Jharkhand High Court
Swapan Kumar Bhattacharjee vs The Union Of India on 12 April, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 336 of 2018
--
Swapan Kumar Bhattacharjee ...Petitioner
Versus
1. The Union of India
2. Secretary, Ministry of Human Resources Development (Department of Education), Govt. of India, New Delhi
3. Chairman, Board of Governors, National Institute of Foundry and Forge Technology, Ranchi
4. Director, National Institute of Foundry and Forge Technology, Ranchi ...Respondents
--
CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
--
For the Petitioner : Mr. Abhay Prakash, Advocate
For the Respondents : Mr. Ram Lakhan Yadav, Advocate
--
16/12.04.2024 Heard learned counsel for the parties.
2. The instant writ application has been preferred by the petitioner praying therein for quashing of the order as contained in Memo no. 4048 dated 23.03.2017; whereby the respondents on the basis of an ex parte departmental enquiry have directed for recovery of Rs. 10,32,260/- from the petitioner from his gratuity amount and commutation of pension and balance amount of Rs. 4,43,853/- remaining recoverable from the petitioner is to be paid by him to the Respondent- Institute (hereinafter to be referred as NIFFT).
The petitioner has further prayed for quashing of the letter No.452 dated 04.09.2017 issued by the Dy. Registrar, NIFFT; whereby he was informed that since he had not deposited Rs. 4,43,853/- remaining recoverable from him will be deducted from his monthly pension.
3. The brief facts of the case are that the petitioner joined his service in the Respondent-Department on 12.12.1975 and after working for more than 35 years, he retired from service on 31.01.2012. The petitioner while in service was working as Accounts Officer with the Respondent-Department.
In the year 2010, a CBI / ACB, Ranchi Case No. RC16(A)/2010R was instituted against him along with the then Director, Dr. Mallay Kumar Banerjee. The allegation made against them was that during the period 2006-08, the officers in conspiracy with one Shri Lallit 2. Tripathi, agent/broker and proprietor M/s Alma Technologies, P.P. Compound, Ranchi and in furtherance to the said conspiracy made investments of the surplus fund of the NIFFT to the tune of Rs. 5.90 Crore through Shri Lallit Tripathi, Broker. It was alleged that the investments were made in the Mutual Funds in order to extend benefit to Shri Lallit Tripathi, agent/broker, who earned huge commission on the investments made by NIFFT, by way of entry load and exit load, which could have been avoided. Due to the aforesaid deliberate commission and omission of the accused persons, NIFFT had to incur a loss of Rs. 19,91,597/- at the cost of the agent, broker Shri Lallit Tripathi, who gained wrongfully.
After completion of investigation, Investigating Officer of the case submitted a final form with a prayer that the facts and evidence available in the case is not sufficient to prove the allegation levelled in the FIR and the investigation could not establish any criminal case as envisaged u/s 120 B of IPC and 13(2) r/w 13(1)(d) of the PC Act, 1988 against the accused persons named in the FIR. The final order in the said case being RC16/(A)/2010-R was passed by learned Special Judge, CBI on 21.03.2012 and the petitioner was exonerated from the charges and the case was allowed to be closed.
Subsequently, the petitioner superannuated on 31.01.2012 and before his retirement, vide office order no. 197/2011 dated 14.11.2011 intimation of retirement of the petitioner has been given. It has also been mentioned in the said order that the Accounts Section will prepare his final payment taking into consideration all the dues/adjustments against this petitioner and on receipt of NOC from various department. Thereafter, the petitioner has made several representations before the respondents for payment of his retiral.
4. Mr. Abhay Prakash, learned counsel for the petitioner submits that on the date of retirement i.e., on 31.01.2012, the petitioner has been issued a letter informing him that the NIFFT proposes to initiate a departmental proceeding against this petitioner. Thereafter, the 3. respondents conducted ex parte enquiry and came to a finding that an amount of Rs. 15,01,000/- is recoverable from the petitioner, which is to be adjusted from gratuity and commutation of pension (totalling Rs. 10,32,260) and the balance was to be recovered from his monthly pension i.e., Rs. 4,68,740/.
5. Mr. Prakash draws attention of this Court towards Annexure-4 (annexed with supplementary affidavit) and submits that the respondents have relied upon CCS Pension Rules, 1972. He further submits that in the instant case, Rule 9 of CCS Pension Rules has not been complied; inasmuch as, the Presidential sanction was not obtained by the respondent in order to proceed in the departmental proceeding which was condition precedent as the petitioner retired from service on 31.01.2012 and charge memo was issued to him on 11.01.2016 and non- compliance of Rule 9 of CCS Pension Rule goes to the route of the matter and the entire proceeding is void.
He further submits that the respondents have filed additional counter affidavit, wherein a letter dated 31.01.2012 (Annexure-F) has been annexed and first two lines of the said letter clearly indicates that the competent authority has decided to initiate departmental proceedings against him. He also refers Page-22 (part of Annexure-A), which is dated 01.02.2012 and the subject matter of the said letter is permission to proceed against the petitioner; thus, these two letters corroborate the fact that till the date of retirement, no proceeding was initiated and Rule 9 of CCS Pension Rule clearly stipulates that sanction of the President is necessary in such type of cases.
He contended that the documents available on record clearly suggests that the charge memo was served on 11.01.2016 for the alleged offence of 2008 without having sanction from the President; as such the entire proceeding is null and void; hence the impugned order may be quashed and set aside. Learned counsel relied upon the judgment passed in the case of Union of India and others vs. K.V. Jankiraman and others reported in (1991) 4 SCC 109 and also Brajendra Singh Yambem vs. Union of India and others reported in (2016) 9 SCC 20.
4.6. Mr. Ram Lakhan Yadav, learned counsel for the respondents submits that NIFFT is not a Central Government Organization and as such Rule 9 of CCS Pension Rules will not be applicable in the instant case. He further submits that the employees of respondents are not Central Government employees; as such Central Government Rules will not be strictly applicable on the employees of NIFFT. He further refers to Annexure-B and submits that the said letter dated 31.01.2012 was served upon the petitioner on the date of his retirement; as such even the aforesaid contention of the petitioner is accepted; issue of Presidential sanction was not required in the instant case.
He further submits that since the Institute is governed by a Society and therefore the disciplinary authority of the Institute cannot be construed to be subordinate to the President of India. Accordingly, seeking permission or submitting of departmental proceeding to the President is not required.
7. He further refers Rule 9(1)(2)(a) of CCS Pension Rules, 1972 and submits that the Rule clearly stipulates that "provided that where the departmental proceeding instituted by an authority sub- ordinate to President, that authority submit a report recording its findings to the President.". Mr. Yadav strenuously refers to para-5 of additional counter affidavit, which is reproduced hereinbelow:
"5. That as mentioned in the O.O. No.- 42/2012, referred by the petitioner in his Annexure-4, the amount of recovery was ordered rightly under Rule 9(1)(2)(a) of the CCS (Pension) Rules, 1972, which is reproduced below:
"The departmental proceedings referred to in sub-rule (1), 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 proceeding under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service".
"Provided that where the departmental proceeding instituted by an authority sub-ordinate to the president, that authority submit a report recording its findings to the president"
However, after referring the aforesaid paragraph, he reiterated that the Institute is governed by a Society duly registered under the Society Registration Act, 1860 and therefore the Disciplinary Authority of the Institute cannot be construed to be subordinate to the 5. President of India. Accordingly, seeking permission and/or submitting report of departmental proceeding to the President of India is not required.
8. At this stage itself, it is necessary to indicate that the averments made in Para-5 quoted herein above and the argument of the counsel is self-contradictory. Moreover, the aforesaid Rule i.e., 9(1)(2)(a) of the CCS (Pension) Rules, 1972 is w.r.t. any employee while he is in service, whether before his retirement or during his re- employment; and that is not the fact of this case and as such the same is not applicable.
9. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits, following issues arise for consideration by this Court:
"(i) Whether the respondents can take a plea that since the Respondent-Institute is a Society, it cannot be governed by Rule 9 of CCS Pension Rule and Presidential sanction is not required in order to initiate departmental proceedings against a retired employee?
(ii) Whether the impugned order dated 20.03.2017 is sustainable in the eye of law; inasmuch as, no Presidential sanction has been obtained by the respondent-NIFFT?
(iii) Whether the letter dated 31.01.2012 can be construed to be initiation of a departmental proceeding?
10. So far as first issue is concerned, it clearly transpires that the impugned order has been passed as per provision of Section 4(c) of Institute Discipline and Appeal Rules as incorporated in Memorandum of Association and Bye-laws of the Institute, as contained in Section 5, read with Sub-section 8, Point No. 3 and under the provisions of Rule 9 of CCS Pension Rules, 1972.
From bare perusal of the impugned order dated 20.03.2017, it is crystal clear that the order has been passed as per Bye-laws and under the provision of Rule 9 of CCS Pension Rule; thus, I do not have any hesitation in holding that the instant case will be governed by Rule 9 of CCS Pension Rule, 1972.
The argument of Mr. Yadav for the respondent-NIFFT does not impress this Court that CCS Pension Rules will not be applicable in the case of this petitioner in view of the fact that the very recital of the 6. impugned order speaks something else. For brevity, the same is extracted as under:
"The competent authority on the basis of enquiry report and as per provisions of Section 4, Sub-section "c" of institute Discipline and Appeal Rules as incorporated in the Memorandum of Association (MoA) and Bye-laws of the Institute, as contained in Section 5, read with Sub-section 8, Point No. 3 and under the provisions of Rule 9 of CCS Pension Rules, 1972, has ordered for the recovery of Rs.
10,32,260/- (Rupees Ten Lakh Thirty Two Thousand Two Hundred Sixty Only) (Retirement Gratuity amounting to Rs. 05,88,407/- (Rupees Five Lakh Eighty Eight Thousand Four Hundred and Seven Only) and Commutation of Pension amounting to Rs. 04,43,853/- (Rupees Four Lakh Forty Three Thousand Eight Hundred Fifty Three Only) as Shri Swapan Kumar Bhattacharjee stands superannuated.
Even the averments made in Para-5 quoted herein above and the argument of the counsel is self-contradictory, inasmuch as, Rule 9(1)(2)(a) of the CCS (Pension) Rules, 1972 is w.r.t. any employee while he is in service, whether before his retirement or during his re- employment; and that is not the fact of this case and as such the same is not applicable.
In the case of Brajendra Singh Yambem Vs. Union of India and another reported in (2016) 9 SCC 20 (supra), the Hon'ble Apex Court has held that if the disciplinary proceedings are not instituted against the government servant while he was in service, then the prior sanction of the President of India is required to institute such proceedings against such a person.
For brevity, para-34 is quoted hereinbelow:
"34. Rule 9(2) of the CCS (Pension) Rules, 1972 reads thus:
(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 were 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-
(i) shall not be instituted save with the sanction of the President,
(ii) shall not be in respect of any event which took place more than four years before such institution, and 7.
(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."
A perusal of the above Rule makes it clear that if the disciplinary proceedings are not instituted against the government servant by the disciplinary authority while he was in service, then the prior sanction of the President of India is required to institute such proceedings against such a person. It is also clear that such sanction shall not be in respect of an event which took place more than four years before the institution of such disciplinary proceedings."
Admittedly, in the instant case, no Presidential sanction has been obtained and as held hereinabove, the sanction of President was condition precedent since the departmental proceeding was initiated against the petitioner when he retired from service. Thus, the 1st issue is decided in favour of the petitioner and this Court holds that the respondent-NIFFT cannot take a plea that since the Respondent-Institute is a Society, it cannot be governed by Rule 9 of CCS Pension Rule and Presidential sanction is not required in order to initiate departmental proceedings against a retired employee.
11. Now the two remaining issues are dealt simultaneously as to whether the impugned order is sustainable in the eye of law because admittedly presidential sanction has not been obtained in the instant case and whether the letter dated 31.01.2012 can be construed to be initiation of a departmental proceeding.
12. The contention of the respondent while relying upon Annexure-F (additional counter affidavit) that on the date of retirement he was served with charge-sheet cannot be sustained in the eye of law; inasmuch as, even if it is presumed that the said letter has been served to the petitioner, the content of that letter only transpires that the competent authority has decided to initiate departmental proceeding and admittedly the charge-sheet has been issued in the year 2016 for the alleged offence committed in 2008 without having sanctioned from the President; as such that letter cannot be construed as initiation of departmental proceeding.
13. The argument of the respondent that on the date of retirement, he was served with a letter dated 31.01.2012 informing him that the disciplinary proceeding is to be instituted as such the action of 8. the respondent is legal; is misconceived and baseless and cannot be accepted for the obvious reason that from perusal of Page-22 which is part of Annexure-A to the counter affidavit dated 01.02.2012; the subject matter of the said letter is seeking permission to proceed against the petitioner. It further transpires that charge memo was served upon the petitioner on 11.01.2016 for the offence committed by him in the year 2008; thus, in no case it can be construed that the departmental proceedings have been initiated against this petitioner while he was in service.
The law in this regard is now no more res integra;
inasmuch as, the disciplinary or the criminal proceeding can be said to have commenced when a charge-memo in a disciplinary proceeding or a charge-sheet in a criminal prosecution is issued to the employee then only it can be said that the departmental proceedings and/or criminal prosecution is initiated against the employee. (Refer K.V. Jankiraman and others reported in (1991) 4 SCC 109 Para -16).
14. At the cost of repetition, the petitioner retired on 31.1.2012 and charge memo was issued on 11.01.2016; as such to proceed against this petitioner presidential permission was required as per Rule 9 of CCS Pension Rules which is absent in the instant case; as such the impugned order is void and fit to be rejected.
15. Thus, all the three issues, which has been formulated hereinabove, goes in favour of the petitioner. Accordingly, the instant writ application is allowed and the impugned order as contained in Memo no. 4048 dated 23.03.2017, whereby the respondents have directed for recovery of Rs. 10,32,260/- and Rs. 4,43,853/-, is quashed and set aside. It goes without saying that all consequential benefits shall be extended to this petitioner within a period of 8 weeks from the date of receipt/production of a copy of this order. Further, if any amount has already been recovered, the same shall be refunded to this petitioner within the aforesaid stipulated period.
It is made clear that if the entire monitory benefits are not extended to the petitioner, including already recovered amount, if any, 9. within the aforesaid stipulated period, the Respondent-NIFFT shall be liable to pay compound interest @ 7% per annum with monthly rest from the date of entitlement till the date of actual payment.
16. As a result, this writ application is allowed in the manner indicated hereinabove.
(Deepak Roshan, J.) Jk/AFR