Central Administrative Tribunal - Delhi
Amar Nath Gupta vs Union Of India Through The Foreign ... on 19 May, 2009
Central Administrative Tribunal Principal Bench O.A.No.2326/2008 Tuesday, this the 19th day of May 2009 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Amar Nath Gupta S/o late Shri Ishwar Dass Gupta Age 69 years (DOB 11.9.1939) 3844, Gallows Road, Annandale VA 22003-1755-USA ..Applicant (By Advocate: Dr. D.C. Vohra) Versus Union of India Through the Foreign Secretary Govt. of India Ministry of External Affairs South Block, New Delhi 110 011 ..Respondent (By Advocate: Shri A K Bhardwaj) O R D E R (ORAL)
Shri Shanker Raju:
Heard the learned counsel for the parties.
2. Applicant, through this OA, impugns Presidential order dated 30.11.2007 whereby a penalty of 100% cut in pension and forfeiture of gratuity on permanent basis was affirmed. Also assailed is an order dated 20.9.2006 passed by the disciplinary authority whereby the penalty has been imposed in consultation with Union Public Service Commission (UPSC).
3. Applicant, who was posted under Ministry of External Affairs to the Embassy at U.S., was reportedly absent from 1987 and in failing to give any justifiable ground, he was proceeded against under Rule 14 of CCS (CCA) Rules, 1965 in a disciplinary proceeding.
4. Though two inquiry officers were appointed, who could not complete the inquiry at one stage and due to some technicalities the disciplinary authority remanded the case back to the inquiry officer. However, as the last inquiry officer, Shri G.S. Khampa could not complete the inquiry, a new inquiry officer, namely, Shri Sunil Lal, was appointed to go into the charges, who held the inquiry from the initial stage and on submission of his report on two mitigating factors where the charge was proved in consultation with the UPSC, a penalty imposed when reviewed against was upheld, gives rise to the present OA.
5. Learned counsel by placing reliance on a decision of Apex Court in D.V. Kapoor v. Union of India, 1990 (14) ATC SC 906 would contend that in the disciplinary proceedings as no finding of gross misconduct has been recorded, the condition precedent under Rule 9 (2) of CCS (Pension) Rules, 1972, not being met, the order passed imposing the pension cut is wholly without jurisdiction.
6. The second ground raised is that de novo proceeding ordered against the applicant is not sustainable in view of the decision of Constitution Bench in K.R. Deb v. Collector of Central Excise, 1971 (Suppl). SCR 371.
7. On the other hand, learned counsel vehemently opposed the contentions and stated that the decision in D.V. Kapoors case (supra), which has been relied upon by the Tribunal in Amar N. Sharma v. Union of India & another (OA-533/1999) decided on 23.2.2001, does not support the contentions of the applicant as n paragraph 12 of the penalty order, President has recorded a finding of grave misconduct against the applicant. As such, the condition precedent being met, penalty of remaining absent for 10 years constitutes a grave misconduct. As such, the punishment imposed, which is proportionate to the charge, has been rightly upheld in review.
8. Learned counsel would further contend that there is no de novo inquiry ordered against the applicant, as the earlier inquiry when completed, which suffered from some technical defects, further inquiry was ordered. Shri Sunil Lal, another inquiry officer, conducted the inquiry and submitted his inquiry report where the applicant has been rightly held guilty of the charge.
9. We have carefully considered the rival contentions of the parties and perused the material on record.
10. No doubt, when a thing is to be done by quasi judicial authority or even an administrative authority in a particular manner, as stipulated under the rules, no other methodology can be adopted.
11. As per Rule 9 (2) of CCS (Pension) Rules, a condition precedent is that finding of grave misconduct is not to be inferred by circumstances, but it has to be inferred from the fact that such a finding should be recorded in the departmental inquiry. It is trite law that departmental inquiry ends with the inquiry report but the disciplinary proceeding culminates with an order of penalty. In the instant case, after retirement on superannuation, the inquiry is to be conducted as per the procedure laid down under Rule 14 ibid, yet no penalty designated under Rule 11 has to be infracted and what is admissible as a penalty is Rule 19 of CCS (Pension) Rules.
12. We have scanned through the records. Neither in the inquiry report nor in the advice tendered by UPSC, the charge against the applicant, which has been allegedly proved, has been stated to have constituted a grave misconduct, yet for the first time the President has recorded the findings in paragraph 12 of the penalty order, which is not supported by any such finding in the records of the departmental inquiry. This infirmity mitigates, to some extent, the misconduct of the applicant as compared to the penalty imposed. No doubt, the applicant has completed a qualifying service of more than 30 years before the alleged absence from 1987 when he attained the age of superannuation.
13. 100% cut in pension, to our considered view, amounts to infraction of a penalty of dismissal or removal to a pensioner. When these penalties could not be inflicted, it is a substitution of penalty of dismissal or removal even in case of dismissal or removal. The mitigating circumstances, like previous punishment, the length of service, family liability, etc. are relevant considerations to be taken positively by the quasi judicial authority. It is trite that in disciplinary proceedings and more particularly in the matter of punishment, we cannot substitute our own views and we can also not interfere in the matter of penalty unless the penalty on adoption of the weighing process of pros and cons for and against the delinquent official, shocks the conscience of the Tribunal and is highly disproportionate to the charge leveled.
14. Remaining absence from duty without any information even for six months is a grave misconduct and if this absence prolongs for years together, certainly it has to be a gravest act of misconduct but while examining this aspect of gravity, the background fact should not be left to be considered.
15. Accordingly, we find that while recording a finding, a grave misconduct has rightly not been imputed and proved by the inquiry officer and the UPSC. However, the disciplinary authority earlier, as transpired from the records, recommended a grave misconduct, yet no finding of grave misconduct has been recorded by the UPSC.
16. We do not want to go into other legal infirmities, as the Apex Court in State of U.P. & others v. Jawahar Lal Bhatia, 2005 (2) SCALE 43 ruled that 75% pension cut on account of remaining absent from duty is an excessive punishment and is not proportionate to the charge leveled.
17. Exercising our jurisdiction in judicial review where we can examine this aspect of proportionality, now develop into doctrine in Management of Coimbatore District Central Cooperative Bank v. Secretary, Coimbatore District Central Cooperative Bank Employees Association & another, 2007 (6) SCALE 45, we find that inquiry conducted against the applicant on de novo basis is certainly against the law and no finding of grave misconduct recorded in the departmental inquiry as well as his service of more than 35 years are positive factors in his favour, whereas his remaining absent and his refusal to the directions of Ministry of External Affairs to come back are the factors against him. We cannot also forego that right to pension is a fundamental right guaranteed to a government servant.
18. This cannot be taken away lightly or in violation of the rules. Sympathy may not have the role to play but equity should be applied when circumstances are as such. On examination, we are of the considered view that the penalty of 100% cut in pension and gratuity has almost left the applicant after a service of more than 35 years before his absence, a beggar without any means of livelihood. The government servant though commits misconduct, maybe without any mala fide intention, yet he is oblivious of the fact that such a misconduct would entail on his retirement when he is incapacitated his right to the livelihood with the help of pension he earns by dint of hard work. Had the applicant thought of it, he would not have taken his work lightly.
19. Be that as it may, the penalty imposed certainly shocks our conscience but instead of replacing it, we are remanding back this matter to the reviewing authority for reconsideration of the penalty, so that his right to pension and gratuity is not marred and foreclosed forever.
20. Resultantly, OA is allowed partly. Order passed in review is set aside. Respondents are directed to pass a fresh order strictly in accordance with rules and also the observations made by us in the preceding paragraphs. This shall be done within a period of three months from the date of receipt of a copy of this order. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/