Central Administrative Tribunal - Delhi
Janak Raj vs M/O Health And Family Welfare on 10 March, 2023
1
Item No. 18 (C-3) O.A. No. 347/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 347/2017
This the 10th day of March, 2023
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Janak Raj
158, Ground Floor,
Vivekanand Puri, Delhi - 110 007. ...Applicant
(By Advocate : Mr. Rajesh Tyagi)
Versus
1. Union of India
Through its Secretary,
Ministry of Health and Family Welfare
Nirman Bhawan, New Delhi.
2. Directorate General of Health Services
Through D.G. Health,
Nirman Bhawan, New Delhi.
3. Under Secretary to Government of India (Vig)
Ministry of Health & Family Welfare,
Nirman Bhawan, New Delhi. ...Respondents
(By Advocate : Mr. K. M. Singh)
ORDER (ORAL)
Hon'ble Mr. Ashish Kalia, Member (J) The applicant has filed this OA seeking the following main reliefs :-
2Item No. 18 (C-3) O.A. No. 347/2017 "8(i). Quash the order dated 23.11.2016, passed by the Respondent no.3, forfeiting the Pension and Gratuity otherwise admissible to the Applicant.
(ii) Pass any other or further order or direction which the Hon‟ble Court may deem fit and proper in the facts and circumstances of the case."
2. The applicant who worked as Assistant Drug Controller has alleged that he has been implicated in a false case of disproportionate assets under PC Act and was suspended on 30.09.2005. After serving charge sheet upon him he was suspended on 30.09.2005.
However, his suspension was revoked on 23.09.2007.
After the applicant was superannuated on 31.12.2009 he was granted provisional pension.
3. It is stated by the learned counsel for the applicant that the applicant was convicted by Trial Court.
However, the Hon'ble High Court suspended the sentence awarded by the Trial Court vide Appeal No. 1201/2013. Later, on 01.04.2015 and 25.05.2016, the respondents issued memorandum to him to which he replied, in response to which, the respondents issued impugned order. Aggrieved by which, the applicant approached this Tribunal.
3Item No. 18 (C-3) O.A. No. 347/2017
4. Notices were issued to the respondents who put appearance through Mr. K. M. Singh, advocate who filed reply. Learned counsel for the respondents has drawn our attention to para 5 at pages 3, 4 and 5, para 11 at page 39 and lastly referred to para 12 (vi) at page 40.
For the sake of clarity, all these are reproduced below :-
"5. That after considering the representation of the applicant, as acquiring assets disproportionate to his known sources of income during the service, for which he has been convicted by Hon‟ble Trial Court constitutes a grave misconduct for which a suitable penalty under CCS (Pension) Rules, 1972 needs to be imposed on him, the Competent Authority decided to consult UPSC for advice on quantum of penalty vide letter dated 11.03.2016. UPSC vide their letter dated 21.04.2016 (Annexure A-3 to the OA) tendered its advice to withhold 100% of monthly pension and gratuity on permanent basis and the applicant was served with UPSC‟s advice for comments vide memo dated 25.05.2016 (Annexure A-3 to the OA). The applicant submitted his representation dated 13.06.2016 (Annexure A-4 to the OA). That before submitting the case to Competent Authority i.e. Hon‟ble HFM for taking a decision, the case file was referred to department dealing with policy matters for clarification as to whether the Disciplinary Authority can decide on the quantum of penalty in the disciplinary proceeding when the conviction of the Govt. servant has been suspended by Hon‟ble High Court or wait till the completion of judicial proceedings including appeal in Hon‟ble Apex Court for finalization in view of judgment of Hon‟ble Karnataka High Court in case of Shri N. K. Suparna Vs. UPI in the WP No. 5938 of 2004. The department handling policy matters of personnel, advised to take a decision in the light of DoP&T‟s O.M. dated 21.07.2016. Based on the views of 4 Item No. 18 (C-3) O.A. No. 347/2017 Hon‟ble Apex Court in its judgment in "K. C. Sareen Vs. CBI, Chandigarh," reported in 2001 (6) SCC 584, the DoP&T‟s O.M. dated 21.07.2016 (Annexure R-4) inter alia states that when a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a Court of Law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction it is public interest which suffers and sometimes even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office it impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralizing the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction the fall out would be one of shaking the system itself. Thus action against a convicted Government servant should be taken straight away under Rule 19(1). An appeal against the conviction or even a stay on the sentence will have no effect unless the conviction itself is stayed."
xxx xxx xxx xxx xxx
11. Thus action against a convicted Government servant should be taken straight away under Rule 19(1). An appeal against the conviction or even a stay on the sentence will have no effect unless the conviction itself is stayed.
xxx xxx xxx xxx xxx
5
Item No. 18 (C-3) O.A. No. 347/2017
12.(vi) An appeal by the accused against conviction, but where the conviction has not been overturned/stayed, will have no effect on action taken under Rule 19(i) of the CCS (CCA) Rules, 1965, even if Court had directed stay/suspension of the sentence."
5. Short question raised before this Tribunal is whether by filing of appeal the conviction of sentence has been stayed and not the actual judgment. Learned counsel for the applicant has relied upon judgment rendered by the Karnataka High Court in N. K. Suparna vs. Union of India & Ors. in W.P. No. 5938/2004 decided on 23.09.2004. He also relied upon decision of Hon'ble Delhi High Court in Lakhminder Singh Brar vs. UOI & Ors. in W.P. (C) No. 13191/2009 decided on 16.09.2010.
6. On the contrary, a short question has been raised by the learned counsel that once appeal has been accepted by the competent Court of law, whether the benefit under Rule 9 will continue or discontinue? Paras 3, 7 & 8 of the judgment passed in N. K. Suparna's case reads as under :-
3. After the conviction of the petitioner the CBI Court, the President of India invoking his power 6 Item No. 18 (C-3) O.A. No. 347/2017 under Rule 9(1) of the Rules, has forfeited the pension and gratuity payable to the petitioner.
Questioning the said action of the President of India, petitioner instituted Original the Application No.486 of 2003 in the Central Administrative Tribunal, Bangalore (for short „Tribunal'). The Tribunal having opined that since the CBI Court has convicted and sentenced the petitioner to undergo R.I. for a period of three years, notwithstanding the fact that the petitioner has preferred the appeal to this Court and that the sentence has been suspended by this Court, it is the power of the President of India under Rule 9(1) of the Rules to forfeit the pension and gratuity payable to the petitioner, dismissed the application. Hence, this writ petition.
xxx xxx xxx xxx xxx
7. Having heard the learned counsel for the parties, the point that arises for decision is whether the entitlement of the petitioner to receive provisional pension in terms of Rule 69 of the Rules is limited to the pendency of the proceedings before the original Court or that entitlement continues till the finality is reached by way of appeal to this Court or further appeal to the Supreme Court.
8. In order to answer this point, it would be beneficial to first notice the provisions of Rule 69 of the Rules itself. Clause (b) of Sub-rule (1) of Rule 69 reads as follows :-
"69 (1) (b) :
The provisional pension shall be authorised by the Accounts Officer and during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the Competent Authority."
The provision of Clause (b) is quite clear, plain, unambiguous and does not admit more than one meaning. Clause (b) unmistakable terms directs 7 Item No. 18 (C-3) O.A. No. 347/2017 that a delinquent employee will be entitled to provisional pension from the date of retirement upto and including the date on which the final order that may be made by the Competent Authority, after the conclusion of the departmental or judicial proceedings‟. The key words for our purpose are „after the conclusion of departmental or judicial proceedings'. The interpretation suggested by the learned CGSC for the department is not acceptable to us for more than one reason. It is well settled that the appeal is a continuation of the original proceeding. Since the petitioner being aggrieved by the judgment and order of the CBI Court has preferred appeal to this Court and the same is pending, we have to necessarily hold that the proceedings are pending. Undoubtedly, the pendency of the appeal in this Court is a judicial proceeding. It also needs to be noticed that the final order envisaged under Rule 9(1) of the Rules in terms of Clause (b) of Sub Rule (1) of Rule 69 of the Rules is required to be passed by the President of India only after the conclusion of the departmental or judicial proceedings. In the instant case, since the judicial proceedings, we mean the launching of the prosecution against the petitioner, have not been concluded so 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."
7. The crux of the judgment is that filing of an appeal amounts to continuation of judicial proceedings and the interpretation by the President of India by invoking Rule 9(1) is not called for unless it assumes finality. Similar view has been taken by Bombay Bench of this Tribunal 8 Item No. 18 (C-3) O.A. No. 347/2017 in the matter of Shri Tahilram Nanomal Rohira & Anr. vs. UOI & Ors. in OA Nos. 265 and 266/2015 decided on 18.03.2020. In paras 33 and 38 of the said judgment, similar view has been taken by the Tribunal.
"33. Hence in the light of the judgments referred to above and the relevant provisions of Cr PC, we have no hesitation to hold that the judicial proceedings which resulted in conviction of the applicant before the Special Judge CBI vide order dated 01.03.2011 are yet not concluded and have not attained finality due to pendency of appeal before the Hon‟ble High Court.
xxx xxx xxx xxx xxx
38. Vide para 8 (c), the applicant has sought direction to the respondents to release the amount of leave encashment payable to him alongwith interest @18% p.a. w.e.f. 01.04.2003. Learned counsel for the applicant has argued that as per Rule 39(3) of Leave Rules, 1972, the leave encashment can be withheld only in case of possibility of some money becoming recoverable from the Government servant on conclusion of the disciplinary or the criminal proceedings pending against him at the time of his retirement. The respondents have not applied their mind and without forming an opinion that there is possibility of some money being recoverable from the applicant, in a stereo type manner they have withheld the leave encashment amount. In support of his contention, the applicant has relied upon the judgment of Balwant Singh (supra) of Delhi High Court."
8. The ratio laid down by the Hon'ble Apex Court which is referred by the respondents in their reply in internal page 4 which has already been reproduced above, the 9 Item No. 18 (C-3) O.A. No. 347/2017 Hon'ble Apex Court is of the view that based on its view in "K. C. Sareen Vs. CBI, Chandigarh," reported in 2001 (6) SCC 584, the DoP&T's O.M. dated 21.07.2016 (Annexure R-4) inter alia states that when a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a Court of Law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court.
While discussing the decision in N. K. Suparna's case (supra), it has been held that it is a policy matter of the department of Personnel based upon the judgment by Hon'ble Apex Court that proceedings come to an end once the conviction order is passed by the Trial Court, unless the conviction is stayed by the next higher Court, i.e., Hon'ble High Court. The respondents are free to proceed simultaneously with the action.
9. After considering the rival contentions and the legal positions, we find no merit in the present OA. The judicial proceedings though pending, the decision of the 10 Item No. 18 (C-3) O.A. No. 347/2017 Hon'ble Apex Court has come in the way. Thus, it is just and proper and in accordance with law.
10. In view of the above, we do not find any merit in the OA. The same is thus dismissed.
There shall be no order as to costs.
(Dr. Anand S. Khati) (Ashish Kalia)
Member (A) Member (J)
/Mbt/