Central Administrative Tribunal - Ernakulam
T.N. Sukumaran vs Union Of India (Uoi) And Ors. on 12 April, 2002
Equivalent citations: 2003(1)SLJ252(CAT)
ORDER
A.V. Haridasan, Vice Chairman
1. The applicant who retired from the Southern Railway, Palghat Division on 31.8.95 has filed this application for the following reliefs:--
(i) call for the records leading to the issuance of Annexures-A9, A17, A21, A23 and A24 and to quash them;
(ii) to declare the period of suspension from 29.5.90 to 25.8.1993 as qualifying service for the purpose of increments, salary and all other benefits;
(iii) to declare that the applicant is entitled to all service benefits shown herebelow with accused interest thereon at the rate of 18%;
(a) promotion due from the date of his junior Shri Johnson who was promoted to higher grade and fix the pay accordingly from July, 1991;
(b) difference of pay and allowances and subsistence allowance paid for the suspension period from 31.5.1990 to 25.8.1993;
(c) difference of Bonus due from 1990-1993; (iv) to grant all pensionary benefits to the applicant with interest at the market rate of 18% accused thereon; (a) DCRG; (b) Full pension with effect from 1.9.1995; (c) Commuted value of pension; (d) Leave encashment on retirement; (v) to pass any other order or direction as may be deemed necessary in the interest of justice and the circumstances of the case.
The material facts can be briefly stated as follows. While the applicant was working as a Welfare Inspector in the Trivandrum Division of the Southern Railway he was assigned the work of supervising and assisting two Chief Supervisors for the RRB Examination which was held on 12.11.89 at Sree Narayana Womens College, Kollam. While so, by order dated 28.5.90 of the 6th respondent (Annexure A4) he was placed under suspension with effect from 30.5.90 as disciplinary proceedings against him was contemplated. He was thereafter served with the memorandum of charges dated 29.5.90 (Annexure A5) issued by the 6th respondent. The articles of charges related to alleged misconduct in connection with the supervision work at the Railway Recruitment Board Examination held at Sree Narayana Womens College, Kollam on 12.11.89. The said memorandum of charges was withdrawn by the 6th respondent's order dated 13.9.90 (Annexure A6) without prejudice to further DAR action in the case. Thereafter another memorandum of charges dated 1.10.90 (Annexure A8) was issued by the 4th respondent containing the very same allegations as in Annexure A5. Another memo dated 26.11.90 was issued by the 6th respondent proposing to make a suitable entry in his service register and confidential report on his alleged involvement of mal-practices in the conduct of RRB examination held at Sree Narayana Womens College for Women on 12.11.89. He submitted a reply on 28.12.90 (Annexure A10). One Sri Gajendran was appointed Enquiry Officer who almost concluded the enquiry on 12.2.93. However he retired from service on 30.4.93. Even prior to retirement of Sri Gajendran, one Smt. Bhuvanalakshmi was engaged to conduct the enquiry on 5.4.93. The second Enquiry Officer recalled certain witnesses at the instance of the vigilance wing. The applicant challenged this attempt by filing O.A. No. 2130/93. However the O.A. was disposed of finally by order dated 8.2.94 directing the disciplinary authority to consider the objections. The objections submitted by the applicant was not according to him properly considered and the enquiry was finalised. While so, Annexure A17 memorandum of charges dated 14.8.95 was issued by the Divisional Railway Manager. The applicant thereupon filed O.A. No. 190/95 seeking to set aside the disciplinary proceedings. The O.A. was disposed of by order dated 23rd April, 1995 permitting the General Manager Southern Railway to consider the whole matter including the grievance the applicant had raised. The applicant submitted Annexure A17 (a) reply to the memorandum of charges. The applicant filed O.A. 1145/95 challenging the departmental proceedings. The application was disposed of as agreed to by the Counsel on either side directing the respondents to conclude the pending proceedings against the applicant and to pass a final order within four months. A copy of the enquiry report was served on the applicant (Annexure A21) giving him an opportunity to make representation, if any. He submitted Annexure A22 representation on 13.8.98. Thereafter the order in the name of the President dated 2.7.99 (Annexure A23) deciding to cut 50% of the applicant's pension for the period of 5 years was issued. Thereafter pursuant to the Annexure A23 order the 8 respondent by letter dated 15.10.99 directed the Manager, State Bank of Travancore, Konni to regulate the payment of pension of the applicant and advising recovery of overpayment. It is aggrieved by that the applicant has filed this application. The applicant has alleged that the issue of successive charge-sheets and the protracted disciplinary proceedings were against the rules and have caused great prejudice to the applicant and that the Annexure A23 order issued in the name of the President is unsustainable as it is cryptic and not passed in accordance with the rules. The applicant therefore seeks the reliefs as aforesaid.
2. The respondents in the reply statement contend, that the enquiry has been held in conformity with the rules and instructions and that the Presidential order Annexure A23 was issued as provided for the Rule 9 of the Railway Services (Pension) Rules, 1993. Annexure A24 letter issued in implementation of the Annexure A23 order is also perfectly valid and justified, contend the respondents.
3. We have gone through the entire pleadings and materials placed on record.
4. The legal battle between the applicant and the Railway Administration had a long and chequered career. However the dropping of the memorandum of charges issued by the incompetent authority and the disciplinary proceedings instituted by the memorandum of charges dated 14.8.95 cannot be faulted as it was finding that the 6th respondent did not have the jurisdiction to initiate the disciplinary proceedings that the 4th respondent has issued Annexure A17 charge-sheet. Since the applicant retired on superannuation on 31.8.95, the order Annexure A23 was issued purportedly in accordance with the provisions of Rule 9 of the Railway Services (Pension) Rules. The learned Counsel of the applicant Mr. Vadakara V.N.N. Menon mainly stressed only one point, namely that the Annexure A23 order being cryptic and non-speaking and being not issued strictly in accordance with the provisions contained in Rule 9 of the Railway Services (Pension) Rules, the order is liable to be set aside and the Annexure A24 order also is required to be set aside. He argued that if the Presidential order Annexure A23 is set aside as no guilt of he applicant has been established in any proceedings, the applicant is entitled to have the period of suspension treated as service for all purposes as also for the relief of promotion with effect from the date on which his junior was promoted.
5. The learned Counsel of the respondents on the other hand argued that the Annexure A23 Presidential Order has been validly and properly issued in the name of the President in accordance with the procedure laid down in the rules. To reach a conclusion as to whether the Annexure A23 order which imposes a cut on the pension of the applicant has been issued validly in accordance with the provisions contained in Rule 9 of the Railway Services (Pension) Rules, it is necessary to consider the provisions of Rule 9 very carefully. Rule 9 of the Railway Services (Pension) Rules is extracted below:--
"9. Right of the President to withhold or withdraw pension--(1) The President reserves to himself the right of withholding or withdrawing a pension or gratuity, or both, either 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 peculiary loss caused to the Railway, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his 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 where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the amount of rupees three hundred seventy-five mensem.
(2) The departmental proceedings referred to in Sub-rule (1)--
(a) if instituted while the railway servant was in service whether before his retirement or during his re-employment, shall after the final retirement of the railway servant, be deemed to be proceeding under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the railway servant had continued in service;
Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording lits findings to the President;
(b) if not instituted while the railway servant was in service, whether before his retirement or during his re-employment--
(i) shall not be instituted save with the sanction of the President; (ii) shall not be in respect of any event which took place more than four years before such institution; (iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the railway servant during his service. (3) In the case of a railway servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under Sub-rule (2), a provisional pension as provided in Rule 96 shall be sanctioned. (4) Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a railway servant. (5) For the purpose of this rule,-- (a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the railway servant or pensioner, or if the railway servant has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to be instituted,-- (i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made; and (ii) in the case of civil proceedings, on the date the plaint is presented in the Court."
Since the disciplinary proceedings against the applicant in this case was instituted by the 4th respondent by memorandum of charges dated 1.4.8.95 prior to the applicant's retirement in accordance with the provisions contained in Sub-rule 2 of Rule 9, the same has to be continued and concluded by the 4th respondent beyond the date of retirement of the applicant as if the applicant continued in service. According to the proviso to the Sub-rule, the 4th respondent the authority who instituted the proceedings against the applicant has to submit a report recording its finding to the President. On the basis of the report and the finding of the authority which instituted the proceedings and after getting the opinion of the UPSC, the Presidential Order withholding or withdrawing the pension can be issued. A reading of Annexure A23 would make it clear that a report of the 4th respondent the authority who instituted the disciplinary proceedings against the applicant by Annexure A17 memorandum of charges containing a finding that the applicant was guilty of the charges was neither received nor considered before passing the impugned order A23. Annexure A23 reads as follows:--
Government of India Ministry of Railways (Railway Board) No. E(1) and A) 98 AE 7-7 New Delhi, Dt. 2.7.1999 ORDER The President has considered the report of the Inquiry Officer appointed to inquire into the charges levelled against Sri T.N. Sukumaran, retd. Welfare Inspector/PGT Division vide charge memorandum No. V/VO/1064/210/89-J/392 dated 14.8.1995. The UPSC has also been consulted by the President as required under the rules. A Copy of the Commission's advice as contained in their letter No. F. 3/397/98-S.I dated 14.6.1999 is enclosed.
After taking all the facts and circumstances of the case into account, the President has observed that all the charges levelled against Sh. Sukumaran are proved on the basis of oral and documentary evidence on record, and has therefore, decided that a cut of 50% in the pension otherwise admissible to Sh.
Sukumaran, be imposed upon him for a period of five years.
By Order and in the Name of the President Sd/-
(Inder Mohan) Joint Director Estt (D&A) Railway Board Sh. T.N. Sukumaran, Retd. Welfare Inspector/PGT, C/o The General Manager (P), Southern Railway, Chennai,"
In the absence of a finding by the authority which instituted the disciplinary proceedings against the applicant holding that the applicant was guilty of the charges, the Presidential Order under Rule 9 of the Railway Services (Pension) Rules withholding or withdrawing the Pension of the applicant could not have been validly issued.
It is also pertinent to mention that the order does not contain the reason as to how the charges framed against the applicant was established on the basis of oral and documentary evidence. The evidence has not been discussed in the order and there is not even a statement that the President agreed with the finding of the Enquiry Officer or of the UPSC or of the disciplinary authority. If the 4th respondent had recorded a finding that the applicant was guilty of charges and sent a report along with the finding necesarily it would have been so stated in the A23 order. Under proviso to Sub-rule 2 of Rule 9 it is mandatory that the authority which instituted the proceedings should record a finding as to whether the ex-Railway servant was guilty or not and submit areport to the President. Only if the pensioner is found guilty of a grave misconduct in a departmental or judicial proceedings, the powers reserved with the President for withholding or withdrawing his pension can be issued. In this case there is no finding by the 4th respondent who instituted the proceedings. Since pension is not bounty but a property as has been held by the Apex Court in a Catena of decisions, the pensioner cannot be deprived of it except in accordance with the procedure laid down in the rules.
6. In the light of the above discussion, we find that the impugned order Annexure A23 cannot be sustained. It follows that Annexure A24 also is unsustainable. Now that the applicant is retired from service and the impugned orders Annexures A23 and A24 are not sustainable, we have to consider what relief the applicant is entitled to. Since there has not been a conclusion of the departmental proceedings initiated against the applicant while he was in service by recording a finding of the authority which instituted the proceedings the period for which the applicant was placed under suspension has got to be regularised as period spent on duty for the purpose of pay and allowances and drawa! of increments as also for computing the qualifying service for pension. However in the circumstances of the case, we are not inclined to grant the claim of the applicant for promotion to the applicant with effect from the date on which his junior Shri Johnson was promoted to higher grade.
7. In the result the application is partly allowed. The impugned orders Annexures A23 and A24 are set aside. Declaring that the period between 30.5.90 to 25.8.93 during which the applicant was placed under suspension is to be treated as service for the purpose of increment, salary and pension, the respondents are directed to pay to the applicant the difference between the pay, bonus and allowances and the subsistence allowance already paid to him for the period of suspension. The respondents are also directed to grant pension to him without any cut alongwith the DCRG and other benefits like commuted value of pension, leave encashment etc., treating the period between 30.5.90 to 25.8.93 as qualifying service. Order in this regard should be passed and the monetary benefits flowing therefrom shall be made available to the applicant within a period of three months from the date of receipt of a copy of this order. Interest on DCRG and other benefits shall also be granted as per rules. No order as to costs.