Central Administrative Tribunal - Delhi
Ramesh Chand Tanwar vs South Delhi Municipal Corporation Of ... on 6 October, 2022
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Item No. 30 (C-II) O.A. No. 3348/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 3348/2018
This the 06th day of October, 2022
Hon'ble Mr. Ashish Kalia, Member (J)
Ramesh Chand Tanwar,
Sanitation Superintendent (Retd.), Group -B,
S/o. Late Sh. Rati Ram, Aged about 73 years,
R/o. House No. 31, Shyam Nagar,
Okhla Industrial Estate-III,
New Delhi - 110 020. ....Applicant
(By Advocate : Mr. Abhinav Ramkrishna)
Versus
South Delhi Municipal Corporation
Through The Commissioner
Dr. Shyama Prasad Mukherjee Civic Centre
Minto Road, New Delhi. ...Respondent
(By Advocate : Ms. Sriparna Chatterjee)
ORDER (ORAL)
Hon'ble Mr. Ashish Kalia, Member (J) The applicant has filed this OA seeking the following reliefs :-
"a) Quash and set aside office Order dated 13.04.2018 (Annexure -1) and /or;
b) Direct the respondent to pay the arrear in pension ; and /or;2
Item No. 30 (C-II) O.A. No. 3348/2018
c) Any other relief which this Hon'ble Tribunal may deem fit and appropriate, in the circumstances of the case."
2. The brief facts are that the applicant who was subjected to disciplinary departmental proceeding was allowed to retire on 28.02.2005. He was placed under suspension in 2002 and was put under Trial on 28.02.2005.
3. It is stated by learned counsel for the applicant that the applicant has been wrongly convicted by the Trial Court against which, he filed an appeal before the next higher forum i.e., the Hon'ble High Court. The applicant is aggrieved by the non-issuance of show cause notice and issuance of order dated 13.04.2018 vide which the departmental proceedings have been initiated against him under Rule 9 of the CCS (Pension) Rules, 1972.
4. Notices were issued to the respondent- department who put their appearance through Ms. Sriparna Chatterjee, learned counsel. She filed reply opposing the OA stating in para 5.3 as under :- 3
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"5.3 The contents of the para 5.3 of the ground are wrong hence denied. In this regard, judgment of the Hon'ble Supreme Court reported in "2007 (4) SCC 454" and "2000 (7) SCC 529" is relied upon according to which the ratio decided is that an illegal appointment is non est in the eyes of law, which renders the appointment to be a nullity. The relevant portion of the judgment is reproduced herein below :-
"15. This brings us to the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillar of natural justice which means no one should be condemned unheard. However, whenever possible the principle of natural justice should be followed. Ordinarily in a case of this nature the same should be complied with. Visitor may in a given situation issue notice to the employee who would be effected by the ultimate order that may be passed. He may not be given an oral hearing, but may be allowed to make a representation in writing. lt is also, however, well-settled that it cannot be put any straight jacket formula. It may not be in a given case applied unless a prejudice is shown. It is not necessary where it would be a futile exercise.
16. A court of law does not insist on compliance of Useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard."4
Item No. 30 (C-II) O.A. No. 3348/2018 It is further submitted that the Hon'ble Supreme Court in Aligarh Muslim University and Ors. Vs. Mansoor Ali Khan, (2000) 7 SCC 529 and specifically to para 21, held as follows:
21. As pointed recently in M.C. Mehta Vs. Union of India (1999) 6 SCC 237)), there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India.
For example where no prejudice is caused to the person Concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao vs. Government of Andhra Pradesh [1966 (2) SCR 172, it is not necessary to quash the order merely because of violation of principles of natural justice."
5. Rejoinder to the reply has been filed by the applicant. To support his case, he relied upon the judgment of the Madhya Pradesh High Court in Ram Sewak Mishra Vs. State of M.P. in [2017 (4) M.P.L.J.] The relevant para nos. 2, 15, 16 and 33 thereof reads as under :-
"...............
2. The facts as are necessary for examining the question posed are that the Petitioner was convicted in a criminal case under Section 7 of the Prevention of Corruption Act, 1988. The petitioner filed an appeal against his conviction which is pending before this Court, wherein there is order of suspension of sentence. The petitioner attained the age of superannuation on 31.12.2004 and was 5 Item No. 30 (C-II) O.A. No. 3348/2018 granted anticipatory pension on 31.3.2005 by the Collector. The entire pension has been withheld under Rule 8 of the Civil Services (Pension) Rules, 1976 (hereinafter referred to as the "Pension Rules" for short) in view of the conviction of the Petitioner in the criminal case without giving any notice and opportunity of hearing. The impugned order of stoppage of pension has been passed on 15.3.2010. The ground of challenge in the writ petition is that pension could not be stopped without giving notice or opportunity of hearing.
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15. The judgment of Full Bench in the case of Laxmi Narayan Hayaran's case (Supra) deals with a situation of termination of an employee on account of conviction in a criminal trial. The said judgment of dispensing with the opportunity of hearing to a pensioner cannot be extended to a case of stoppage of pension. Relationship between employer and employee before the superannuation is governed by the Rules of services. If the rules do not permit any opportunity of hearing, the same can be excluded. It may be required in case of serving officer as it is not in public interest to allow a tainted person in public employment. It has been so ordered relying upon the Constitutional Bench judgment in the case of Tulsiram Patel's case (supra). But after retirement, the pensioner is entitled to pension in view of his past service under the State. An employee earns his pension. Pension is not a bounty, but a benefit earned by him by serving State for many years. The deprivation of such pension affects civil rights of the pensioner, the means of survival. Though sub-rule (2) of Rule 8 of the Pension Rules is silent about opportunity of hearing, but neither the dispensing with an opportunity of hearing is urgent nor is any other purpose expected to be achieved by denying the benefit of opportunity of hearing.
If an opportunity of hearing is granted, an employee can point out the mitigating family circumstance, the role in the criminal trial 6 Item No. 30 (C-II) O.A. No. 3348/2018 which led to his conviction or other circumstances as to why the pension should not be stopped and that too for life. Therefore, in case of a pensioner, the rule of natural justice would warrant an opportunity of hearing, at least of serving a show cause and elucidating the reply of the pensioner and thereafter, pass an order as may be considered appropriate by the authority so as to enable the appellate authority or the judicial courts to test the legality of the same while exercising the powers of the judicial review.
16. Thus, the first question of law is answered that a show cause notice is required to be given to the retired government servant convicted by the criminal Court. As a consequence thereof, we find that the order passed by this Court in the case of Dau Ram Maheshwar (supra) is correctly decided.
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ORDER
33. In view of the majority opinion, it is held that opportunity of hearing is required to be provided before an order of stoppage of pension is passed under Section 8(2) of the Civil Services (Pension) Rules, 1976 and that judgment of Dau Ram Maheshwar v. State of M.P. and another reported as 2017 (1) MPLJ 640 is correctly decided.
Order accordingly."
6. The Hon'ble High Court has observed that show cause notice is very much necessary for taking into account the departmental proceedings to be issued against the guilty officer and the decision passed by the Hon'ble Apex Court in Union of India Vs. 7 Item No. 30 (C-II) O.A. No. 3348/2018 Tulsiram Patel (1985) 3 SCC 398, the crux of the said judgment is that nobody can be condemned unheard and principles of audi alteram partem has to be followed whereby a person should be given an opportunity of being heard.
7. In view of the above, this Tribunal is of the view that no order of conviction has been passed by the Trial Court and the Appeal is pending before the Hon'ble High Court, the department is still debar for holding the proceedings where the President's ascent has to be taken for holding the departmental proceedings against the retired employee but the fact remains that the show cause notice to explain his conduct is also very much necessary.
8. In view of the aforesaid legal position and the facts and circumstances discussed herein above, this Tribunal is of the view that the impugned order dated 13.04.2018 is liable to be set aside and is hereby set aside.
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9. With the above observation, the OA stands disposed of with a direction to the respondents to issue a show cause notice to the respondents before proceeding further in the departmental proceedings in accordance with law.
There shall be no order as to costs.
(Ashish Kalia) Member (J) /Mbt/