Delhi High Court
Union Of India & Ors. vs H.L.Gulati on 31 August, 2010
Author: Mool Chand Garg
Bench: Pradeep Nandrajog, Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C).13664/2009
Date of Reserve: 26.08.2010
Date of Pronouncement :31.08.2010
UNION OF INDIA & ORS. ..... Petitioners
Through: Ms.Jyoti Singh, Adv. with Mr.Ankur
Chhibber, Adv.
VERSUS
H.L. GULATI .... Respondents
Through: Mr.E.J.Varghese, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be
allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether the judgment should be reported in the
Digest?
: MOOL CHAND GARG, J
1. The respondent, who was working as Senior Accounts Officer
was issued a notice on 01.01.1998 calling upon him to submit his
explanation to the notice. Reply furnished was found not satisfactory
and hence a charge sheet was issued to him on 07.07.1998 under
Rule 14 of the CCS(CCA) Rules for a major penalty whereby following
articles of charges were framed against him:
"Article I
That the said Shri H.L.Gulati, SAO while functioning as Sr.
Accounts Officer-in-Charge „M‟ Section during the period
16.10.92 to 15.10.94 in the Office of CDA (HQRs), New
Delhi, failed to discharge his duties effectively as provided
for in Appendix I to Defence Accounts Department Office
Manual Part I, which led to authorization of payment
against 36 fraudulent claims as listed in Encl.I, to the tune
of Rs. 42.24 lakhs approximately. Thus the said H.L.Gulati,
SAO failed to maintain devotion to duty, conducted himself
W.P.(C)13664/2009 Page 1 of 20
in a manner unbecoming of a Govt. servant and failed to
take all possible steps to ensure the integrity and devotion
to duty of all Govt. servants for the time being under his
control and authority, thereby violating the provisions of
Rule 3(1)(ii), 3(1)(iii) and 3(2)(i) of CCS (Conduct) Rules,
1964.
Article II
That during the aforesaid period and while functioning in
the aforesaid office the said H.L.Gulati, SAO failed to detect
that (i) fraudulent claims had been floated against fake
sanctions purported to have been issued by Ministry of
Defence/DGOS, (ii) the contingent bills had not been
preferred by the officers of DGOS authorized to do so and
(iii) appropriate procurement procedure relevant to the
value of stores procured had not been followed. Thus the
said H.L.Gulati, SAO, failed to maintain devotion to duty,
conducted himself in a manner unbecoming of a Govt.
servant and failed in the performance of his official duties
in the exercise of powers conferred on him, thereby
violating the provisions of Rule 3(1)(ii), 3(1)(iii) and 3(2)(ii)
of CCS (Conduct) Rules, 1964.
Article III
That during the aforesaid period and while functioning in
the aforesaid office the said H.L.Gulati, SAO authorized the
payments of the 36 fraudulent claims to the tune of Rs.
42.24 lakhs approximately, as officer-in-charge „M‟ Section
although the expenditure as per the fake sanctions was
debitable to the Revenue Head "Ordnance stores" and did
not fall within the purview of „M‟ Section as per Chapter VIII
of OM Part XII and even without getting the local purchase
bills noted in Accounts Section as required vide para 437
OM Part II Vol. I. Thus the said H.L. Gulati, SAO failed to
maintain devotion to duty, conducted himself in a manner
unbecoming of a Govt. servant and failed to take all
possible steps to ensure integrity and devotion to duty of
all Govt. servants for the time being under his control and
authority, thereby violating the provisions of Rule 33(1)(ii),
3(1)(iii) and 3(2)(i) of CCS (Conduct) Rules, 1964.
Article IV
That the said Shri H.L.Gulati, SAO while functioning as Sr.
Accounts Officer-in-Charge „M‟ Section during the period
W.P.(C)13664/2009 Page 2 of 20
16.10.92 to 15.10.94 in the Office of CDA (HQrs), New
Delhi, passed 36 fraudulent claims amounting to Rs. 42.24
lakhs approximately. Though the concerned bills related to
Store Section, these were processed and passed for
payment in the „M‟ Section and without following the
prescribed procedures. The above act of Shri H.L.Gulati
resulted in fraudulent payment to the tune of Rs. 42.24
lakhs approximately to the alleged suppliers and caused
pecuniary loss to the Govt. The above act indicates
complicity with the alleged suppliers and also exhibits
failure on the part of Shri Gulati to maintain absolute
integrity.
Thus the said H.L.Gulati, SAO failed to maintain absolute
integrity and conducted in a manner unbecoming of a
Govt. servant thereby violating the provisions of Rule
3(1)(i) and (iii) of CCS (Conduct) Rules, 1964."
2. The respondent was also proceeded criminally vide FIR dated
20.05.1998 registered against him under Sections
120B/420/468/471/477A IPC & u/s 13(2) read with 13 (1)(d) of
Prevention of Corruption Act, 1988. Of course, in the said case the
respondent was discharged as no evidence was found against him.
Yet the respondent who retired on superannuation was called upon to
face an inquiry as per Rule 9(i) of CCS (Pension) Rules, 1972.
However, as per the report of the Enquiry Officer the allegations
against the respondent with regard to authorization of 36 fraudulent
claims, non-following of the procedure by floating against fake
sanctions, non-noting of purchase bills in the accounts section and
non-following of the procedure, are instances of failure in maintaining
absolutely integrity and conducting in a manner unbecoming of a
government servant. The Enquiry officer, on the analysis of the
evidence led before him concluded as follows:
"Article -I Marginally proved
Article-II Partially proved.
Article-III Partially proved.
Article-IV Not proved."
3. However, the President of India after considering the
representations by the respondent pursuant to a show cause notice
W.P.(C)13664/2009 Page 3 of 20
given by the competent authority, imposed penalty of permanently
withholding 50% monthly pension and gratuity after recording that
the charges established against the respondent constituted a grave
misconduct, vide its order dated 30.11.2005. The said order was
assailed by the respondent before the Central Administrative
Tribunal, Principal Bench, New Delhi (hereinafter referred to as „the
Tribunal‟) vide O.A. No.1675/2008.
4. The Tribunal vide order dated 13.04.2009 relying upon a
judgment of the Tribunal in O.A.No.110/2005 in T.P.Venugopalanan
Vs. UOI & Ors. held that it is a condition precedent to exercise powers
under Rule 9(1) of the Pension Rules that there must be a finding in
the inquiry report that the pensioner has committed any grave
misconduct or grave negligence in discharge of his duties. The
Tribunal has observed that:
".....on perusal of the enquiry report, we find that the
charges of integrity, unbecoming of government servant
and other severe charges have not been established. It is
also not established that the act of the applicant is such
which has led to loss to the government. However, what
has been held proved against the applicant is only with
regard to procedural irregularities without any culpability.
Against the charge of non-following of the rules on a few
instances, past practice has been followed and no finding
either of grave misconduct or grave negligence has been
recorded in the enquiry report.
In view of the facts and circumstances of the case
and from scanning of the enquiry report, we are of the
considered view that the condition precedent for recording
of such a finding in the enquiry proceedings has not been
fulfilled. It is only the President who has recorded such a
finding on its own, but the Rule 9(1) stipulates that such a
finding is to be recorded in the disciplinary proceedings,
which is conspicuously missing. As such, when a finding of
grave misconduct and grave negligence, being condition
precedent under the relevant rules which has not been
recorded, the imposition of penalty is not only against the
dicta in D.V. Kapoors case (supra) but the issue involved in
the case in hand is fully covered by Venugopalans case
W.P.(C)13664/2009 Page 4 of 20
(supra). Hence, the penalty imposed upon the applicant is
without jurisdiction and nullity in law."
5. Aggrieved by the aforesaid order, the petitioner has approached
this Court. It has been submitted that in this case, the charges
leveled against the respondent were proved before the inquiry officer.
The gravamen of the charges leveled against the respondent goes to
show that the respondent who was only supposed to deal with
miscellaneous and contingent bills of „M‟ Section, in total disregard of
the provisions of Office Manuals, has processed the payments of 36
contingent bills to the tune of Rs. 42.24 lakhs viz. Ex.P/1/1 to
Ex.P/1/36 all debitable to Major Head 110 - stores for which he had no
authority. The bulk of the expenditure which „M‟ section is authorized
to make payments for is to be booked to Minor Head 800-Other
expenditure as per classification Handbook of Defence Services
Receipt & charges. Any expenditure to be booked to Major Head 110
- Stores is a deviation from what is described in the Manual and the
„M‟ section was not competent to do so. Thus, the charged officer
failed to ensure that there was no unauthorized deviation from the
procedure prescribed for Accounting & Auditing proving the charge
that the charged officer failed to effectively discharge the general
duties of A.O.
6. Para 431 A of OM Part II Vol.I specifies the types & nature of
bills supposed to be dealt with in „M‟ Section. Para 434 - 438 of OM
Pt.II Vol.I deal with contingent & miscellaneous charges. Para 435(i)
states that in case of contingent charges, it will be seen that the
charges are of a kind normally incurred on account of office or other
contingencies and that they are not of an unusual or extraordinary
nature. Certain types of charges under contingent and miscellaneous
charges have been mentioned such as recurring charges, charges for
non-official publications (including newspaper), charges for railway
time tables & Indian Postal & telegraph guides, printing, binding &
stationery charges, charges for liveries & warm clothing for class IV
W.P.(C)13664/2009 Page 5 of 20
servants, Telephone bills. Para 438 stipulates a procedure for
miscellaneous non-recurring charges, without elaborating the nature
and type of charges. However, taking into account para 435(i), it may
be concluded that the contingent expenditure should not be unusual
or extraordinary nature.
7. On examination it is found that following stores have been
purchased through Ex.P/1/1 to Ex.P/1/36 & Ex.P/A/1/1 to Ex.P/A/1/19:-
Document Stores Purchased Financial
Value (Rs.)
P/A/1/1 Fire Proof Cabinet 64,900.00
P/A/1/2 Fire Proof Cabinet & S.L.Printer 56,990.00
P/A/1/3 Single Colour Offset Printing Machine 9,85,000.00
P/A/1/4 Laser Printer 65,000.00
P/A/1/5 RAM/HDD/Floppy Disk 1.2 & 1.44 MB 40,0000.00
P/A/1/6 Fire Proof Cabinet 64,800.00
P/A/1/7 Binding Machine 72,600.00
P/A/1/8 Micro Transcrtoer and PSU 73,986.00
P/A/1/9 Laminating & Shredding Machine 68,420.00
P/A/1/10 Modem Card 73,400.00
P/A/1/11 Upgradation of Notebook computer 73,400.00
P/A/1/12 Notebook computer 74,500.00
P/A/1/13 Laminating Machine & Dictaphone 73,700.00
P/A/1/14 Binding Machine 72,600.00
P/A/1/15 Paper Shredding Machine 65,520.00
P/A/1/16 Micro Transcrtoer & OHP 70,920.00
P/A/1/17 PPC MAX-102 & OHP 74,885.00
P/A/1/18 Modem Card 73,400.00
P/A/1/19 Video Projection Equipment 22,47,850.00
P/1/1 Cosmed K2, PMR Elect System & 18,00,000.00
Lemcompact Laser Equipment
P/1/2 Paper Shredding Machine 65,520.00
P/1/3 Binding Machine 72,600.00
P/1/4 Micro transcrtoer & OHP 70,920.00
P/1/5 SL Printer 73,350.00
P/1/6 UPS-1KVA & VCR 5311 66,000.00
P/1/7 Super Digisync C-Monitor, Genset 74,000.00
Portable 1500 VA, P A L Card
P/1/8 Micro Transcroter & OHP 70,920.00
P/1/9 Storage Cabinets 65,790.00
P/1/10 Paper Shredding Machine 65,520.00
P/1/11 PPC MAX 102 64,565.00
P/1/12 Air Conditioner, L&T Dotmatrix printer 73,000.00
P/1/13 Upgradation of Pentium Compatible 73,000.00
Mother Board
P/1/14 Pentium Processor in lieu of 80486 Dx- 74,000.00
Processor
P/1/15 Graphic Scanner, Toner Cartridge for 73,200.00
Laser Printer
W.P.(C)13664/2009 Page 6 of 20
P/1/16 Video Recoding Camera, Floppy Disc 73,000.00
Drive & Floppy Diskette 1.2 MB & 1.44
MB
P/1/17 Richo Fax 8010 & 7005 60,000.00
P/1/18 Richo Fax 9020 60,000.00
P/1/19 Richo Fax 9020 60,000.00
P/1/20 Richo Fax 8010 72,000.00
P/1/21 Micro Transcroter & OHP 70,920.00
P/1/22 Binding Machines 72,600.00
P/1/23 PPC MAX 102 & Paper Shredding 74,965.00
Machine
P/1/24 Storage Cabinets 65,790.00
P/1/25 SL Printer 73,350.00
P/1/26 Binding Machine 72,600.00
P/1/27 Micro Transcroter & OHP 70,920.00
P/1/28 Paper Shredding Machine 65,520.00
P/1/29 Dictaphone & Laminating Machine 73,700.00
P/1/30 Intercom Set & OHP 70,404.00
P/1/31 PPC MAX 102 66,000.00
P/1/32 Power Supply Unit 69,930.00
P/1/33 PPC MAX 102 66,000.00
P/1/34 Power Supply Unit 69,930.00
P/1/35 Intercom Set & OHP 70,404.00
P/1/36 Dictaphone & Laminating Machine 73,700.00
8. The Enquiry Officer has observed that all the aforesaid stores
purchased were unusual or extraordinary in nature and cannot be
covered under any of the provisions of 431 A. Hence, the bills should
not have been processed in „M‟ Section.
9. Relying upon the aforesaid, learned counsel for the petitioner
submits that in the present case, the sanction of bills by the charged
official which were debitable to Major Head 110-Stores for which the
charged official had no authority and taking into consideration the
amount which have been sanctioned, it is apparent that the
respondent was guilty of committing grave misconduct and thereby
putting the petitioner to a great loss. It is thus submitted that in the
present case, the order passed by the Tribunal is contrary to law and
hence unsustainable. The punishment imposed upon the respondent
was fully justified but has been wrongly interfered with by the
Tribunal.
10. On the other hand, the learned counsel for the respondent has
tried to justify the judgment of the Tribunal relying upon the case of
W.P.(C)13664/2009 Page 7 of 20
T.P.Venugopalanan which appears to have been given in different
facts and which are not similar to the facts in hand. A scrutiny of the
said judgment shows that the charged officer, who was similarly
placed and working as a senior Accounts officer in the CDA, was
charge-sheeted on two grounds, namely,
i) that bills were passed without verifying the signatures
and that the companies in whose favour the bills were
raised were fictitious.
ii) that the bills passed were without authority inasmuch as
the bills did not relate to the miscellaneous section to
which the respondent belonged. Respondent had the
power under office Manual Part-II, Chapter 6 to deal with
the payments falling within the miscellaneous section
only. Respondent acted beyond his authority and
sanctioned the payment of purchases.
As regards the bills cleared by the charged officer in that case
without authority were in fact cleared by the Government of India,
Ministry of Defence. Therefore, the responsibility for non-process of
the bills or non-grant of sanction of the bills in the said case laid with
the Ministry.
Regarding the second charge that he did not verify the
signatures, it was held by the Court that he was not an expert.
11. The said judgment does not come to the rescue of the
respondent in the peculiar facts of the case in hand wherein the
respondent himself was the sanctioning and verifying authority.
12. The inquiry officer in the instant case, with regard to Article I of
the charge has observed that the charged officer while functioning as
SAO in „M‟ Section during the period 16.10.1992 to 15.10.1994 in the
office of CDA (HQrs.), New Delhi has failed to discharge his duties
effectively as provided for in Appendix I to OM Pt.I which led to
W.P.(C)13664/2009 Page 8 of 20
authorization of payment against 36 fraudulent claims to the tune of
of Rs.42.24 lakhs approximately is proved only marginally.
13. As regards Article II of the charge it has been observed that
Sh.H.L.Gulati, SAO while functioning in „M‟ Section of CDA (HQrs.)
during the period 16.10.1992 to 15.10.1994 failed to detect that:-
1) Fraudulent claims have been floated against fake sanctions
purported to have been issued by Min. of Defence partially
proved
2) The contingent bills have not been preferred by officers of
DGOS authorized to do so is not proved.
3) The appropriate procurement procedure relevant to the
value of stores procured has not been followed is proved.
14. As regards Article III, Inquiry officer has observed that the said
Shri H.L. Gulati, SAO failed to maintain devotion to duty, conducted
himself in a manner unbecoming of a Govt. Servant & failed to take
all possible steps to ensure the integrity and devotion to duty of all
Govt. Servants for the time being under his control & authority,
thereby violating the provisions of Rules 3(1)(ii), 3(1)(iii) & 3(2)(i) of
CCS (Conduct) Rules, 1964.
15. As regards Article IV the inquiry officer observed that first part
of the charge is not proved. The second part of the charge that the
act of Shri. H.L. Gulati, SAO indicates complicity with the alleged
suppliers and also exhibits failure on the part of Shri H.L. Gulati, SAO
to maintain absolute integrity is not proved. Hence the Article IV of
charge is not proved.
16. Based upon the representation made by the respondent to a
show cause notice, the disciplinary authority vide its order dated
30.11.2005 observed that the finding given by the Enquiry Officer
proves that the respondent was guilty of grave misconduct. On that
basis, it was decided to impose a penalty of permanently withholding
of 50% monthly pension and gratuity. Some of the observation made
W.P.(C)13664/2009 Page 9 of 20
in the order dated 30.11.2005, which are relevant and explain the
process of reasoning reached by the competent authority in passing
the impugned order is as hereunder:
"7. WHEREAS, after careful consideration of the pleas
advanced by Shri H.L.Gulati, SAO (Retd.) in his
representation dated 07.03.2004 in the light of the record
of disciplinary proceedings and evidence on record, the
findings of the President are as under in seriatim.
(i) The Inquiry Officer while analyzing the evidence
under Article of Charge-I has recorded that "not only the
CO had failed to put his own endorsement, he has also
failed in ensuring endorsement by auditors/ AAO about
verification of specimen signatures on the bills, leaving a
doubt whether the auditors/ AAO/SAO had verified the
specimen signatures". As rightly observed by the Inquiry
Officer, the verification of specimen signatures is an
important check. The Charged Official being Officer in
charge of section, while processing the bills he was
responsible for ensuring that (a) the specimen signatures
of the sanctioning authorities was verified by his
subordinates and (b) on endorsement in token of having
done so was made on the bills by his subordinates as
required under Appendix 1 (B) of Office Manual Part-I. By
stating that there was no practice of endorsing "SS
Verified", he cannot absolve himself of the charge. As
regards his request for verification of paid vouchers in
respect of payments made to the Director of Accounts,
Cabinet Secretariat, the same cannot be acceded to at this
juncture, since the said vouchers did not form part of the
exhibits in the Departmental inquiry. As such the same
would amount to placing reliance on new evidence without
affording opportunity to the prosecution. In view of the
foregoing, the contentions of the Charged Official at para 6
(i) to (v) are not tenable.
(ii) The Charged official is expected to carry out proper
scrutiny of sanctions as distinct from detailed audit. A
proper scrutiny of sanctions would have revealed that out
of four sanctions issued in April 94, for the financial year
1993-94 two were issued on 05.04.1994 one sanction was
issued on 21.04.1994 and the third sanction was issued on
22.04.1994. The above sanctions did not mention that
they were ex-post facto sanctions;. Thus the sanctions
were defective. Besides this, it is well known that I&B Cell
W.P.(C)13664/2009 Page 10 of 20
is not responsible for any procurement on behalf of the
DGOS. Had a proper scrutiny of the sanctions done the
defect in the sanctions could have been easily detected
which could have averted the fraudulent payment.
Therefore, his contention at 6 (vi) is not acceptable.
(iii) Notwithstanding the fact that the sanctions issued by
the Ministry are not required to be audited, before passing
the bills for payment, it is to be checked that the conditions
and procedure stipulated in sanctions has been followed
scrupulously before passing the relevant bills for payment
which is distinct from the audit of sanctions. The sanctions
stipulated that the prescribed procedure for procurement
of stores would be followed. However, the supply orders
did not contain any of the standard clauses like payment
terms, Liquidated Damages, Inspection etc. All these
deficiencies should have led the Charged Official to raise
queries, which could have facilitated in detection of the
fraud. However, the Charged Official as the Officer in-
Charge of „M‟ section failed to detect that proper
procurement procedure was not followed. Therefore, his
request as contained in para 6 (vii) and (viii) above for
dropping the Article-II cannot be acceded to.
(iv) The points raised by the CO have already been
considered by the Inquiry Officer while analyzing the
evidence under Article of Charge-III. The Code head
415/01 being locally controlled head, the bills under the
above head are required to be admitted for payment after
getting the same noted in Account section irrespective of
the fact that prior sanction has been obtained from
DGOS/GOI in terms of para 155 A (X) of Office Manual Part-
II, Volume I, to ensure availability of funds before releasing
payments. In view of the above, the charge that the
Charged Official failed to get the bills noted in the Accounts
Section stands proved. Therefore, his contention at para
6(ix) to (xi) are not tenable.
(v) His submissions regarding non-production of
documents are ill conceived. He was shown all the
available documents. In fact the Charged Official
submitted three list of documents over a period of ten
months from 4/99 1/2000. Due to the absence of the
Charged Official for the inquiry on number of occasions,
the inquiry was prolonged. He was only trying to shift the
blame for the delay. Regarding submission of report to the
CVC by the Disciplinary Authority being internal matter, is
W.P.(C)13664/2009 Page 11 of 20
not relevant to the issue. Therefore, his objections at para
6 (xii) are rejected.
(vi) As regards his prayer at para 6(xiii) for exonerating
him from the charges the same cannot be acceded to, for
the reasons recorded at pre-paras.
8. WHEREAS, the President in exercise of powers
conferred on him under Rule 9 of the Central Civil Service
(Pensions) Rules, 1972, in consultation with the Union
Public Service Commission, has perused records of the
disciplinary case. A copy of the UPSC‟s letter bearing
confidential No. F.3/381/04-SI dated 02.09.2005 is
enclosed. The President accepts advice of the commission
contained in para 12 of the UPSC‟s letter dated 02.09.2005
for the reasons recorded in Paras 4 to 11 therein.
9. AND WHEREAS, the President in the light of the
above observation and findings and after taking into
account all relevant aspects as contained in record of the
case, is satisfied that the charges which were established
against Shri H.L.Gulati, SAO (REtd.) constitutes a a grave
misconduct. Therefore, the President considers that ends
of justice would be met if 50% (Fifty percent) of the
pension admissible to Shri H.L.Gulati, SAO (Retd.) is
withheld on permanent basis and 50% of gratuity is
withheld.
10. NOW, THEREFORE, the President hereby imposes the
penalty of withholding of 50% (Fifty percent) of amount of
monthly pension on permanent basis and 50% of gratuity
on Shri H.L.Gulati, SAO (Retd.) with immediate effect. The
President further orders that the balance 50% of gratuity
may be released to H.L. Gulati, SAO (Retd.), if not required
otherwise.
BY ORDER AND IN THE NAME OF THE PRESIDENT.
(Rozy Agarwal)
Deputy Controller General of Defence Accounts (Admin.)"
17. The Tribunal while setting aside the aforesaid order has
primarily proceeded on the assumption that to attract Rule 9, the
report of the inquiry officer must hold that it is a case of a grave
misconduct or negligence or the memorandum issued by the
W.P.(C)13664/2009 Page 12 of 20
disciplinary authority seeking the response to the report of the inquiry
officer or the note of disagreement must allege that it was a case of
grave misconduct or negligence or that it was sufficient that the order
levying penalty so records. Rule 9 of the CCS (Pension) Rules 1972
(here-in-after referred to as the Rules) reads as under:-
"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 a pension or gratuity of the whole period, and
of ordering recovery from a pension or a gratuity of the
whole or part of any pecuniary loss caused to the
Government, if, in any departmental or judicial proceedings,
the pensioner is found guilty of grave misconduct or
negligence during the period of service, including service
rendered upon re-employment after retirement:
Provided that the Union Public Service Commission shall be
consulted before any final orders are passed:
Provided further that where a part of pension is withheld or
withdrawn, the amount of such pensions shall not be
reduced below the amount of rupees three hundred and
seventy-five per mensem.
2(a) The departmental proceedings referred to in sub-rule
(1), if instituted while the Government servant was in service
whether before his retirement or during his re-employment,
shall, after the final retirement of the Government servant,
be deemed to be proceedings under this rule and shall be
continued and concluded by the authority by which they are
commenced in the same manner as if the Government
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 its findings to the
President.
(b) The departmental proceedings, if not instituted while
the Government servant was in service, whether before his
retirement, or during his re-employment, --
W.P.(C)13664/2009 Page 13 of 20
(i) shall not be instituted save with the sanction of the
President,
(ii) shall not in respect of any event which took place more
than four years before such institution, and
(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 Government servant during his
service.
(3) Deleted.
(4) In the case of Government 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
69 shall be sanctioned.
(5) Where the President decided 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 Government servant.
(6) 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 Government servant or
pensioner, or if the Government 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."
W.P.(C)13664/2009 Page 14 of 20
18. A bare reading of the Rule shows that the order which can be
passed under the Rule is to recover the pecuniary loss caused to the
government or impose a cut in the pension payable or gratuity or
both, in full or in part, upon proof of guilt but pertaining to a grave
misconduct or negligence.
19. The learned counsel for the respondents urged that unless the
inquiry officer held it to be a case of grave misconduct, no further
proceedings under Rule 9 of the CCS (Pension) Rules 1972 could be
continued. Alternatively, counsel alleged that where it could be
demonstrably shown that the misdemeanor was ex-facie not a grave
misconduct, the Tribunal could quash the further proceedings.
Counsel alleged that only where the misdemeanor attracted a moral
turpitude or dishonesty or corruption could it be classified as a grave
misconduct and that a misconduct of failure to maintain devotion to
duty could never be a case of grave misconduct. The learned counsel
for the respondent has emphatically relied upon the judgment
delivered by the Apex Court in the case of D.V.Kapoor Vs. UOI & Ors.
1990 (4) SCC 314. In the said decision with reference to Rule 9 of the
CCS (Pension) Rules 1972 the Supreme Court held that it was
apparent that the President had reserved to himself the right to
withhold pension in whole or in part, permanently or for a specified
period, but, upon the condition that in the departmental inquiry or the
judicial proceedings, the pensioner is found guilty of grave
misconduct or negligence during the period of a service. In para 9 of
the decision it is observed: "As seen the exercise of the power by the
President is hedged with a condition precedent that a finding should
be recorded either in departmental inquiry or judicial proceedings
that the pensioner committed grave misconduct or negligence in the
discharge of his duty while in office, subject of the charge. In the
absence of such a finding the President is without authority of law to
impose penalty of withholding pension as a measure of punishment."
W.P.(C)13664/2009 Page 15 of 20
20. However, learned counsel for the petitioner urged that as long
as it could be inferred that the misconduct proved was a grave
misconduct, it was sufficient for the penalty of cut in pension to be
imposed.
21. We have discussed the issue as to what would be a case of
grave misconduct in a judgment delivered by us in W.P.(C)
Nos.2292/2010 & 559/2010. In the said judgment we have discussed
the judgment of D.V.Kapoor Vs. UOI & Ors. 1990 (4) SCC 314,
Yoginath D. Badge Vs. State of Maharasthra & Ors. 1999 (7) SCC 739
and Inspector Prem Chand Vs. Govt. of NCT of Delhi & Ors. 2007 (5)
SCALE 421. It has been observed by us:
1. Now, can it be said that an offence of failure to
maintain devotion to duty and/or unbecoming of a
government servant can never be a grave misconduct?
2. „Misconduct‟ has been defined in Black‟s Law
Dictionary, Sixth Edition at page 999, thus:
"A transgression of some established and definite rule of
action, a forbidden act, a dereliction from duty, unlawful
behaviour, willful in character, improper or wrong
behaviour, its synonyms are misdemeanour, misdeed,
misbehaviour, delinquency, impropriety, mismanagement,
offence, but not negligence or carelessness.
3. „Misconduct in office‟ has been defined as:
"Any unlawful behaviour by a public officer in relation to
the duties of his office, willful in character. Term embraces
acts which the office holder had no right to perform, acts
performed improperly, and failure to act in the face of an
affirmative duty to act."
4. In P.Ramanatha Aiyar‟s Law Lexicon, 3rd Edition, at
page 3027, the term „misconduct‟ has been defined as
under:-
"The term „misconduct‟ implies, a wrongful intention, and
not involving error of judgment.
Misconduct is not necessarily the same thing as conduct
involving moral turpitude.
W.P.(C)13664/2009 Page 16 of 20
The word „misconduct‟ is a relative term, and has to be
construed with reference to the subject matter and the
context wherein the term occurs, having regard to the
scope of the Act or statute which is being construed.
„Misconduct‟ literally means wrong conduct or improper
conduct."
5. The Supreme Court in the case reported as 1992 (4)
SCC 54 State Bank of Punjab & Ors. vs. Ram Singh Ex
Constable discussed and decided what misconduct is. The
relevant paras of the judgment are reproduced below:-
"In usual parlance, misconduct means transgression of
some established and defined rule of action, where no
discretion is left, except that necessity may demand and
carelessness, negligence and unskilfulness are
transgressions of some established, but indefinite, rule of
action, where, some direction is necessarily left to the
actor. Misconduct is a violation of definite law;
carelessness or abuse of discretion under an indefinite law.
Misconduct is a forbidden act; carelessness, a forbidden
quality of an act, and is necessarily indefinite. Misconduct
in office may be defined as unlawful behaviour or neglect
by a public officer, by which the rights of a party have been
affected."
"Thus it could be seen that the word „misconduct‟ though
not capable of precise definition, on reflection receives its
connotation from the context, the delinquency in its
performance and its effect on the discipline and nature of
the duty. It may involve moral turpitude, it must be
improper or wrong behaviour; unlawful behaviour, willful in
character, forbidden act, a transgression of established
and definite rule of action or code of conduct but not mere
of judgment, carelessness or negligence in performance of
the duty; the act complained of bears forbidden quality or
character. Its ambit has to be construed with reference to
the subject matter and the context wherein the term
occurs, regard being had to the scope of the statute and
the public purpose it seeks to serve. The police service is a
disciplined service and it requires to maintain strict
discipline. Laxity in this behalf erodes discipline in the
service causing serious effect in the maintenance of law
and order."
6. Having understood what misconduct is, it becomes
easy to understand what a grave misconduct would be. It
has to be the aggravated form of misconduct.
W.P.(C)13664/2009 Page 17 of 20
7. Acts of moral turpitude, acts of dishonesty, bribery
and corruption would obviously be an aggravated form of
misconduct because of not only the morally depraving
nature of the act but even the reason that they would be
attracting the penal laws. There would be no problem in
understanding the gravity of such kind of offences. But
that would not mean that only such kind of indictments
would be a grave misconduct. A ready example to which
everybody would agree with as a case of grave
misconduct, but within the realm of failure to maintain
devotion to duty, would be where a fireman sleeps in the
fire office and does not respond to an emergency call of
fire in a building which ultimately results in the death of 10
persons. There is no dishonesty. There is no acceptance
of bribe. There is no corruption. There is no moral
turpitude. But none would say that the act of failure to
maintain devotion to duty is not of a grave kind.
8. It would be difficult to put in a strait jacket formula as
to what kinds of acts sans moral turpitude, dishonesty,
bribery and corruption would constitute grave misconduct,
but a ready touchstone would be where the „integrity to
the devotion to duty‟ is missing and the „lack of devotion‟
is gross and culpable it would be a case of grave
misconduct. The issue needs a little clarification here as to
what would be meant by the expression „integrity to the
devotion to duty‟. Every concept has a core value and a
fringe value. Similarly, every duty has a core and a fringe.
Whatever is at the core of a duty would be the integrity of
the duty and whatever is at the fringe would not be the
integrity of the duty but may be integral to the duty. It is
in reference to this metaphysical concept that mottos are
chosen by organizations. For example in the fire
department the appropriate motto would be: „Be always
alert‟. It would be so for the reason the integrity of the
duty of a fire officer i.e. the core value of his work would be
to be „always alert‟. Similarly, for a doctor the core value
of his work would be „duty to the extra vigilant‟. Thus,
where a doctor conducts four operations one after the
other and in between does not wash his hands and change
the gloves resulting in the three subsequent patients
contacting the disease of the first, notwithstanding there
being no moral turpitude involved or corruption or bribery,
the doctor would be guilty of a grave misconduct as his act
has breached the core value of his duty. The example of
the fireman given by us is self explanatory with reference
W.P.(C)13664/2009 Page 18 of 20
to the core value of the duty of a fireman to be „always
alert‟.
22. In the aforesaid judgment, taking note of the argument that
until and unless the enquiry report indicts the charged officer by
expressly holding that he is guilty of grave misconduct, a penalty
under Rule 9(i) of CCS (Pension) Rules, 1972 cannot be imposed. We
have already observed as follows:-
"23. With the two viewpoints noted above, it assumes
importance to note that evidenced by the decision of
the Supreme Court reported as 1999 (7) SCC 739
Yoginath D.Bagde vs. State of Maharashtra & Ors., the
jurisprudence in service law is that the disciplinary
authority should not prejudge the gravamen of the
allegations or for that matter even the charge, and
should not use language which shows that the
disciplinary authority has already made up its mind. It
is only after the inquiry is over and the delinquent is
heard with respect to the report of the inquiry officer;
and when exonerated at the inquiry but the disciplinary
authority not agreeing with the report, upon hearing
him qua the note of disagreement, the final opinion has
to be rendered. It is important to highlight that in
Yoginath D.Bagde‟s case (supra) conclusive
determination of the guilt by the disciplinary authority
before giving an opportunity to the delinquent to
respond to the note of disagreement was held to be a
case of a closed mind qua the response of the
delinquent, resulting in the disciplinary authority
denuding himself the jurisdiction to decide with
reference to the response of the delinquent to the note
of disagreement.
24. Thus, requiring the law to be interpreted that
either the charge sheet must allege the misconduct to
be grave or the inquiry officer must hold so or the
disciplinary authority should hold so while calling upon
the delinquent to respond to the indictment, would
mean that the disciplinary authority would be compelled
to form an opinion without hearing the delinquent and if
he would do so, would attract the charge that the
disciplinary authority has already foreclosed its mind.
W.P.(C)13664/2009 Page 19 of 20
25. Rules, whether of procedure or of substance, have
to be evolved harmoniously and not in a contradictory
manner. Law cannot evolve in a manner where two
legal principles clash head on with each other.
26. Thus, we hold that the correct principle of law is
that the stage for the disciplinary authority to hold that
it is a case of a grave misconduct is when the penalty,
by way of cut in pension or gratuity is inflicted under
Rule 9 of the Pension Rules, and at no prior stage. This
interpretation would be in harmony with the legal
principle in Yoginath D.Bagde‟s case (supra) and would
also be in conformity with the well known recognized
judicial principle that the decision maker must
take/make the decision after hearing the party likely to
be affected by the decision and should not pollute his
mind by prejudging the issue. "
23. Taking into consideration the facts of this case and the charges
which has been proved against respondent goes to show that the
conduct of the respondent tantamount to unlawful behavior by a
public servant in relation to his duties willfully. Thus, he is certainly
guilty of committing misconduct in office. Looking into the amount
involved in the matter, it can certainly be said to be a case of grave
misconduct. We are, therefore, of the considered opinion that the
order passed by the Tribunal is not sustainable in law.
24. The writ is accordingly allowed. Impugned order passed by the
Tribunal is set aside and the Original Application filed by the
respondent before the Tribunal is dismissed. The penalty imposed
vide order dated 30.11.2005 is restored.
25. Noting that the respondent is a retired employee we refrain
from imposing costs.
MOOL CHAND GARG, J.
AUGUST 31, 2010 PRADEEP NANDRAJOG, J. anb/dc W.P.(C)13664/2009 Page 20 of 20