Central Administrative Tribunal - Hyderabad
K. Jagannadha Rao vs Government Of A.P. And Ors. on 3 July, 2003
Equivalent citations: 2004(2)SLJ331(CAT)
JUDGMENT
K.R. Prasada Rao, J. (Vice Chairman)
1. The applicant filed the present O.A. challenging the impugned order dated 2.9.2002 of the 2nd respondent imposing penalty of 5% out in his pension for a period of one year under Rule 6 of All India Services (Death-cum-Retirement Benefit) Rules, 1958, under the major penalty proceedings when the charge memo issued to the applicant while in service was under minor penalty proceedings, seeking for declaration that the said punishment imposed on him is arbitrary, illegal, unwarranted, misconceived and in violation of All India Services (Discipline and Appeal) Rules and in violation of Articles 14 and 16 of the Constitution of India and for a direction to the respondents to restore the full pension of the applicant forthwith without cut in pension consequent on his retirement on attaining the age of superannuation with effect from 30.9.2001 with all consequential benefits.
2. The facts which are not in dispute are briefly as follows:
The applicant while working as Inspector General of Police during the year 1997 was served with a charge memo dated 18.3.1997 alleging that while functioning as Assistant Inspector General of Police (Welfare and Sports) in the office of the Director General and Inspector General of Police, Hyderabad during the year 1988 he had taken two house plots in a shady deal in Survey No. 403, Nandinagar, Road No. 14, Banjara Hills, Hyderabad and also constructed two house's in the names of his two daughters Smt. K. Revathi and Kum. K. Lakshmi bearing D. No. 8-2-310/111 and 112 and thereby he exhibited lack of integrity, devotion to duty and conduct unbecoming of a member of the service and thereby contravened Rule 3( 1) and Rule 16(2) and (3) of the All India Services (Conduct) Rules, 1968. The said charge memo was issued to the applicant in the minor penalty charge sheet. Against the said charge memo the applicant submitted representation denying the charge levelled against him explaining the defective nature of the charge framed against him as there is absolutely no record to show that he committed the said acts enumerated in the charge memo. However, the matter was referred to the Commissioner of Enquiries (General Administration Department, A.P. Secretariat), Hyderabad who conducted the enquiry into the allegations. The Inquiry Officer held the charges proved on evidence in the inquiry. The inquiry report dated 25.4.1998 was made available to the applicant only on 14.8.2000 after a lapse of two years, calling for his representation against the inquiry report. The applicant submitted a detailed representation immediately thereafter. However, no orders were passed in the said proceedings till the date of his retirement i.e., till 30.9.2001. As the applicant was retired without any conditions attached, he was expecting that his retirement benefits will be released within the permissible period. Even after three months of retirement, no pensionary benefits were released nor pension was sanctioned. The applicant therefore approached this Tribunal by filing O.A. 608/2002. This Tribunal passed interim-'order in the said case on 29.5.2002 directing the respondents i.e., the State Government to pay the eligible provisional pension within a period of one month. During the pendency of O.A. 608/2002, the 2nd respondent passed the impugned order dated 2.9.2002 imposing penalty of 5% cut in the pension of the applicant for a period of one year under Rule 6 of AIS (DCRB) Rules, 1958 with effect from the date of issue of the said order. Basing on the impugned order dated 2.9.2002 the 1st respondent has intimated the Pay and Accounts Officer, Hyderabad stating that the Government of India, Ministry of Home Affairs, New Delhi had passed final orders imposing penalty of 5% cut in the pension of the applicant for a period of one year with effect from the date of issue of the order and therefore requested him to take necessary action for release of pensionary benefits, including gratuity, commutation of pension to the applicant. Since the impugned order dated 2.9.2002 was not challenged in O.A. 608/2002, the said O.A. came to be dismissed on the ground that it has become infructuous, giving liberty to the applicant to file fresh O.A. challenging the impugned order dated 2.9.2002. The applicant was also given option to file mercy appeal before the President of India under Rule 25 of AIS (D&A) Rules. The applicant therefore filed the present O.A. challenging the impugned order passed by the 2nd respondent dated 2.9.2002 imposing penalty of 5% cut in his pension for a period of one year with effect from the date of issue of the said order.
3. We have heard the arguments advanced by the learned Counsel for the applicant Mr. S. Ramakrishna Rao and the learned standing Counsel for the respondents 2 and 3 Mr. B.N. Sharma and the learned special Counsel for respondent No. 1 Mr. V.V. Anil Kumar.
4. The learned Counsel for the applicant vehemently contended that since the charge memo dated 18.3.1997 was issued to the applicant as a minor penalty charge sheet while he was in service, it is not permissible for the 2nd respondent to impose major penalty of 5% cut in his pension for a period of one year under the impugned order dated 2.9.2002. It is further pointed out by the learned Counsel for the applicant that the only charge framed against the applicant is that he has failed to intimate the Government in respect of the transactions alleged to have been concluded in the name of his daughters by acquiring two house plots and construction of structures thereon and thereby he contravened Rules 3(,1) and 16 (2) and (3) of AIS (Conduct) Rules, 1968. He further submitted that the charge memo issued to the applicant under Rule 10 of the AIS (D&A) Rules, 1969 under the minor penalty proceedings and this fact is also admitted by the respondents in Para 4 of the reply statement filed by them in O.A. 608/2002 which was disposed of on 5.11.2002. It is further contended by him that since the charge memo itself was issued to the applicant under Rule 10 of AIS (D&A) Rules for the purpose of imposing minor penalty, there is no alternative to the 1st respondent except to impose only minor penalty. Rule 10 contemplates only for imposing major penalty. It is also pointed out by him that it is only Rule 8 of AIS (D&A) Rules, 1969 which provides procedure for imposing major penalties. It is further pointed out by him that Union Public Service Commission had advised the State Government to impose on the applicant a major penalty of compulsory retirement with 30% cut of pension on permanent basis. However, the State Government has considered that the proposed punishment is grossly out of line with the gravity of the offence. He therefore contended that such punishment could be recommended or imposed on a member of the service only for a charge of grave misconduct. In Rule 10 of AIS (D&A) Rules, it is clearly stated that the minor penalty proceedings even if instituted before retirement of a member of service will have no effect on pension. He therefore contended that the impugned order is liable to be set aside and the minor penalty proceedings initiated against the applicant get abated since the applicant has retired from service. It is also pointed out by the learned Counsel for the applicant that there is no provision enumerated under Rule 6 of AIS (D&A) Rules, 1969 according to which 5% cut in pension forms part of minor penalty proceedings.
4A. In reply to the above submission, the learned standing Counsel for the respondents submitted that as per the provisions under Rule 6(1)(a) of AIS (DCRB) Rules, 1958, departmental proceedings, if instituted while the pensioner was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the pensioner, be deemed to be a proceeding under this Sub-rule and shall be continued and concluded by the authority by which commenced in the same manner as if the pensioner had continued in service. As such the order dated 2.9.2002 issued by the respondents is in order. The only penalty that can be imposed on the retirement of an officer is withholding of pension either in full or in part. He therefore submitted that the charge memo dated 18.3.1997 issued to the applicant was in operation until a final order is issued and the final order imposing the penalty was issued on 2.9.2002. In the meanwhile the applicant retired from service on 30.9.2001 on attaining the age of superannuation. It is further pointed out by him that as per the proviso to Rule 6 of AIS (DCRB) Rules, 1958, where disciplinary proceedings have been instituted against a member of the service before his retirement from service under Rule 10 of the AIS (D&A) Rules, 1969, for imposing any of the penalties specified in Clause (i), (ii) and (iv) of Sub-rule 1 of Rule 6 of the said rules and continuing such proceedings under Sub-rule (1) of this rule after his retirement from service, the payment of gratuity or death-cum-retirement gratuity shall not be withheld. He therefore submitted that the above rule does not ban cut in pension of a retired AIS Officer as a penalty on the disciplinary proceedings being concluded against the retired officer, when the same has been initiated against him while the officer was in service. Thus the learned standing Counsel for the respondents submitted that the impugned order has been passed by following the procedure laid down in Rule 6 of AIR (DCRB) Rules, 1958 and it is permissible under the said provision to impose a penalty of cut in pension by way of punishment in respect of the charge of misconduct proved. But the learned Counsel for the applicant pointed out that there is no finding of the Disciplinary Authority to the effect that the applicant was guilty of "grave misconduct" and the charge framed against the applicant itself does not relate to any act amounting to "grave misconduct." It is further pointed out by him that under the provisions of Rule 6 of AIS (D&A) Rules, 1969, imposing a punishment of cut in pension is one of the major penalties as could be seen from the proviso to Sub-clause (vii). We have carefully examined the provisions of Rules 6, 8 and 10 of the AIS (D&A) Rules, 1969 and also Rule 6 of the AIS (DCRB) Rules, 1958. There cannot be any doubt under Rule 6 of AIS (DCRB) Rules, 1958, that the Competent Authority is entitled to withhold pension or gratuity or both either in full or in part, whether permanently or for a specified periods in respect of a retired Central or State Government servant, if the pensioner is found in a departmental or judicial proceedings to have been guilty of grave misconduct. But the question which arises for consideration in the instant case is "whether the said punishment can be imposed in respect of a ' member of the All India Service who has been served with a minor penalty charge sheet while he was in service and when the said departmental inquiry which was commenced while he was in service was concluded after his retirement. As, admittedly, the applicant has been issued with a minor penalty charge sheet for contravention of Rules 3(1) and 16(2) and (3) of AIS (Conduct) Rules, 1968 and as disciplinary proceedings where conducted in accordance with the procedure laid down under Rule 10 of AIS (D&A) Rules, 1969, in our opinion, only one of the punishments specified under Rule 6(i), (ii) and (iii) and (iv) which are minor penalties alone, could be imposed on the basis of the finding recorded by the Disciplinary Authority and the above charge framed against the applicant be proved. As rightly pointed out by the learned Counsel for the applicant, the cut in pension comes under major penalties prescribed in Rule 6 of the AIS (D&A) Rules, 1969 as could be seen from the proviso to Sub-rule (vii) of Rule 6. Though the Competent Authority is entitled to impose cut in pension by way of punishment under Rule 6 of AIS (DCRB) Rules, 1958 in respect of a retired member of All India Service, in our considered view, the said punishment cannot be imposed unless the charge memo itself is issued as a major penalty charge memo under the procedure prescribed under Rule 8 of AIS (D and A) Rules, 1969 for imposing major penalties and the procedure thereon has been followed in conducting the disciplinary proceedings against a member of the All India Services. We are unable to persuade ourselves to accept the contention of the learned standing Counsel for the respondents that the provisions of Rule 6 of AIS (DCRB) Rules, 1958 are to be read in isolation and that it must be taken that the Competent Authority has got power to impose the said punishment of cut in pension in respect of a retired member of the All India Services. Notwithstanding the fact that the minor penalty chargesheet has been issued to the applicant, who was a member of the All India Services, while in service and the inquiry was conducted by following the procedure prescribed under Rule 10 of the AIS (D and A) Rules, 1969. In our view, without following the procedure laid down under Rule 8 of AIS (D&A) Rules, 1959 for imposing major penalty, it is not permissible for the Competent Authority to impose the said punishment of cut in pension which is found to be one of the major penalties specified under the proviso to Sub-rule (vii) of Rule 6 of the same rules. In our view, the provisions of Rule 6 of AIS (DCRB) Rules, 1958 are to be read along with the provisions of Rules 6, 8 and 10 of the AIS (D&A) Rules, 1969. Further, as rightly pointed out by the learned Counsel for the applicant, the charge framed against the applicant in the instant case does not pertain to any act of grave misconduct. On the other hand, it is seen from the charge memo issued to the applicant that the said charge relates only to contravention of Conduct Rules 3(1), 16 (2) and (3) of AIS (Conduct) Rules, which pertain to lack of integrity, devotion to duty and conduct unbecoming of a member of the service. For this reason also we find that it is not permissible to the Competent Authority to impose the punishment of cut in pension by invoking the provisions of Rule 6 of AIS (DCRB) Rules, 1958. Since the charge framed against the applicant pertains only to contravention of Conduct Rules, the Disciplinary Authority has issued only a minor penalty charge memo to the applicant and followed the procedure prescribed under Rule 10 of AIS (D&A) Rules, 1969 in conducting the inquiry against the applicant. It is no doubt pointed out by the learned standing Counsel for the respondents that the only penalty that can be imposed on a retired officer in respect of the charge of grave misconduct proved is withholding of pension either in full or in part invoking the provisions of Rule 6 of AIS (DCRB) Rules, 1958 and the question of imposing any one of the major penalties specified under Rule 6 of AIS (D&A) Rules, 1968 does not arise. But in order to invoke the provisions of Rule 6 of AIS (DCRB) Rules, 1958 for imposing a punishment of cut in pension, an inquiry is to be conducted in the manner prescribed under Rule 8 of AIS (DCRB) Rules, 1958 for imposing major penalty after serving a major penalty charge memo on the delinquent employee. We are only holding that without following the said procedure, it is not permissible for the Competent Authority to impose cut in pension by way of punishment by invoking the provisions of Rule 6 of AIS (DCRB) Rules, 1958. Further in the absence of a charge relating to a grave misconduct, the Competent Authority is not entitled to invoke the provisions of Rule 6 of AIS (DCRB) Rules, 1958 for imposing the said major penalty of cut in pension. In fact it is nowhere provided under AIS (DCRB) Rules, 1958 that the punishment under Rule 6 can be imposed in respect of a retired member of All India Services without conducting any inquiry by following the procedure prescribed under Rule 8 of AIS (D&A) Rules, 1968 for imposing a major penalty and without issuing a major penalty charge memo to the delinquent in respect of a charge of grave misconduct.
5. The learned Counsel for the applicant has relied upon a decision of the Central Administrative Tribunal, Bangalore Bench, reported in (1992) 19 ATC 17 in the case of "Dr. Suresh C. Singhal v. Union of India and Ors." wherein it was held that, "Proceedings under Rule 6 if not already complete when the employee was in service, end with his retirement."
In Para 14 it is observed that, "It is alleged that the imputation under Article 2 of the charges per se does not amount to misconduct. As stated earlier, it relates to the acquisition of two plots by the wife of the applicant on payment of Rs. 30,000. The charge is that the applicant failed to report about the same to Government under Rule 18 of the Conduct Rules and thus displayed conduct unbecoming of a Government servant. By the O.M. dated 11.9.1978 Government have clearly laid down that transactions entered into by the spouse or any other member of family of a Government servant out of his or her own funds as distinct from the funds of the Government servant himself, in his or her own name and in his or her own right, would not attract the provisions of Sub-rules (2) and (3) of Rule 18. In the absence of an allegation that the funds amanated from the applicant himself, the imputation cannot be the foundation for misconduct."
6. Placing reliance on the above decision, the learned Counsel for the applicant submitted that in the instant case also there is no averment in the charge memo issued to the applicant to the effect that the house plots were purchased in the name of his daughters one of whom was a married daughter at that time and the said allegation of the charge does not constitute a misconduct. He further submitted that in respect of the transaction for the year 1988, the charge memo issued to the applicant on 18.3.1997 and the Inquiry Officer's report was submitted to the Disciplinary Authority on 24.7.1998 and copy of the said report was served on the applicant on 14.8.2000 and the impugned order has been issued on 2.9.2002 imposing the penalty of 5% cut in pension. Having regard to the above facts pertaining to this case, we find that the above decision is applicable to the facts of the present case on all fours. The action proposed to be taken on the applicant was only under Rules 3(1), 16(2) and (3) of the AIS (Conduct) Rules, 1968 and the procedure followed is the procedure prescribed under Rule 10 of the AIS (D and A) Rules, 1969 for imposing minor penalties. Following the above decision, we find that the above proceedings under Rule 16 which could not be completed while the applicant was in service, ended with his retirement. In the above decision, it has also been clarified in Para 4 that, "Imposition of penalty under Sub-rule (1) of Rule 9 of Pension Rules can be done only if the pensioner is found guilty of grave misconduct or negligence during the period of his service. It follows that the issue of memorandum of charges against a Government servant prior to his retirement under Rule 16 of the Rules will not enable the Disciplinary Authority to continue the proceedings after his retirement invoking the fiction incorporated in Sub-rule (2) of Rule 9 of the Pension Rules. The result is that in a case where the proceedings initiated under Rule 16 of the rules are not completed before the retirement of the Government servant, such proceedings automatically come to a close."
7. The learned Counsel for the applicant has also relied upon a decision of the Supreme Court reported in (1990) 14 ATC 906 in the case of "D.V. Kapoor v. Union of India and Ors." wherein it was held that, "The employee's right to pension is a statutory right. The measure of deprivation therefore, must be correlative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to assistance at the evening of his life as assured under Article 41 of the Constitution."
8. Placing reliance on the above decision, he contended that it is not permissible for the Competent Authority to impose penalty of cut in pension in respect of the applicant against whom no imputation of misconduct or alleged grave misconduct alleged in the charge memo issued to him. We agree with the above submission of the learned Counsel for the applicant since the charge memo issued to the applicant does not pertain to any allegations of grave misconduct. The learned Counsel for the applicant has also brought to our notice another decision of the Central Administrative Tribunal, Principal Bench, New Delhi, (1988) 8 ATC 532=1988(4) SLJ 1023 (CAT) in the case of "Amrit Singh v. Union of India and Ors." wherein it was held that, "Enquiry initiated before retirement is deemed to have been continued thereafter --However, scopes of enquiry and punishment change after retirement--Punishment can be imposed only if retired employee is found guilty of 'grave' misconduct or negligence and not otherwise."
9. In the instant case also since the applicant is not found guilty of any grave misconduct or negligence, we find that it is not permissible for the Competent Authority to impose punishment of cut in pension particularly when the inquiry was not conducted by following the procedure prescribed for imposing major penalty.
10. For the above reasons, we find that the impugned order passed by the 2nd respondent is liable to be set aside.
11. In the result, this O.A. is allowed. The impugned order dated 2.9.2002 passed by the 2nd respondent imposing the penalty of 5% cut in pension against the applicant for a period of one year under Rule 6 of All India Services (Death-cum-Retirement Benefit) Rules, 1958 is hereby set aside holding that the punishment imposed is in violation of All India Services (Discipline and Appeal) Rules, 1969 and in violation of Articles 14 and 16 of the Constitution of India. As a consequence, we direct the respondents to restore the full pension of the applicant forthwith without any cut in pension with all consequential benefits i.e., refund of amount already recovered from his pension. There shall be compliance with this order within two months from the date of receipt of a copy of this order. In the circumstances, we direct the parties to bear their respective costs.