Central Administrative Tribunal - Delhi
P.C. Misra vs Union Of India Through on 13 April, 2013
Central Administrative Tribunal Principal Bench OA No.1175/2012 Reserved on:05.09.2013 Pronounced on:13.09.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Mr. Birendra Kumar Sinha, Member (A) P.C. Misra, DANICS/Joint Director (Retd). Directorate of Agriculture Marketing, Govt. of Delhi R/o C-7/53,. Safdarjung Development Area, New Delhi 110 016. Applicant (Applicant in person) Versus Union of India through: 1. Chief Secretary, Govt. of NCT of Delhi, 5th Level, Delhi Secretariat, IP Estate, New Delhi. 2. Director Agriculture Marketing, Govt. of NCT of Delhi, 49, Shyam Nath Marg, Old Secretariat, Delhi 54. 3. Secretary to Govt. of India, Ministry of Home Affairs, UTS-II, North Block, Central Secretariat, New Delhi. Respondents (By Advocate: Mr. R.N. Singh and Ms. Rashmi Chopra) O R D E R Dr. Birendra Kumar Sinha, Member (A):
This is a case which primarily hinges on a point of law. The applicant is a member of Delhi, Andaman & Nicobar Islands, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli (DANICS for short). While working as Assistant Commissioner of Sales Tax, the applicant was trapped in a CBI case vide RC No. 15(A)/96 dated 29.02.1996 dated 29.02.1996. The applicant was subsequently convicted vide the order dated 24.02.2010 prior to his retirement on 30.06.2010. Honble High Court of Delhi subsequently enlarged the applicant on bail and suspended the sentence on 25.05.2010 vide its order dated 26.05.2010. An appeal has been filed against the sentence awarded by the criminal court before the Honble High Court. During the pendency of this appeal, the respondent passed an order of dismissal from service under the provisions of Rule 19 of CCS (CCA) Rules, 1965 vide order dated 28.06.2010 after having served a show cause notice upon him. The SLP filed by the applicant has been admitted (Annexure A-4). Provisional pension was granted to the applicant in compliance to this Tribunals order dated 25.10.2010 in OA No. 3875/2010 under the provisions of Rule 9(4) read with Rule 69(1)(a) of CCS (Pension) Rules, 1972. However, the respondents passed the impugned order dated 02.02.2012 served on the applicant on 01.03.2012 after due notice and having considered the representation filed by the applicant imposing penalty of withholding of 100% monthly pension otherwise admissible as well as forfeiture of full gratuity on permanent basis on the applicant. The instant OA has been filed against the impugned order dated 01.03.2012 by the applicant seeking the following relief(s):-
In view of the facts mentioned in para 6 the applicant prays that the Honble Tribunal may graciously be pleased to set aside the order No.14033/10/2010-UTS-II dated 2.2.2012, MHA Govt. of India withholding 100% monthly pension and forfeiting full gratuity on permanent basis and direct the respondents to continue order dated 9.3.2011 authorizing provision pension w.e.f. 1.7.2010 under Rule 69 of CCS Pension Rule 1972 till conclusion of the judicial proceeding pending in Honble High Court of Delhi and Honble Supreme Court of India and thereafter order of the president.
2. The applicant has appeared and argued in person. The first arguments advanced by the applicant is that there is a criminal appeal pending before the Honble High Court of Delhi vide Crl. Appeal No.692/2010 and an SLP bearing No. 1439/2009 has also been admitted by the Honble Supreme Court and is pending adjudication. The conviction order of the learned Special Judge dated 24.05.2010 and order dated 06.11.2008 passed by the Honble Delhi High Court merged into the leave granted by the Honble Supreme Court on 06.07.2010 in SLP No.1439/2009 and now the criminal appeal No.692/2010 is pending before the Honble High Court. Hence, the impugned order of the respondents authority is without jurisdiction. In the second instance, the applicant has contended that the provisional pension was issued in compliance to the Tribunals order dated 14.12.2010 in OA No. 3875/2010 and the Pay and Accounts Officer has issued authorization in respect thereof on 09.03.2011. The Tribunal has issued its order in full recognition of the fact that judicial proceedings were pending at that point of time and which is continued to be pending. It was, hence, beyond jurisdiction of the respondent organization to have discontinued the pension during the pendency of the criminal case and the applicant is entitled to receive the provisional pension till the criminal case attains finality in the sense that the highest court of appeal rejects his appeal after due application of mind. In the third place, the applicant has argued that it is well recognized that an appeal is in continuation of the original proceedings and while the proceedings are continuing, it is highly wrong on the part of the respondents to issue order under Rule 9(1) of the CCS (Pension) Rules, 1972 withholding the pension in its entirety. For this the applicant has principally relied upon the decision of Karnataka High Court in the matter of N.K. Suparana Versus Union of India and Others [2005 (1) SCT 502]. Based upon this the Chandigarh Bench of this Tribunal directed the respondents to release pension with 6% interest vide its order dated 12.10.2006 in OA No. 838-CH of 2005, which was subsequently upheld by the Honble Punjab & Haryana High Court vide its decision dated 19.11.2010 in CWP No. 982/2007. The applicant has further relied upon yet another decision of the Chandigarh Bench of this Tribunal in the case of S.P.S. Rathore versus Union of India & Others [OA No. 733-CH of 2010] vide which the impugned order of the President was set aside.
3. The applicant has further argued that the impugned order has been passed in violation of principle of natural justice as consideration of his representation has been a mere formality and that the respondents have nowhere discussed and considered pendency of the criminal appeal before the Honble Supreme Court of India w.e.f. 16..07.2010. The advice of the UPSC that the conviction could be acted upon notwithstanding the pendency of the appeal in higher court is untenable and is quite beyond its authorization. The applicant has further cited the instance of one Yogesh a former Sales Tax Officer, who was removed from service on charges that he had been apprehended red handed and recovery of Rs.1500/- had been made from his possession by the ACB and was subsequently granted 50% pension and gratuity as compensate allowance under Rule 41 of CCS (Pension) Rules, 1972. The applicant has strongly argued that the scope of Rule 19 of the CCS (CCA) Rules, 1965 is on a different footings, as compared to application of Rule 9(1) of CCS (Pension) Rules, 1972. While Rule 19 of CCS (CCA) Rules, 1965 contemplates special action on conduct leading to conviction on a criminal charge, it cannot be transferred as a departmental proceeding under rule 9(2) of CCS (Pension) Rules, 1972. In the instant case, there is no pecuniary loss involved to the respondent organization. The power of the President is to be exercised only once in conformity with the provision of Articles 21 and 300-A of the Constitution of India. The applicant here has strongly argued that he is entitled to receive provisional pension at full rates till the case attain finality i.e. it is decided by the final court of appeal. The effect of the suspension of the sentence by the Honble High Court is that the conviction is held in abeyance and the status quo ante is to be restored as if there has never been a conviction at all. Under such circumstances, recourse to Rule 19(1) of the CCS (CCA) Rules, 1965 is not only highly improper but is also totally against the settled principles of law.
4. The applicant appearing in person has strongly emphasized that the case of N.K. Suparana Versus Union of India and Others (supra) which has attained finality has laid down the position of law on this issue. A matter can only be said to be finally adjudicated when all Fora of appeal have been exhausted and till such time the applicant shall continue to receive pension/provisional pension as the case may be.
5. The learned counsel for the respondents had equally vociferously opposed the plea of the applicant on the ground that the applicant stands convicted by a court of law and sentenced. There is no bar on the disciplinary authority against imposition of penalty of cut in pension following his conviction. Rule 69(1)(b) of CCS (Pension) Rules, 1972 provides for grant of provisional pension for the period commencing from the date of retirement including the date on which the final orders were passed by the competent authority till the conclusion of the departmental proceedings. Under the provisions of Rule 9(1) of the CCS (Pension) Rules, President reserves to himself the right to withhold pension or gratuity or both, either in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government where the pensioner is found guilty of grave misconduct or negligence during the period of service in any departmental or judicial proceedings. The proviso (2) of this very Rule provides that where whole or part of the pension is withheld or withdrawn, in no case the amount of such pension shall be reduced below the amount of Rs.375/-. It is under the provisions of Rule 9(2)(a) where the departmental proceedings are initiated before the retirement of a government employee, the same shall be deemed to be the proceedings under this very rule and shall be deemed to be continued and concluded in a manner as if the government servant is continued in service. Rule 9(6)(a) further provides that departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the government servant or pensioner or from an earlier date where the government servant has been placed under suspension. The learned counsel for the respondents further defended the impugned order dated 02.02.2012 stopping 100% pension on conclusion of departmental proceeding initiated on 18.06.2010. Rule 9 of CCS (Pension) Rules places no embargo on passing of such order till the finalization of appeal against conviction qua offences under Prevention of Corruption Act. He has further referred to the Memorandum of DOP&T that such orders should be issued without waiting for further period of filing of an appeal or where such an appeal has been filed without waiting the decision in the first court of appeal. The respondents have further rebutted the arguments of the applicant appearing in person that the case of one Yogesh, former Sales Tax Officer/ad hoc DANICS and that of one R.C. Gupta formerly STO/ad hoc DANICS are inapplicable to the facts of this case as in both these cases though they were dismissed from service for conviction on recovery of Rs. 3000/- of tainted currency notes, they were granted a compassionate allowance under Rule 41 of CCS (Pension) Rules, 1972. The learned counsel for the respondents also challenged the pleadings of the applicant appearing in person on the ground that Rule 9(1) of the Pension Rules stands on a different footing as finding one guilty in a judicial proceeding on grave misconduct is required to be conjoined with pecuniary losses to the government. The learned counsel for the respondents has argued that Rule 9(6)(a) of the Pension Rules clearly mentions that the departmental proceedings shall be deemed to be instituted from the date on which the government servant is placed under suspension. Since, in the instant case, the applicant was placed under suspension vide order dated 18.06.2010 prior to his superannuation, the order of the President withholding 100% pension suffers with no infirmity as such. This was also the opinion of the UPSC as is evident from its letter dated 06.01.2012.
6. Coming to the issue of suspension of sentence, it was argued by the learned counsel for the respondents that even when the sentence was suspended by the Honble High Court in Criminal case No.69/20010, the conviction of the applicant shall continue to be in force and he continues to be convicted despite the suspension of sentence for the simple reason that it is only the sentence which has been suspended and not the conviction. For this, he has placed reliance upon the decision of the Honble Supreme Court in the matter of S.S. Chaudhary versus M.C.D. [(2005) 116 DLT 622]. He has repeatedly sought to draw the attention of this Tribunal to the fact that if the government employee, who is convicted in a criminal case under Prevention of Corruption Act and punished with, is allowed to get full provisional pension till the final conclusion of the case, the same would be against the public interest and would tantamount to setting up a wrong precedent. The term judicial proceedings as contained in Rule 9(6) of the CCS (Pension) Rules nowhere provides that it means and includes the approval of the conviction and sentence in respect of the petitioner by the appellate court as well nor such an interpretation is admissible under Rule 69(b) of the Pension Rules. Execution of the sentence awarded by the Trial Court can only be implemented after it has been upheld by the Appellate Court. There is a basic difference between the judicial and departmental proceedings. The former culminates after the trial court pronounces the order of conviction when the person is convicted or otherwise and found guilty of the charges. Rule 9(1) of the Pension Rules, 1972 uses the words the pensioner is found guilty of grave misconductafter retirement and it does not provide that the cut in pension can only be awarded after the guilt is upheld by the appellate court. Likewise, in Rule 69(b) the words used are conclusion of departmental or judicial proceedings. Citing the case of Union of India versus Rajeev Kumar [(2003) 6 SCC 516], the learned counsel for the respondents has argued that the statute should be read harmoniously and other provisions should not be so interpreted that it is reduced to an absurdity. Any order directing the payment of full pension till the exhaustion of all appellate Fora would reduce the case to an absurdity.
7. We have carefully gone through and considered the pleadings of the parties, the documents submitted by them and the written submissions provided by the parties and on the basis thereof, we find that the outcome of the instant case is mainly related to a resolution of some legal issues. The facts of the case being admitted by both the parties, the basic legal issues are as follows:-
What is the scope of expression Grave Misconduct used in Rule 9 of the CCS (Pension) Rules, 1972 and is it wide enough to cover the facts of the instant case.
Whether the right of the President to withhold or withdraw pension in full is an absolute right or it has been kept by restrictions otherwise?
What is the effect of the decision of the Honble Karnataka High Court in the matter of N.K. Suparana Versus Union of India and Others (supra)?
Whether admission of the appeal and suspension of the sentence by the Honble Supreme Court has an abridging effect upon the power of the President under Rule 9(1) of the CCS (Pension) Rules, 1972?
Whether there is any bar on conversion of proceedings initiated under Rule 19 of the CCS (CCA) Rules, 1965 to Rule 9 (2)(a) of CCS (Pension) Rules, 1972?
Whether there is any contradiction between Rule 9(1) and Rule 41 of the CCS (Pension) Rules, 1972?
What relief, if any, is to be granted to the applicant.
Issue No.1
8. With regard to the first issue that what is the scope of term Grave Misconduct and/or is it wide enough to cover the facts of the instant case, the applicant has repeatedly argued and has further submitted in his written submissions that he was not trapped red handed with the tainted money. Moreover, neither the instance of taking money nor the act of demanding has been proved anywhere. In the cases of both Yogesh and R.C. Gupta money had been demanded and recovered as well from the accused. In the instant case, there is no demand, no recovery and no acceptance and, therefore, the applicant has termed the case of CBI as malicious prosecution which is under the judicial scrutiny of the Honble High Court of Delhi. The order reducing the pension and gratuity to zero on permanent basis, indicates legal malafides passed under the colourable exercise of powers and is, hence, legally unsustainable. Under such circumstances, the applicant argued that his case is not covered under the term grave misconduct as none of these acts have been proved.
9. It is an admitted fact that the applicant was trapped in a CBI case vide RC No. 15(A)/96 dated 29.02.1996 under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1978 and was arrested therein. On 24.05.2010, he was also convicted by the learned Special Judge and was awarded punishment to undergo rigorous imprisonment for two years in respect of each count in addition to pay fine of Rs.10,000/- under each count and in default thereof to further undergo simple imprisonment for two months separately. The term grave misconduct had been deliberately used here as distinct from the criminal charge for the simple reason that it is a wider connotation than simple criminal liability. Under Criminal Act, the accused is charged for an offence against the State where the term has been expanded which not only includes the criminal charges but also the acts of negligence. That is the reason why the term grave misconduct has been used. What the applicant has submitted is that neither demand of money was proved nor was he apprehended with the tainted money and relies to his defence, which has already been considered by the learned Special Judge while holding him guilty. It is not for this Tribunal to go into the merits of the criminal charges. It suffices to say that since the term grave misconduct has been used instead of criminal charge and a plain reading of the provision, as discussed above, having a larger ambit, the act of the applicant while holding him guilty under the legal provisions in which he has been charged, is definitely included within the term grave misconduct. The term misconduct has been defined in the case of M.M. Malhotra versus Union of India & Others [AIR 2006 (SC) 8] as under:-
It has, therefore, to be noted that 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 construed 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. In yet another case i.e. General Manager, Appellate Authority Bank of India and Another Versus Mohd. Nizamuddin, AIR 2006(SC) 3290, the Honble Supreme Court has held that it is a well settled proposition of law that misconduct must necessarily be measured in terms of its nature and the court must examine as to whether the misconduct is detrimental to the public interest. It has to be understood in terms of transgression of some established and definite rule of action, forbidden act and unlawful behavior, willful in character. It may be synonymous to misdemeanor and mismanagement in some particular cases, negligence or carelessness may also be a misconduct.
10. It is to be noted that merely by prefixing term grave, there is no restriction imposed upon the ambit of the term misconduct. Rather, it adds to the scope of the term misconduct. However, it has to be remembered in the context that why the framers of the rules have used the word grave and why they have not restricted to the word misconduct. When recourse is taken to Rule 9(1) of the CCS (Pension) Rules, 1972, there is certain abrogation of the service law undertaking the entire gamut of departmental proceedings as is enumerated under Rule 14 or 16 of the CCS (CCA) Rules, 1965. Hence, only such acts which mitigate against the edicts of the States or against the departmental proceedings are included within the term grave misconduct. As the applicant is charged with offences under Prevention of Corruption Act, his act is definitely included within the scope of the term grave misconduct. This question is accordingly answered.
Issue No.2
11. Before we take up this issue for examination, it is necessary to go through the provisions of Rule 9(1) of the CCS (Pension (Rules, 1972 which provides as follows:-
Rule 9(1) of the CCS (Pension) Rules, 1972 provides:-
9(1) The President reserves to himself the right of withholding a pension or gratuity or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement.
Provided that the Union Public Service Commission shall be consulted before any final orders are passed:-
[ Provided further that whole or a part of pension is withheld or withdrawn, the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five (Rupees three thousand five hundred) from 01.0.2006. A plain reading of the language suggests that there is nothing to restrict the right of the President to withhold or withdraw only a part of the pension or the whole pension. The words withholding or withdrawing pension clearly conveys that the President is competent to withhold or withdraw full pension. It has to be understood in the same context that the phrase restrict the amount to withhold 1/3rd of the pension originally sanctioned, where the order is for recovery of loss from the pension, it has no bearing on the capacity of the Government to withhold or withdraw the pension and the Government may order full pension to be withheld or withdrawn.
12. The argument of the applicant is that there has not been full application of mind on the part of the President as he has not taken into account the fact that an appeal has been filed and admitted by the Honble High Court. There is also an SLP, which is pending consideration of the Honble Supreme Court where the applicant had appeared in person. Hence, the order of the Honble High Court of Delhi got merged into the order of the Honble Supreme Court and the President ought to have taken these facts into account before passing the impugned order. The right of the President in the instant case is restricted by the two orders and the consideration pending before the Honble Supreme Court. Insofar as this argument is concerned, reverting to the scope of Rule 9(1) of the CCS (Pension) Rules, as discussed above, one has to prove that something this suggests the right of the President is a restricted right and where an appeal is pending consideration in the Court, the President is barred from taking action. In this regard, the learned counsel for the respondents has relied upon the case of S.S. Chaudhary versus M.C.D. (supra) wherein the petitioners were convicted under Section 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1978 and sentenced to rigorous imprisonment and fine. Whereas both the petitioners filed appeal against the sentence which had been ordered to remain suspended during the pendency of the respective appeals. The petitioners had come for quashing of the dismissal order and for their reinstatement with all consequential benefits. Honble High Court had fallen back to an interpretation of Article 311 of the Constitution of India, which, inter alia, provides that the provisions of Article 311(1) and (2) shall not apply where a person is dismissed or removed or reduced in rank on account of his conduct which led to his conviction in a criminal charge. Article 311(1)(2)(a)(b)(c) read as under:-
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.
(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause shall not apply-
(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) Where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
13. Honble High Court, while giving a reference to the scope of Article 311, mentioned that the same had been examined by the Honble Supreme Court in case of Union of India versus Tulsi Ram Patel [(1985) 5 SCC 398], which reads as under:-
The conclusion which flows from the express language of the second proviso is inevitable and there is no escape from it. It may appear harsh but, as mentioned earlier, the second proviso has been inserted in the Constitution as a matter of policy and in public interest and for public good just as the pleasure doctrine and the safeguards for a government servant provided in clauses (1) and (2) of Article 311 have been. It is in public interest and for public good that a government servant who has been convicted of a grave and serious offence or one rendering him unfit to continue in office should be, summarily dismissed or removed from service instead of being allowed to continue in it at public expense and to public detriment. It is equally in public interest and for public good that where his offence is such that he should not be permitted to continue to hold the same rank, that he should be reduced in rank. Equally, where a public servant by himself or in concert with others has brought about a situation in which it is not reasonably practicable to hold an inquiry and his conduct is such as to justify his dismissal, removal or reduction in rank, both public interest and public good demand that such penalty should forthwith and summarily be imposed upon him; and similarly, where in the interest of the security of the State it is not expedient to hold an inquiry, it is in the public interest and for public good that where one of the three punishments of dismissal, removal or reduction in rank is called for, it should. be summarily imposed upon the concerned government servant. It was argued that in a case falling under clause (b) or (c), a government servant ought to be placed under suspension until the situation improves or the danger to the security of the State has passed, -as the case may be, and it becomes possible to hold an inquiry. This argument overlooks the fact that suspension involves_the payment at least of subsistence allowance and such allowance is paid at public expense, and that neither public interest would be benefited nor public good served by placing such government servant under suspension because it may take a considerable time for the situation to improve or the danger to be over.
14. We feel that the principles enunciated in Tulsi Rams case (supra) still constitutes the base for examination of Article 311 and has not either been set aside or overruled by other decisions. In any case, the question for examination under this issue is very limited that whether the argument of the applicant is sustainable that the right of the President is not an unmitigated right but is rather a restricted one. Notwithstanding the admission of appeal, which we will deal with in context of other issues, it is clearly held that there is no restriction imposed upon the rights of the President under Rule 9 (1) of the CCS (Pension) Rules, 1972.
Issue No.3
15. The applicant has principally relied upon the case of N.K. Suparana Versus Union of India and Others (supra) as the cornerstone of his claim. He has also cited a judgment of the Principal Bench of this Tribunal in the case of S.P.S. Rathore versus Union of India & Others (supra) based upon N.K. Supraranas case. The applicant has further cited the decision of Honble High Court of Allahabad in the case of Uma Shanker Bharti Versus Chief Controller of Defence Accounts (P) and Others [1995 Law Suit (All) 765]. To support his claim, the applicant has also cited the decision of Honble Supreme Court the case of D.S. Nakara & Others versus Union of India [AIR 1983 SC 130] and Deokinandan Prasad versus State of Bihar & Others [AIR 1971 SC 1409].
16. We take up the aforecited cases one by one. In the case of Uma Shanker Bharti Versus Chief Controller of Defence Accounts (P) and Others (supra), the petitioner was a retired Niab Subedar from Army who was involved in a criminal case punishable under Section 302 IPC while in service and was convicted and sentenced for life imprisonment by the court of competent jurisdiction. The petitioner filed an appeal before the Honble High Court of Allahabad. However, his application for pension was turned down with the advice to get the final decision of the Honble High Court. The Honbgle High Court found in the instant case that since judicial proceedings had not been concluded in terms of finality, there was no occasion for invoking the powers of the President under sub-clause (1) of Rule 9. The case of D.S. Nakara & Others versus Union of India (supra), on the other hand, is the mother of all cases. In this case, the Honble Supreme Court has gone into the issue of entitlement to receive superannuation or retiring pension under CCS (Pension) Rules, 1972 to a class of pensioner as a whole. The Honble Supreme Court had undertaken examination right from 1st CPC (1946-47) which recommended that in future the age of retirement for all services should be uniformly 58 years for all services and the scale of pension should be 1/80 of the emoluments for each year of service, subject to a limit of 35/80. The 2nd CPC though affirmed the age of retirement at 58 years but did not make any enhancement to the pension. The 3rd CPC raised a ceiling limit of maximum pension of Rs.675/- to Rs.1000/- p.m. and gratuity to Rs. 30,000/-. The Government of India on May 25, 1979 introduced liberalized formula for computation of pension which was made applicable for all such employees who were in service on March 31, 1979. The formula also introduced a slab system for computation of pension. The same came to be challenged in the case of D.S. Nakara & Others versus Union of India (supra) wherein it was held that pension to civil employees and the defence personnel with a compensation of the past service rendered and a measure of socio-economic justice arising from the very preamble of the Constitution of India. Honble Supreme Court was pleased to strike down this attempt to create distinction between classes of pensioners by providing the date of applicability.
17. In case of Deokinandan Prasad versus State of Bihar & Others (supra), the issue was of application of Rule 76 of the Bihar Service Code wherein a person who has not been on his duties for more than 5 years ceases to be in government employment. The Honble Supreme Court equated the right to receive pension with that of the fundamental and has held as under:-
34. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31 (1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19 (1) (f) and it is not saved by sub - article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19 (1) (f) and 31 (1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pensions Act (Act 23 of 1871) there is a bar against a civil Court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law.
18. Reverting to the principal case of N.K. Suparana Versus Union of India and Others (supra), wherein the petitioner while serving as Accounts Officer in Telecom Department retired on 31.01.2002. In 1993, the petitioner was trapped in a criminal case and was sentenced to undergo R.I. for three years vide judgment dated 31.12.2001 against which he filed a criminal appeal before the Honble High Court and the sentence was suspended. The Honble High Court of Karnataka went into the question whether the entitlement of the petitioner to receive provisional pension in terms of Rule 69 of the Rules was limited to the pendency of the proceedings before the original court or that entitlement continues till the finality is reached by way of appeal to this court or further appeal to the Supreme Court. In this regard, having considered the matter, the Honble High Court of Karnataka has held as under:-
The provision of Clause (b) is quite clear, plain, unambiguous and does not admit more than one meaning. Clause (b) in unmistakable terms directs that a delinquent employee will be entitled to provisional pension from the date of retirement upto and including the date on which the final order that may be made by the competent authority, after the conclusion of the departmental or judicial proceedings. The key words for our purpose are 'after the conclusion of departmental or judicial proceedings'. The interpretation suggested by the learned CGSC for the department is not acceptable to us for more than one reason. It is well settled that the appeal is a continuation of the original proceedings. Since the petitioner being aggrieved by the judgment and order of the CBI Court has preferred appeal to this Court and the same is pending, we have to necessarily hold that the proceedings are pending. Undoubtedly, the pendency of the appeal in this Court is a judicial proceedings. It also needs to be noticed that the final order envisaged under Rule 9(1) of the Rules in terms of Clause (b) of Sub-rule (1) of Rule 69 of the Rules is required to be passed by the President of India only after the conclusion of the departmental or judicial proceedings. In the instant case, since the judicial proceedings, we mean the launching of the prosecution against the petitioner have not been concluded so far in terms of finality, the President of India invoking the power conferred upon him under sub-rule (1) of Rule 9 would not arise. Therefore, the impugned order passed by the President of India in the purported exercise of power under Rule 9(1) of the Rules should be condemned as one without authority of law inasmuch as the necessary condition to invoke that power did not exist as on the date of the impugned order nor does it exist as on today also.
9. This takes us to the next question whether the President of India is justified in forfeiting the gratuity payable to the petitioner? In terms of Clause (c) of Sub-rule (1) of Rule 69 of the Rules, the petitioner is not entitled to be paid gratuity inasmuch as judicial proceedings are pending and the petitioner has been convicted and sentenced by the original Court. However, we hasten to add that the President of India ought to have awaited the result of the appeal pending before this Court or in the event of further appeal to the Apex Court till the result of such appeal before passing final order in exercise of the power conferred upon him in Sub-rule (1) of Rule 9 of the Rules.
19. As opposed to this, the respondents have relied upon the case of S.S. Chaudhary versus M.C.D. (supra) in which the petitioners were convicted under Section 7 and 13 (1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and was sentenced to under RI and fine. They filed appeals against the sentence which had been suspended during the pendency of the respective appeals. The petitioners claimed for quashing of the dismissal order and for their reinstatement with all consequential benefits. The Honble High Court has gone into the question that what are the consequences of suspension of the sentence. The Honble High Court relied upon the decision of the Honble Supreme Court in the matter of Union of India and Others versus Ramesh Kumar [(1997) 7 SCC 51`4] wherein it was held as under:-
7the order dismissing the respondent from service on the ground of misconduct leading to his conviction by a competent Court of law has not lost its string merely because a criminal appeal was filed by the respondent against his conviction and the Appellate Court has suspended the execution of sentence and enlarged the respondent on bail. This matter may be examined from another angle. Under Section 389 of the Code of Criminal Procedure, the appellate Court has power to suspend the execution of sentence and to release an accused on bail. When the appellate Court suspends the execution of sentence, and grants bail to an accused the effect of the order is that sentence based on conviction is for the time being postponed, or kept in abeyance during the pendency of the appeal. In other words, by suspension of execution of sentence under Section 389 Cr.P.C. an accused avoids undergoing sentence pending criminal appeal. However, the conviction continues and is not obliterated and if the conviction is not obliterated, any action taken against a Govt. servant on a misconduct which led to his conviction by the Court of law does not lose its efficacy merely because Appellate Court has suspended the execution of sentence. Such being the position of law, the Administrative Tribunal fell in error in holding that by suspension of execution of sentence by the appellate Court, the order of dismissal passed against the respondent was liable to be quashed and the respondent is to be treated under suspension till the disposal of Criminal Appeal by the High Court. The Honble High Court further considered the decision of State of Maharashtra versus Chandrabhan Tale and found that it was not applicable to the facts of the case. In the case of Union of India versus V.K. Bhaskar [(1997) 11 SCC 383] wherein the Honble Supreme Court held that the pendency of an appeal against conviction did not operate as part to the passing of the order of dismissal on grounds of employees conviction on a criminal case which was further reaffirmed in the case of K.C. Sareen Versus CBI [(2001) 6 SCC 584]. The Honble Supreme Court in this case turned down the plea that suspension of sentence did not mean that the conviction and sentence passed by the trial court would remain in limbo automatically till the point they attained finality. The observations in the case of Akhtari Bi versus State of M.P. [(2001)4 SCC 355] had been made altogether in a different context. In this very case, the Honble Supreme Court had held as under:-
12. ... When a public servant is found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public interest which suffers and sometimes, even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralizing the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fallout would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only (sic) public office until he is exonerated after conducting judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction.
20. Referring to the case of B.R. Kapur versus State of T.N. and Anr. [(2001) 7 SCC 231] where subsistence allowance of Rs.1/- had been granted, the Honble Supreme Court held as under:-
20. The learned Judges of the Division Bench have found in the judgment under appeal that the object and purpose of the main Rule 151 is to provide for subsistence allowance pending suspension of the civil servant and that the subsistence allowance mentioned in the main Rule and the second proviso means bare minimum which can reasonably be provided for a civil servant who is kept under suspension and without work and therefore not entitled to full wages. If the civil servant under suspension, pending a departmental enquiry or a criminal trial started against him, is entitled to subsistence allowance at the normal rate which is a bare minimum required for the maintenance of the civil servant and his family, he should undoubtedly get it even pending his appeal filed against his conviction by the trial court, and his right to get the normal subsistence allowance pending consideration of his appeal against his conviction should not depend upon the chance of his being released on bail and not being lodged in prison on conviction by the trial court. Whether he is lodged in person or released on bail on his conviction pending consideration of his appeal, his family requires the bare minimum by way of subsistence allowance. Subsistence allowance provided for in the second proviso at the nominal rate of Rs. 1 per month is illusory and meaningless. The contention of the appellant that even the nominal sum of Rs. 1 per month is subsistence allowance for a civil servant under suspension is as unreasonable as the contention of the appellant that what should be the subsistence allowance for a civil servant under suspension is for the authority empowered to frame rules under Article 309 of the Constitution to consider and that the civil servant who has entered service is bound by the second proviso. The sum of Re 1 per month can never sustain a civil servant for even a day much less for a month.
8. I find no merit in the petitions. It may be that sentence/conviction has been suspended pending the disposal of the petitioners appeals. The Respondents nevertheless have the power to dismiss the Petitioners. A fortiori it would be an absurdity for the Respondents to be held liable to pay the Petitioners a subsistence allowance. In the event that they succeed in their appeal the natural consequences would flow which would include payment of all monetary benefits. Further, in the case of Union of India versus Rajeev Kumar (supra), the facts were more or less similar. In this case Rule 10(2) of the Rules was under scrutiny but it is not the subject matter in the instant case.
21. The applicant has also sought to rely upon a decision in Civil Appeal No.6770/2013 in the matter of State of Jharkhand & Others versus Jitendra Kumar Srivastava & Anr. wherein the Honble Supreme Court, after having examined the previous judgments including that of Deokinandan Prasad versus State of Bihar & Others (supra), has held that pension is a property and has relied upon Article 300 A whereby no person is to be deprived of his property except under the authority of law. However, it is to be noted here that the case of State of Jharkhand & Others versus Jitendra Kumar Srivastava & Anr. (supra) arises from the Bihar Pension Rules as applicable to the State of Jharkhand whereas the instant case relates to CCS (Pension) Rules, 1972. The facts of that case are also not similar to the facts of the Original Application under consideration. Therefore, the ratio of the judgment in State of Jharkhand & Others versus Jitendra Kumar Srivastava & Anr. (supra) is not strictly applicable to the facts of this case.
22. We have considered all these cases very carefully. In view of the diverse decisions, there appears to be a direct contradiction between the case of N.K. Suparana Versus Union of India and Others (supra) and S.S. Chaudhary versus M.C.D. (supra) and the same have to be reconciled harmoniously. The main issue is what is the effect of suspension of the criminal sentence does it amount to abrogation of the sentence till the proceedings are finally decided by the highest court of appeal or that the sentence continues to be in operation and only its effect has been put on hold. The case of N.K. Suparana Versus Union of India and Others (supra) is the holder of the judgment while that of S.S. Chaudhary versus M.C.D. (supra) is a later of the two. The matter has received more confusing situation and the court has unequivocally held that the order of conviction does not loose its strength on account of the suspension and the same holds good so long it is not finally set aside. The effect of suspension is that it merely mitigates some of the rigors of the sentence but does not abrogate it altogether were it to be otherwise, the distinction between final acquittal and suspension of sentence would have been thinned out if not vanished altogether for the purposes of provisional pension. This is not the intention of the framers of the rules. The question thus stands conclusively answered.
Issue No.4
23. This issue has already been partly answered in the case of S.S. Chaudhary versus M.C.D. (supra) and in the above discussion. When the sentence itself continues to hold the field, it cannot be said that the powers of the President under Rule 9(1) of the CCS (Pension) Rules, 1972 is disseminated altogether. Had the Government intended otherwise, it could have added a proviso to the Rule 9(1) of the Pension Rules that in case of the suspension of the sentence, the President shall not pass any order till the appeal is finally decided by the highest court. It has to be emphasized here that this Tribunal is not a court of appeal but rather a court of natural justice whose sole task is to get the laws implement. Therefore, the answer to this issue follows from the answer to the previous issue that an order of suspension of sentence does not ipso facto amount to an order under Rule 9(1) of the CCS (Pension) Rules, 1972.
Issue No. 524. Rule 19 of the CCS (CCA) Rules, 1965 and Rule 9 (2)(a) of CCS (Pension) Rules, 1972 pertain to different stages of departmental proceedings. Provision under Rule 19 of the CCS (CCA) Rules is a special provision and is an exception to what has been contained in Rules 14 to 18 of the Rules ibid. Under Article 31(2) of the Constitution, a guarantee had been put in place whereby no government employee can be dismissed, removed or reduced in rank without an enquiry in which he has been informed the charges against him and has been given reasonable opportunity to defence himself. However, in three exceptional circumstances listed in clause (a)(b) and (c) of the second proviso to Article 311, the requirement of holding such an enquiry could be dispensed with. The matter was considered in the case of Union of India versus Tulsi Ram Patel (supra) and in the case of Satyavir Singh and Others (Civil Appeal No.242 of 1982 and Civil Appeal No. 576 of 1982). It clearly emerges that even in these exceptional circumstances, the power of the President is not hampered by any fetters. He is expected to exercise the same with due care and caution and subject to general principles of law. The Disciplinary Authority should not only be aware of the fact of conviction on criminal charges, he should also be aware of the contents of the judgment taking into account the entire conduct of the delinquent employee.
25. We now come to the contingency where the disciplinary authority is not able to arrive at a decision and the charged employee retires in the meantime then what is the course to be followed. A plain reading of Section 19 of CCS (CCA) Rules provides as under:-
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 reasonable 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.]
26. It is to be kept in mind that Rule 19 (i) is invoked where any penalty is imposed on the ground of conduct which led to conviction on a criminal charge. The criminal charges do not die or lapse with passage of time. On the other hand, in the case of departmental charges, there is time limit of four years as has been provided under Rule 9(2)(b)(ii) of the Rules. Rule 9(2)(a) of the Pension Rules is in respect of departmental proceedings which if instituted while the government servant was in service shall be deemed to be proceedings under this rule and shall be continued and concluded by the authorities by which they were commenced in the same manner as if the government servant had continued to be in service. This has to be read in consonance with sub rule (4) of Rule 9 which provides for provisional pension under Rule 69 the Rules where a government servant has retired on superannuation or otherwise and against whom any departmental or judicial proceedings bad been instituted and are continued. This makes no distinction between proceedings initiated under Rule 19 of the CCS (CCA) Rules, 1965 and under Rule 14 and/or 16 of the same Rule and Rule 9(2) (a) read with Rule 9(4) of the CCS (Pension) Rules, 1972. Therefore, like any other departmental proceedings, there is no bar in proceeding under Rule 19. To the contrary, it is very much provided under the rules without naming Rule 19 in particular and the said issue has been discussed. This has been held in Union of India versus Tulsi Ram Patels case (supra) as under:-
It is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a government servant. Such a situation can also come into existence subsequently during the course of an inquiry, for instance, after the service of a charge-sheet upon the government servant or after he has filed his written statement thereto or even after evidence has been led in part. In such a case also the disciplinary authority would be entitled to apply clause (b) of the second proviso because the word "inquiry" in that clause includes part of an inquiry. This question is accordingly answered.
Issue No.6
27. Insofar as Rule 9(1) and Rule 41 of the CCS (Pension) Rules, 1972 are concerned, these rules provide for compassionate allowance where a government servant has been dismissed or removed from service and has forfeited his pension and gratuity. For the sake of reference Rule 41 of the Pension Rules is reproduced below:-
41. Compassionate Allowance (1) A Government servant who is dismissed or removed from service shall forfeit his pension and gratuity:
Provided that the authority competent to dismiss or remove him from service may, if the case is deserving of special consideration, sanction a Compassionate Allowance not exceeding two-thirds of pension or gratuity or both which would have been admissible to him if he had retired on compensation pension.
(2) A Compassionate Allowance sanctioned under the proviso to sub-rule (1) shall not be les than the amount of Rupees three hundred and seventy five).
This provision has been made for compensation pension in such circumstances where the pension of the employee has been forfeited by the President under Rule 9 of the Pension Rules. Looking to the kind of service rendered by the employee, the punishment awarded and the particular circumstances of the case, the Government takes a compassionate view of the matter despite the fact that the misconduct carries with it the legitimate inference that the conduct of the Government officer has been dishonest. While granting compassionate allowance, the Government has come to the conclusion about various factors i.e. the poverty is not an essential condition precedent to the grant of a compassionate allowance but a special regard is also paid to the fact that the officer has a wife and children dependent upon him though this factor by itself is not sufficient for grant of a compassionate allowance. Though the applicant has cited two instance of Yogesh a former Sales Tax Officer and R.C. Gupta formerly STO/ad hoc DANICS who had been granted compassionate allowance and not the provisional pension on full scale, yet, as mentioned earlier, the provisions of Rule 9(1) and Rule 41 have to be looked harmoniously and not in contradiction. Whereas Rule 9 provides for forfeiture of pension and gratuity, Rule 41 takes over where the forfeiture is ordered in full. Therefore, though these two rules are different but Rule 41 compliments Rule 9 and cares for the exigencies where the pension and/or gratuity have been forfeited in full and the government employee, despite his misconduct, has been left without any means of livelihood. Therefore, there is no contradiction and rather they are complementary to each other.
Issue No.7
28. Here one has to consider the plea put forth by the learned counsel for the respondents that if we were to accept that full provisional pension would be continued to be admissible till the issue has been finally decided by the last court of appeal, this is likely to have dangerous implication for the administration
29. We have considered the matter very carefully and we find that in view of the answers provided to the issues framed above, there is merit in the basic contention of the respondents. We have already discussed that a criminal act is a crime against the State and, therefore, by implication it could also be against the people at large. If we accept the plea of the applicant that the suspension of criminal sentence would indefinitely remain in limbo and all the rights existing prior to the criminal sentence are suo motu to be continued, then this would not only put fetters on the provision of Rule 9(1) of the Pension Rules, 1972 but also by and large render the provisions of Rule 41 meaningless. This is not the spirit of the legislature. A punishment is always expected to have a deterrent effect. A point of equilibrium has to be arrived at between the individual justice and deterrent punishment. If it is overweighed on the side of individual justice, the cause of the Government and that of ordinance happen to be undermined.
30. In view of our above discussion, we are very clear in our opinion that Rule 41 and Rule 9 are two different rules. We are also of the view that the applicant has not been able to establish his case for grant of continued provisional pension for the reasons that we have discussed above. Original Application thus stands dismissed leaving the parties to bear their own costs. We leave it open, at the same time, to the applicant to apply for compensate allowance u/r 41 of the CCS (Pension) Rules, 1972 which the respondent authorities may consider on its merits.
(Birendra Kumar Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/