Central Administrative Tribunal - Mumbai
Ashok Kumar Purwar vs M/O Finance on 2 November, 2023
O.A. No, 213/2019. . CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, MUMBAI ORIGINAL APPLICATION No. 213 of 2019, Order Reserved on 03™ October, 2023. Order Pronounced on 02"4 November, 2023. Coram: Hon'ble Justice Shri, A.K. Srivastava, Member (J) Hon' ble Justice Shri. M.G. Sewlikar, Member (J) Hon'ble Mr. K.V. Eapen, Member (A) Ashok Kumar Purwar Aged 73 years S/o Late Shri Gaya Prasad Purwar, Retired as Commissioner of Income Tax, Resident of 2102, Whitefield Hiranandani Meadows, Gladys Alwaris Road, Thane (W)-400610. -Applicant (Mr. Rajeev Kumar, Advocate) VERSUS 1. Union of India, Through Revenue Secretary, Ministry of Finance, North Block, Government of India, New Delhi-1. 2. The Chairman, Central Board of Direct Taxes, North Block, New Delhi-1., . 3. Pr. Chief Commissioner of Income Tax (CCA) 3rd Floor, Aayakar Bhavan, M.K. Marg, Mumbai-400020. -Respondents (Mr. R.R. Shetty, Advocates) O.A. No. 213/2019. ORDER
. Per: Hon'ble Justice Shri. M.G, Sewlikar, Member (PD This reference has been made by a Division Bench of this Tri-
bunal.
1.1. Skeletal facts arising for this reference are that the applicant was prosecuted by CBI in Special Case No. 56 of 2005 and was convicted under section 13 (1) (e) r/w 13(2) by CBI Special Court. Applicant against this decision preferred Criminal Appeal No. 634/2015 before the Hon'ble Bombay High Court in which his sentence was suspended, Thereafter, by invoking Rule 9 of CC'S (Pension) Rules, 1972, since the applicant was found guilty of grave misconduct, the respondents passed the order of imposing the penalty of withholding of 100 per cent pension and entire gratuity on permanent basis. The applicant filed OA No. 2113/2019 challenging this order.
1.2. The applicant has filed this OA contending that he has preferred appeal against conviction and his sentence is suspended; therefore, in terms of Rule 69 (1) (b) of CCS (Pension) Rules, impugned order can-
not be passed as appeal is continuation of proceedings.
1.3. During the course of hearing, Division Bench of Mumbai of this Tribunal noticed that there are divergent views on this issue. Mumbai Bench of this Tribunal has taken a view that appeal is continuation of OA. No. 2132/2019.
4proceedings. Therefore, till the criminal proceedings are finally con- 5} cluded, it is not competent for the respondents to pass the impugned order. Cuttack Bench of this Tribunal in OA No. 612/2015 has taken a view that though appeal is a continuation of proceedings, it Is permis- sible for the disciplinary authority to pass the impugned order as it is not necessary for the disciplinary authority to wait for the final conclu- _ sion of criminal proceedings. Therefore, Division Bench framed the following question :-
"whether a Government servant is entitled to receive provisional pen- sion in terms of Rule 69 (I ) (b) of the CCS (Pension) Rules, inspite of being convicted by a competent criminal court wherein appeal filed against the trial court order resulted in suspension of sentence during the pendency of the appeal".
| Accordingly, on the directions of Division Bench of this Tribunal the registry referred the matter to the Hon'ble Chairman for constitution of Full Bench for deciding the question framed by the Division Bench.
Hon'ble Chairman constituted the Full Bench.
1.4. We have heard Mr. Rajeev Kumar, learned counsel for the appli-
cant and Mr. R.R. Shetty, learned counsel for the respondents.
1.5. Learned counsel for the applicant submitted that in terms of Rule 69 (1) (b) of CCS (Pension) Rules, a Government employee is entitled O.A. No. 213/2019.
to provisional pension during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority. He further submitted that a Government servant is entitled to be paid gratuity in terms of Rule 69 (1) (c) of the CCS (Pension) Rules. He submitted that the words "After the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority" indicate that the disciplinary authority can pass the final order only upon final conclusion of the judicial proceedings, Final order cannot be passed by the Hon'ble President till the judicial proceedings attain finality. He submitted that appeal is a continuation of proceedings. In appeal, the decision of the trial court can be over- turned. Therefore, till appeal is decided, no final order under section 69 (1) (b) of the CCS (Pension) Rules can be passed. According to him conclusion of judicial proceedings means exhaustion of all the reme- dies provided under the law to the Government servant. F or this pur- pose, he invited our attention to the case of Akhtari Bi (SMT) Vs. State of M.P, (2001) 4 SCC: 2001 SCC (Cri) 744, 1.6. He contended that the very same issue had fallen for considera-
tion before the Karnataka High Court in the case of N.K. Suparna Vs.
0.A. No, 213/2019.
4Union of India (UOD, Rep, by its Secretary, Ministry of Communi- ; cation and Ors., WP. No. 5938/2004, decided on 23.09.2004, Karna- taka High Court. In the case of N.K. Suparna (supra), Karnataka Hi gh Court has held that appeal is a continuation of proceedings and until the final conclusion of the criminal proceedings, no order of forfeiture of provisional pension can be passed, He submitted that this order was challenged by the Union of India by preferring Civil Appeal Nos. 4475- 4476 of 2005 before the Supreme Court of India. The order dated 20"
August, 2008 shows that the application for withdrawal of appeal was allowed and civil appeals were dismissed as withdrawn. He submitted that this clearly shows that the respondents accepted the interpretation placed by Karnataka High Court in the case of N.K. Suprana (supra).
- From this order it is also clear that no liberty was taken by the Union of India to file new SLP on legal points. This order gives rise to two inferences; (i) The respondents i.e. Union of India & Ors. accepted the order in letter and spirit and therefore, they withdrew the appeals; (ii) Union of India realized that when the appeal was going to be dismissed by the Hon'ble Supreme Court, the Union of India withdrew it. He sub- mitted that while dismissing the said appeals as withdrawn, question of law was not kept open by the Supreme Court. These turn of events lead.6
. , 0.A. No, 213/2019.
' to only one logical inference that the Union of India accepted the inter-
: : pretation placed by Karnataka Hi gh Court in NX. Suparna's case (su-
pra). He further submitted, relying on the judgment of NUK. Suparna (supra), that Mumbai Bench of this Tribunal in OA Nos. 265/2015 & 266/2015 has taken a view that conclusion of judicial proceedings means final conclusion of judicial proceedings. He submitted that Mumbai Bench of this Tribunal further relied on the judgement of Su-
preme Court in the case of Akhtari Bi (Supra), in which it is held that appeal is a continuation of judicial proceedings. Judicial proceedings which resulted in conviction of the Government servant have not at- tained finality due to pendency of appeal before the High Court. He submitted that Mumbai Bench of this Tribunal proceeded to hold that since the judicial proceedings as mentioned under Section 69 (1) (b) of the CCS (Pension) Rules have not attained finality, the power conferred under sub-rule 1 of Rule 69 cannot be invoked. He submitted that in the case of Union of India and another Vs. Central Administrative Tribunal Chandigarh Bench, Chandigarh and another, 2010 SCC OnLine P&H 11819, it has been held by the Hon'ble Punjab & Har- yana High Court that the proceedings in appeal is continuation of the original proceedings and until and unless the appeal is decided, pen-
dency of such proceedings in appeal would be deemed to be pending O.A, No. 213/2019, and Rule 69 (1) (b) would continue to apply. He submitted that it is not . 4) permissible for the courts to enlarge the scope of the legislation when the language of the provisions is plain and unambiguous. The court cannot re-write, recaste or reframe the legislation for the very good reason that it has no power to legislate. He submitted that Chandigarh Bench and Delhi High Court have held that appeal is a continuation of proceedings but the words "conclusion of departmental or judicial pro- ceedings" are not preceded by the word "final". He submitted that the words "conclusion of departmental or judicial proceedings" indicate that the proceedings shall remain pending till all the remedies provided under the law are exhausted. It is not permissible for the court to add word "final" before the expression " conclusion of departmental or ju- dicial proceedings" The proceedings will not attain finality till the de- cision on appeal preferred by the convict in the appellate court is ren- dered. He further submitted that courts cannot legislate and they have - to interpret the words without adding or subtracting any word to it. For this purpose, he placed reliance on the case of Union of India and Anr. Vs. Deoki Nandan Aggarwal, 1992 AIR 96, 1991 SCR (3) 873. He also placed reliance on the interim order passed by the Mumbai Bench ofthis Tribunal in OA No. 54/2019. He has placed reliance on the case -
of Mr. Madan Mohan Agarwal Vs. Union of India & Ors, OA No. & O.A. No. 213/2019.
3111/2014, CAT Principal Bench, New Delhi, decided on 12" Janu-
- | ary, 2017, He submitted that in this case also the Government servant was convicted under section 498A/304B of IPC. His provisional pen- sion was stopped and the Tribunal directed to restore the provisional pension. He submitted that courts do not make laws they only interpret the laws. For this purpose, he placed reliance on the case of Ajaib Singh Vs. Sirhind Coop. Marketing-Cum-Processing Service Society ETD. And Anr., 1999 (2) SCR 505., & Dadi Jagannadham Vs. Jam-
mulu Ramulu & Ors., Appeal (Civil) 5639 of 2001. Rohitash Kumar and Others Vs. OM Prakash Sharma and Others, (2013) AIR (SC)
30. 1.7. Mr. RR. Shetty, learned counsel for the respondents submitted that reliance placed on the case of Akhtari Bi (supra) is misplaced be- cause in that case the question of Rule 69 (1) (b) of CCS (Pension) Rules was not involved. He further contended that observation made in the case of Akhtari Bi (supra) while deciding the case of K.C. Sareen (supra) were not relied upon by the Supreme Court. Ratio laid down in the case of K.C. Sareen (supra) clearly stipulates that once an em- ployee is convicted, he shall be treated as a convict for all purposes including service law purposes till such time he is honorably acquitted by the appellate forum. Till that time, convict employee should be 0.4, No. 213/2019, treated as a convict and the consequences as provided in the law must 2} follow. He submitted that in the case of Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, Civil Ap- peal No. 2992 of 1995, Supreme Court of India, decided on 24.2.1995, it has been clearly laid down that once a Government serv- ant is convicted of a criminal charge, disciplinary authority need not wait for the appeal or for the revision to be decided. Once, he is con- victed, action under clause (a) of the second proviso of Article 311 (2) should follow. He contended that in the case of K.C. Sareen (supra) reliance was placed on the case of S. Nagoor Meera (supra), and it was observed that once a Government servant is convicted he is a convict for ail purposes. He submitted that the observations made in the case ofS. Nagoor Meera (supra) and K.C. Sareen (supra), were not brought to the notice of Karnataka High Court while deciding the-case of N.K. Suparna (Supra) and also to the notice of Punjab and Haryana High Court while deciding the case of Union of India Vs. S.P.S. Rathore and Others, CWP No. 8070 of 2012. He submitted that if these obser- vations had been brought to the notice of Karnataka High Court and Punjab and Haryana High Court, the decision would have been differ-
ent. He further contended that in the case of RC. Mishra, Danics/joint director (RETD) Vs. Union of India and Others, W.P. (C)12470/2018, 10 O.A, No. 213/20109.
' Delhi High Court, decided on 26 November, 2018., after considering ). | the case of K.C. Sareen (supra) and S. Nagoor Meera (supra), Delhi High Court has held that the words "conclusion of judicial or depart- mental proceedings" mean 1 conclusion of proceedings by the court be- fore which judicial proceedings were pending. It does not extend to the pendency of an appeal. If this interpretation j 1S accepted, in that case there will be no end to litigation and the Government servant will enjoy all the benefits despite being a convict, He submitted that in the case of Gopinath Tripathy Vs. The Union of india and Others, OA No. 612/2015, CAT Cuttack Bench, decided on 01" February, 2021, plac- ing reliance on the case of K.C. Sareen (supra) and SS. Nagoor Meera (supra), it was held that though an appeal is a continuation of proceed- ings, the same interpretation cannot be applied to Rule 69 (1) (b) of the CCS (Pension) Rules. Once a Government servant is convicted, there _is no need to wait for the decision of the appeal or revision, if preferred by the convict and action as provided under the law can be initiated. Mr. R.R. Shetty, learned counsel for the respondents placed reliance on the case of India Vs. VK, Bhaskar, (1997) 11 Supreme Court Cases
383. Tt was held in that case that pendency of an appeal against convic-
tion is no bar for passing order of dismissal of the Government em-
il OLA. No. 213/2010, ployee under Rule 19 (i) of Central Civil Services (Classification, Con-
3) trol and Appeal) Rules, 1965. Same principle is laid down in the case of R.P. Sharma Vs. Municipal Corporation of Delhi, CWP. No. 1705 of 1999, High Court of Delhi. He submitted that if the interpretation which the learned counsel for the applicant wants to place is accepted, it will lead to Hazardous results and Government will have to pay pro-
visional pension to a convict.
1.8. We have given anxious consideration to the submissions made by the learned counsels for the respective parties.
1.9. It is not in dispute that the applicant has been convicted under sections 13 (1) (e) r/w 13 (2) of the Prevention of Corruption Act, 1988 on 8" May, 2015. Order of withholding of 100 per cent of monthly pension and entire gratuity on permanent basis by invoking provision Rule 9 of the CCS (Pension) Rules, 1972 was passed on 25% Septem- 'ber, 2017. It is also not in dispute that the sentence awarded by the Special CBI Court on the applicant has been suspended by the High Court. Rule 9 of the CCS (Pension) Rules reads thus:
"9. Right of President to withhold or withdraw pension 'I(D) The President reserves to himself the right of withholding a pen- sion or gratuity, or both, either in full or in part, or withdrawing a pen~ sion 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 12 O.A. No. 213/2019.
or judicial proceedings, the pensioner is found guilty of grave miscon- duct or negligence during the period of service, including service ren- dered upon re-employment after retirement:
Provided that the Union Public Service Commission shall be consulted before any final orders are passed:
Provided further that where a part of pension is withheld or withdrawn, the amount of such pensions shall not be reduced below the amount of *(Rupees Three thousand Jive hundred) per mensem., ] (4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any depart-
mental or Judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as Provided in Rule 69 shall be sanctioned "
02. Rule (1) empowers the President to withhold pension/gratuity if a pensioner is found guilty in departmental proceedings for grave mis- conduct. Rule 9 (4) of the CCS (Pension) Rules states that in case 4 Government servant who has retired on attaining the age of superan- | nuation or otherwise and against whom any departmental or judicial proceedings are constituted or where departmental proceedings are 'continued under sub- rule (2), provisional pension as provided in Rule 69 (1) (b) shall be sanctioned.
2.1. Rule 69 deals with payment of provisional pension where de- partmental or judicial proceedings are pending. Rule 69 of CCS (Pen-
sion) Rules reads thus:
'69. Provisional pension where departmental or judicial proceedings may be pending , - 43 , O.A. No, 213/2019.
(1) (a) In respect of a Government servant referred to in sub-rule (4) of Rule 9, the Accounts Officer shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Gov-
ernment servant, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension
(b) The provisional pension shall be authorized by the Accounts Officer during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the Competent Author- ity
(c) No gratuity shall be paid to the Government servant until the con- clusion of the departmental or judicial proceedings and issue of final orders thereon:
Provided that where departmental proceedings have been instituted un- der Rule 16 of the Central Civil Services (Classification, Control and | ' Appeal) Rules, 1965, for imposing any of the penalties specified in Clauses (i), (ii) and {iv) of Rule II of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant.
(2) Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Govern-
ment servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provi- sional pension or the pension is reduced or withheld either permanently or for a specified period."
2.2. Sub-rule 1 (b) & (c) are relevant for the present reference. Sub- rule 1 (b), states that a Government employee is entitled to provisional pension during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental and judicial proceedings, final orders are passed by the competent au- thority. The question that falls for determination is whether the expres- sion "After the conclusion of departmental or judicial proceedings" in-
dicate conclusion of judicial proceedings by the trial court where trial : 14 : O.A. No. 2123/2019.
is pending or till the judicial proceedings attain finality.
2.3. Before adverting to this question, it would be apposite to con-
sider the case laws cited by the parties.
2.4. In the case of Akhtari Bi (supra) Supreme Court held thus:
"Sescsee en Appeal being a statutory right, the trial court's verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction, It is unfortunate that even from the existing strength of the High Courts huge vacancies are not being filled up with the result that the accused in criminal cases are languishing in the jails for no Fault of theirs,"
2.5. In the case of S. Nagoor Meera (supra), S. Nagoor Meera (ap- pellant) was convicted under section 420 of IPC and section 5 of the Prevention of Corruption Act, 1988. In appellate court his sentence was suspended. He was dismissed from service by invoking provisions of article 311 (2) of the Constitution of India. Supreme Court in the case of S. Nagoor Meera (supra) held thus:
"8. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second pro- viso to Article 311(2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait Jor the appeal or revision, as the case may be. If, however, the govern- ment servant-accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been enti- tled to had he continued in service. The other course suggested viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court. It should be remembered that the action under clause (@) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his 45 ' 0.4. No. 213/2019, conviction is such that it deserves any of the three major punishments mentioned in Article 311 (2), As held by this court in Shankardass v. Un- ion of India, 1985(2) S.C_R. 358 :
"Clause (a) of the second proviso to Article 311 (2) of the Consti- tution confers on the government the power to dismiss a person Jrom service "on the ground of conduct which has let to his con- viction on a criminal charge". But that power like every other power has to be exercised fairly, justly and reasonably, Surely, the Constitution does not contemplate that a government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may perhaps not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article in- applicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly"
9. What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellate or other higher court, it may not be advisable to retain such person in service. As stated above, ifhe succeeds in appeal or other proceeding, the matter can al- ways be reviewed in such a manner that he suffers no prejudice."
2.6. Inthe case of K.C. Sareen (supra), appellant (K.C. Sareen ) was convicted under section 13 (2) of the Prevention of Corruption Act, 1988. On the basis of this judgment, K.C. Sareen was dismissed from service. K.C. Sareen moved the High Court for setting aside of his con-
viction. In the case of K.C. Sareen (supra) it has been held thus:
"11. The legal position, therefore, is this: Though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very ex- ceptional cases. Merely because the convicted person files an appéal in challenge of the conviction the court should not suspend the operation of the order of conviction. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position that we have to examine the O.A. No. 2193/2019.
question as to what should be the position when a public servant is con- victed of an offence under the PC Act. No doubt when the appellate court admits the appeal filed in challenge of the conviction and sentence jor the offence under the PC Act, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal, be- cause refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, de hors the sentence of imprisonment as a sequel thereto, is a different matter.
12. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the insti- tutions created for the protection of the republic, Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even par~ alyse the functioning of such institutions and thereby hinder the demo- cratic polity. Proliferation of corrupt public servants could garner mo- mentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant was found guilty of corruption after a judicial adjudicatery process con- ducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere Jact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such pub- lic 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 jrom 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 de- moralising the other honest public servants who would either be the colleagues or subordinates of the convicted person, If honest public servanis are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction the fall out 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 public office until he is exonerated after conducting a judi- cial 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.
13. The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when conviction is on a corruption charge against a public servant the appellate court or the revisional court ' 17 .
O.A, No. 213/2019.
should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprison- ment in abeyance till the disposal of the appeal or revision.
£4, We are fortified in holding so by two other decisions of this Court, One is Dy. Director of Collegiate Education (Adin) v. S. Na- goor Meena? The following observations of this Court are apposite now: (SCC p. 381, para 9).
The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311 (2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant accused is acquitted on appeal or other proceeding, the order can always be revised and if the govern-_ ment servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to, had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been con- victed of a serious offence by a criminal court.
I5.. The other decision is State of Tamil Nadu vs. A Jaga- nathan® {1996 (5) SCC 329} which deals with the case of some public servants who were convicted, inter alia, of corruption charges. When the appeal, filed by such public servants, was dismissed the High Court entertained a revision and ordered suspension of the sentence as well as the order of conviction, in exercise of the powers under Section 389(L) of the Code, taking que from the ratio laid down in Rama Na- rang vs. Ramesh Narang? (supra). But when the State moved this Court against the order of suspension of conviction a two Judge Bench of this Court interfered with it and set aside the order by remarking that in such cases the discretionary power to order suspension of conviction either under Section 389(1) or even under Section 482 of the Code Should not have been exercised.'' 2.7. The expression "after the conclusion of departmental or judicial proceedings" had fallen for consideration before the Karnataka High Court in the case of N.K. Suparna (supra). Karnataka High Court in the case of N.K. Suparna (supra) interpreted the words "after the con-48
OA. No. 213/2019.
clusion of departmental or judicial proceedings" as the judicial pro-
ceedings continued till those proceedings attain finality. For facility of reference, we quote the relevant observations in the case of N.K. Su- prane (supra).
"8. In order to answer this point, it would be beneficial to Jirst notice the provisions of Rule 69 of the Rules itself, Clause (b) of Sub-rule (L) of Rule 69 reads as follows:-
"69(D) (b): -
The provisional pension shall be authorised by the accounts officer during the period commencing from the date of retirement upto and including the date on which, after the conclusion of departmental or judicial proceedings, final _ orders are passed by the competent authority."
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 afier 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 Jar 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."
i9
0.A. No, 213/2019.
Ee | 2.8, From these observations it is seen that the Karnataka High Court held that the provisions of clause (b) is clear, plain and unambiguous and does not admit more than one meaning. Appeal is a continuation of the original proceedings and, therefore, Karnataka High Court held that till the decision on appeal, the proceedings shall be held to be pending and therefore, a Government servant is entitled to provisional pension. Relying on the judgment in the case of N.K. Suparna (supra), Punjab and Haryana High Court in the case of Union of India and another vs. CAT, Chandigarh Bench, recorded following observations in para | 10:
"10. With utmost respect we are in agreement with the view of the Division Bench of Karnataka High Court in N.K. Suparna's case (supra). We are also in agreement with the view taken by the Tribunal that the proceedings in appeal is continuation of the original proceedings and until and unless the appeal is decided, pendency of such proceedings in appeal would be deemed to be pending and Rule 69(1)(b) would continue to apply. For the aforesaid purpose the Tribunal has rightly placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of Smt, Akhtari Bi (supra),"
2.9. Relying on the judgment in the case of N.K. Suparana (supra), & Akhtari Bi (supra), Mumbai Bench of this Tribunal in the case of Tahilram Nanomal Rohira (supra) in para 25 (i), 28, 29, 31 & 36 held thus:
"5. Learned counsel for the applicant has brought to our notice 20 O.A. No. 213/2019, the judgments cited above in para 6 in support of his claim that pendency of appeal is continuation of the judicial proceedings, () Learned counsel Jor the applicant has relied upon the judgment of Hon'ble Apex Court in the case of Akhtari Bi (Smit) (supra) which madeobservation in para-5 of the judgment to the Jollowing effect:
"Appeal being a statutory right, the trial court's verdict does not attain finality during pendency of appeal and for that Purpose, his trial is deemed to be continuing despite conviction.
28. Even if we look at the relevant provisions of the Criminal Procedure Code 1973, it leads to only one inference that the appeal is nothing but continuation of the judicial proceedings which though culminated before the trial court but appeal is preferred against the order given by the trial court, either by the prosecution in case of acquittal or by the convict in the case of conviction.
29. dn chapter 35 of Cr. PC 1973, section 374 deals with appeal Jrom convictions, As per Section 374 (2) any person who is convicted on a trial by a Sessions Judge or Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than 7 years has been passed, he may appeal to the Hon'ble High Court. It is observed that if the trial court, whether it is the court of Metropolitan Magistrate or Sessions Court, convicts the accused, he has right to prefer appeal before the Court of Sessions or before the concerned Hon'ble High Court as the case may be within stipulated period as prescribed. However, if he chooses not to file any appeal to challenge the order of conviction and sentence, the order of trial court attains finality on expiry of period of limitation, if the appeal is preferred after the expiry of the period of appeal, the Appellate Authority may condone the delay and admit the appeal. Where the convict prefers appeal before the Appellate Authority and it is admitted, irrespective of the fact operation of order of conviction and sentence is stayed or not, the judicial proceedings continue to be pending till the disposal of the appeal. It can in no cireumstances be prejudged that the appeal will be dismissed only. The appeal is thus continuation of judicial Proceedings which will come to an end only with the disposal of appeal whether pending before the Sessions Court or before the Hon'ble High Court or even further appeal to the Hon'ble Apex Court.
31, Section 391 of the Cr PC deals with the powers of the appellate court for taking further evidende in the matter. Section 391] sub clause I reads as under:
391. Appellate Court may take Jurther evidence or direct it to be taken.-(1) In dealing with any appeal under this Chapter the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when 21 OA. No. 213/2019, the Appellate Court is a High Court, by a Court of Session or a Magistrate, From the above provisions also it is clear that the Appellate Court can issue direction in an appropriate cases for recording of further evidence so as to arrive at a just and fair decision in the appeal.
36. Since in the present case the judicial proceedings as mentioned in Rule 69 (1) (b) of the Rules have not attained finality, __ the power conferred under sub Rule I of Rule 9 could not have been invoked. Thus the impugned order dated 30.01.2015 has been issued without authority of law."
03. Mumbai Bench of this Tribunal is of the view that appeal is a continuation of proceedings as envisaged in Rule 69 (1) (b) of CCS (Pension) Rules, and till the proceedings attain finality, order under Rule 09 (1) of CCS (Pension) Rules cannot be passed.
3.1. This very provision fell for consideration before Delhi High Court in the case of PC. Mishra (supra). Delhi High Court after considering the judgment in the case of Akhtari Bi (supra), K.C. Sareen (supra) and S. Nagoor Meera (supra), in para 25 held thus:
"25. The position is no different in the present case. The ratio of the aforesaid judgment is clearly applicable in the facts of the present case. The petitioner is liable to be treated as corrupt until he is exonerated by a superior court on merits and not on mere technical grounds - such as lack of, or irregular sanction to prosecute, Mere pendency of his appeal does not even temporarily absolve him from the findings of guilt. Though the petitioner stands convicted and sentenced by the Trial Court, he is nevertheless seeking to assert his claim for provisional pension which, in the fact and circumstances, is equivalent to his regular pension, during pendency of his criminal appeal. Thus, the petitioner is asserting his claim, as if he is a government servant who has retired without any blemish, even though he stands convicted and sentenced by the trial court for conduct which also tantamounts to grave misconduct. He is. seeking to draw, on a monthly basis, provisional pension equivalent to his regular and full pension, which 22 O.A, No. 213/2019.
would not be recoverable even if his criminal appeal were to be dismissed."
3.2. Relying on the case of RC. Misra (supra), Cuttack Bench of this Tribunal in the case of Gopinath Tripathy (supra) held thus:
"22. The plea of the applicant that since conviction by the trial court has been challenged before the High Court of Orissa and stil] pending, the judicial Proceedings cannot be said to have been concluded and thus the applicant need to be paid provisional pension, is not acceptable in view of the observation and adjudication made by the Hon'ble Apex Court (para 13 supra) Subsequently, this decision was relied upon by Hon'ble High Court of Dethi in two other cases (para 14 & 15) and by Jodhpur Bench of Lribunal (para 16 supra) in view of the foregoing, this pendency of appeal before the High Court of Orissa, cannot have any effect on the punishment of withholding of 100% of monthly pension on permanent basis, which is imposed under the relevant rules."
In para 23, it is further held thus:
te trite, de the present case, the operation of the sentence has been statyed by the Appellate Court but there has been no suspension of the conviction of the applicant. Under such circumstances, in keeping with the observations of Hon'ble Apex Court ( para 13 supra) and Hon'ble High Court of Delhi (para 14 supra), the pendency of judicial proceedings in Hon'ble High Court. cannot have any effect on the decision taken by respondents, which is in accordance with statutory Provisions, following conviction by trial court. This aspect has been unambiguously made clear by Hon'ble Apex Court (para 13 supra) which in turn was relied upon by Hon'ble High Court of Delhi (para 14 & 15 supra) and by Jodhpur Bench (para 16 supra).
The reliance on N.K. Suparana's case (para 9 supra) is also of no held to applicant, in view of unambiguous views expressed by Hon'ble figh Court of Delhi (para 14 supra),"
3.3. While delivering the judgment in the case of KC. Sareen (supra), reliance was placed on the case of S Nagoor Meera (supra).
In the case of K.C. Sareen (supra), Supreme Court has not followed 23 O.A, No, 213/2019, the observations made by it in the case of Akhtari Bi (supra). In para 7 e & 8, it has been observed thus:
7, Shri Vikram Chaudhari, learned counsel for the appellant repeated before us those grounds and further submitted that as a irial can logically reach its final end only when the appellate court decides the matter the conviction passed by the trial court cannot be treated as having become absolute. He made an endeavour to draw support for the said proposition from the following observations made by this Court in Akhtari Bi v. State of M.P. (SCC p. 357. para 5) "Appeal being a statutory right, the trial court's verdict does not aitain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction."
8. By the said observation this Court did not mean that the conviction and sentence passed by the irial court would remain in Hinbo automatically when they are challenged in appeal. The said observation was made in a different context altogether when notice of the executive government was drawn to the need to appoint requisite number of Judges to cope up with the increased pressure on the existing judicial apparatus, and for highlighting the consequences of non-filling existing vacancies of Judges in the High Courts. We are unable to appreciate how the said observation can be culled out of the said context for the purpose of using it in a different context altogether such c as this where the convicted accused is seeking to have an order of conviction suspended during the pendency of the appeal.
3.4, Thus Supreme Court in the case of K.C. Sareen (supra) has , refused to follow the observations in the case of Akhtari Bi (supra), holding that the conviction and sentence passed by the trial court would not remain in limbo automatically when they are challenged in appeal.
Supreme court held that observations in the case of Akhtari Bi (supra) were made in a different context altogether. Therefore, while deciding the issue whether the expression "after conclusion of departmental or judicial proceedings" occurring under Rule 69 (1) (b), observations 24 OA. No. 2183/2019, . made in the case of Akhtari Bi (supra) cannot be relied upon.
~ =} 3.5. Even if these observations are considered, still they won't be of any help to the applicant for the reason that in para 14 relying on the judgment in the case of 8. Nagoor Meera, Supreme Court held that the more appropriate course in all such cases is to take action under clause
(a) of the second proviso to Article 31 1(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court.
3.6. These observations make it amply clear that even if appeal is pending, the authorities need not wait and can take the action against the Government servant as is permissible under the law.
3.7. The observations made in the case of S.Nagooer Meera (supra) can be profitably used in the present case as well. Once a Government servant is convicted that too under Prevention of Corruption Act, he as to be treated as a convict for all purposes. For all purposes means for the purpose of pension also. It does not appeal even to common sense that a convict should be paid pension till the judicial proceedings attain 25
0.A. No. 213/2019.
finality. A Government servant who is convicted, will employ all the 3 means at his command to delay the hearing of the appeal. It will not be in the interest of the society at large to pay pension to a convicted Government servant. Moreover, it will not act as a deterence for the like minded Government servant. If such an interpretation is placed, it will give the message that despite conviction, a Government servant will get pension till the finality of judicial proceedings. This cannot be the intention of the legislature. Supreme Court has rejected in the case of §. Nagoor Meera (supra) the option of waiting till the decision of appeal and then passing order under relevant service rules.
3.8 The consequences of interpretation as tried to be put by the learned counsel for the applicant have been stated by the Delhi High Court in para 33 & 34 thus:
33. The decision in the appeal may not come for years for myriad reasons. firstly, the heavy pendency of criminal appeals would come in the way of disposal of the appeal on an early date. Secondly, even the Government servani/ appellant may seek adjournments to delay the disposal of the appeal. Is it to be accepted that a goverment servant -
who stands convicted of a corruption charge before a criminal Court, should continue to receive provisional pension, just as good as the full pension, only on account of pendency of his criminal appeal? In our view, the answer to this question has to be an emphatic "No".
34, If the interpretation of the petitioner were to be accepted, the conviction would not attain finality even for purposes of Rule 19 of the CCS (CCA) Rules, or Rule 9 of the Pension Rules even after dismissal of the Criminal Appeal, because the petitioner would still have a right to prefer a Special Leave Petition under Article 136 of the Constitution of India before the Supreme Court. There would be no end to this process as the petitioner could file one petition after another and seek review, recall, or even file a curative petition. Pertinently, the conviction 26 O.A. No. 213/2019,.
of the petitioner has not been stayed by the appellate court and only his ° sentence has been suspended. Ti herefore, for all purposes, he is a convict. To permit such a convict to draw Provisional pension - which in most cases would be equal to the full pension, would be to make a mockery of the law. The same would mean that despite his conviction by the criminal court involving a serious and grave case of misconduct, he would gét away without any adversity, and would continue to remain a burden on the State. Thus, in our view, for purposes of Rules 9(1) and 69(1)(b) of the Pension Rules, the Judicial proceedings have attained conclusion upon the conviction of the petitioner by the trial Court, and the competent authority is entitled to pass final orders for withdrawing the whole or part of the pension permanently or for a specified period: ' Jor forfeiture of the Gratuity, and: for ordering recovery of the _ pecuniary loss caused to the government due to the grave misconduct established in the judicial proceedings.
3.9. In the case of RC. Misra (supra), Delhi High further held as under:
26. In our view, the State is not obliged to financially support a government servant who has been found guilty in a case of corruption by the criminal court- either provisionally (during pendency of this criminal appeal), or otherwise. Such a government servant, who stands convicted in a corruption case, ought to be considered as a parasite and a burden, not only on the government, but on the society at large. There is no reason why public money should be doled out to him, only to await the decision of the appellate court, which is pending at his behest against his conviction and sentence. Of course, the situation could change if, and when, the criminal appeal of the convicted Govemment Servant is allowed. If the exoneration is on merits, he may be entitled to claim revocation of the Order Under Rule 1 9(i) of the CCS (CCA) Rules or Rule 9 of the Pension Rules- as the case may be. However, if the exoneration is on purely technical grounds, whereas the findings of fact which constitute grave misconduct remain undisturbed, he may not even be entitled to - derive benefit of his exoneration, That would have to be examined by the Government in each case, on the facts of that case.
04. For the reasons discussed hereinabove, the interpretation as contended by Mr. Rajeev Kumar, learned counsel for the applicant 27 O.A. No. 213/2019.
cannot be accepted.
. i 4.1. Mr. Rajeev Kumar, learned counsel for the applicant vehemently contended that in the case of K.C. Sareen (supra), issue involved was different. He contended that in the case of K.C. Sareen (supra), the issue was whether power to suspend conviction should be exercised by the appellate court or the revisional court. The issue whether provisional pension during pendency of an appeal should be paid to the Government employee was not before the Supreme Court for consideration in the case of K.C. Sareen (supra).
4.2. - We are afraid we cannot persuade ourselves to subscribe to this argument. It is true that in the case of K.C. Sareen (supra), the issue raised in this reference was not before the Supreme Court. However, Supreme Court has laid down the law as to what course should be adopted when a public servant is convicted under Prevention of
- Corruption Act. In the case of K.C. Sareen (supra) it has been observed that convicted public servants should not be absolved even temporarily from such findings despite pendency of appeal. Supreme Court has further held that it would be a sublime public policy that the convicted public servant is kept under disability of conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of appeal or revision. In the case of 8. Nagoor Meera (supra) also, Supreme Court 28 0A. No. 213/2019, has held that once a public servant is convicted, action under clause (a) _ ) 3 of the second proviso to Act 31] (2) should be initiated. It has rejected the option of waiting till the decision of appeal. In view of these authoritative pronouncement, it is clear that once a public servant is convicted, he should be under disability of conviction till he is exonerated by the appellate court. In terms of these enunciations, the only interpretation that can be placed is that conclusion of judicial proceedings means the termination of the proceedings before the court of first instance/trial court. It cannot be stretched to proceedings pending before appellate court.
4.3. In this view of the matter, if the interpretration as sought to be put by the learned counsel for the applicant is accepted it would lead to hazardous results. There would be no end to the litigation and such an employee would be a burden on the state and it will be prejudicial _to the larger interest of the society.
4.4. There is one more reason for not accepting the interpretation sought to be put by the learned counsel for the applicant. In the case of PC. Misra (supra), Delhi High Court held thus:
"31. Having given our anxious consideration to the matter, we cannot persuade ourselves to agree with the view taken by the Karnataka High Court in N.K. Suparna (supra). Under clause (b) of Rule 69(1), the relevant expression used is 'Trom the date of retirement upto and including the date on which, after the conclusion of departmental or 29 _ O.A. No, 213/2019.
judicial proceedings, final orders are passed by the competent authority". Pertinently, while making the said rule by resort to proviso to Article 309 of the Constitution of India, the President uses the expression "final" only once i.e. in relation to orders which are passed by the competent authority. However, no such word or expression is used before the word "conclusion of departmental or judicial proceedings". If the intendment of the President - while framing the said rule was to release provisional pension to the government servant upto the date of "final" conclusion of departmental or judicial proceedings, the President would have used the said expression "final" before the words "conclusion of departmental or judicial proceedings", just as he used the expression "final in respect of the orders to be passed by the competent authority. Thus, the plain grammatical and _ literal interpretation of clause (b) of Rule 69(1) does not support the interpretation that the conclusion of departmental or judicial proceedings means the "final" conclusion of departmental or judicial proceedings,"
4.5. Ifthe word "final" had been used before the words "conclusion of departmental or judicial proceedings" the interpretation put by the learned counsel for the applicant could have been accepted. The expression "conclusion of departmental or judicial proceedings"
clearly mean conclusion of judicial proceedings before a court in which trial/proceedings is pending. It cannot be interpreted to mean that till "the judicial proceedings attain finality, order under Rule 9 (i) of CCS (Pension) Rules cannot be passed. If this interpretation is accepted it would mean that despite conviction the Government would be required to pay every month the provisional pension which in most cases would be equal to the full pension. This could not have been the intention of the legislature while framing Rule 69 (1) (b) and Rule 9 (1) of the CCS 30 O.A. No, 2139/2019.
(Pension) Rules.
2] 4.6. Mr. Rajeev Kumar, learned counsel for the applicant contended that it is not the duty of the court to enlarge the scope of legislation when the language of the provision is plain and unambiguous. For this purpose, he placed reliance on the case of Union of India & Ors. Vs. Deoki Nandan Aggarwal (1992 AIR 96, 1991 SCR (3) 873). In this case it is held thus:
" The Court cannot re- write, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which wil] carry out the obvious intention of the legislature but could not legislate itself, But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.
4.7. In the case of Ajaib Singh (supra), Supreme Court held thus:
ft vinsendl is not the function of the court to prescribe the limitation where the legislature in its wisdom and, though if fit not to prescribe any period. The courts admittedly interpret law and do not make laws. Personal views of the Judges presiding the court cannot be stretched to authorize them to interpret law in such a manner which would amount to legislation intentionally left over by the Legislature ......."
4.8. The learned counsel also placed reliance on the case of Rohitas Kumar and Others (supra). In this case it is held that while interpreting the provisions of a statute, court can neither add nor subtract even a single word.
31O.A, No, 213/2019.
s 4.9. We are not adding or subtracting any word to section 69 (1) (b) | of the CCS (Pension) Rules. We are only interpreting the meaning of the expression "conclusion of departmental or judicial proceedings". These words by no stretch of imagination indicate that a Government servant will be entitled to provisional pension till the judicial proceedings attain finality. If that had been the intention, as held in the case of PC. Misra (supra) the word "final" would have been used by the legislature. If this interpretation as sought to be put by the learned counsel for the applicant is accepted, it would have serious ramifications. A Government employee despite being convicted would continue to draw provisional pension which is as good as equal to full pension. Pension is not a bounty which can be doled out to a convict. Tt is the tax-payers money and it cannot be doled out to a person who is a convict.
05. Mumbai. Bench of this Tribunal in the case of Yahilram Nanomal Rohira (supra), proceeded on the footing that appeal is a continuation of proceedings. Though, judgment in the case of A.C. Sareen (supra) was cited, it was not considered by the Division Bench in its proper perspective. Therefore, law is not correctly laid down in the case of Tahilram Nanomal Rohira (supra). Law is correctly laid 32 Q.A, No. 213/2019.
"down by the Cuttack Bench in the case of Gopinath Tripathy (supra).
"Bp! Accordingly, we answer the.reference as under:
(i) A Government servant who is convicted by a competent criminal court, despite pendency of appeal in appellate court in which sentence is suspended, is not entitled to receive pension in terms of Rule 69 (1)
(b) of the CCS (Pension) Rules, 1972.
(ii) The expression "After conclusion of departmental or judicial proceedings" occurring under Rule 69 (1) (b) of the CCS (Pension) Rules, means the termination of proceedings by the court in which the proceedings/trial 1s pending. This expression does not include the judicial proceedings pending before the appellate court.
5.1.. Now the matter be placed before the Division Bench for further orders in view of the answer to the reference.
(Shri. I. V. Eapen) (J usticd Shri. M.G. Sewlikar) (5 ustice Shri, A.K. Srivastava) Member (A) Member (J) Member (J) /acf