Rajasthan High Court - Jaipur
H R Choudhary vs C A T Jaipur And Ors on 27 January, 2017
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Writ Petition No. 12437 / 2012
H.R. Choudhary S/o Late Shri Kana Ram Choudhary, aged about
69 Years, D-40, Chomu House, Sardar Patel Marg, Jaipur (retired
on 31.12.2004
----Petitioner
Versus
1. Central Administrative Tribunal, Jaipur Bench Jaipur.
2. Bharat Sanchar Nigam Limited, Corporate Office, Personnel
Branch-II, B-102, Statesman House, 148, Barakhamba Road, New
Delhi Through Its Chairman-cum-managing Director.
3. The Principal General Manager, Telecom District, Jaipur-10,
Bharat Sanchar Nigam Limited, Jaipur.
4. The Member(services), Telecom Commission, Government of
India, Ministry of Telecom & Information Technology, Department
of Telecommunication, Vigilance Second Section, New Delhi-
110001.
----Respondents
_____________________________________________________ For Petitioner : Mr.Mahendra Shah with Mr.Kamlesh Sharma For Respondents : Mr.Sanjay Verma _____________________________________________________ HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Judgment on Board Per : Hon'ble the Chief Justice 27/01/2017 The present writ petition assails order dated 26/07/2012 of the Central Administrative Tribunal, Jaipur Bench dismissing OA No.102/2011 declining relief for payment of pension and gratuity.
Learned Counsel for the Petitioner submits that he was suspended on 13/12/2004 under Rule 10(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (2 of 7) [CW-12437/2012] (hereinafter referred as the "CCS Rules") in contemplation of a departmental proceeding. He superannuated on 31/12/2004. Till that date, no charge-sheet was issued or served upon him. On 18/01/2005 orders were issued that in view of the pendency of a vigilance case, provisional pension was sanctioned withholding Death-cum-Retirement Gratuity/CVP till conclusion of the vigilance case. This order was totally unjustified and based on a non-est ground as no departmental proceeding had been initiated till superannuation. The petitioner was therefore entitled to full pension and gratuity with interest.
It was next submitted that he was convicted on a criminal charge for the death of his daughter-in-law under Section 306 IPC on 16/12/2004. It had nothing to do with discharge of his official duties. On 29/11/2004, referring to the conviction show cause notice was issued under Rule 19 of the CCS Rules and which was duly replied. It was specifically contended that pension and other retiral benefits could not be withheld for that reason under Rule 69 of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred as the "Pension Rules"). The department had also issued clarification on 24/03/2003 that "judicial proceedings"
referred to in Rule 69 did not include a conviction or a proceeding unrelated to service. The Tribunal gravely erred in denying relief to the petitioner.
Learned Counsel for the Respondents submitted that pursuant to conviction under Section 306 IPC on 16/12/2004, show cause notice was issued to the petitioner on 29/11/2004 (3 of 7) [CW-12437/2012] whereafter provisional pension was sanctioned on 18/01/2005. The criminal appeal against conviction is still pending.
We have heard learned Counsel for the parties and perused the materials on record.
The Petitioner was suspended while in service under Rule 10(1)(a) of the CCS Rules in contemplation of a departmental proceeding. He superannuated on 31/12/2004. Till that date no charge-sheet was issued or served upon him. A departmental proceeding commences only after issuance of charge-sheet. That suspension was on account of a contemplated departmental proceeding for conduct while in service is apparent from letter dated 18/01/2005 sanctioning provisional pension and withholding gratuity etc. due to pendency of a vigilance case. The ground is factually non-est. There are no proceedings initiated under the Pension Rules.
The petitioner already stood convicted in the criminal case before 18/01/2005. The Respondents made no reference to the same as they never intended to withhold full pension or gratuity for that reason. If no charge-sheet was issued or served before superannuation and there were no proceedings under the Pension Rules, withholding of full pension and gratuity was not only arbitrary but also illegal and unsustainable in law.
The show cause notice issued to him on 29/11/2004 under Rule 19 of the CCS Rules was completely misconceived. Rule 19 reads as follows:-
(4 of 7) [CW-12437/2012] "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 conduct 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 inquiry in the manner provided in these rules, or
(iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry 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 Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under Clause (i) :
Provided further that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule.]"
Rule 14 provides the procedure for imposing major penalties related to imputation of misconduct or misbehavior including sexual harassment. It provides for holding a regular departmental proceeding. There is no provision for holding a departmental proceeding for imposing a major penalty on grounds of conviction in a criminal case unrelated to discharge of duties as a government servant. Rule 15 provides procedure to be followed after submission of the enquiry report. Rule 16 deals with imposition of minor penalties with regard to imputation of misconduct or misbehaviour. Rule 17 concerns communication of orders and Rule 18 provides for proceedings on more than one (5 of 7) [CW-12437/2012] government servant on a common charge. It is therefore apparent that penalty leading to conviction on a criminal charge under Rule 19(i) has to be with regard to a conduct associated with discharge of government duties. The show cause notice under Rule 19 of the CCS Rules was therefore completely misconceived.
Rule 69 of the Pension Rules provides for grant of provisional pension where departmental or judicial proceedings are pending. Even if the appeal against conviction preferred by the Petitioner be treated as a continuation of the criminal case, the words "judicial proceedings" will naturally have to be read in the context of the rules as being confined to a proceeding related to conduct in service which led to conviction on a criminal charge. To read into it the pendency of an appeal preferred by the petitioner against his conviction under Section 306 IPC to withhold full pension would be doing complete violence to Rule 69 and shall be completely beyond its jurisdiction and scope. In (2009) 3 SCC 709 (Paul Enterprises v. Rajib Chatterjee & Co.) it was observed as follows :-
"24. In a situation of this nature, the interpretation clause should be given a contextual meaning. It is not exhaustive. It is trite that when a statutory enactment defines its terms, the same should govern what is proved, authorised or done under or by reference to that enactment......."
The counter affidavit filed by the Respondents before the Tribunal is a bundle of contradictions reflecting a state of complete apathy unconcerned with the duty to assist the Tribunal in dispensation of justice. The Respondent acts through its officers who are reposed power in trust to be used in good faith to protect (6 of 7) [CW-12437/2012] the interest of the Respondents and not to involve it in unnecessary litigation frittering away time and money. We are constrained to observe that the trust has been completely belied by action reflecting complete non application of mind if not in abuse of the trust placed. The shifting stands taken in official orders and that before the Tribunal has resulted in illegal denial of full pension and gratuity to the petitioner since his superannuation in the year 2004. Regrettably, the Tribunal failed to grasp issues for consideration properly.
A superannuated employee has no other source of income. Any deprivation of superannuation benefits therefore has serious consequences for the retired employee and his family. He may have to garner resources at this stage at considerable cost to maintain his standard of living or alternately be forced to reduce his standard of living for no fault of his. Pension and gratuity are not bounty but constitute a right to property under Article 300A of the Constitution which cannot be deprived except in accordance with law.
The withholding of full pension and gratuity is therefore held to be arbitrary and illegal. The Petitioner is held entitled to full pension from date of superannuation alongwith gratuity and other superannuation benefits, if any. The Respondents shall pay interest on Gratuity as provided for in Rule 68 of the Pension Rules or any statutory interest as the case may be. Relying on (1994) 2 SCC 406 (R.R.Bhanot v. Union of India) the Petitioner is held entitled to interest on the arrears of pension @12% p.a. from the date of superannuation till the actual date of payment.
(7 of 7) [CW-12437/2012] The order to be complied with within a maximum period of two months from the date of receipt and/or production of a copy of this order failing which the Petitioner shall be entitled to 18% interest. The Respondents in that event shall be at liberty to fix responsibility and recover the 6% interest from the erring official. The order of the Tribunal is set-aside.
The writ petition is allowed.
(VIJAY KUMAR VYAS)J. (NAVIN SINHA)C.J. Anil Goyal PS/48 AFR