Central Administrative Tribunal - Ahmedabad
Dr Beerma Ram Parihar vs North Western Railway on 28 February, 2025
Central Administrative Tribunal
Ahmedabad Bench,
Ahmedabad
O.A. No.20 of 2024
Orders reserved on : 23.01.2025
Orders pronounced on : 28.02.2025
Hon'ble Mr. Jayesh V. Bhairavia, Member (J)
Hon'ble Dr. Hukum Singh Meena, Member (A)
Dr. Beerma Ram Parihar
S/o Shri Gena Ram Ji
By caste Mali
Aged 54years
R/o House J/1, Lisa Park, N.R. Rameshwar Nagar,
Vadodara - 390023 Gujarat.
...Applicant
(By Advocate: Shri Tushar Ranjan Mohanty)
VERSUS
1. Union of India through General Manager, NW Railway,
Malviya Nagar, Jawahar Circle, Jaipur - 302001.
2. The Divisional Railway Manager, North Western Railway,
Bikaner Division, Kikaner-334001
3. The Secretary,
Railway Board,
Rail Bhawan,
New Delhi-110001
4. The Secretary,
Union Public Service Commission,
Dholpur House, Shahjahan Road,
Chanakiyapuri, New Delhi-110069.
5. The Chief Personnel Officer,
North Western Railway,
Head Quarter, Jagatpura,
Jaipur - 302017.
...Respondents
(By Advocate: Ms. R.R. Patel)
2 OA No. 20 of 2024
ORDER
Hon'ble Mr. Jayesh V. Bhairavia, Member (J):
Being aggrieved with the Railway Board‟s letter dated 9.12.2021 vide which the penalty of withholding of 100% of admissible monthly pension permanently and withholding of 100% gratuity admissible permanently had been imposed upon the applicant, the applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"(i) by an appropriate order or direction, the memorandum dated 6n July, 2020 (Annex-6) issued by the respondents may kindly be declared illegal and be quashed and set aside.
(ii) by an appropriate order or direction, the order of penalty issued by the respondents dated 9.12.2021 (Annex-1) may kindly be declared illegal and be quashed and set aside.
(iii) by an appropriate order or direction, the respondents be directed to continue the pension of the applicant month by month with all consequential benefits and if the pension is stopped, the same may be released with all consequential benefits and directions along with interest @ 18% per annum from the date the same had been stopped till the date of payment.
(iv) by an appropriate order or direction, the respondents be directed to release the gratuity of the applicant immediately with all consequential directions.
(v) Any other appropriate order or direction which this Hon'ble Tribunal may deem fit just and proper in the facts and circumstances of the case may kindly be passed in favour of the applicant."
2. Brief facts of the case are that:
2.1 The applicant was appointed as ADMO in the year 1998 and had reached to the level of Sr. DMO, Selection Grade in the year 2011 and had been in the panel in SAG cadre in May 2019.3 OA No. 20 of 2024
2.2 While working as Sr. DMO, Railway Hospital, Jodhpur, the applicant was caught red-handed on 14.2.2017 by the CBI Jodhpur for demand of Rs.10,000/- and acceptance of Rs.8,000/- from one Shri Ravi Gurjan, Trackman, Minya Ka Bada, Halt Station, Samdari, Barmer and a CBI case being RC JDH 2017 A 0001 was registered on 14.2.2017 and he was arrested on 15.2.2017 and subsequently, granted bail on 6.3.2017.
2.3 Consequently, after going though the CBI Report and other relevant facts, the competent authority granted sanction of prosecution vide order dated 14.12.2017.
2.4 The CBI had filed chargesheet against the applicant in the Special crime case No.2/2018 filed under Sections 7, 13 (2) read with Section 13 (1)(d) of Prevention of Corruption Act 1988 for demand of Rs.10000/- and acceptance of Rs.8000/- from complainant Shri Ravi Gurjar.
2.5 The learned Special Judge for CBI Court had passed sentence and conviction order on 14.10.2019 for RI for 3 years and fine of Rs.20,000/- under Section 7 of PC Act, 1988 in default of payment of find SI for 2 months and RI for 4 years and fine of Rs.20,000/- under Section 13 (2) read with Section 13 (1) (d) of PC Act, 1988 in default of payment of fine, RI for 2 months.
2.6 The applicant was taken into custody on 14.10.2019 by the CBI Court and consequent thereto, the applicant was placed under deemed suspension by the General Manager/North Western Railway w.e.f. 14.10.2019 vide order dated 17.10.2019.
2.7 Aggrieved with the aforesaid order of the learned CBI Court, the applicant preferred an appeal before the Hon‟ble High Court of Rajasthan being SB Criminal Misc.
4 OA No. 20 of 2024(Suspension of Sentence Application) Appeal No.1120/2019 and the Hon‟ble High Court vide Order dated 23.10.2019 (Annexure A/2) had admitted the said appeal and ordered for suspension of sentence till the final disposal of the said appeal.
2.8 Subsequent to the said order of the learned CBI Court dated 14.10.2019, the respondents by invoking the provisions of Rule 1802/A of Indian Railway Establishment Code (IREC Vol.II) had passed the order dated 10.12.2019 (Annexure A/3) retiring the applicant compulsorily from services with pension after attaining the age of 50 years.
2.9 In view of the said Order dated 10.12.2019, the applicant stood compulsorily retired from service w.e.f. 24.12.2019 and the applicant was also paid salary of 3 months in lieu of notice to the tune of Rs.6,76,446/-.
2.10 Although the respondents had also issued Pension Payment Order on 15.6.2021 (Annexure A/5) w.e.f. 25.12.2019 and the applicant‟s pension had been fixed at Rs.96360/- + Dearness Relief, however, the admissible amount of gratuity had not been paid to the applicant.
2.11 But all of a sudden, on 6.7.2020 (Annexure A/6), the respondents by invoking the provisions of Railway Services (Pension) Rules, 1993 had provisionally decided to impose the penalty of "cut in pension" upon the applicant on the ground of his conviction by the learned CBI Court in the aforesaid criminal case.
2.12 The applicant had submitted his detailed reply to the said Memorandum on 22.8.2020 (Annexure A/7).
2.13 The respondents without holding any further enquiry and investigation, straightaway passed the impugned order 5 OA No. 20 of 2024 dated 9.12.2021 imposing the penalty of 100% cut in pension and gratuity upon the applicant. Hence, this OA.
3. Shri Mohanty, learned counsel for the applicant has mainly argued that :
3.1 The Memorandum dated 6.7.2020 and impugned penalty order imposing a penalty of withholding of 100% in admissible pension as well as gratuity permanently under Rule 8 read with Rule 9 of the Railway Pension Rules, 1963 (hereinafter referred to as „the Rules of 1993‟) is absolutely illegal and without jurisdiction being void ab initio, as the applicant had already penalized in view of his conviction in the aforesaid criminal case and was ordered to be compulsorily retired under Rule 64 of the Rules of 1993 read with Para 1802 of IRCE Vol.II. and thereafter PPO and Gratuity Payment Order had been issued.
3.2 The aforesaid conviction and sentence awarded by the learned CBI Court had been suspended by the Hon‟ble High Court of Gujarat and the said appeal is pending.
Therefore, initiation of disciplinary proceedings vide Memorandum dated 6.7.2020 after ordering compulsory retirement of the applicant is grossly arbitrary exercise of power and therefore, the said action is totally illegal as once a person had already been punished, he cannot be punished again for the same cause.
3.3 It is a settled law that once an incumbent is compulsorily retired as his integrity had been considered doubtful on the basis of the said conviction, he has become a dead wood and further the said compulsory retirement of the applicant had been ordered by invoking the powers under Rule 64 of the Rules of 1993 read with para 1802 of IREC Vol.II in view of his conviction in the said criminal case, therefore subsequently, the respondents could not have proceeded 6 OA No. 20 of 2024 further by issuance of Memorandum dated 6.7.2020, as the respondents cannot be permitted to approbate and reprobate and are stopped under the principles of equitable and promissory estoppels to further proceed by invoking the provisions of Rule 8 and Rule 9 of the Rules of 1993 as it amounts to violation of Articles 14 and 16 of the Constitution of India.
3.4 The above mentioned punishment awarded to the applicant was very severe and harsh and the same had been imposed without holding any enquiry.
3.5 it is reiterated that once the respondents had themselves having regard to the applicant‟s conviction in the said criminal case ordered compulsory retirement of the applicant by invoking the provisions of Rule 64 of the Rules of 1993 read with para 1802 of IREC Vol.II, there is no logic and justification to again invoke the powers under Rule 8 and Rule 9 of the Rules of 1993 and imposed the above punishment of withholding of 100% cut in pension and 100% gratuity upon the applicant. As such the entire proceedings initiated pursuant to issuance of Memorandum dated 6.7.2020 being illegal liable to be quashed and set aside, as without holding an inquiry, simply by giving a notice under Rule 8 of the Rules of 1993, the respondents cannot be permitted to cut 100% pension and gratuity of the applicant.
3.6 For the sake of arguments, it is urged that if the Memorandum had been issued, then regular inquiry has to be held by the respondents. Admittedly, no such inquiry proceedings had been conducted and no evidence had been led and straightway extreme penalty of 100% cut in pension and gratuity had been imposed which is clearly a 7 OA No. 20 of 2024 case of gross arbitrary exercise of power, violative of Articles 14, 16 and 311 of the Constitution of India.
3.7 A plain reading of Rule 9 of the Rules of 1993, it is evident that the same can be applied only when disciplinary proceedings or criminal case is pending against the employee on the date of his retirement. However, admittedly, there was nothing against the applicant on his date of retirement, which was 10.12.2019 and therefore, the impugned penalty order dated 15.12.2021 is without jurisdiction and cannot be sustained.
In this regard, reliance has been placed on the judgment of the Hon‟ble Supreme Court in the case of State of Madhya Pradesh vs. Thakur Bharat Singh, AIR 1967 SC 1170 in which it is held that "All executive action which operates to the prejudice of any person must have the authority of law to support it...."
3.8 It is contended that Rule 8 of the Rules of 1993 heading is „PENSION SUBJECT TO FUTURE GOOD CONDUCT‟ and further on a plain reading of this Rule, it is evident that it will only be applicable if after the retirement of the employee, he is convicted of a serious crime or found guilty of grave misconduct, which is not the case in hand and therefore, the Rule 8 of the Rules of 1993 would not be applicable in the present case.
3.9 It is further argued that the respondents had the powers under Rule 9 (2)(b) of the Rules of 1993 to issue a charge sheet to the applicant but they had chosen not to do so. Therefore, the applicant cannot be put to peril for the same.
3.10 Supplying of the advice of the Union Public Service Commission (in short „UPSC‟) along with the impugned 8 OA No. 20 of 2024 penalty order dated 15.12.2021 is de hors the rules, instructions and the law.
In this regard reliance has been placed on the following OMs and judgments:-
(i) Office Memorandum dated 6.1.2014 issued by the DoP&T;
(ii) Office Memorandum dated 5.3.2014 issued by the DoP&T;
(iii) judgment dated 30.1.2004 of the Hon'ble Supreme Court in SLP(C) No. 12188 of 2003 (S.N. Narual v.
Union of India and Others);
(iv) judgment dated 16.03.2011 of the Hon'ble Supreme Court in Civil Appeal No. 5341 of 2006 (Union of India and Others v. S.K. Kapoor);
(v) judgment dated 15.04.2015 of the Hon'ble High Court of Delhi in W.P.(C) No. 7341 of 2007 (Union of India V. N. Mohammad);
(vi) Judgment dated 08.12.2015 of the Hon'ble High Court at Delhi in WP.(C) No. 2386 of 2014 (Union of India and Others v. Subash Chander Sharma); and
(vii) Judgment dated 22.05.2014 of the Hon'ble Supreme Court in Civil Appeal No. 6717 of 2008 (Union of India and Others v. R.P. Singh);
In view of the above DoP&T‟s instructions and the law, the impugned Penalty Order dated 15.12.2021 (Annexure : A-
1) is bad in law on the ground that the advice of the UPSC was not supplied in advance and his response was not sought before taking the impugned decision. Therefore, the 9 OA No. 20 of 2024 impugned Penalty Order dated 15.12.2021 (Annexure A-1) has to be set aside on this ground too.
3.11 It is argued that law is well settled that an action has to be done in the manner provided in the Statute or not at all. In this regard, the reliance has been placed on the following judgments :
(i) Judgment of the Hon'ble Supreme Court in Chandra Kishore Jha v. Mahavir Prasad & Others, AIR 1999 SC 3558;
(ii) Judgment of the Hon'ble Supreme Court in Dhanajaya Reddy v. State of Karnataka, AIR 2001 SC 1512;
(iii) Judgment of the Hon'ble High Court of Delhi dated 21.12.2021 in W.P.(C) No. 13894 of 2018 (Foundation of Azadpur Tempo & Truck Welfare v. Delhi Police); and
(iv) Judgment 25.07.2022 of the Hon'ble Supreme Court dated in Civil Appeal No. 4807 of 2022 (Union of India v. Mahendra Singh).
Reliance has also been placed on the Judgment in the case of State Bank of India and Others v. D.C. Aggarwal and Another, AIR 1993 SC 1197, wherein it has been held that the Second Stage Advice of the Central Vigilance Commission has to be supplied to an Employee so that he can respond to it. Nothing can be considered behind the back of an Employee. In pursuance to the Judgment in D.C. Aggarwal (supra), the Department of Personnel and Training has issued Office Memorandum dated 28.09.2000 directing that not only the Second Stage Advice of the Central Vigilance Commission, but also the First Stage 10 OA No. 20 of 2024 Advice of the Central Vigilance Commission has to be supplied to the Employee.
3.12 The above principle was for supply of the Advice of the Central Vigilance Commission, but the same would be equally applicable to the supply of the advice of the UPSC. Further, it is well settled Principle that "what is sauce for the goose is sauce for the gander". In this regards, the reliance has been placed on the following judgments of the Hon'ble S Supreme Court:
(i) Indian Poultry v. STO, (1999) 9 SCC 162:
(ii) State of U.P. v. Sheo Lal, (2009)| SCC 513:
(iii) TR. Boopalan v. Tamil Nadu Housing Board, (2008) 12 SCC 525;
(iv) Nathuni Yadav v. State of Bihar, (1998) 9 SCC 238;
(v) P.R. Prabhakar v. CIT, (2006) 6 SCC 86;
(vi) S.Sudershan Reddy v. State ofA.P., (2006) 10 SCC 163;
(vii) Hem Singh v. State of Haryana, (2009) 6 SCC 748;
(viii) Basudeo Yadav v. Surendra Yadav, (2008) 15 SCC 124;
(ix) Banwari Dass v. Sumer Chand, (1974) 4 SCC 817;
(x) Ravi Namboothiriv. K.A. Baiju, 2022 SCC OnLine SC 1550:
(xi) Aureliano Fernandes v. State of Goa, 2023 SCC OnLine SC 621;
(xii) Trinity Infraventures Ltd. v. M.S. Murthy, 2023 SCC OnLine SC 738;
(xii) Adani Gas Ltd. v. Union of India, (2022) 5 SCC 210;
and
(xiv) State of Kerala v. N.M. Thomas, (1976) 2 SCC 310.
3.13 Further it is reiterated that on the date of retirement of the applicant i.e. 10.12.2019, the applicant was neither facing criminal proceedings nor had any Domestic Disciplinary 11 OA No. 20 of 2024 Proceedings been instituted against him. Therefore, on 10.12.2019, the applicant was absolutely free from Vigilance Angle.
In this regard, the applicant places reliance on the following OMs :
(i) Do P & T‟s OM dated 14.09.1992;
(ii) Do P & T‟s OM dated 25.10.2004;
(iii) Do P & T‟s OM dated 02.11.2012; and
(iv) Do P & T‟s OM dated 23.01.2014.
Further reliance has also been placed on the following two Judgments:
(i) Judgment dated 18.08.2023 of the Kolkata Bench of the Hon'ble Central Administrative Tribunal in OA No. 442 of 2023 (Dr. Jayram Hazra v. Union of India and Others); and
(ii) Judgment dated 22.04.2024 of the Hon'ble High Court of Kolkata in WP CT No. 47 of 2024 (Union of India and Others v. Dr. Jayram Hazra).
3.14 Lastly argued that in view of the above submissions, the instant OA deserves to be allowed.
4. Per contra, Ms. Patel, learned counsel for the respondents although had not disputed the facts of the case, however, by referring to the contents of the reply, opposed the claim of the applicant and mainly argued that :
4.1 the applicant‟s case has been dealt with under Rule 9 of the Railway Services (Pension) Rules, 1993 which reads as under:
"(1) The President reserves to himself the right of withholding or withdrawing a pension or gratuity, or both, either in full or in part, whether, permanently or for a specified period, and of 12 OA No. 20 of 2024 ordering recovery from a pension or gratuity of the whole or part of any pecuniary 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."
4.2 Further in cases where a pensioner is found guilty of grave misconduct in judicial proceedings, the Ministry of Railways' letter dated 20.12.2006 (Annexure C refer) provides that it is a pre-requisite to issue a show cause notice on the basis of conviction by the court to the pensioner before imposing any cut in his pension for clear manifestation of principle of natural justice. Accordingly, the applicant was served a Show Cause Notice vide Memorandum dated 06.07.2020, proposing to impose a penalty of cut in pension, after his conviction by learned Special Court for CBI cases, Jodhpur vide their order dated 14.10.2019. As such, the contention of the applicant that no penalty can be imposed without holding disciplinary enquiry is factually not correct and devoid of merit. Rather, the penalty of „withholding of 100% of monthly pension otherwise admissible to him on a permanent basis and further withholding of entire gratuity admissible to him on permanent basis' was advised by the Commission keeping in view the gravity of criminal charges proved against the applicant by the learned CBI Court.
4.3 Learned counsel further submitted that as per proviso below Rule 6 of the Railway Servants (Discipline & Appeal) Rules, 1968 (Annexure D), in every case in which the charge of possessing assets disproportionate to known sources of income or charge of having accepted or having 13 OA No. 20 of 2024 obtained from any person any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty of „Removal‟ or „Dismissal‟ from service shall ordinarily be imposed on' the CO, which are penalties of the highest grade in respect of serving employees. The penalty of withholding 100% of monthly pension otherwise admissible to him on a permanent basis and further withholding of entire gratuity admissible to him on Permanent basis' is in line with the above provision as the applicant was convicted by the learned CBI Court on the charges of demanding and accepting illegal gratification.
4.4 Learned counsel also submitted that the UPSC is an advisory body and its advice is sought in the disciplinary cases in accordance with the requirement of consultation with them as laid down in Article 320 (3) (c) of the Constitution of India read with Regulation 5 (1) of the UPSC (Exemption from Consultation) Regulations, 1958. However, the DA takes its own independent decision by taking into consideration the advice so tendered by UPSC along with all other relevant facts.
4.5 Further it is also submitted that the advice of the UPSC was sought by the Ministry of Railways for action under Rule 9 of the Railway Services (Pension) Rules, 1993 against the applicant on the basis of his conviction by the learned CBI Court, Jodhpur vide order dated 14. 10.2019. The Commission, advised, vide letter dated 13.10.2021 that the "penalty of withholding of 100% of admissible monthly pension permanently and withholding of 100% Gratuity admissible to CO permanently", may be imposed on the applicant. The Disciplinary Authority, after considering various factors including the advice of the Commission and the representation of the CO thereon, 14 OA No. 20 of 2024 imposed the same penalty on the applicant as advised by UPSC vide order dated 09.12.2021.
5. We have heard learned counsel for the parties and perused the pleadings as well as judgments relied upon by the learned counsel for the applicant.
6. We agree with the reasoning given by the respondents in their impugned order. Additionally, Article 311 of the Constitution of India states 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.15 OA No. 20 of 2024
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.]"
(emphasis supplied)
7. Even Rule 9(6)(b)(i) of the CCS Pension Rules, 1972 contemplates that the judicial proceedings are said to be instituted on the date on which the complaint or the report of a Police Officer of which the Magistrate take cognizance is made. Article 311 of the Constitution contemplates that a government servant can be terminated upon his conviction. There is no denial to the fact that with the order of Criminal Court, the applicant stood convicted and in appeal, it is only the sentence which has been suspended not the conviction. So in that sense the conviction against the applicant stands.
8. The interpretation of the Rule 69(1)(b) of the Pension Rules is that the conviction which has been arrived at by the learned Criminal Court is sufficient to attract Rule 69(1)(b) of the Rules ibid. This is also indicative from the fact that the Rule 9(6)(b)(i) contemplates the institution of judicial proceedings when the complaint/report is taken cognizance by the Magistrate. Surely, such judicial proceedings culminate when the final order in the case is passed by the Magistrate concerned. In this case, on the passing of final order by the learned Criminal Court, he is said to have been convicted and in terms of Rule 69(1)(b), the petitioner shall not entitled to the provisional pension.
9. In fact, the Division Bench of the Hon‟ble Delhi High Court in the case of P.C. Misra, Danics / Joint Director (Retd.) v. Union of India and Ors., 2018 SCC OnLine Del 13199, wherein the Hon‟ble High Court was concerned with an identical issue as is clear from paragraphs 1, 8, 9 and 18 of the judgment which we reproduce as under:
16 OA No. 20 of 2024"1. The petitioner has preferred the present writ petition to assail the order dated 15.10.2018 passed by the Central Administrative Tribunal (CAT/Tribunal) in O.A. No. 100/712/2016. The tribunal has rejected the said O.A. of the petitioner. The petitioner had preferred the said O.A. to, inter alia, assail the disciplinary proceedings undertaken against him vide memorandum/show-cause notice dated 21.07.2011; the order dated 19.01.2016 passed by the Govt. of India, Ministry of Home Affairs, whereby the President imposed the penalty of withholding 100% monthly pension otherwise admissible to the petitioner, as well as forfeiting his full gratuity on permanent basis. He also sought a declaration that the O.M. dated 04.03.1994 issued by the DOPT, Govt. of India is invalid and inapplicable to cases of pensioners under Rule 9(1) of the CCS (Pension) Rules, 1972 (Pension Rules for short) on the ground that it violates Rule 69 read with Rule 9(4) of the Pension Rules and Article 300A of the Constitution of India, and on the ground that Rule 9(1) of the Pension Rules is violative of the welfare principle of State policy. He sought a declaration that his regular pension and gratuity be sanctioned, and he be allowed commutation of pension in accordance with the Rules. In the alternative, he sought a direction that provisional pension under Rule 9(4) read with Rule 69 of the Pension Rules be continued in accordance with PPO dated 09.03.2011.
xxx xxx xxx
8. The further submission of the petitioner is that his provisional pension had been sanctioned under Rule 9(4) read with Rule 69 of the Pension Rules, in view of the fact that the petitioners appeal against his conviction and sentence was pending before this Court. The petitioner vehemently submits that an appeal is a continuation of the original proceedings, and unless and until the conviction of the petitioner is upheld by the appellate court, it cannot be said that the said conviction and sentence has attained finality.
9. The petitioner further submits that Rule 69(1)(b) of the Pension Rules states that provisional pension shall commence from the date of retirement up to, and including, the date on which "after the conclusion of the departmental or judicial proceedings, final orders are passed by the competent authority". The submission is that in view of the pendency of the criminal appeal, it cannot be said that the judicial proceedings stand concluded.
xxx xxx xxx 17 OA No. 20 of 2024
18. The thrust of the petitioner's submission is that since his criminal appeal is pending before the High Court against his conviction and sentence, and as the sentence has been suspended by the appellate court, his conviction has not attained finality since appeal is a continuation of the original proceedings. He also relies upon Rule 69(1)(b), which provides that the provisional pension shall be authorized 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 submission is that the judicial proceedings cannot be said to have attained conclusion in view of the pendency of the criminal appeal."
10. The Hon‟ble High Court finally has in paragraphs 26, 29, 30, 31, 33 and 34 while dismissing the writ petition has 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 Government Servant is allowed. If the exoneration is on merits, he may be entitled to claim revocation of the Order under Rule 19(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.
xxx xxx xxx
29. In N.K. Suparna (supra), the petitioner retired on attaining the age of superannuation while being prosecuted before the Special CBI Court in a corruption case. The petitioner stood convicted and sentenced on the corruption charge on 31.12.2001 i.e. one month before attaining the age of superannuation. The petitioner's appeal before the High Court against the conviction and sentence was preferred and was pending, wherein the sentence awarded to her was suspended. The President of India invoked his power under 18 OA No. 20 of 2024 Rule 9(1) of the Pension Rules and forfeited the pension and gratuity payable to her. The petitioner N.K. Suparna raised a similar plea, that since the criminal appeal was pending, the judicial proceedings have not come to an end and the criminal appeal was a continuation of the trial. The Karnataka High Court interpreted clause (b) of Rule 69(1) of the CCS Pension Rules to mean that a delinquent employee would be entitled to provisional pension from the date of retirement upto and including the date on which the final order may be made by the competent authority after conclusion of departmental or judicial proceedings. The words "after conclusion of departmental or judicial proceedings" were interpreted as conclusion of the appellate proceedings and not the original proceedings on the premise that an appeal is a continuation of the original proceedings. The Division Bench held that the final order envisaged under Rule 9(1) of the CCS Pension Rules - in terms of clause (b) of sub rule (1) of Rule 69, would require to be passed by the President only after the conclusion of the departmental or judicial proceedings. The Division Bench observed:
"8. ... ... 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".
30. The decision in N.K. Suparna (supra) was assailed before the Supreme Court. The SLP was, however, withdrawn by the petitioner on 20.08.2008. Thus, the issue decided by the Karnataka High Court in N.K. Suparna (supra) has not received the seal of approval of the Supreme Court.
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 "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". 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 19 OA No. 20 of 2024 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.
xxx xxx xxx
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 servant/appellant may seek adjournments to delay the disposal of the appeal. Is it to be accepted that a government 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 of the petitioner has not been stayed by the appellate court and only his sentence has been suspended. Therefore, 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 get 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 20 OA No. 20 of 2024 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; for 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."
11. Insofar as the judgments relied upon by the learned counsel for the applicant, as noted above, the same are not applicable to the facts of this case being not relevant to the facts and circumstances of this case.
12. The Hon‟ble Delhi High Court while deciding the case of Janak Raj vs. Union of India and others in W.P. (Civil) No.6022/2023 vide judgement dated 9.5.2023 had also placed reliance on the aforesaid decision of Division Bench of the Hon‟ble Delhi High Court in P.C. Mishra (supra) and agreed with the conclusion and finding as quoted above and held that the Tribunal was justified in rejecting the OA.
13. In view of the above, for the forgoing reasons, the case in hand is squarely covered by the judgment of the Hon‟ble Delhi High Court in P.C. Mishra (supra), which was again reiterated or followed by the Hon‟ble Delhi High Court in the case of Janak Raj (supra).
14. In the result, we do not find any merit in the OA and the same is accordingly dismissed as we do not find any sufficient ground to interfere in the matter at this stage.
15. There shall be no order as to costs.
(Dr. Hukum Singh Meena) (Jayesh V. Bhairavia)
Member (A) Member (J)
/ravi/