Central Administrative Tribunal - Delhi
Om Parkash vs Govt. Of Nctd on 29 January, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.3072 of 2017
This the 29th day of January, 2019
Hon'ble Ms. Nita Chowdhury, Member (A)
Hon'ble Mr. S.N. Terdal, Member (J)
Om Parkash (Aged 68 years)
S/o Sh. Sehdev Prasad Sharma
R/o of X 16, Budh Vihar Phase I
New Delhi 110048.
....Applicant
(By Advocate : Shri P.P. Ralhan)
VERSUS
1. Govt. of NCT Delhi
Through Chief Secretary,
Players Building IP Estate,
New Delhi.
2. Deputy Commissioner of Police (Security)
Vinay Marg, New Delhi.
3. Secretary, UPSC, Dholpur House,
New Delhi.
4. Secretary, Ministry of Home Affairs,
North Block, New Delhi.
.....Respondents
(By Advocates : Shri Anil Singal with Mrs. Pratima Gupta for
R-1 & 2 and Shri R.K. Jain for R-3 and R-4)
ORDER (Oral)
Ms. Nita Chowdhury, Member (A):
By filing this OA under Section 19 of the Administrative Tribunals Act, 1985, applicant is seeking the following reliefs:-
"(i) to pass orders to consider the representation of the applicant dated 28.5.2017 lying pending since 2nd June 2017.2
(ii) to quash and set aside the penalty order dated 20th June, 2017 without considering the representation of the applicant in response to the advice of UPSC.
(ii) Any other relief which this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the case may also be granted in favour of the applicant in the interest of justice."
2. Brief facts of the case are that the applicant who while working as Constable in Delhi Police was involved in a criminal case (FIR No.764/1980) under Section 302/34 and 330/34 IPC. The applicant was convicted in the said case by the learned Addl. Session Judge, Delhi vide judgment dated 2.2.1993 and vide order dated 3.2.1993, the said learned Addl. Session Judge awarded a sentence of life imprisonment for offence u/s 304/34 IPC and also a fine of Rs.5000/- and in default of fine, he would further undergo rigorous imprisonment for the period of four months; and for offence u/s 330/34 IPC, he was sentenced for 2 years rigorous imprisonment and a fine of Rs.1000/- and in default of fine, he would undergo rigorous imprisonment for one month. Thereafter applicant filed a criminal appeal No.33/1993 against the aforesaid order of the learned Trial Court before the Hon'ble High Court of Delhi, which was upheld by the Delhi High Court vide judgment 6.3.2009 and thereafter the applicant also filed Criminal Appeal No.484/2010 before the Hon'ble Supreme Court dismissed the same vide common judgment dated 16.12.2015.
32.1 It is relevant to mention that consequent upon the applicant's conviction in criminal case (supra), the applicant was dismissed from service by invoking the provisions of Article 311(2) of the Constitution of India vide order dated 4.1.2007. The applicant preferred his appeal against the said order of dismissal which was rejected by the appellate authority. Thereafter the applicant filed OA 1755/2007 before this Tribunal against the said orders of the respondents. However, this Tribunal vide Order dated 18.12.2007 directed the reinstatement of the applicant in service from the date of his dismissal. The respondents preferred an appeal before the Delhi High Court against the said Order of this Tribunal, which was dismissed by the High Court vide Order dated 27.3.2009. However, in the meantime, the applicant retired/pension from service on superannuation on 31.5.2008.
2.2 Consequent upon the conviction of the applicant in case FIR No.764/1980 under Section 302/34 IPC, the GNCT of Delhi/MHA issued a Memo dated 27.8.2015, which was served upon the applicant on 21.9.2015 under Rule 9 of the CCS (Pension) Rules, 1972 started the process to impose the penalty of permanently withholding full amount of pension and full amount of gratuity. A Hindi version of the said Memo was issued on 2.3.2016 and served upon the applicant on 12.3.2016. The applicant submitted his reply to the said 4 Memo vide his representation dated 5.5.2016, which was duly considered by the respondents but the same was found devoid of merits. Thereafter, the advice dated 15.12.2016 of the Union Public Service Commission was obtained in the case and conveyed to the applicant vide Memorandum dated 1.2.2017, which was served upon the applicant on 19.2.2017 with directions to submit his reply to the competent authority by 6.3.2017 but he did not submit the same. Thereafter again another opportunity was given to the applicant vide letter dated 27.3.2017 by extending the time of reply for further 7 days. But instead of replying to the said Memorandum/advice of the UPSC, the applicant requested for 02 months time for submitting reply/representation in the case. Therefore, finally after a thorough examination of all the facts and circumstances of the case under Rule 9 of the CCS (Pension) Rules, 1972, the penalty of permanently withholding full amount of pension and full amount of gratuity was imposed upon the applicant vide order dated 20.6.2017 which was served upon the applicant on 11.7.2017.
3. The main contention of the applicant in this case is that the representation of the applicant dated 2.6.2017 against the advice of the UPSC was pending before the President/Competent Authority and the impugned order dated 20.6.2017 has been passed without considering the said representation of the applicant, which amounts to 5 violation of principles of natural justice. Another contention of the applicant is that no departmental action was taken against the applicant till his superannuation on 31.5.2008. Counsel further contented that the applicant is entitled to pension as he has been ordered to be reinstated from the date of his dismissal i.e. 4.1.2007 to the date of his superannuation, i.e., 31.5.2008.
4. Counsel for the respondents submitted that the decision of imposing penalty of permanently withholding full amount of pension and full amount of gratuity is fully justified and legal and has been taken by the competent authority under the provisions of Rule 9 of the CCS (Pension) Rules, 1972 by adopting prescribed procedure and after thorough examination and due consideration of all the facts and circumstances of the case and as such the decision taken by the competent authority is fully justified, legal. 4.1 Counsel for the respondents further submitted that earlier the applicant filed another OA 1104/2016 seeking grant of provisional pension as he mislead this Tribunal by saying that Criminal Appeal before the Hon'ble Supreme Court was pending and this Tribunal also by placing reliance on the provisions of Rule 69 of the CCS (Pension) Rules, allowed the said OA vide Order dated 19.12.2016 and direct the respondents to pay provisional pension to the applicant from the date of his superannuation till taking of final 6 decision by the competent authority regarding his pensionary benefits and the applicant was also held to be entitled to arrears arising out of the same as also entitled to payment of interest on arrears at current GPF deposit rate till the date of actual payment. Thereafter the respondents preferred an appeal (W.P.(C) No.6048/2017 (Govt. of NCT of Delhi and Anr. vs. Om Pramash) against the said Order of this Tribunal before the Hon'ble Delhi High Court and the High Court allowed the said Writ Petition and quashed the order of this Tribunal. The relevant operative part of the said Order of the Hon'ble Delhi High Court is reproduced as under:-
"6. In the present case, firstly, the respondent was not paid the provisional pension. Therefore, the question of its recovery does not arise. The issue is whether in the facts and circumstances of the case, the Tribunal could grant the relief to the respondent, particularly, in the face of his conviction under Section 302 IPC, which was upheld right upto the Supreme Court and on account of suppression of the fact of the dismissal of his appeal before the Supreme Court by the respondent. It is argued by the learned counsel for the respondent that his Review Application was pending before the Supreme Court. The respondent did not inform the Tribunal that his Appeal has been dismissed by the Supreme Court and merely his Review Application was pending. We are informed that even that Review Application was dismissed on circulation. It shocks the conscience of this Court that the respondent, who stands convicted under Section 302 IPC, should receive arrears of provisional pension equivalent to full pension from 01.06.2008 to 20.06.2017 i.e. period of over nine years. We therefore, allow this petition and set aside the impugned order."
5. We heard learned counsel for the parties and perused the material placed on record. Once the applicant has been held guilty by the Court of competent jurisdiction; has been 7 convicted; and sentenced, which was also upheld upto the level of the Hon'ble Supreme Court, no further enquiry is contemplated. Based on such conviction the competent authority is empowered to order withholding of pension as well as withholding of gratuity having regard to gravity of the charge levelled against the delinquent and in this case, the applicant was convicted under Sections 302, 330 read with 34 of IPC. At the best the competent authority may be required is to issue a notice to show cause against the intended action. The same having been done in the present case, the impugned order cannot be vitiated on the ground that the representation preferred by the applicant against the advice of the UPSC, though belated, has not been considered by the competent authority as the respondents have categorically averred that nothing new have been stated by the applicant in the said belated representation. The judgment relied upon by learned counsel for the applicant in support of his contentions is not relevant to the facts of this case as the Hon‟ble Supreme Court in catena of judgments categorically held that the "conviction" means the conviction recorded by the Court of competent jurisdiction. Even pendency of appeal against the order of conviction or the order of suspension of sentence pending the appeal against conviction and sentence are of no relevance for the purpose of withholding of pension under Rule 9 of the CCS (Pension) Rules, 1972. The conviction of the applicant under the said 8 Sections of IPC is a conviction for a "serious crime"
contemplated under the aforesaid Rule. No exception can be made in respect of such grave offence. The impugned action of the respondents is in consonance with Rule 9 of the CCS (Pension) Rules, 1972. It is further relevant to mention that when the respondents after dismissal of the Writ Petition preferred by them against the Order of this Tribunal in OA No.1755/2007, passed the order dated 27.3.2009 vide which the applicant was reinstated in service from the date of dismissal without prejudice to the departmental action if any to be taken against the applicant in accordance with law after the decision of his first appeal lying pending before the Hon'ble High Court of Delhi against his conviction in case FIR No.764/1980 u/s 302 and Section 330/34 IPC and his suspension period i.e., 4.1.2007 to 31.5.2008 will be decided lateron. The said order of 2009 was very much within the knowledge of the applicant and as such the contention of the applicant that he is entitled to pension as he has been ordered to be reinstated from the date of his dismissal i.e. 4.1.2007 to the date of his superannuation, i.e., 31.5.2008 is not sustainable in the eyes of law, especially having regard to the aforesaid observations of the Hon'ble Delhi High Court in Writ Petition (Civil) No.6048/2017, as quoted above in para 4.1.9
6. In view of the above, for the foregoing reasons, this Court is not inclined to interfere with the impugned orders and accordingly the present OA is dismissed. There shall be no order as to costs.
(S.N. Terdal) (Nita Chowdhury)
Member (J) Member (A)
/ravi/