Central Administrative Tribunal - Delhi
Ramesh Chandra Mathur vs Union Of India (Uoi) And Ors. on 20 March, 2002
Equivalent citations: 2003(1)SLJ331(CAT)
JUDGMENT
Lakshmi Swaminathan, Vice Chairman (J)
1. The applicant is aggrieved by the order issued by the respondents dated 22.5.1995 imposing on him a penalty of 25% cut in pension otherwise payable to him for a period of five years with immediate effect. This order has been passed by the President after holding a disciplinary proceeding against the applicant under Rule 14 of the CCS (CCA) Rules, 1965 (hereinafter referred to as the 1965 Rules'). The applicant retired from service of the respondents on 31.7.1994 and the impugned order has been passed by the President under Rule 9 of the CCS (Pension) Rules, 1972 (hereinafter referred to as the pension Rules').
2. A preliminary objection has been taken by the respondents that the O.A. is barred by limitation. The applicant has filed M.A. 76/2001 praying for condonation of delay of the period from 1.3.1991 to 2.8.2000 in filing the O.A.
3. We have heard Mr. N.S. Verma, learned Counsel for the applicant and Mr. A.K. Bhardwaj, learned Counsel for the respondents on the question of limitation as well as on the merits of the case and perused the documents on record.
4. In M.A. 76/2001, the applicant has stated that he was aggrieved by the order dated 21.4.1988 placing him under suspension and the charge-sheet issued by the respondents dated 12.12.1990 which was served on him on 1.1.1991. According to the learned Counsel for the applicant after the applicant retired from service on 31.7.1994, he came to New Delhi and is a resident here. Accordingly, he moved PT 88/2000 which was allowed by the Hon'ble Chairman on 28.4.2000 and the records of the O.A. pending before the Jabalpur Bench were called for listing before the Principal Bench. This was done on 28.6.2000 when O.A. 788/91 and O.A. 696/92 were dealt with by the Tribunal (Principal Bench) by order dated 28.6.2000. In this order, it has been noted that after the records were received in New Delhi, it transpired that the O. As. referred to above, have already been disposed of finally by the jabalpur Bench by Judgment dated 25.8.1999. As nothing survived, the O.As were sent back to the Jabalpur Bench. Mr. N.S. Verma, learned Counsel has contended that it was only after the applicant received a copy of the order dated 28.6.2000 which was sent by the Registry on 2.8.2000 that the applicant became aware that the two O.As he had filed in the Jabalpur Bench, which were pending at the time of his retirement, have already been disposed of there. He has submitted that an application had been filed by the applicant in February, 1996 to challenge the final order of punishment passed by the disciplinary authority on 22.5.1995 which is referred to in Paragraph 2 of the Tribunal's order (Jabalpur Bench) dated 25.8.1999. He relies on the observations in that order that although the O.A. was dismissed, liberty had been granted to the applicant to file a fresh application with an application for condonation of delay which he has done. He has, therefore, contended that in the circumstances of the case, after receipt of the order dated 28.6.2000 on 2.8.2000, the present application has been filed within time on 9.1.2001.
5. It is relevant to note that the applicant had moved PT 88/2000 before the Principal Bench of the Tribunal which was allowed by order dated 28.4.2000 and it was only when the order dated 28.6.2000 was passed that it has been noticed that O.A. 788/1991 filed before the Jabalpur Bench of the Tribunal has already been disposed of by the order dated 25.8.1999.
6. Taking into account the aforesaid order of the Tribunal (Jabalpur Bench) dated 25.8.1999 read with the orders of the Principal Bench dated 28.4.2000 and 28.6.2000 in O.A. 788/1991. M.A. 76/2001 praying for condonation of delay in filing the present O.A. on 9.1.2001, is allowed in the peculiar facts and circumstances of the case.
7. With regard to the penalty order issued by the respondents dated 22.5.1995, learned Counsel for the applicant has submitted that the Union Public Service Commission (UPSC) had not been consulted which is, therefore, contrary to the proviso below Rule 9(1) of the Pension Rules.
8. Another ground taken by the learned Counsel for the applicant is that Rule 14(16) of the 1965 Rules has been violated. According to him, the applicant had not been given an opportunity to state his defence after the disciplinary authority closed his case. These averments have been made in Paragraph 4.9 of the O.A. where he has stated that the provisions of Rule 14(16) of the 1965 Rules are mandatory but the same have not been complied with. To this, the respondents have submitted that the inquiry has been conducted as per the prescribed procedure and the applicant had actively participated in the inquiry and he had been given adequate opportunity to refute the charges. They have submitted that the applicant had submitted his written defence brief on 24.5.1993. In the rejoinder filed by the applicant, he has stated that the averments in paragraph 4.9 of the counter affidavit are totally false and baseless and hence, denied and has reiterated the averments in the O.A. He has, however, not communicated any details of the date when the disciplinary authority closed the case when he was required to state his defence either orally or in writing. The inquiry report has been submitted by the Inquiry Officer on 8.8.1993.
9. The applicant has not placed any documents on record to substantiate his contentions that provisions of Rule 14 (16) of the 1965 Rules have been violated by the respondents. In the absence of such documents, we are unable to agree with the contentions of the learned Counsel for the applicant and hence, this ground is rejected.
10. The next ground taken by the applicant is that the charges are vague. On perusal of the charges issued odd the applicant, this contention has also to be rejected as there is no basis for the same. Hence, this ground also fails and is rejected.
11. The applicant has submitted that the charge is too old as it relates to the events of 20.8.1976. He has referred to the fact that the business of his son had started from the year of 1982-83 and not from 20.8.1976. In the charge, what has been stated is that the applicant while posted and functioning as SSO Grade-I (Incharge of Laboratory) at Controllerate of Inspection, Pune between 20.8.1976 and 20.9.1985 and as P.Sc.O., Inspector of Metals at Quality Assurance Establishment (Metals), Katni, M.P. from 10.11.1986 to 30.4.1990, had committed gross misconduct, the details of which have been given in the statement of article of charge. Taking into account these facts and the reply given by the respondents on this ground, we are of the view that the impugned charge Memorandum cannot be quashed on this ground as contended by Mr. N.S. Verma, learned Counsel. The facts in the charge relate to events which have taken place between 20.8.1976 and 30.4.1990 and in this view of the matter, it cannot be held that the charge is too old, as contended by the learned Counsel for the applicant. Therefore, this ground also fails and is accordingly rejected.
12. Another ground taken by the learned Counsel for the applicant is that this is a case of no evidence. This ground has also to be rejected because this has been denied by Mr. A.K. Bhardwaj, learned Counsel for the respondents, who has submitted that a number of witnesses and documents have been called and relied upon in the inquiry, on the basis of which final decision has been taken by the disciplinary authority. From the documents on record, we find that it cannot be held that there is no evidence against the applicant and hence, this ground also fails and is rejected.
13. Learned Counsel for the applicant has contended that the applicant's son was no dependants on the father. He has relied on the definition contained in Rule 2(c) of the CCS (Conduct) Rules, 1964. Learned Counsel for the respondents has submitted that this is not so because the nature of the charges framed against the applicant have to be taken into account. According to Mr. A.K. Bhardwaj, learned Counsel, the allegations included the fact that the applicant's minor son was running two firms and the applicant had got the current account of both the firms opened in UCO Bank, Pimpuri, Pune through Shri J.P. Puri and also received the payments through cheques himself in 1983 and 1987 and participated actively in the transactions of these two firms. It is stated that the date of birth of the applicant's son is 16.8.1965 and in 1983 he was a minor. Therefore, learned Counsel for the respondents has contended that the son cannot be held as not dependent on the father at the relevant time. In the facts and circumstances of the case, the contention of the case, the contention of the applicant that the son was not wholly dependant on him at the relevant time is rejected.
14. Mr. N.S. Verma, learned Counsel has also contended that even though the applicant had placed orders with his son's firms in February, 1987, the same was got cancelled in November, 1998 and the money was returned to the treasury and on this account the respondents have not suffered any loss for which he could be charged. These are facts which the applicant could take in defence and we see no justification to quash the impugned charge memo on this ground. The Inquiry Officer in his report has considered the relevant evidence and has come to the conclusion that the charge stood established and that the applicant has failed to maintain integrity and acted in a manner unbecoming of a Government servant, thus violating the provisions of Rules 3 and 4 of the CCS (Conduct) Rules, 1964. We have also considered the other submissions made by the learned Counsel for the applicant challenging the procedure and conduct of the disciplinary proceedings against the applicant but we find no merit in the same, excepting to the extent mentioned below :
15. Learned Counsel for the applicant has submitted that the respondents have passed a final order of punishment against the applicant dated 22.5.1995 by which the President acting as the disciplinary authority had imposed the penalty of 25% cut in pension payable to the applicant for a period of five years with immediate effect. However, during the hearing, learned Counsel has submitted that this penalty order has not been implemented so far. He has contended that the penalty order which has been issued after the applicant retired from service on superannuation on 31.7.1994 can only be done under Rule 9(1) of the Pension Rules. Proviso (1) to this Rule provides that the UPSC shall be consulted before any final orders are passed by the President regarding withholding or cut in pension either in full or in part, whether permanently or for a specified period. The applicant has submitted that the order passed by the President without consulting the UPSC dated 22.5.1995 should, therefore, be quashed and set aside as it is not in accordance with Rule 9(1) of the Pension Rules. The respondents in their reply have given a combined reply in paragraphs 4.15 to 4.17, in which they have stated that the UPSC is not required to be consulted in disciplinary cases, in respect of civilians paid from Defence Service Estimates as per para 3 of Chapter XVI of Vigilance Manual, Vol.1. Mr. A.K. Bhardwaj, learned Counsel for the respondents, has submitted that the vigilance Manual has made three exceptions to the general rule with regard to the consultation with UPSC which are as follows;
(i) disciplinary matters affecting persons paid out of the Defence Services Estimates including civilians in defence services;
(ii) in any case where the President proposes to make an order of dismissal, removal or reduction in rank in the interest of the security of the State;
(iii) in any case where on conclusion of the disciplinary proceedings, it is proposed not to impose any punishment on the officer".
Learned Counsel for the respondents has, therefore, submitted that there is no infirmity in the order issued by the respondents under Rule 9 of the Pension Rules even if the UPSC is not consulted, as his case falls within the provisions of Clause (i) of Chapter XVI of the vigilance Manual, referred to above.
16. We are unable to agree with the contentions of the learned Counsel for the respondents that the present case UPSC need not be consulted, as provided under the first proviso below Rule 9(1) of the Pension Rules. Rule 2 of the Pension Rules provides, inter alia, that these Rules shall apply to Government servants, including civilian Government servants in the Defence Services, appointed substantively to civil services and posts in connection with the affairs in the Union. Defence Service has been defined under Rule 3 (d) of these Rules as meaning services under the Government of India in the Ministry of Defence, and in the Defence Accounts Department under the control of the Ministry of Finance (Department of Expenditure) (Defence Division), paid out of the Defence Services Estimates and not permanently subject to the Air Force Act, 1950 or the Army Act,1950 or the Navy Act, 1957. Relevant Portion of Rule 9( 1) of the Pension Rules reads as follows:
"9. Right of President to withhold or withdraw pension.
(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement.
Provided that the Union Public Service Commission shall be consulted before any final orders are passed:
Provided further xxxxx".
17. Therefore, having regard to the facts of the case and the aforesaid proviso of the Pension Rules, we are unable to agree with the contentions of the learned Counsel for the respondents that before passing the final order by the President, he does not have to consult the UPSC. The President has issued the penalty order imposing a cut of 25% in pension of the applicant for a period of five years and the proviso to Rule 9(1) of the Pension Rules clearly provides that the UPSC shall be consulted before any such final orders are passed. In the circumstances of the case, the reliance placed by the respondents on the provisions contained in Chapter XVI of the Vigilance Manual which have been issifed by the Vigilance Commission as executive instructions by a statutory body cannot have the effect of overriding the provisions of the Pension Rules. In this view of the matter, the impugned penalty order passed by the President dated 22.5.1995 is liable to be quashed and set aside However, it is relevant to note the submission made by the learned Counsel for the applicant, that for reasons best known to the respondents, the order dated 22.5.1995 has all not been implemented by them till date even though it is more than 5 years since it was passed.
18. In the result for the reasons given above the impugned order dated 22.5.1995 is quashed and set aside. In the circumstances the case is remitted to the competent authority i.e., the President to pass afresh order after consultation with the UPSC, in accordance with the relevant law and rules. This shall be done within four months from the date of receipt of a copy of this order. No order as to costs.