Central Administrative Tribunal - Chandigarh
S.L. Kukreja vs Union Of India (Uoi) And Anr. on 4 August, 2003
Equivalent citations: 2004(1)SLJ333(CAT)
ORDER
P. Garg, J. (Vice Chairman)
1. The applicant Shri S.L. Kukreja has since retired from the post of Executive Engineer, MES on 31st of May, 2000. While he was in service, proceedings for major penalty were instituted against him under Rule 14 of the Central Civil Services (Control, Classification & Appeal) Rules, 1965 (for short 'CCS (CCA) Rules, 1965'), pursuant to the Ministry of Defence Memorandum dated 21st October, 1993, a copy of which is Annexure A-2. The substance of the charge against the applicant is that while he was posted as Assistant Engineer, AGE (B&R) at GE (P), Maharajpur, during the period August, 1983 to April, 1987, he failed to effectively supervise the work of provision of false ceiling and the lapse on his part is attributable to a collapse of Hanger P-3 at Air Force Station, Maharajpur on 23rd May, 1989.
2. In all 5 Officers including the applicant were served with the charge memos dated 21.10.1993. Shri Bimal Datta, SE (SG) was appointed as Inquiry Officer. The report of enquiry dated 27.2.1996, Annexure A-3, indicates that the charge against the applicant was not established. The Inquiry Officer came to the conclusion that no evidence was adduced to show that the applicant had not got the work done as per laid down details/specifications. A copy of the enquiry report was supplied to the applicant on 6.3.1996. Since the finding of the Enquiry Officer was in favour of the applicant, he submitted a reply dated 25th April, 1996, Annexure A-4, as a mere formality and treated the enquiry as closed. After his superannuation on 31st of May, 2000, it appears that the Disciplinary Authority recorded its disagreement with the findings of the Inquiry Officer and consequently a notice to show cause dated 8.5.2002, Annexure A-5, was served on the applicant on 4.10.2000, to which the applicant submitted a reply on 20th November, 2000, Annexure A-6.
3. It was on 24th of July, 2001, that the order of punishment, Annexure A-1 was passed in the name of the President of India whereby the President in exercise of his powers under Rule 9 of the Central Civil Services (Pension) Rules, 1972, (hereinafter referred to as "Pension Rules of 1972"), imposed a penalty of 10% cut in the pension of the applicant for a period of one year. It is this order which has been challenged by the applicant, by means of this Original Application under Section 19 of the Administrative Tribunals Act, 1985, with a prayer that the order of punishment, Annexure A-1, be quashed and theretiral benefits, which otherwise are payable to the applicant, be directed to be released with interest at 18% per annum.
4. The applicant has challenged the validity of the order of punishment primarily on two grounds. Firstly, that as has been laid down by the Apex Court in the case of D.V. Kapoor v. Union of India and Ors., AIR 1990 SC 923, the President has not recorded a finding that the applicant is guilty of grave misconduct or negligence in the discharge of public duty in the office and since recording of such a finding is a condition precedent for imposing the penalty, the impugned order, Annexure A-1, stands vitiated. The second ground to challenge the impugned order of punishment is that it is bad in law as before inflicting the punishment, the Union Public Service Commission (hereinafter to be referred as 'UPSC') has not been consulted, though such consultation is mandatory.
5. By a joint written statement filed by the respondents, the averments made by the applicant have been repelled by maintaining that the due procedure as prescribed under the rules has been followed in inflicting the punishment of 10% cut in the pension of the applicant for a period of one year and that it was not necessary to consult the UPSC in the matter of the applicant for purpose of punishment in view of the provisions of Regulation 5(1) and (2) of the UPSC (Exemption from Consultation) Regulations, 1958 (for short 'Regulations of 1958'), as the applicant was holding a civilian post in defence services.
6. A rejoinder has also been filed.
7. We have heard Mr. C.L. Gupta, learned Counsel for the applicant as well as Mr. Sanjay Goyal, appearing on behalf of the respondents at considerable length.
8. To begin with we would prefer to dilate over the controversy--Whether for inflictment of a penalty on a retired person of the category of the applicant, consultation with the UPSC is necessary or not? Rule 9 (1) of the Pension Rules of 1972, reads as follows:
"9(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 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 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 as 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."
The first proviso mandates that before final orders are passed under Sub-rule (1), the UPSC is to be consulted. It is an indubitable fact that in the present case, no reference whatsoever, was made to the UPSC. As a matter of fact the stand taken by the respondents is that consultation with UPSC was not necessary in the case of the applicant who was a civilian employee in defence establishment/service in view of the provisions contained in Regulation 5(1) and (2) of the Regulations of 1958. Regulation 5 (1) provides that it shall not be necessary to consult the Commission in regard to making of any order in the disciplinary case other than those specified in Clauses (a), (b), (c) and (d). Sub-regulation (2) of Regulation 5 makes the provision that it shall not be necessary to consult the Commission in regard to any disciplinary matters affecting a person belonging to defence services (civilian). This provision has to be read in conjunction with Sub-regulation (2) of Regulation 1 which provides that it shall not be necessary to consult the Commission in regard to any of the matter mentioned in Sub-clauses (a) and (b) of Clause (3) of Article 320 of the Constitution in the case of the services and post specified in Schedule to the Regulations. In the Schedule appended to the Regulations Of 1958, there is no specific mention with regard to the civilian in defence services. Moreover, the Controlling Clause (2) of Regulation 1 is confined to the statutory application for consultation with the UPSC in the case of appointments and promotions made by various Ministries/Departments of the Government of India, The regulations do not encompass within their ambit the matters which have been specified in Sub-clause (c) of Clause (3) of Article 320 of the Constitution. Article 320 of the Constitution provides that UPSC or the State Public Service Commission, as the case may be, shall be consulted on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters. The Regulations of 1958, therefore, cannot be applied to the matters falling within the purview of Article 320(3)(c) of the Constitution. These regulations apply only with regard to the consultation in the case of appointments and promotions. Even if for the sake of argument it may be accepted (though it does not flow from the reading of the Regulations) that the exemption as provided in Regulations of 1958 applies to the civilians employed in defence services, the fact remains that there is a specific provision in Rule 9(1) of the Pension Rules of 1972 which lays down that if a pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement, the UPSC shall be consulted before any final orders are passed. This provision made in the Rules cannot be circumvented by aid of the regulations. It is common knowledge that rules are the superior form of legislation than the regulations. If there is any conflict in the rules and the regulations, the rules have to take precedence and are to prevail and the conflicting provision in the regulation, has to be ignored. The respondents, therefore, cannot take shelter of the provisions made in the Regulations for not consulting the UPSC in the matter. Specific provision contained in the Pension Rules of 1972 cannot be brushed aside.
9. Mr. C.L. Gupta, learned Counsel for the respondents further drew our attention to the provision made in Rule 2 of the Pension Rules of 1972, which deal with the application of the rules to the classes of the employees. It has been specifically provided that the Pension Rules, 1972 shall apply to Government servants including civilian Government servants in defence services appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments. This rule further specifies the categories of the employees to which rules do not apply. A reading of Rule 2 makes it amply clear that these Pension Rules of 1972 apply to civilians in defence services and other Government servants alike. A duty is cast on the President to consult UPSC before passing final orders in the matter of pensioner who is found guilty of grave misconduct or negligence during the period of service. Since the mandatory provision made in the Pension Rules of 1972 has not been followed, the order of punishment obviously is in violation of law and cannot, therefore, be given effect to.
10. It is pity that the disciplinary proceedings against the applicant moved at a snail's speed. Admittedly, the applicant was served with the charge memo on 21st of October, 1993. After conclusion of the enquiry, report dated 17.2.1996 was submitted and it was on 16th March, 1996 that the copy of the report of enquiry was supplied to the applicant. Thereafter the matter was allowed to pend without any justification or cogent reasons for years together. It was more than four years after, and that too after the superannuation of the applicant that the department woke up from deep slumber and conveyed to the applicant the dissenting note with a show cause notice. The delay of more than four years in recording the dissenting note and serving the show cause notice is not only inexplicable but most intriguing. The applicant submitted his reply to the show cause notice on 20th November, 2000. It again took about 8 months to pass a final order.
11. Now let us examine the validity of the offending order Annexure A-1, whereby the applicant has been visited with punishment. The impugned order, Annexure A-1 recites as under:
....AND WHEREAS, the President after carefully considering the points ade in the representation of the charged officer in the light of relevant facts and circumstances of the case has observed that:
(a) In Para 8 (f) (iii) of the Inquiry Report the Inquiry Officer has cited notching/cutting of members as one of the possible reasons contributed to the collapse of the hanger.
(b) Shri Kukreja has made a statement on Para 41 before the Court of Inquiry which is a documentary evidence in Annexure-III of the Memorandum that though it was decided not to allow contractor to cut/tamper with original members to accommodate the MS frame during the execution of the work but actually on ground the members were cut. Thus Shri S .L. Kukreja failed to effectively supervise the work affecting the structural soundness of the hanger. Hence the charge framed against Shri S.L. Kukreja is proved.
AND WHEREAS, the President after carefully considering the inquiry report, version of Shri Kukreja on the memorandum of disagreement and other associated facts and circumstances of the case disagrees with the findings of the Inquiry Officer and is of the opinion that Shri Kukreja is guilty of the articles of charges levelled against him".
The above order simply states that the charge framed against the applicant is proved and the President, after carefully considering the enquiry report, version of the applicant and other attending circumstances of the case in disagreement with the findings of the Enquiry Officer, is of the opinion that the applicant is guilty of the articles of the charges levelled against him. We do not find anywhere a finding that the applicant was guilty of grave misconduct or negligence in the discharge of public duty in office. In view of provisions of Rule 9(1) of the Pension Rules of 1972, it is incumbent upon the President, who reserves in himself a right of withholding of pension or gratuity, or both, either in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, to record the finding that the pensioner is "guilty of grave misconduct or negligence during the period of service. The impugned order nowhere incorporates the finding of guilt of grave misconduct or negligence as contemplated in Rule 9(1). Mere mentioning the fact that 'charge is proved' or the applicant is guilty of the articles of charges, cannot be treated to be the sufficient compliance of the provisions of Rule 9(1). There has to be a positive finding that the pensioner was guilty of grave misconduct or negligence. This aspect of the matter came to be considered in the case of D.V. Kapoor (supra) in which the Apex Court held that the exercise of the powers by the President under Rule (1) of Pension Rules of 1972 "is hedged with a condition precedent that a finding should be recorded either in departmental enquiry 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 either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employees". Recording of the finding that a pensioner is guilty of grave misconduct or negligence is a pre-condition to exercise the power under Rule 9(1). In the absence of the finding as mentioned above, no order for curtailment or withdrawal of any part of the punishment can be passed. This view is further fortified by the decisions dated 28.6.1999 rendered by the Principal Bench in O.A. No. 1171/98 (Moti Lal Shakya v. Union of India and Ors.) and dated 19.6.2000 in O.A. No. 251/2000 (Jeewa Ram Rathore v. Union of India and Ors.) and the decision of this Bench dated 17.1.2002 in O.A. No. 352-HR-98 (B.T. Narula v. Union of India and Ors.).
12. In the result we find that the impugned order of punishment, Annexure A-1, dated 24th July, 2001 is vitiated and is bad in law, firstly, for the reason that the foundation for passing of the said order could not be laid in terms of Rule 9(1) of the Pension Rules, 1972 which enjoined recording of the finding that the pensioner is found guilty of the grave misconduct or negligence and secondly, the mandatory provision that the UPSC shall be consulted before passing the final orders, has been ignored and violated. The O.A. turns out to be well merited and is, therefore, allowed to the extend as below:
(i) The impugned order dated 24.7.2001, Annexure A-1, is hereby quashed and set aside and respondents are directed to deal with the payment of the retiral benefits of the applicant as if no punishment order was passed;
(ii) All the retiral and pensionary benefits including the payment of Death-cum-Retirement Gratuity (DCRG) and commutation value of pension shall be released with interest @ 9% per annum to be reckoned from 1st of January, 2001 till the date payment is actually made; and
(iii) The applicant shall also be entitled to a sum of Rs. 2000 as costs from the respondents.
13. Needless to say that the above orders shall be complied with by the respondents within a period of four months from the date of certified copy of the order is produced before Chief Engineer, Headquarters Z-'N' Area, Air Port, Road, Chandigarh, Respondent No. 2.