Central Administrative Tribunal - Delhi
Shri M.F.Gedam vs Union Of India on 12 February, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 890/2012 New Delhi this the 12th day of February, 2015 Honble Mr. A.K.Bhardwaj, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Shri M.F.Gedam, Section Officer, National Informatics Centre, (Employee Code No. 0215), Resident of: 134-C, Pocket-VI, Mayur Vihar, Phase-III, Delhi-96 Applicant (By Advocate Shri Sachin Chauhan ) VERSUS 1. Union of India, Government of India Through the Director General, National Informatics Centre, A-Block, CGO Complex, Lodhi Road, New Delhi-110003 2. The Competent Authority, Through Deputy Director (Personnel), National Informatics Centre, A-Block, CGO Complex, Lodhi Road, New Delhi-110003 3. The Union Public Service Commission, Through its Secretary, Dholpur House, New Delhi-110 003 ... Respondents (By Advocate Shri M.M.Sudan ) ORDER Honble Mr. A.K.Bhardwaj, Member (J):
The prayer made in the Original Application filed under Section 19 of the Administrative Tribunals Act, 1985 read thus:-
8.01. That the records of the case be called for from the respondents Nos. 1 and 2. The order of appointment of Applicant as Section Officer (Emp.Code 215) be kindly to be produced by Respondent Nos. 1 and 2.
8.2 That the impugned communications i.e. order dated 06.09.2011 (Annexure A-1) and order dated 25.01.2011 (Annexure A-2) be quashed and set aside; and kindly declared as not valid and as of no adverse consequences against applicant. The impugned Annexure A-3 relates to Assistant and is covered by Annexures A-1 and A-2 and A-5.
8.3 That period of suspension from 16.12.1988 to 23.04.1997 and from 25.11.2005 to 25.01.2011 be declared as spent on duty; suspension as wholly unjustified; the Applicant be directed to be promoted to higher the post, pay and grade of Deputy Director/ Joint Director above his immediate junior/Shri S.D.Gaikwad.
8.4. The Applicants retrial dues/retirement benefits, i.e. commutation amount, DCR gratuity, leave salary, CGEIS Scheme amount be directed to be released by the Respondents Nos Applicant and 2 in favour of Applicant.
8.5 That all aforesaid consequential benefits and dues be directed to be paid to Applicant by Respondents Nos 1 and 2 with interest @ 12% per annum from respected date(s) of accrual.
8.6 That the applicant be kindly granted all consequential benefits; and such other and further orders, including any other relief, be also kindly granted, in the facts and circumstances of the case, as may be deemed fit and proper with costs of the case. Learned counsel for the applicant would contend that:-
(i) Since the disciplinary proceedings initiated against him vide charge memorandum No. 7(14)/98-PP.II dated 3.7.1989 were finally closed in terms of the order No. 7(14)/87-PP.II (Vol.II) dated 25.01.2011 and in the criminal case registered vide FIR No. RC No.13/88/CBI/ACB/DLI under Section 420 IPC, he was released on probation of good conduct for a period of one year subject to his furnishing a bond to the effect that he would be of a good moral character for the period and would not enter into any criminal act during the period, the penalty of compulsory retirement inflicted upon him in the year 1997 need to be revisited and he should be treated on duty for the period during which he remained out of service and given all consequential benefits.
(ii) With closure of the disciplinary proceedings by the disciplinary authority, the period of suspension should be treated as spent on duty and the applicant should be paid all consequential benefit for the period.
2. On the other hand, Mr.M.M.Sudan, learned counsel for respondents espoused that the order No.8(7)/88-PP. (II)(i) dated 23.04.1997 was challenged by the applicant in OA No.2076/2001 which was dismissed in terms of order dated 30.12.2002, thus, the present Original Application filed by the applicant for service benefits the period beyond 23.04.1997 is barred by res- judicata. Regarding the decision on the period of suspension, the learned counsel again submitted that the plea could also be taken in the previous OA filed in the year 2009 and the same raised now in the year 2012 in the present OA is barred by res judicata and limitation. Regarding interest, he submitted that the disciplinary proceedings initiated against the applicant were closed on 25.01.2011 and thereafter his terminal benefits were settled expeditiously and most of his terminal benefits had been settled before the said date in the year 2010 itself. The learned counsel finally submitted that in view of the judgment of Honble Supreme Court in Sushil Kumar Singhal Vs. The Regional Manager, Punjab National Bank (JT 2010(8) SC 233), when a person is released with direction to maintain good conduct for a particular period and not to indulge in any criminal activities during such period, he may not be considered disqualified for the purposes of the Act like the Representation of the People Act, 1950 but if an employee who is convicted for an offences involving moral turpitude, it would be the misconduct that would lead to his dismissal.
3. We heard learned counsel for parties and perused the record. The applicant was initially appointed as Typist (UDC) in the Electronics Commission, Bombay vide order No. EC/3(2)/16/72-307 dated 03.07.1972. After resigning from the post, he joined as Technical Typist in the Directorate of IPAG, Electronics Commission in December, 1972. He got promotion as Assistant and Section Officer w.e.f. 1.10.1977 and 01.01.1983 respectively. In the year 1988, he was found involved in a criminal case of false LTC claims and was placed under suspension w.e.f. 16.12.1988. Subsequently in the year 1994, in terms of the order dated 7.07.1994, the Court of Shri V.K.Jain, learned Metropolitan Magistrate, New Delhi convicted the applicant and sentenced him with rigorous imprisonment for one year and fine of Rs.5000 and in the event of default of payment of which further simple imprisonment for three months. In view of his conviction, the concerned disciplinary authority required the applicant to explain that why an appropriate order under Rule 19 (i) of the CCS (CCA) Rules should not be passed.
Vide OM No. 8(7)/88-PP.II dated 11.10.1994, the disciplinary authority required him to appear before it on 20.10.1994 at 3.00PM. The applicant appeared before the disciplinary authority and made representation for stay of the proceedings till the disposal of the appeal by the appellate authority. Nevertheless, he was given an opportunity to show cause that why the penalty of dismissal from service should not be imposed upon him. The opportunity was given vide memo no. 8(7)/88-PP.II dated 25.03.1997. The applicant submitted his response to memo which was considered by the disciplinary authority and finally an order of penalty of compulsory retirement upon him was passed on 23.04.1997. The appeal preferred against the penalty order was rejected on 04.08.2000 and the Original Application i.e. 2076/2001 (ibid) filed before this Tribunal was also dismissed on 30.12.2002. The relevant excerpt of the order read thus:-
19. Moreover, we find that due procedure has been followed by the respondents under Rule 19(1) of the Rules. It is only after affording reasonable opportunity to the applicant and taking a lenient view, the penalty of compulsory retirement has been imposed. We also find from a perusal of appellate order that all the contentions of the applicant have been discussed and considered and thereafter punishment imposed has been upheld. Appellate order does not suffer from any infirmity. Another grievance of the applicant that despite compulsory retirement and expiry of reasonable period, he has not been paid his retirement benefits. We find that no such prayer has been made in the OA and for this applicant is at liberty to redress his grievance in accordance with law in a separate proceedings. However, we find that as the appeal against the conviction is still subjudice its final outcome shall determine the rights of the applicant and in that event the law shall take its own course. The criminal appeal No.44A/2005 preferred by the applicant against the order of conviction was disposed of in terms of order dated 09.08.2005, the relevant excerpt of which read thus:-
9. Keeping in view the submissions made by the counsel for the appellant and the fact that the appellant is of 62 years of age and that he has already been dismissed from the government service and that he has to support his family including his wife and children and that he has already undergone trial for 18 long years in the court and has suffered a lot. I am of the view that the interest of justice would be served if the appellant is released on probation. It is, therefore, ordered that the appellant be released on probation for a period of one year subject to his furnishing a bond to the effect that he will be of good moral character for a period of one year and will not enter into a similar criminal acts during the period of one year. He is directed to furnish a personal bond and a surety bond in the sum of Rs.10,000/- in the court..
4. In the meantime, for the misconduct of tampering with two lists of candidates forwarded by the Employment Exchange, Curzon Road, New Delhi vide their letters dated 07.08.1987 and 28.08.1987 for engagement of daily wage peons by including the names of candidates not nominated by the Employment Exchange and other dereliction to duty, the applicant was issued charge memorandum no. 7(14)/98-PP.II dated 3.7.1989. For easy reference, the articles of charges as reproduced in the written statement of the respondents are extracted hereinbelow:-
I. He tampered with two lists of candidates forwarded by the Employment Exchange, Curzon Road, New Delhi vide their letters dated 07.08.1987 and 28.08.1987 for engagement of daily wage peons by including therein names of candidates not nominated by the Employment Exchange and thus exhibited lack of integrity and acted in a manner unbecoming of a Government servant and shown lack of devotion to duty. This involved violation of Rule 3 (i)(ii) and (iii) of CCS (Conduct) Rules, 1964.
II. He appointed 2 daily wagers by including through forgery their names in the list of candidates interviewed and selected on 07.08.1987 and 28.08.1987, thereby showing malafide motives, and lack of integrity and personal interest on his part, thus misusing his powers and violating Rule 3(2)(ii) of CCS (Conduct) Rules, 1964.
III. Shri Gedam was the only possessor of the forged list of candidates while functioning as Section Officer, when the interview committee prepared the list of selected candidates without the concurrence/ approval of the other members of the committee and had thus acted arbitrarily and without authority thereby showing lack of integrity and devotion to duty violating Rule 3 (i)(ii) and (iii) of the CCS (Conduct) Rules, 1964. After inquiry into the said charges, the disciplinary authority passed order no. 7(14)/87-PP.II dated 08.04.1991 imposing the penalty of reduction of rank from the post of Section Officer to the feeder post of Assistant upon the applicant. The appeal filed by the applicant against the order was rejected and the order was communicated to him in terms of the communication dated 08.05.2000. The OA no.2681/2000 preferred by the applicant against the orders passed by the disciplinary authority and the appellate authority i.e. OA no. 2681/2000 was dismissed on 18.02.2002. The order was challenged before Honble High Court in Writ Petition (Civil) No. 3498/2003. The Writ Petition was disposed of in terms of order dated 28.11.2005. The relevant excerpt of the order passed in Writ Petition (Civil) No. 3498/2003 read thus:-
7. Accordingly, we set aside the order of punishment passed against the petitioner as also passed by the appellate authority with a direction to the respondent to reinstate the petitioner in service who shall be kept under suspension and will be paid subsistence allowance from the date of the order passed by the disciplinary authority in accordance with law. The disciplinary authority would then proceed in the departmental proceeding in terms of the observations recorded, in the case of Kunj Behari Misra (supra) till the same is brought to a logical conclusion. So far as back wages are concerned, the observations made in paragraph 31 of the decision rendered by the Supreme Court in Managing Director, ECIL, Hyderabad & Others v. B. Karunakar and Others reported in ( 1993) 4 SCC 727 would apply. It has been held in the said decision that the question as to whether or not the government servant would be entitled to back wages and other benefits from the date of his removal to the date of his reinstatement should invariably be decided by the authorities in accordance with law after culmination of the departmental proceeding and depending on the final outcome. It is ordered accordingly.
8. In terms of the aforesaid order, the order passed by the Tribunal stands set aside and the matter is remitted back to the disciplinary authority to proceed in the matter in accordance with law. It shall be open to the petitioner to prove and establish before the disciplinary authority that none of the charges leveled against him have been proved in the departmental proceeding. It is also made clear that no observation made herein shall be construed as any opinion or view expressed by this Court will regard to the merits of the contentions of the parties in respect of the charges. It is also needless to point out while considering the entire matter now, in terms of the order passed by this Court, the disciplinary authority shall not be influenced by any of the observations made by it earlier or by the appellate authority or by the Tribunal, in respect of the merits of the charges.
The writ petition stands disposed of in terms of the aforesaid order. The Petition No. 287/2007 preferred by the respondents seeking review of the order was rejected and finally the SLP (Civil) No. 8474-8475/2008 preferred before Honble Supreme Court was also rejected in the year 2009. After the order of Honble Supreme Court, the NIC passed order no.18(14)/2006-P&L dated 06.08.2009 restoring the applicant to the post of Section Officer w.e.f. 08.04.1991 and treated him as suspended Section Officer instead of Assistant. He was also paid the difference of subsistence allowance admissible to him as Section Officer and the one paid to him as Assistant for the period from 16.12.1988 to 23.04.1997. In the meantime, the petitioner had preferred Contempt Petition before Honble Delhi High Court, wherein following order was passed on 27.10.2010:
Counsel for the respondent submits that in view of the fact that petitioner stood compulsorily retired, departmental proceedings were not finalized. Counsel for the respondent also submits that in case proceedings are not finalized, the respondent will consider whether any purpose would be achieved in continuing with those proceedings after petitioner was compulsorily retired, as far back as in the year 1997. After the aforementioned order, the respondents issued order no.7 (14)/87-PP.II (Vol.II) dated 25.01.2011(Annexure A-2) closing the contempt proceedings against the applicant. After the said order, the applicant made representation dated 10.03.2011. The prayer made in the representation read thus:-
PRAYER: I bona fide believe that I am entitled to as at paragraph 18 above: (As my following outstanding dues were withheld, I be kindly aid and with interest at 12% on the same from respective dates of accruals):
(a) I am deemed to have been retired on 31.03.2003 on attaining age of superannuation and without any stigma or disqualification. I further state that as my junior was promoted in the meanwhile, I am therefore also, entitled to be placed with benefit in the post, pay and grade of Deputy Director and entitled to the pay and allowances;
(b) Kindly read the order of compulsory retirement dated 23.04.1997 as void abinitio;
(c) I cannot be divested of my legal right, without authority of law, procedure and rules and here I find that there is no application of mind whatsoever;
(d) CGEGI Scheme amount of Rs.14,140/- withheld from 23.04.1997 to 11.02.2010, i.e. for about 13 years and paid vide cheque No.283985 dated 11.02.2010;
(e) GPF amount of Rs.3,866/- withheld from 23.04.1997 to 17.02.2010, i.e. for about 13 years and paid vide cheque No.284015 dated 17.02.2010;
(f) Earned leave Encashment amount of Rs.10,560/- withheld from 23.04.1997 to 17.02.2010, i.e. for about 13 years and Gratuity amount withheld from 23.04.1997 to 17.02.2010, i.e. for about 13 years and paid together vide cheque No. 284014 dated 17.02.2010;
(g) Sum of Rs.57,480/- was released vide cheque No.284764 dated 02.06.2010 towards difference of subsistence allowance from 08.04.1991 to 23.04.1997, there is no explanation for delay and interest @ 12% per annum be paid to me;
(h) Pass an order declaring my period of suspension from 16.12.1988 to the stage of passing of void abinitio order dated 23.04.1997 of revocation, as on wholly unjustified; as on duty for all purposes and I be paid the pay and allowances and with consequential relief of appropriations in GPF, treated as retired on 31.03.2003 at age of superannuation and promotions to higher the post, pay and grades and with consequential effect on arrears of pay and allowances and pension and with interest @ 12% per annum; it is significant that I was always available for performing duty and it was the choice of the respected authorities as denied me post and higher posts by taking one after other incorrect decision against me; it is necessary to kindly note that all incorrect decisions, including penalty order dated 08.04.1991 of illegal reduction are always subject to the restitution of adversely affected Government Servant/pensioner to the state which he was by said incorrect decision at material point of time was denied to Government Servant/pensioner; though the entire harm caused to me and prejudice caused to me in CBIs charge sheet RC 13/88 CBI/ACB/DLI and trial and appeal, cannot be measured I am seeking reasonable consideration and compensation.
(i) I be held as having been retired on 31.03.2003 on attaining age of superannuation and not before and without any stigma or disqualification. I further state that as my junior was promoted in the meanwhile, I am therefore also, entitled to be placed with benefit in the post, pay and grade of Deputy Director and the pay and allowances;
(j) I be given the benefit of 5th and 6th CPC and with interest @ 12% per annum;
(k) Pension with effect from 01.04.2003 till date, and as with interest @ 12% per annum from date(s) when it fell due and as it accrues in future;
(l) Declare that penalty order dated 08.04.1991 of reduction in rank from the post, pay and grade of Section Officer to that of Assistant was accepted as illegal; please do not seek to derive any benefit for CBIs charge sheet RC 13/88 CBI/ACB/DLI as authorities had prejudiced my defence case and appeal;
(m) Declare that order dated 23.04.1997 of my alleged compulsory retirement from the post, pay and grade of Assistant was void abinitio as without authority and without jurisdiction;
(n) Consider to pass a proposal on as to what was allegedly proposed vide the void abinitio order dated 23.04.1997 at order in criminal appeal;
(o) Please give respect to the authority of administration of justice; with order dated 23.04.1997 as void abinitio, and with payments released as per respected authorities affidavit dated 23.07.2010 in Honble Court there is nothing that survives in Union of Indias Special Leave Petitions No.s 8474-8475/2008; and amongst others;
(p) Let my any further extreme mental and physical harassment, inconvenience, defamation, torture and humiliation to abate henceforth. My pain and suffering and for decades, be kindly noticed. I deserve a few moments of rest now atleast. The authorities kept me engaged in series of proceedings and litigation and I was all along running from pillar to post for justice.
(q) I reiterate my prayer for mercy at this stage;
(r) Kindle let me know as to why the decision to close Memorandum of Charges dated 03.07.1989, as taken on 25.01.2011 was not taken on 03.07.1989 itself or before that;
(s) Such further relief as I am entitled to be also given to me. The representation was rejected in terms of the order no.20(01)/2011-Pers dated 06.09.2011. The view taken by the respondents while disposing of the representation of the applicant read thus:
6. You have pleaded that the legality of the order dated 23.04.1997 issued by Director General is not in order as you were appointed as Section Officer in 1983 by order and in the name of the Honble President. No authority subordinate to the Honble President and without the Honble President consulting Union Public Service Commission could cause your termination of service/compulsory retirement. The Honble Director General is not competent to terminate the services of a Section Officer.
7. It is observed that you have challenged the order dated 23.4.1997 by filing OA No.2076/2011 before Honble Central Administrative Tribunal, Principal Bench, New Delhi. The Honble Tribunal vide their order dated 30.12.2002 dismissed the OA No.2076/2001 and uphold the order dated 23.4.1997 of Compulsory Retirement. You accepted the judgment of the Honble Tribunal and did not challenge the same before High Court, the judgment has become final and binding on both the parties. Further it is clarified that Section Officer is Gazetted Group-B post and DG, NIC is Appointing and Disciplinary Authority for Group-B posts.
8. The Government of India instructions 2 (c) under Rule 19 of clarifies, That matter has been considered in consultation with the Ministry of Law and it has been held that the disciplinary authority is precluded under Section 12 of the Probation of Officers Act from dismissing/removing an employee merely because he is convicted of an offence. That Ministry has held that the order of dismissal etc., of the employee should be on the ground of conduct which had led to his conviction and not the conviction itself.
9. You have also pleaded that there is set law and your case is similarly placed as the case of Aitha Chander Rao Vs. State of Andhra Pradesh. Whereas the Honble Supreme Court in Civil Appeal No. 6423 of 2010 titled Shri Sushil Kijmar Singhal Vs. The Regional Manager, Punjab National Bank had held:
10. The said judgment in Aitha Chander Rao (supra) was not approved by this Court in Harichand Vs. Director of Social Education (1998) 2 SCC 383, observing that due to the peculiar circumstances of the case, the benefit of the provisions of 1958 Act had been given to him and as in that case there had been no discussion on the words disqualification, if any attaching to a conviction of an offence under such law, the said judgment cannot be treated as a binding precedent
11. The order of release on probation is merely in substitution of the sentence to be imposed by the Court. Thus, the factum of guilt on the criminal charge is not swept away merely by passing the order under the Act, 1958.
27. In view of the above, we reach the conclusion that once a Criminal Court grant a delinquent employee the benefit of Act, 1958, its order does not have any bearing so far as the service of such employee is concerned. The word disqualification in Section 12 of the Act, 1958 provides that such a person shall not stand disqualified for the purpose of other Acts like the Representation of the People Act, 1950 etc. The conviction in a criminal case is one part of the case and release on probation is another. Therefore, grant of benefit of the provision of Act, 1958, only enables the delinquent not to undergo the sentence on showing his good conduct during the period of probation. In case, after being released, the delinquent commits another offence, benefit of Act, 1958 get terminated and the delinquent can be made liable to undergo the sentence. Therefore, in case of an employee who stands convicted for an offence involving moral turpitude, it is his misconduct that leads to his dismissal.
10. The order dated 9th August 2005 of the Appellate Court of releasing you on probation is merely in substitution of the sentence to be imposed by the Court. Thus, the factum of guilt on the criminal charge is not swept away merely by passing the order under the Act, 1958.
11. You have claimed that amount of CGEIS, GF, Earned Leave the difference of subsistence allowance paid to him unnecessary delay, therefore, the interest @ 12% per annum may be paid to him for delay. On this it is clarified that you never took any initiative to fill the forms which are required to release the dues and other retirement benefits. After the order dated 8th May 2009 of Honble Supreme Court an order No. 18 (14)/2006-P&L dated 6th August 2009 was sent to you requesting to contact Deputy Director, Administration-II, NIC Hqrs., New Delhi to complete the formality for claiming your dues. After that also you did not complete the formalities. While passing an order dated 4.1.2010 the Honble High Court of Delhi in CCP No.126/2008 filed by you has also observed and ordered:
It is stated by counsel for the respondents that the pensionary benefits could not be released in favour of the petitioner in view of the fact that the petitioner failed to complete the necessary formalities despite a notice served by the Department/Respondents on the petitioner. A copy of the necessary forms has been furnished to the petitioners counsel in the court today itself. The petitioner is at liberty to complete the formalities and within four weeks of completion of the formalities by the petitioner, due shall be released in favour of the petitioner.
12. Hence, your claim that you may be paid the interest @12% per annum on the amount of CGEIS, GPF, Earned Leave encashment and the difference of subsistence allowance is rejected as the delay was on your part.
13. You have also leaded that why the decision to close charges of Memorandum dated 3.7.1989 (Reduction in Rank) was not taken on 3.7.1989 itself. In this regard it is clarified that as ordered by the Honble High Court vide its order dated 27.10.2010 to see whether any purpose would be achieved in continuing with those proceedings after petitioner was compulsorily retired, as far back as in the year 1997. Accordingly, Disciplinary Authority took a decision that no purpose would be achieved in continuing with the disciplinary proceedings pertaining to the charges leveled against you as per the Charge Memorandum dated 03.7.1989 as you were compulsorily retired from service in the other case of claming false LTC. Abided by the order of Honble High Court the Disciplinary Authority ordered for formal closure of the instant case.
4. In view of clarifications & rule position given in the foregoing paragraphs it is informed to you that as you stand convicted for an offence involving moral turpitude, it is your misconduct that leads to penalty. Therefore, your representation is not accepted by the Competent Authority and is rejected.
5. As far as the plea of respondents that the OA is barred by res judicata is concerned, we find no merit in the same, for the simple reason, that the penalty order dated 23.04.1997 had been passed when the applicant had been convicted by the Court of Shri V.K.Jain, learned Metropolitan Magistrate, New Delhi. Thereafter there were subsequent developments in the matter inasmuch as the order passed by Mr.V.K.Jain, learned Metropolitan Magistrate was modified in appeal and the modification of the order by the appellate authority gave a right to the applicant to seek the reconsideration of the penalty order. Nevertheless, instead of asking for re-visiting the order of penalty of compulsory retirement and facing the disciplinary proceedings initiated vide charge memo dated 3.07.1989, the applicant himself preferred Contempt Petition (Cont. CAS (C) 126/2008) and earned the order dated 27.10.2010 (ibid). In the said order, Honble High Court directed the respondents to consider whether any purpose could be achieved in continuing with aforementioned proceedings after the penalty of compulsory retirement had been imposed upon the applicant. The relevant excerpt of the order read thus:-
5. Counsel for the respondents submits that in view of the fact that petitioner stood compulsorily retired, departmental proceedings were not finalized. Counsel for the respondent also submits that in case proceedings are not finalized, the respondents will consider whether any purpose would be achieved in continuing with those proceedings after petitioner was compulsorily retired, as far back as in the year 1997.. In the wake of said order, the respondents dropped the departmental proceedings initiated against the applicant. Thus, having accepted the penalty of compulsory retirement and made the same as ground to question the disciplinary proceedings initiated vide charge memo dated 3.07.1989, the applicant cannot now question the penalty order itself. It was for the applicant to question the penalty of compulsory retirement with the commitment to face the disciplinary proceedings in the event of being successful in the challenge. Further, even otherwise also in view of the judgment of Honble Supreme Court in Sushil Kumar Singhal Vs. The Regional Manager, Punjab National Bank (ibid) relied upon by counsel for respondents since the charge against the applicant in the criminal was of moral turpitude, merely because he was released with direction to maintain good conduct for a particular period it cannot be held that he was acquitted from the charges, thus there was no occasion to revisit the penalty. Relevant excerpt of the judgment of Honble Supreme Court read thus:
26. In Manish Goel Vs. Rohini Goel, AIR 2010 SC 1099, this Court after placing reliance on large number of its earlier judgments held as under :-
"No Court has competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injuncted by law."
Thus, in such a fact-situation, it is not permissible for this Court to issue any direction as had been issued in the case of Shankar Dass (supra).
27. In view of the above, we reach the conclusion that once a Criminal Court grants a delinquent employee the benefit of Act, 1958, its order does not have any bearing so far as the service of such employee is concerned. The word "disqualification" in Section 12 of the Act, 1958 provides that such a person shall not stand disqualified for the purposes of other Acts like the Representation of the People Act, 1950 etc. The conviction in a criminal case is one part of the case and release on probation is another. Therefore, grant of benefit of the provisions of Act, 1958, only enables the delinquent not to undergo the sentence on showing his good conduct during the period of probation. In case, after being released, the delinquent commits another offence, benefit of Act, 1958 gets terminated and the delinquent can be made liable to undergo the sentence. Therefore, in case of an employee who stands convicted for an offence involving moral turpitude, it is his misconduct that leads to his dismissal.
28. Undoubtedly, the appellant was convicted by the Criminal Court for having committed the offence under Section 409 IPC and was awarded two years' sentence. The appellate court granted him the benefit of Act, 1958. The Tribunal rejected his claim for re-instatement and other benefits taking note of the fact that appellant was given an opportunity by the Management to show cause as to why he should not be dismissed from service. The appellant submitted his reply to the said show cause notice. The Management passed the order of dismissal in view of the provisions of the Act, 1949. The Tribunal also took into consideration the contents of the Bi-Partite Settlement applicable in the case and rejected the appellant's claim. The High Court considered appellant's grievance elaborately as is evident from the impugned judgment. We could not persuade ourselves, in the aforesaid fact-situation, that any other view could also be possible.
As far as the plea of the applicant regarding competence of the disciplinary authority to impose the penalty of compulsory retirement is concerned, the penalty order was passed in the year 1997, when the applicant was working to the post of Assistant. Subsequently only when the reversion order had been quashed, the consequential benefits i.e. difference of subsistence allowance was paid to him. The competence of an authority to pass an order has to be judged at the point of time when it passed the order and not in the wake of the changed circumstances. Moreover, as has been noted hereinabove, the applicant himself accepted the penalty order before Honble High Court and got a direction issued to respondents to consider whether any purpose could be achieved in continuing the disciplinary proceedings initiated against him vide memo charge 03.07.1989 in which he had been reverted. In view of the observation made by Honble High Court only the respondents could close the proceedings. Had the proceedings been not closed on account of penalty order passed in the year 1997, the disciplinary proceedings could have culminated against him either way. Further, once the validity of the penalty order dated 23.04.1997 had been examined in the earlier proceedings, the applicant cannot question the validity of the same and in view of the order passed by the appellate authority he could have asked only for revisiting /reconsideration of the order only on the limited ground that whether, in view of the modification of the conviction order, the penalty order could be recalled or modified. We have already recorded a finding that in view of the judgment of Honble Supreme Court and in view of the charge against the applicant in the criminal case i.e. the false claims for LTC, the order could not have been modified. As far as the plea of decision regarding the period spent by the applicant under suspension is concerned, it was open to applicant to raise the plea in the OA no. 2076/2001 wherein he had assailed the orders passed by the disciplinary authority and appellate authority. The plea raised now in the OA filed after almost 15 years is hit by limitation and is liable to be rejected accordingly. Besides as has been provided in G.I., Dept. of Per. & Trg. O.M.No.11012/15/85-Estt (A) dated 3.12.1985, the period of suspension can be treated as spent on duty when only minor penalty is imposed. In the present case, the applicant was awarded a major penalty of compulsory retirement, thus even otherwise also he may not be entitled to any benefit of difference of pay and subsistence allowance for the suspension period. For easy reference, the instructions are reproduced hereinbelow:
(3) Period of suspension to be treated as duty if minor penalty only is imposed.- Reference is invited to O.M. No. 43/56/64-AVD, dated 22.10.1964 [not printed], containing the guidelines for placing Government servants under suspension and to say that these instructions lay down, inter alia, that Government servant could be placed under suspension, if a prima facie case is made out justifying his prosecution or disciplinary proceedings which are likely to end in his dismissal, removal or compulsory retirement. These instructions thus make it clear that suspension should be resorted to only in those cases where a major penalty is likely to be imposed on conclusion of the proceedings and not a minor penalty. The Staff Side of the Committee of the National Council set up to review the CCS (CCA) Rules, 1965, had suggested that in cases where a Government servant, against whom an inquiry has been held for the imposition of a major penalty, is finally awarded only a minor penalty, the suspension should be considered unjustified and full pay and allowances paid for suspension period. Government have accepted this suggestion of the Staff Side. Accordingly, where departmental proceedings against a suspended employee for the imposition of a major penalty finally end with the imposition of a minor penalty, the suspension can be said to be wholly unjustified in terms of FR 54-B and the employee concerned should, therefore, be paid full pay and allowances for the period of suspension by passing a suitable order under FR 54-B.
2. These orders will become effective from the date of issue Past cases already decided need not be reopened. Nevertheless as has been provided in G.I.M.F, O.M. No. 15 (14) E.IV(59) dated 25.05.1962, the decisions of the competent authority under FR 54, 54-A and 54-B in respect of (a) pay and allowances for the period of absence and (b) whether or not the period of absence should be treated as duty are not closely interlinked have to be separate and independent. It is not necessary that the decision regarding entitlement for pay and allowance for the period of absence should depend upon the decision regarding treatment of the period. The competent authority has the discretion to pay the proportionate pay and allowance and treat the period as duty for any specified purpose or only to pay the proportionate pay and allowance. For easy reference the general instructions are reproduced hereinbelow:
(3) Treatment of period of absence and payment thereof.- The Government of India have conveyed the following clarifications in regard to certain points which have been raised in connection with the application of FRs 54, 45-A and 54-B:-
(1) The decision of the competent authority under FRs 54,54-A and 54-B is in respect of two separate and independent matters, viz., (a) pay and allowances for the period of absence, and (b) whether or not the period of absence should be treated as duty.
It is not necessary that the decision on (a) above should depend upon the decision on (b) above.
The competent authority has the discretion to pay the proportionate pay and allowances and treat the period as duty for any specified purpose(s) or only to pay the proportionate pay and allowances. It has no discretion to pay full pay and allowances when the period is treated as non-duty.
If no order is passed directing that the period of absence be treated as duty for any specified purpose, the period of absence should be treated as non-duty. In such event, the past service (i.e.) service rendered before dismissal, removal, compulsory retirement or suspension will not be forfeited. (2) As Fundamental Rule 54 is absolute, the law of limitation restricting payment of arrears of subsistence allowance only for a period of three years in certain circumstances need not be invoked at the time of paying the arrears of pay and allowances for the period from the date of dismissal /removal/compulsory retirement/ suspension to the date of reinstatement in respect of all cases where the pay and allowances are regulated on reinstatement in accordance with the provisions contained in FR 54, FR 54-A and FR 54-B. As far as the claim for other terminal benefits such as CGEIS, commutation amount, DCR gratuity, leave encashment etc. are concerned, we find that the applicant has already been paid the following terminal benefits as under:-
S.No. Cheque No.& date Amount Payment details
1.
283985 dated 11.02.2010 Rs.14,140/-
Central Government Employees Insurance Scheme
2. 2804015 dated 17.02.2010 Rs.3866/-
General Provident Fund (GPF)
3. 284014 dated 17.02.2010 Rs.10560+Rs.36,272 Rs.46,832/-
Earned Leave (EL) Encashment +Gratuity
4. 284764 dated 2.6.2010 Rs.57480/-
Subsistence Allowance The aforementioned benefits do not include the commuted value of pension. We are sanguine that on a representation being made by the applicant, the competent authority will take a decision in this regard. As far as the claim for interest on terminal benefits is concerned, even after the order dated 23.04.1997 passed by the disciplinary authority imposing the penalty of compulsory retirement upon the applicant, the applicant kept on pursuing his claim for implementation of the order of Honble High Court passed in Writ Petition (Civil) No. 3498/2003 whereby the matter was remitted back for resumption of the disciplinary proceedings from the stage of making the disagreement note available to the applicant and as a result the proceedings were deemed pending against him. It was only after the order dated 25.01.2011 (Annexure A-2) passed by the respondents in implementation of the order passed in the Contempt Petition, the proceedings were closed. Therefore, for the delay in settlement of his terminal benefits, if any, the applicant has to blame himself only Further the applicant has not specified any amount received by him as terminal benefits belatedly as also the amount of interest claimed by him. The prayer for interest is otherwise also quite nebulous. In the circumstances, the prayer for interest is also not tenable and is accordingly rejected.
Subject to aforementioned observations, the OA is dismissed. No cost.
(Shekhar Agarwal) (A.K.Bhardwaj) Member (A) Member (J) sk