of Honble Supreme Court of India in the case of Inspector Prem Chand Vs. Govt. of NCTD and Others (2007 4 SCC 566). Further contention of Shri Sharma is that non verification by his predecessor which has been reflected in the IOs report, the Applicant cannot be held responsible for the same. For such supervisory lapse, at best he could be punished for the minor penalty but such minor penalty cannot be imposed on him under the CCS (Pension) Rules. He, therefore, terms the penalty as disproportionate to the proved misconduct. He places his reliance on the judgment of Honble High Court of Delhi in the matter of Union of India and Others Vs. T.P. Venugopal (2008-3-SLJ-381).
8. Controverting the grounds taken by the Applicant, the Respondent filed the reply affidavit on 16.03.2011. Shri R.N.Singh, learned Sr. Central Govt. Counsel representing the Respondent very vehemently opposed the contentions raised by Shri Sharma. Shri Singh contends that the proved charges against the Applicant are very serious in nature as non-inspection, non-verification and non-furnishing the reply to question No.33 have resulted in defrauding the Respondent - Department of Posts for more than Rupees One Crore. The Competent Authority after consulting the UPSC has imposed the penalty on the Applicant. Though the UPSC has indicated the charge as supervisory nature but has also recorded its findings that the charge was grave misconduct and have indicated the imposition of penalty of withholding of 10% monthly pension otherwise admissible to him for a period of 5 years. The Competent Disciplinary Authority having considered all facts of the case including the representation of the Applicant has accepted the recommendations of UPSC and imposed the said penalty on the Applicant. The Disciplinary Authority has also come to the conclusion that the misconduct committed by the Applicant was grave in nature. He also submits that the Respondents have followed all the prescribed procedures for taking disciplinary action against the Applicant. The alleged delay in taking the decision when the Applicant was in service was mainly due to the consultation process and could not be attributed to any intentional delay. He submits that the principle of natural justice has been followed and the punishment imposed on the Applicant is proportionate to the proved mis-conduct. He also submits that judicial review by the Tribunal in the matters of disciplinary case could be restricted to find out whether the Competent Authority has passed the order by following the prescribed procedure and whether the punishment imposed is proportionate to the proved mis-conduct committed by the Applicant. In this context, he submits that the powers of the Tribunal is limited in the matters of Disciplinary Proceedings and the Tribunal cannot sit as an Appellate Court on the decisions taken by the Competent Authority. He places his reliance on the judgment of Honble Supreme Court in the case of Union of India and Another Vs. B.C. Chaturvedi (1995-6-SCC-750).
9. Having heard the rival contentions, with their assistance, we perused the pleadings as well. The controversies that come before us for adjudication are in very narrow compass; (i) Whether the proved misconduct is grave in nature and whether the penalty imposed on the Applicant is proportionate to the proved misconduct and legally sustainable; and (ii) Though he retired on 31.12.2009, gratuity was paid to the Applicant on 10.07.2010 and whether he is entitled to interest thereon for the period?
10. At this stage, we may take up the first issue and refer to the settled position on law specifically on the definition of misconduct and what constitutes misconduct and grave misconduct?
11. In the context of the present case, we would like to mention that disciplinary action is taken against the Government employees for misconduct, grave misconduct and gravest misconduct. The conduct and disciplinary rules in general is to identify the conduct which are not misconduct and which are misconduct, which is made punishable and then to provide for the punishments which may be imposed for the acts which are misconduct and inconsistent with the expected good conduct. Further, punishments are of two types viz. major and minor. Generally, ordinary misconduct attracts minor penalties and grave/gravest misconduct is visited with major penalty. For example, the Central Civil Services (Conduct) Rules, 1964 contain provisions which pertain to the standards of conduct which government servants (within the meaning of those rules) are to follow, and the Central Civil Services (Classification, Control and Appeal) Rules, 1965 provide the major and minor punishments which may be imposed for misconduct or grave misconduct or gravest misconduct. For example the employees retired or retiring there are Rules under CCS (Pension) Rules, 1972 and instructions issued there under and also under CCS (CCA) Rules. Withdrawal/withholding of pension irrespective of its extent or period or percentage is a major penalty and in such cases misconduct must be found to be of grave nature.
12. In Union of India Versus Harjeet Singh Sandhu [(2001) 5 SCC 593] in the background of Rule 14 of the Army Rules, it was held that any wrongful act or any act of delinquency which may or may not involve moral turpitude would be misconduct under Rule 14. In Baldev Singh Gandhi Versus State of Punjab [(2002) 3 SCC 667] it was held that the expression misconduct means unlawful behaviour, misfeasance, wrong conduct, misdemeanour, etc. Further in State of Punjab Vs. Ram Singh Ex. Constable [(1992) 4 SCC 54] it was held that the term misconduct may involve moral turpitude. It must be improper or wrong behaviour, unlawful behaviour, willful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty. The definition of Misconduct as stated in Batts Law of Master and Servant (4th Edition at Page 63) indicates to be comprised positive acts and not mere neglects or failures. The definition of the word as given in Ballentines Law Dictionary (148th Edition) misconduct means a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law, a forbidden act. It differs from carelessness. We also refer to the judgment of this Tribunal in G. P. Sewatia versus Union of India and another [OA No.2210 of 2006 decided on 27.8.2008] wherein the interpretations of misconduct has been cited. We are also guided by the above connotations of the term misconduct . In State of Punjab case (supra), it was stated :
Misconduct has been defined in Blacks Law Dictionary, Sixth Edition at page 999, thus :
A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. Misconduct in office has been defined as :
Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the officer holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.
11. In P. Ramanatha Aiyars Law Lexicon, 3rd edition, at page 3027, the term misconduct has been defined as under :
The term misconduct implies, a wrongful intention, and not a mere error of judgment.
Misconduct is not necessarily the same thing as conduct involving moral turpitude.
The word misconduct is a relative term, and has to be construed with reference to the subject matter and the contest wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. {We refer to the Honourable Supreme Court judgment in Bharat Petroleum Corpn. Ltd. Vs. T.K. Raju, [2006 (3) SCC 143]}
13. In catena of judgments Honble Supreme Court has laid the law in the subject of what constitute misconduct. In M.M. Malhotra Versus Union of India [2005-8-SCC-351] it was observed that the conduct rules of the Government are code of guidance with permissible acts and behaviour of their employees and Conduct Rules have a set of general rules on conduct of the employees with specific prohibitions and restrictions. For example, the Central Civil Services (Conduct) Rules, 1964 has under the heading General which provides that every government servant shall at all times (i) maintain absolute integrity; (ii) maintain devotion to duty; and (iii) do nothing which is with the interest of public service and not befitting the status, position and dignity of a public servant. The acts of misconduct are so varied that it would be impossible for Government to exhaustively enumerate such acts and treat the categories of misconduct. Thus the word misconduct is not capable of precise definition. But at the same time though incapable of precise definition, the word misconduct on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be constructed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve. Honble Supreme Court in a case referred to it under Article 317(1) of the Constitution of India, [Reference 1 of 2003 decided by a 4 Member Bench on 10.11.2008] observed that the scope of the term misconduct implies some degree of mens rea meaning thereby there is willful commission of irregular/illegal act like corruption, lack of integrity, persistent failure to perform duties, an offence involving moral turpitude. There are some of the instances cited as misconduct. But every act or conduct does not amount to misconduct. It was also held that error of judgment or negligence per se does not amount to misconduct.
14. In the present case, the President invoked the Rule 9(i) of the CCS(Pension) Rules 1972 by imposing the penalty of withholding of 10% of the monthly pension admissible to the Applicant for a period of 5 years for the proved grave misconduct. Applicants contention is that he is entitled to his pension and the proved misconduct is not grave enough to invoke CCS (Pension) Rules to impose penalty under the said Rules. This leads us to the issue of pension. An employee holding a civil post under the Union of India has a legitimate right to earn his pension after retirement. It is not a bounty of the State. In D. S. Nakara Versus Union of India (AIR 1983 SC 130), the Constitution Bench of the Honble Supreme Court held that pension is not only compensation for loyal service rendered in the past, but also by the broader significance it is a social welfare measure rendering socio-economic justice by providing economic security. It is a sort of stipend provided in consideration of past service or emoluments to one retired from service. Hence, pension is earned by rendering long and efficient service. It is also further observed that pension as a retirement benefit is in consonance with and furtherance of the goals of the Constitution. Therefore, when a Government employee is sought to be deprived of his pensionary right whether part or full, whether for a short or long period, whether temporarily or permanently, when he had earned while rendering services under the State, such a deprivation must be in accordance with law.
15. At this stage, we take the extract of the Rule 9(l) of the CCS (Pension) Rules which provides thus:
"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 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 of judicial Proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his 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 pension shall not be reduced below the amount of rupees three thousand five hundred per mensem. From the above Rule, it is evident that the President reserves to himself the right to withhold or withdraw the whole pension or a part thereof, whether permanently or for specified period, if in the departmental enquiry or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service.
16. In this context, we may now advert to the issue of what misconduct can be construed as grave to attract the provision of CCS (Pension) Rules. Rule 8(5), explanation (b) of the CCS (Pension) Rules defines 'grave misconduct' thus :
"The expression 'grave misconduct' includes the communication or disclosure of any secret official Code or password or any sketch, plan, model, article, note, document or information, such as is mentioned in Section 5 of the Official Secrets Act, 1923 (19 of 1923) (which was obtained while holding office under the Government) so as to prejudicially affect the interests of the general public or the security of the State."
17. In the backdrop of Rules position and the dicta of Honble Apex Court in D. S. Nakara case (supra), the Honble Apex Court interpreted the Rule 9 in D. V. Kapoor Versus Union of India (AIR 1990 SC 1923), which we feel, are applicable for this OA and the same is as follows :
5. It is seen that the President has reserved to himself the right to withhold pension in whole or in part thereof whether permanently or for a specified period or he can recover from pension of the whole or part of any pecuniary loss caused by the Government employee to the Government subject to the minimum. The condition precedent is that in any departmental enquiry or the judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the. period of his service of the original or on re-employment. The condition precedent thereto is that there should be a finding that the delinquent is guilty of grave misconduct or negligence in the discharge of public duty in office, as defined in Rule 8(5), explanation (b) which is an inclusive definition, i.e. the scope is wide of mark dependent on the facts or circumstances in a given case. Myriad situation may arise depending on the ingenuity with which misconduct or irregularity was. committed. It is not necessary to further probe into the scope and meaning of the words 'grave misconduct or negligence' and under what circumstances the findings in this regard are held proved. It is suffice that charges in the case are that the appellant was guilty of wilful misconduct in not reporting to duty after his transfer from Indian High Commission at London to the -Office of External Affairs Ministry, Government of India, New Delhi. The Inquiry Officer found that though the appellant derelicted his duty to report to duty, it is not wilful for the reasons that he could not move due to his wife's illness and he recommended to sympathetically consider the case of the appellant and the President accepted this finding, but decided to withhold gratuity and payment of pension in consultation with the Union public Service Commission.
6. As seen the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs. 60/-.
7. Rule 9 of the rules empowers the President only to withhold or withdraw pension permanently or for a specified period in whole or in part or to order recovery of pecuniary loss caused to the State in whole or in part subject to minimum. The employee's right to pension is a statutory right. The measure of deprivation therefore, must he correlative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to assistance at the evening of his life as assured under Art. 41 of the Constitution. The impugned order discloses that the President withheld on permanent basis the payment of gratuity in addition to pension. The right to gratuity is also a statutory right. The appellant was not charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment. No provision of law has been brought to our notice under which, the. President is empowered to withhold gratuity as well, after his retirement as a measure of punishment. Therefore, the order to withhold the gratuity as a measure of penalty is obviously illegal and is devoid of jurisdiction.
8. In view of the above facts and law that there is no finding that appellant did commit grave misconduct as charged for, the exercise of the power is clearly illegal and in excess of jurisdiction as the condition precedent, grave misconduct was not proved. Accordingly the appeal is allowed and the impugned order dated November 24, 1981 is quashed but in the circumstances parties are directed to bear their own costs.
18. The cited Rule and judicial pronouncements cast the responsibility on the President to hold the pensioner guilty of grave misconduct or negligence for which the findings in the departmental enquiry must be assessed to reach the conclusion that the misconduct or negligence is grave.
19. The Inquiry Officer in his report has analysed elaborately the evidences and has concluded both the charges as proved. The UPSC has held the proved charges as grave misconduct and the President has accepted the views of UPSC. It is not open for us to re-appreciate the evidence.
20. It is not in dispute on the question of the fraud which has been committed resulting in the financial loss to the Department to the tune of an amount of `1,05,90,298.94. The lapse on the part of the Applicant is that even during his tenure, there has been mis-appropriation of `688210/- on 01.07.2004, 24.08.2004 and 09.09.2004. It is admittedly the fact that the Applicant has not done the fraud. But the fraud could have been detected had the Applicant discharged his duty of check, supervision and verification. It is seen that the Applicant is not involved in the fraud nor he has misappropriated the amount but it has been proved beyond doubt that the Applicant did not check the cash and stamp balances for at least 2 days in a month from the date of last inspection which was found to be in violation of Clause 9 of Rule 239 of the Postal Manual Vol. VIII. Further, the Applicant did not deny that he did not provide information by answering to the question 33 relating to Treasurers cash book. Though his predecessor retired on 30.06.2004, and did not answer the said question, as a successor, the Applicant was duty bound to appropriately answer the question. By not doing so, it has been found that the Department was defrauded. Of course, it is a mis-conduct and to say that it is only a supervisory lapse would not acquit him of the charge. By not properly inspecting and answering the question No.33, there has been fraud which is much more than about Rupees One Crore. On a presumption that his inspection would have detected the fraud and mal-practice and misappropriations, the stand taken by the Respondents is correct. The misconduct on his part led to the non-detection of fraud which gave opportunity to the offender to commit further fraud. In the matters of financial transactions, the checks and balances are provided always to ensure that temporary mis-appropriation, financial fraud and embezzlement do not take place. The very fear of the inspections, likely to take place, would prevent such financial irregularities by the Subordinate Officers. The Applicant was part of the Checks and balances. Admittedly, he did not discharge his duties. Therefore, the proved misconduct though appears to be supervisory but has been so grave that fraud and misappropriation has taken place in the department. Thus, the proved misconduct cannot in any manner be called as minor irregularities or supervisory lapse. We find that UPSC has after analyzing the whole nature of the case has assessed the said supervisory lapse to be grave misconduct. The same stand has also been taken by the Competent Disciplinary Authority and has imposed the penalty under the CCS (Pension) Rules.
21. Looking from the proportionality angle, we find that the penalty of withholding of 10% of monthly pension for 5 years is just and proportionate to the proved misconduct.
22. Taking into account the above facts and circumstances of the case, considering the rival contentions and our above analysis on those contentions, and guided by the well settled position in law, we come to the considered conclusion that there is no procedural infirmity, the principles of natural justice has been followed and penalty is proportionate to the proved misconduct. Thus, the Applicant has failed to convince us calling for our interference in the penalty imposed on him. In view of our above discussion, we are of the firm opinion that the penalty of withholding of 10% of monthly pension for a period of 5 years imposed on the Applicant vide order dated 29.06.2010 (Annexure-A1) is legally sustainable and procedurally maintainable.
23. With regard to the 2nd issue viz. claim of 12% interest on the gratuity for the period 1.1.2010 to 10.07.2010, it is noticed that the disciplinary case which has been initiated while the Applicant has been in service, has been deemed to have been under CCS (Pension) Rules after the Applicants retirement (31.12.2009). AS per the Rule 9 of the CCS (Pension) Rules, the President reserves to withhold/withdraw the gratuity along with pension for grave misconduct. By the Presidential order dated 29.06.2010, he was inflicted a punishment for withholding of 10% of his monthly pension for a period of 5 years and ordered to release gratuity admissible to the Applicant. Respondents released the gratuity admittedly within 15 days. We are, therefore, of the firm opinion that the Applicant is not entitled to any interest on the gratuity.
24. Resultantly, the Original Application being devoid of merits is dismissed, leaving the parties to bear their respective costs.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda) Member (J) Member (A) /pj/