Central Administrative Tribunal - Delhi
Ranjit Dadlani Age About 57 Years vs Central Public Works Department on 23 September, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 1284/2014 New Delhi this the 23rd day of September, 2014 Honble Mr. A.K.Bhardwaj, Member (J) Honble Mr. V.N.Gaur, Member (A) Ranjit Dadlani age about 57 years Junior Engineer, O/o CE, CDO, CPWD, Nirman Bhawan, New Delhi. Applicant (By Advocate Ms. Madhusmita Bora ) VERSUS 1. Central Public Works Department, Represented by Director General, Nirman Bhawan, New Delhi. 2. The Executive Engineer (HQ), O/o CE, CDO, CPWD, Nirman Bhawan, New Delhi. Respondents (By Advocate Shri Rajeev Kumar ) O R D E R Honble Mr. A.K. Bhardwaj, Member (J):
The applicant joined Central Public Works Department (CPWD) as Junior Engineer (Civil) on 24.11.1977 and completed 36 years of Government service in CPWD as on 31.12.2013. Having attained 55 years of age, he gave notice under Fundamental Rules 56 (K) (1) (c) to retire from Government service. The competent authority refused to accept the notice in terms of order dated 28.03.2014 for administrative reason, thus the applicant filed the present OA, praying therein:-
(i) Quash order No. 5/44/2012-13/348 dated 28.03.2014 passed by Shri P.K.Agarwal, Executive Engineer (HQ), O/O CE, CDO, CPWD, Nirman Bhawan, New Delhi;
Direct the respondents to accept the representation dated 31.12.2004 made by the applicant for grant of VRS to the applicant with effect from 31.03.2004;
Direct the respondents to place the applicant on retirement w.e.f 01.04.2004 and for arrangement and preparation of the pension and other benefits as per his entitlement;
Pass such other order/orders as this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case. Ms. Madhusmita Bora, learned counsel for the applicant submitted that in terms of Fundamental Rules 56 (k) (1) (c), the appropriate authority could withheld the permission to a Government servant to retire only if he is under suspension and since in the present case, as on relevant date, the applicant was not under suspension, the competent authority was not justified in not accepting his notice for retirement. To espouse her said plea further, she relied upon the order dated 04.08.2010 passed by this Tribunal in OA 1600/2009 and judgment of Honble Supreme Court in B.J.Shelat Vs. State of Gujarat and Others ( 1978 (2) SCC 202).
2. On the other hand, learned counsel for respondents read out few paras from the counter reply filed on their behalf. Confronted with the provisions of G.S.R.27 (E) dated 17.01.2014, whereby the President amended Rule 56 K (1) (c) of Fundamental Rules. Learned counsel for the applicant submitted that there were no judicial proceedings pending against the applicant during the relevant period, i.e. between the date of notice and expiry of period of notice. According to her, judicial proceedings could mean only the proceedings relating to investigation, enquiry or trial and if such proceedings have come to an end with the judgment of acquittal, presuming the judicial proceedings pending only on the ground that an appeal against the acquittal is filed would be mis-conception. In support of her such argument, she relied upon judgment of Honble Andhra Pradesh High Court in Writ Petition ( Civil) No.27607, 27614 and 22929/2009 (The Chief Commissioner of Land Administration, A.P. Nampally Station Road, Hyderabad and another Vs R.S. Ramakrishna Rao and Another. She also submitted that mere filing of the appeal of which no cognizance is taken by the competent court cannot be considered as pendency of appeal and the order of non acceptance of notice of VRS was invalid as was not communicated by the competent authority. She submitted that in the present case the criminal LP filed vide Dy.No. 22179/20014 has not yet been placed before the Honble Bench and is lying under objection in the registry of Honble High Court, thus it cannot be said that any judicial proceeding is pending against the applicant. While espousing such plea, she also added that even it is not the stand taken by respondents in the impugned order dated 28.03.2014.
3. We heard learned counsel for parties and perused the record. On 11.03.1996, one Shri Mohd Ali Jamir made a complaint to CBI that a work of CPWD had been awarded to M/s Jamiruddin & Sons i.e. the firm in which he was one of the partners, on 3.08.1995 which was completed in November, 1995, but the department did not make the balance payment of Rs.3,77,449/- (the total cost of the project was Rs.6,77,449/-and the payment of Rs. 3.00 lacs had already been made). It was mentioned in complaint that the applicant herein was looking after the work on behalf of the CPWD and the payment was to be made to the firm only after preparation of the bill by him. According to the complainant, when he approached the applicant in his office in respect of the bill of the balance payment on 9.03.1996, i.e. a Saturday, he demanded Rs.20,000/- as commission for submitting the bill and threatened the applicant that in the event of not depositing such amount, he would keep the bill under objection and would not allow the payment to be made. In the wake of said complaint, the CBI registered CC No. 75/2008 in the matter. On trial, the Special Judge-IV (PC Act) CBI, Delhi acquitted the applicant. The denouement in the order dated 24.05.2013 reads as under:
43. Reading of testimony of complainant and PW-4 A.C.Guglani makes interesting reading. It had been admitted by the complainant (PW-1) during course of his cross examination that one R.P.Mukherjee had also been got trapped by their firm through CBI ACB and a case RC 39 (A)/01 was registered on basis thereof. He also admitted that they had also made a complaint against one Balbir Singh, Forest Guard for demanding bribe. As regards PW-4 Shri A.C.Guglani, during course of his cross examination he admitted that prior to the present case, he joined CHI raid in two cases one of which was a trap case and in the other he was to witness some signatures. In case of G.V.Nanjundiah (supra) it was observed by Honble Supreme Court of India that where a witness admitted having joined three or four earlier raids organized by the CBI, under the circumstances he could not be an independent witness. In the case before us, neither the complaint is the only complaint lodged by complainant with ACB, CBI, nor the independent witness is a fresh witness who had not joined any joined any other raid.
44. The complainant in his complaint had claimed that demand was made on 9.3.1996 while in court he stated that the demand had been made on 8.3.1996. In Shanti Lals case (supra) it had been claimed during course of trial that demand was made on March, 29 & 30, 1967 while in the report made to DSP complainant had claimed the demand having been made on March 31, 1967. It was observed by Honble Supreme Court that this cannot be regarded as a trivial or insignificant discrepancy having no relevance to the veracity of the prosecution case. It was further observed that it leaves an indelible infirmity on the evidence led on behalf of the prosecution so far as demand for bribe made by accused is concerned.
45. As regards submission made by Ld PP regarding the accused having not examined himself in defence it would be pertinent to mention that as per Section 21 Proviso (b) of PC Act, no adverse inference can be drawn against accused in case he does not examine himself in defence. As such, even if none of the accused have examined themselves in defence, no adverse inference can be drawn against them in this regard.
46. It is settled principle of law that prosecution has to prove its case on basis of legally admissible evidence and that the distance between may be true and must be true has to be traveled by the prosecution of its own and it cannot take any benefit from weakness of defence. Similar observations was echoed in R.K. Deys case (supra) wherein it was observed that prosecution cannot derive benefit from weakness or falsity of the defence versions while proving its case and cannot get support from weakness of defence. In view of observations made herein above, it is apparent that due to slip shod investigation conducted in this case, prosecution has failed to prove its case to the hilt while the accused persons, on basis of cross examination of the witnesses and the defence led, have not only probablised but have clearly proved their defence to the hilt thereby throwing out case of the prosecution.
47. Accordingly, due to want of proper investigation in this case and as investigating agency has tried to hide more from the Court than it had revealed in court, this court has no hesitation in throwing out case of CBI and acquit the accused persons.
48. Both accused are accordingly ordered to be acquitted in this case. After approximately 7 months of his acquittal, the applicant gave a notice to Chief Engineer (CDO), CPWD under Section 56 K (1) (c) of his retirement from service on 31.03.2014. Before expiry of the period of notice, i.e on 28.03.2014, the decision of the competent authority of non- acceptance of his notice was issued to applicant. In para 4.14 and 15 of the reply, the CPWD has taken the stand that in view of amendment in FR 56 (K)(I)(c) on 17.01.2014, on account of pendency of judicial proceedings in respect of the charge which are grave in nature, the applicant could not be allowed to retire from service voluntarily. For easy reference, the averments contained in said paragraphs are reproduced hereinbelow:-
4.14 & 15. That the contents of para 4.14 & 15 of the OA are wrong & denied. In second Para the applicant has mentioned that the only condition upon which it was open to appropriate authority to withhold permission to a Govt. servant seeking voluntary retirement was if the Government servant is under suspension It is pertinent to mention here that these rules were amended by Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) on 17.01.2014 vide gazette notification dated 17.01.2014 ( page 92 to 96 of the OA). It is clearly mentioned in this gazette notification dated 17.1.2014 (vide page 94 of OA) that it shall be open to the Appropriate Authority to withhold permission to a Government servant, who seeks to retire under this clause if;
The Government servant is under suspension.
A charge sheet has been issued and the disciplinary proceedings are pending or If judicial proceedings on charge which may amount to grave misconduct are pending It is also written in this gazette notification dated 17.1.2014(vide page 94 of OA) that these amended rules came into force on the date of their publication in the official gazette. Hence these rules are effective from 17.01.2014 which is the date of publication of these rules in the official Gazette.
The three months notice period was due to expire on 31.3.2014 and hence these rules notified vide gazette notification dated 17.1.2014 were applicable to the applicant (Exhibit-4). It is also the stand taken by respondents in their reply that Superintending Engineer is the appointing authority for Junior Engineer and the decision to not accept the notice was taken by the Competent authority. The averment made in 4.16 of the reply reads as under:-
4.16. That the contents of para 4.16 of the OA are wrong & denied. The orders dated 28.3.2014 were passed in accordance with the rules 56 as amended vide gazette notification dated 17.1.2014 (Exhibit-5).
The orders dated 28.3.2014 clearly mentions that this issues with the approval of Superintending Engineer (HQ). Hence these orders were issued on behalf of the Appropriate Authority Competent to such orders by EE (HQ). It is pertinent to mention here that Superintending Engineer is the appointing authority for the applicant who is holding post of Junior Engineer.
As for good ground for rejection of the Applicants request of acceptance of Voluntary Retirement, it was mentioned that I am directed to convey you for non-acceptance of 3 months notice for Voluntary Retirement vide your letter dated 31.12.2013 by the Competent Authority due to Administrative reason.
The Administration reason behind that this office has written on 13.1.2014 to Vigilance Unit of CPWD for issue of Vigilance Clearance Certificate in respect to Shri Ranjit Dadlani Junior Engineer, in view of Voluntary Retirement notice of the applicant (Exhibit-6).
The Vigilance Clearance status report of vigilance unit was received through Section Officer, EC VI Section of office of DG, CPWD vide letter No. A-11014/1/2012-EC VI/241 dated 5.3.2014 (Exhibit-7).
The FIR No. C-17 (A)/96-Delhi was first registered on 9.3.96 by the CBI/ACB. The case was dismissed by the special CBI Judge IV (PC Act) CBI vide its order dated 24.05.2013 acquitting the accused Shri Ranjit Dahlani, JE (C). However, the latest status of filing the appeal in higher court may be ascertained from CBI.
Since clear-cut Vigilance Clearance was not issued by Vigilance Unit of CPWD and it was directed by them to obtain latest status of filing the appeal in higher court the voluntary retirement was refused by the Competent Authority and further correspondence was initiated for obtaining latest status of filing the appeal in higher court by CBI. In this connection copies of letter dated 20.3.14, 23.05.2014 and 29.05.2014 (Exhibit-8, 9 & 10 respectively).
It is pertinent to mention here that Voluntary Retirement was refused by the Competent Authority in accordance with Para 2 c (iii) of the gazette notification dated 17.1.2014 which mentions that it shall be open to the Appropriate Authority to withhold permission to a govt. servant who seek to retire under the clause. If judicial proceedings on charges which may amount to grave misconduct are pending vide page 94 of the OA (Exhibit-4). It is not disputed by the respondents that the applicant was acquitted in criminal case registered vide FIR No. RC-17(A)/96-Delhi on 09.03.1996, however, they expressed uncertainty regarding the status of filing of the appeal by the CBI in the matter. In view of the pleadings of the parties and respective submissions made by them, following propositions arise to be determined in the present OA:
(i) Whether the pendency of appeal against the order of acquittal can be treated as pendency of judicial proceedings; and
(ii) When it is no-where mentioned in the impugned order that the notice for VRS given by the applicant is nixed on account of pendency of criminal case, whether the same can be justified by taking such stand in the counter reply.
4. As far as the first question is concerned, the learned counsel for the applicant vehemently relied upon the judgment of Honble Andhara Pradesh High Court in the Chief Commissioner of Land Administration, A.P. Nampally Station Road, Hyderabad and another Vs. R.S. Ramakrishna Rao and Another (ibid), wherein it has been held thus:
20. Insofar as the criminal cases are concerned, the Department has got a right to file an appeal. But, it cannot be said that the judicial proceedings have not been concluded. Once the criminal court acquits the accused, it must amount to be the conclusion of the judicial proceedings in the first instance. Therefore, the appeals filed against the acquittal orders cannot be treated as continuation of criminal proceedings. The same view was taken by a Division Bench of Calcutta High Court in STATE OF WEST BENGALs case (supra) referred to above. Para 9 of the said judgment reads as under:-
The submission of Mr.Chakraborty to the effect that pendency of the appeal against acquittal will amount to continuation of the proceedings cannot be accepted. Continuation of the proceedings must relate to investigation, enquiry or trial, and such investigation, enquiry or trial, if any, have come to an end with the judgment of acquittal. The same being continuing in the instant case, is misconceived, only on the ground that an appeal there against is pending. If the respondent No.1is convicted by the Appeal Court for commission of a criminal offence, sub-rule (4) of Rule 3 of the said Rules would be attracted. Keeping in view the fact that different sub-rules of Rules 3 operative in different fields, we are of the opinion that sub-rule (3) of Rule 3 be held to be operative only in the case namely, when an investigation enquiry or trial remains pending and not or when the employee person is acquitted. The situations obtaining under different sub-rule being absolutely different, in our opinion, sub-rule (3) of Rule 3must be given a restrictive interpretation.
21. If the appeal is not in continuation of original criminal proceedings, the order of acquittal is a final order within the ambit of Rule 52 of the Pension Rules, referred to above, there is no power for the Government to withhold pension or retirement benefits. The said benefits, therefore, are liable to be paid immediately after acquittal order. As far as the aforementioned judgment is concerned, the respondent before Honble High Court was aggrieved by the act of the petitioner in not releasing pension and gratuity due to him on account of pendency of criminal appeal against the order of his acquittal. In the said case, the Honble High Court interpreted the expression of judicial proceeding used in Rule 52 (I)(a) (c) of Pension Rules, which reads as under:-
No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders.. In the said case, with the retirement of the respondents, their right for terminal benefits had been determined and the term judicial proceedings was to be interpreted with reference to the object of Rule 52. In terms of the said rule, pendency of judicial proceedings was to operate as bar in payment of gratuity and regular pension. It is not so in a case where an employee seeks to retire voluntarily under F.R. 56 K(1)(c). In terms of the said rules, the pendency of judicial proceedings is a ground to nix the notice given by an employee to retire from Government service. In the case where a Govt. servant seek to retire voluntarily, his right to receive terminal benefits would depend upon the decision of the competent authority to be taken by him in accordance with the provisions of FR 56 K(1) (c) as amended by the GSR.27 (E) notified on 17.01.2014. For easy reference, the relevant excerpt of the Notification is extracted hereinbelow:-
Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) NOTIFICATION New Delhi, the 17th January, 2014 G.S.R.27 (E).In exercise of the powers conferred by the proviso to article 309 of the Constitution and in consultation with the Comptroller and Auditor General in relation to persons serving in the Indian Audit and Accounts Department, the President hereby makes the following rule further to amend the Fundamental Rules, 1922, namely:-
(1) These rules may be called the Fundamental (First Amendment) Rules, 2014.
(2) They shall came into force on the date of their publication in the Official Gazette.
2. In the Fundament Rule, 1972, in rule 56,-
(a) in clause (k), in sub-clause (I), for item (c), the following shall be substituted namely:-
(c) it shall be open to the Appropriate Authority to withhold permission to a Government servant, who seeks to retire under this clause, if-
the Government servant is under suspension; or a charge sheet has been issued and the disciplinary proceedings are pending; or if judicial proceedings on charges which may amount to grave misconduct, are pending.
Explanation:- For the purpose of this clause, judicial proceedings shall be deemed to be pending, if a complaint or report of a police officer, of which the Magistrate takes cognizance, has been made or filed in a criminal proceedings.
(b) for clause (m), the following shall be substituted, namely:-
(iii) A Government servant in Group C post who is not governed by any pension rules, may, by giving notice of not less than three months in writing to the Appropriate Authority, retire from service after he has completed thirty years service:
Provided that it shall be open to the Appropriate Authority to withhold permission to a Government servant, who seeks to retire proceedings.
the Government servant is under suspension: or a charge sheet has been issued and the disciplinary proceedings are pending; or if judicial proceedings on charges which may amount to grave misconduct, are pending.
Explanation:- For the purpose of this clause, judicial proceedings shall be deemed to be pending, if a complaint or report of a police officer, of which the Magistrate takes cognizance, has been made or filed in a criminal proceedings. In sum and substance, when the judicial proceedings as mentioned in aforementioned Notification is a ground available to appropriate authority to nix permission to Government servant who seeks to retire under FR 56 K (I)(c), while the same used in Rule 52 of CCS (Pension Rules) operates as bar on payment of regular pension and gratuity to the concerned Government employee and may also so apply in payment of commuted value of pension also. The term judicial proceedings or for that matter any other term needs to be understood with reference to the Principles of Statutory Interpretation, i.e., extrinsic and intrinsic. One of the extrinsic principles is the object sought to be achieved by the legislation.
5. In the present case, the object sought to be achieved by notification dated 17.01.2014 is that an employee who is vulnerable to such penalty which may have effect of forfeiture of his past service, should not be allowed to get away with the benefit of service and consequently the terminal benefits. The interpretation of the expression judicial proceedings with reference to one set of rules cannot be applied while interpreting the same as used in another set of rules. Our such view is fortified by the judgment of Honble Delhi High Court in Writ Petition (C) No.13191/2009 decided on 16.09.2010 ( Lakhminder Singh Brar Vs. UOI and Ors ). In the said case, while interpreting the expression of judicial proceedings as used in Rule 69(1) (C) of CCS (Pension) Rules, Honble High Court categorically viewed that the pendency of criminal appeal against the order of acquittal of the petitioner would be continuation of judicial proceedings pending against the Government servant within the contemplation of Rule 9 of Pension Rules and it cannot be said that the pendency of the criminal appeal against the order of acquittal of the petitioner would not amount to judicial proceedings under Rule 69 read with Rule 9 of the Pension Rules. For easy reference, relevant excerpt of the judgment of Honble Delhi High Court is reproduced hereinbelow:-.
6. However, as far as the respondents are concerned, they have opposed the prayers made by the petitioner relying upon a full bench judgment of the Allahabad High Court delivered in the case of Shyam Sunder Lal Vs. Shagun Chand, AIR 1967 Allahabad 214 where relying upon a Supreme Court judgment delivered in the case of G.Veeraya Vs. Subhiah Choudhary, AIR 1957 SC 540 it was observed that even pendency of a criminal appeal is a pendency of a judicial proceedings during which the petitioner is only entitled to provisional pension in view of Rule 69 of the CCS (Pension) Rules ( for short Pension Rules) and the question of grant of regular pension would arise only after conclusion of criminal proceedings against the petitioner.
7. It would be appropriate to take note of Rule 69 of the Pension Rules which reads as under:
69. Provisional pension where departmental or judicial proceedings may be pending:-
(1) (a) In respect of a Government servant referred to in sub-rule (4) of Rule 9, the Accounts Officer shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension.
(b) The provisional pension shall be authorized by the Accounts Officer during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.
(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon:
Provided that where departmental proceedings have been instituted under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for imposing any of the penalties specified in Clauses (i), (ii) and (iv) of Rule 11 of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant.
8. At this juncture it would also be relevant to take note of Rule 9(1) and 9(4) of the Pension Rules which read as under:
9. Right of President to withhold or withdraw pension:
(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 the period of service, including service rendered upon re-employment after retirement.
(2) & (3). xxxxx (4) In case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under Sub- rule (2), a provisional pension as provided in Rule 69 shall be sanctioned.
9. It is not in dispute that provisional pension has been granted to the petitioner inasmuch as a criminal appeal filed by the respondents against the order of acquittal is pending.
10. As regards the gratuity Rule 69(c) of the Pension Rules provides that:
(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon.
11. Moreover, Rule 69(2) of the Pension Rules reads as under:
(2) Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.
12. Taking note of the aforesaid provisions, the Tribunal rightly observed that in a case where any departmental or judicial proceedings are pending against a Government servant, he would be entitled to provisional pension only to be adjusted under sub-Rule (2) of the Rule 69. The competent authority is required to pass order for regular pension only upon conclusion of these proceedings. It is, no doubt, true that the order of acquittal is final unless it is reversed in appeal. Nevertheless, an appeal against the order of acquittal would be in continuation of the judicial proceedings pending against the Government servant within the contemplation of Rule 9 of Pension Rules. It cannot be said that the pendency of the criminal appeal against the order of acquittal of the petitioner would not amount to judicial proceeding under Rule 69 read with Rule 9 of Pension Rules, notwithstanding the fact that an order of acquittal is effective and final until it is reversed in appeal. The consideration that matter in the case of suspension are different from those that may be relevant in the matter of grant of pension, be it provisional or a regular one. Grant of pension is regulated by relevant rules. As such, the cases relating to suspension as are relied upon by the petitioners counsel are distinguishable and are not of any help in so far grant of pension is concerned. From the aforementioned order of the Delhi High Court passed by their Lordships, while interpreting Rule 69 (1)(a)(c) of CCS (Pension Rules) which is pari materia to Rule 52 (I)(c) of Pension Rules interpreted by Honble Andhara Pradesh High Court in the Chief Commissioner of Land Administration, A.P. Nampally Station Road, Hyderabad and another Vs. R.S. Ramakrishna Rao and Another (ibid), it is clear that the pendency of criminal appeal is pendency of judicial proceeding.
6. In G.Veeraya Vs. N. Subhiah Choudhry (AIR 1957 SC 540) also, it could be viewed that the pendency of a criminal appeal is a pendency of judicial proceeding. Relevant excerpt of said judgment read as under:-
43. We now pass on to consider another construction of Art.133 which appears to us to be quite cogent. We have seen that Ss.109 and 110 of the Code of Civil Procedure were adapted by the President's Order and the valuation had been raised from Rs.10,000 to Rs,20,000 in order to bring it into conformity with Art.133. Clause 20 of that Adaptation Order itself provided that such adaptation would not affect the vested rights. Therefore those litigants who had a vested right of appeal from judgments, decrees or final orders of a High Court in a civil proceeding arising out of a suit or proceeding instituted prior to the Constitution and which involved a right or property valued at over Rs.10,000 but below Rs.20,000 are still to be governed by the old Sc.109 and 110. This means that the words "judgment, decree or final order "occurring in Sc.109 and 110 of the Code as adapted must be read as a judgment, decree or final order made after the date of the adaptation other than those in respect of which a vested right of appeal existed before the adaptation and which were preserved by cl.20. If Ss.109 and 110 must be read in this way why should not Art.133 be read as covering all judgments, decrees or final orders of a High Court passed after the commencement of the Constitution other than those in respect of which a vested right of appeal existed from before the Constitution? It is said that there is no saving provision to Art.133 like cl.20 of the Adaptation Order and therefore Art.133 cannot be read in a restricted way. This argument is unsound and here the observations of Rankin C.J. in the Special Bench case of Calcutta referred to above become apposite, namely, that the provision which takes away jurisdiction is itself subject to the implied saving of the litigant's right. Clause 20 will be meaningless if Art.133 is also not read in a restricted sense. This restricted construction of Art.133 will not be, open to the objection that it deprives the aggrieved litigant who had filed his suit or proceeding in a Princely State before the Constitution but against whom an adverse judgment, decree or final order has been made by the High Court of the corresponding Part B State for the Privy Council to which that litigant had the right to go had been abolished. Such a litigant had no vested right and therefore he can come under Art.133 if the conditions thereof are satisfied.
xxx xxx
47. What was claimed by the respondent was the attribute of finality attaching to the judgment, decree or final order of the Jaipur High Court. The argument was that the Jaipur High Court having given its judgment in 1949 that judgment became final and the respondent had a vested right to that final order and that right had not been taken away by the Constitution either expressly or by necessary intendment. What this Court said was that the review application having been made the appeal became pending and at large, for the judgment was under consideration and therefore no finality had attached to it before the Constitution came into force. The judgment on review was passed by the Rajasthan High Court in April 1950 that is after the Constitution by a High Court of a Part B State constituted under the Constitution and the respondent had no vested right of finality in relation to any judgment of the Rajasthan High Court. The appellant's vested right of appeal to the Privy Council of that State Came to an end as that authority was abolished & at the date of the suit he had no right of further appeal from the judgment of the Jaipur High Court to the Federal Court or to this Court. That being the position it was a judgment with respect to which nobody had any vested right of appeal and therefore, an appeal lay to this Court under Art.133 as construed above. It did not matter in that case whether the appeal was maintainable under Art.133 or Art.135 and the question that we are considering in the present appeal does not appear to have been urged by learned counsel or discussed by the court in that case and the cryptic observation quoted above cannot be taken as a considered and final expression of opinion that whenever a judgment, decree or final order is passed after the date of the Constitution it must come within Art.133 no matter whether the proceedings were instituted before or after that date. Relying upon the said judgment of Honble Supreme Court in Shyam Sunder Lal Vs. Shagun Chand (AIR 1967 Allahabad 214), Honble High Court of Allahabad viewed as under:-
19. In our view, the decision in G.Veeraya v.Subhiah Choudhry, AIR 1957 SC 540 relied upon by Beg and Tandon, JJ, in Sharafat Ullah Khans case, 1950 All LJ 644: (AIR 1959 All 416) was no authority for the view which they, in effect, expressed in that decision. In Veerayas case, AIR 1957 SC 540 their Lordships clearly pointed out that The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceedings.
We are of the opinion that the afore quoted observation of their Lordships of the Supreme Court approves, without question, the view expressed, in regard to the position of an appeal qua a suit, by the Federal Court and this Court in the cases noticed above. We have, therefore, no hesitation in holding that the defendants in the instant case could take advantage of what was provided for section 15 of U.P (Temporary) Control of Rent and Eviction Act 1947.
7. In Dhani Ram etc. Vs. Sub-Divisional Judge (AIR HP 25 (V 52 C 10), Honble Himachal Pradesh High Court viewed that according to S. 4 (M) Criminal Procedure Code, the term judicial proceedings includes any proceeding in the course of which evidence is or may be legally taken on oath. But the definition is not exhaustive as a proceeding relating to the administration of justice, or to the ascertainment of any right or liability are judicial proceedings. Relevant excerpt of the judgment reads as under:-
According to S.4 (m). Criminal Procedure Code, the term judicial proceedings includes any proceeding in the course of which evidence is or may be legally taken on oath. This definition is not exhaustive. In Queen Empress V. Tuija, ILR 12 Bom.36, it was held that an inquiry is judicial if the object of it is to determine jural relation between one person and another, or a group of persons, or between him and the community generally, but, even a Judge acting without such an object in view is not acting judiciary. In that case, the proceedings of a Sub-Registrar, relating to an inquiry for the purpose of ascertaining, whether he should register a document, presented for registration, were held not to be judicial proceedings. At page 539, Volume II, Penal Law of India, by Dr.Hari Singh Gour, Seventh Edition, it has been said that in order to be judicial, a proceeding must relate in some way to the administration of justice, or to the ascertainment of any right or liability and that all proceedings of a Judge are not necessary judicial. The judicial proceedings as defined in the Judicial Dictionary 10th Edition 1998 read as under:-
Judicial proceedings. The term has not been defined in the Himachal Pradesh At or in the Indian Penal Code. According to Section 4 (m), Cr.P.C., the term judicial proceedings includes any proceeding in the course of which evidence is or may be legally taken on oath. This definition is not exhaustive.an enquiry is judicial if the object of it is to determine jural relation between one person and another to a group of persons, or between him and the community generally, but, that even a Judge acting without such an object in view is not acting judicially. That in order to be judicial, a proceeding must relate to some way to the administration of justice or to the ascertainment of any right or liability and that all proceedings of a Judge are not necessarily judicial. (Dhani Ram v. S.D. Judge, AIR 1965 HP 25).
Judicial proceedings include any proceeding in the course of which evidence is or may be legally takes on oath. (See also Section 4 (m), Cr P.C. See also Proceedings).
Judicial proceeding. A proceeding in which judicial functions are performed and a final decision affecting either right or liability of one or the other party is given. ( Tanajirao v. H.J.Chinoy, (1969) 71 Bom LR 732).
Judicial separation. The proceeding in the divorce Court by which a separation of man from a wife is made. A decree of the Court is in the nature of a limited divorce. The marriage is not dissolved bu the parties are allowed to live separately. It is used to be called a divorce a mensa let thora (from table and bed). In the wake of aforementioned judicial pronouncement, it would be safe to conclude that no general interpretation can be attached to judicial proceedings and it needs to be understood with reference to the object of the statute or piece of legislation wherein it is used. Whether the order of acquittal passed by the Trial Court can be said to have attained finality even when there is provision for filing of the appeal.
8. In the common law tradition, an acquittal formally certifies that the accused is free from the charge of an offence, as far as the criminal law is concerned. This is so even where the prosecution has abandoned nolle prosequi. The finality of an acquittal is dependent on the jurisdiction. In some countries, like the United States, under the rules of double jeopardy and autrefois acquit operate to bar the retrial of the accused for the same evidence and circumstances. The effect of an acquittal in criminal proceedings is the same whether it results from a jury verdict, or whether it results from the operation of some other rule that discharges the accused. In other countries, the prosecuting authority may appeal against acquittal similar, like an accused may appeal against conviction. In Scotland, law has two acquittal verdicts: not guilty and not proven. However, the verdict of not proven does not give rise to the double jeopardy rule. In England and Wales, which share a common legal system, the Criminal Justice Act 2003 creates an exception to the double jeopardy rule, by providing that retrials may be ordered if new and compelling evidence comes to light after an acquittal for a serious crime. Also the Criminal Procedure and Investigations Act 1996 permits a tainted acquittal to be set aside in the circumstances where it is proved that the same has been obtained by violence or threats of violence to a witness or juror with one exception in the United States where acquittal cannot be appealed by the prosecution because of constitutional prohibitions against double jeopardy. The U.S. Supreme Court has ruled:-
If the judgment is upon an acquittal, the defendant, indeed, will not seek to have it reversed, and the government cannot (U.S. V.Sanges (144 U.S.310 (1892) A verdict of acquittal is a bar to a subsequent prosecution for the same offence (Ball v. U.S. (163 US 662 671, 672 (1896)). Society awareness for heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness to limit the Government to vindicate its very vital interest in enforcement of criminal laws. (United States V. John (US 470 489 (1971). While the trial is to jury or to the Bench, it subjects the defendant to post acquittal fact finding proceedings (Smalis V Pennsylvania (476 U.S.140 (1986).
9. Nevertheless in the present case, on the date of notice of VRS as also on the date of expiry of notice, no cognizance of the criminal appeal filed against the acquittal of the applicant had been taken. It is not disputed by the learned counsel for respondents that the criminal LP filed vide Dy.No 22179/2014 has not been taken cognizance of as yet. Mere putting of papers in the course of scrutiny by the Registry of Honble High Court for being scrutinized before being placed before the Honble Bench for consideration cannot be treated as pendency of judicial proceedings. Only such proceedings which are pending before Judge for determination of legal rights or judicial ascertainment can be considered as judicial proceedings. Thus, we have no hesitation in arriving at a conclusion that during the relevant period no judicial proceedings were pending against the applicant. Besides, even the respondents also did not nix the notice of the applicant for VRS on the ground of pendency of criminal appeal but they refused to accept the same due to administrative reason. Once the pendency of judicial proceedings is not the ground taken in the impugned order, the same cannot be espoused by the respondents in their counter reply to supplement the impugned order. It is settled position of law that the decision of the executive need to be examined with reference to the reasons contained therein and not with reference to the reasons stated in the affidavit in the judicial proceedings. In this regard, we may refer to the judgment of Honble Supreme Court in Mohinder Singh Gill Vs. Chief Elections Commissioner and Ors (1978 (1) SCC 405), relevant excerpt of which read as under:-
8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji.
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in has mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
10. As far as the communication of the decision of not accepting the notice of VSR by incompetent authority is concerned, the learned counsel for the applicant relied upon the judgment of Honble Supreme Court in the case of B.J.Shelat Vs. State of Gujarat and Others (ibid). We find that in the said case, Honble Supreme Court ruled that the decision to withhold the permission to retire voluntarily should not only be taken but should also be communicated to the Government servant. From the said judgment, we do not find that the communication of decision should also be by the competent authority. Rather in the said case, Honble Supreme Court ruled that the right to retire from service voluntarily is not an absolute right and it is incumbent on the appointing authority to withdraw the permission to retire on the conditions mentioned in the proviso. Para 10 of the judgment reads as under:-
10. It will be useful to refer to the analogous provision in the Fundamental Rules issued by the Government of India applicable to the Central Government servants. Fundamental Rule 56 (a) provides that except as otherwise provided in this Rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. Fundamental Rule 56 (j) is similar to R. 161 (aa) (1) of the Bombay Civil Services Rules conferring an absolute right on the appropriate authority to retire a Government servant by giving not less than three months' notice. Under Fundamental Rule 56 (k) the Government servant is entitled to retire from service after he has attained the age of fifty-five years by giving notice of not less than three months in writing to the appropriate authority on attaining the age specified. But proviso (b) to sub-r. 56 (k) states that it is open to the appropriate authority to withhold permission to a Government servant under suspension who seeks to retire under this clause. Thus under the Fundamental Rules issued by the Government of India also the right of the Government servant to retire is not an absolute right but is subject to the proviso whereunder the appropriate authority may withhold permission to a Government servant under suspension. On a consideration of R. 161 (2) (ii) and the proviso, we are satisfied that it is incumbent on the Government to communicate to the Government servant its decision to withhold permission to retire on one of the grounds specified in the proviso. However in OA 1600/2009 decided on 4.08.2010, a Division Bench of this Tribunal ruled that the notice for VRS could be nixed only if the Government servant was under suspension and not even in a case where the chargesheet was pending against him. Para 7 of the order reads as under:-
7. It is not in dispute that the applicant was not under suspension on the date he gave his application for voluntary retirement. He has also attained the age of 50 years. We cannot read anything beyond what is written in the statutory rules. If the rule provides that permission for voluntary retirement can be withheld to a Government servant who is under suspension, it cannot be read to mean that it can be withheld even if a department inquiry is pending against the Government servant on serious charges. Such provision does not exist in FR 56 (k) (I) and therefore, we are of the considered opinion that the action of the Respondents in rejecting the notice under FR 56 (k) (i) for voluntary retirement on the ground that a departmental inquiry is pending against the applicant on serious charges is not in consonance with the FR 56 (k) (I). The impugned order dated 12.05.2009 (Annex A1) is quashed and set aside. We hold that the applicant stood retired with effect from 12.05.2009. The Respondents are directed to issue an order to this effect within fifteen days of the receipt of a certified copy of this order. In view of the law declared by Honble Supreme Court in the case of SI Roop Lal and Anr. Vs. Lt. Governor through Chief Secretary, Delhi and Ors (2000) 1 SCC 644), a Bench of this Tribunal should not disregard the view taken by the coordinate Bench of equal strength and when it hold a different view, the proper course is to refer the matter to a larger Bench. We do not find any reason to take a view different from the one taken by the division Bench in OA No. 1600/2009. The relevant excerpt of the judgment of Honble Supreme Court in SI Roop Lal and Anothers case ( ibid) reads as under:-
12. At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Bench of the tribunal has overruled, in effect, an earlier judgment of another Coordinate Bench of the same tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate Court is bound by the enunciation of law made by the superior Courts. A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement. This Court in the case of Tribhuivandas Purshottamdas Thakur v. Ratilal Motilal Patel, (1968) 1 SCR 455 : (AIR 1968 SC 372) while dealing with a case in which a Judge of the High Court had failed to follow the earlier judgment of a larger Bench of the same Court observed thus :-
"The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J. in Pinjare Karimbhai's case (1962 (3) Guj LR 529) and of Macleod, C.J., in Haridas's case (AIR 1922 Bom 149) did not lay down the correct law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of coordinate authority or of superior authority. Gajendragadkar, C. J. observed in Lala Bhagwan v. Ram Chand.
"It is hardly necessary to emphasis that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be re-considered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety."
It is not the case of respondents that during the relevant period the applicant was under suspension. It is also not so that the competent authority nixed the notice on the grounds of pendency of judicial proceedings.
11. In view of the aforementioned, impugned order is quashed and the matter is remitted back to the competent authority to reconsider the VRS notice of the applicant as on 28.03.2014, within four weeks. The fresh decision to be taken by the competent authority would be effective from the date it is taken. No costs.
(V.N.Gaur) (A.K.Bhardwaj) Member (A) Member (J) sk ..