Central Administrative Tribunal - Bangalore
B A Lakshman Kumar vs Union Public Service Commission on 6 December, 2022
1 OA No.23/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00
NO.170/00023/2021
ORDER RESERVED ON : 04.11.2022
DATE OF ORDER : 06.12.2022
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Mr.B.Lakshman Kumar,
Aged about 67 years,
S/o Late Sri M.Arasappa,
Superintendent of Central Tax (Retd),
Chikki, 3944, 17th E Cross B.S.K.II stage,
Bengaluru - 560 070. ...Applicant
(By Advocte Shri Saurabh R.K.)
Vs.
1. The Union of India,
Through its Secretary,
Ministry of Finance,
Department of Revenue,
New Delhi -110 066.
2. The Union Public Service Commission,
Through its Secretary,
Dholpur House,
Shahjahan Road,
New Delhi -110 066. ....Respondents
(By Advocate Shri Vishnu Bhat for Respondent No.1 and Shri
M.Rajakumar for Respondent No.2).
2 OA No.23/2021
ORDER
Per: Justice S.Sujatha ...........Member(J)
The applicant has assailed the Order No.24/2020 dated 09.11.2020 passed by the 1st Respondent (Annexure A1) inter alia seeking restoration of his pension and gratuity benefits.
2. The applicant while working as Superintendent of Customs, Postal Appraisal Dep Department, artment, Museum Road, Bengaluru, during 02.07.2008 to 17.10.2008 was accused of demanding a bribe of Rs.3000/-, Rs.3000/ on the compliant made by one Mr. Mueen Farooq Hussain regarding the international parcel, pursuant to which CBI inquiry was initiated. A memo of charge dated 06.10.2010 was issued by the 1st Respondent. Parallelly, Parallelly, the applicant was prosecuted for certain alleged criminal offences and a case was registered before the Special Judge for CBI cases in Spl C.C.No.14/2009. The applicant retired on attaining the age 3 OA No.23/2021 of superannuation superannuation on 31.03.2013, by then, no disciplinary proceedings were concluded. The criminal proceedings culminated in an order of conviction against which the applicant has preferred an appeal [Crl. Appeal No.905/2014] before the Hon'ble High Court of Karna Karnataka taka and the matter is still pending.
pending The order of sentence has been stayed by the Hon'ble High Court in terms of the order dated 21.10.2014.
3. In pursuance to the conviction order passed in Spl.C.C. No14/2009, the 1st Respondent issued a show ccause notice tice dated 05/15.06.2017; the 2nd Respondent issued advice to th thee Respondent No.1 recommending of withholding 100% monthly pension otherwise admissible to the applicant on permanent basis and further the gratuity admissible to the applicant also to be withheld on permanent basis. The said recommendation of the 2nd Respondent was forwarded to the applicant, to which reply was filed by the applicant. Subsequent to which the order dated 09.11.2020 impugned 4 OA No.23/2021 herein, has been passed imposing penalty of withholding of 100% 00% of the monthly pension, otherwise admissible to CO, on a permanent basis and further the entire gratuity admissible to CO may also be withheld on permanent basis. Being aggrieved ggrieved by the said order, the applicant has preferred this OA.
4. A detailed reply statement has been filed by the respondents. The gist of the reply statement is that CBI, Bengaluru has registered a case against the applicant under Section 7 of Prevention of Corruption Act, 1988, (PC Act for short) having got him red-handed handed while accepting bribe amount of Rs.3000/-
Rs.3000/ from Shri Mueen Farooq Hussain for release of a consignment parcel. The Commissioner of Service Tax, Bengaluru instituted major penalty proceedings against the applicant under Rule 14 of CCS (CCA) Rul Rules, es, 1965. Inn the criminal proceedings initiated by the CBI before the jurisdictional court, XXI Addl City Civil and Session 5 OA No.23/2021 (Special) Judge for CBI case, Ben Bengaluru, galuru, in Spl. C.C. No.14/2009, the applicant has h been convicted and directed to undergo simple imprisonment of one year and was directed to pay a fine of Rs.1000/- and in default of payment of fine, he shall undergo simple imprisonment of one month. The applicant was also convicted for the offence punishable under Section 13(1)(d) read with Section 13(2) of PC Act and directed to undergo simple imprisonment of one year six months and has been directed to pay a fine of Rs.2000/ Rs.2000/-,, in default of payment of fine, he was directed to undergo simple imprisonment for two months. Consequent to conviction order passed by CBI Court, the competent authority preferred to proceed proceed under Rule 19(i) of the CCS (CCA) Rules, 1965. A show cause notice dated 15.06.2017 was issued as to why the penalty of withholding of entire amount of monthly pension admissible to him on a permanent basis and withholding of entire amount of gratui gratuity, may not be imposed on him on the basis of grave misconduct which led to his 6 OA No.23/2021 conviction by the competent court under Section 7 and 13(1)(d) read with Section 13(2) of PC Act. No representation was submitted in response to the said show cause notice by the applicant. The case was then referred to UPSC for its advice, advice, after taking approval of competent authority. The UPSC advised that the ends of justice would ould be met in this case, case if penalty of withholding of 100% monthly pension otherwise admiss admissible ible to the applicant be imposed on him on permanent basis and further the entire gratuity admissible to him, may also be withheld on permanent basis. The copy of the said advice was forwarded to the applicant for making his representation. Accordingly, y, the applicant submitted the representation. After careful consideration of the representation submitted by the applicant, the competent authority vide order dated 09.11.2020 decided to impose the penalty, impugned herein. The Competent Authority after after due deliberation preferred to proceed further on the basis of the conviction of the applicant 7 OA No.23/2021 in criminal proceedings as per Rule 19 of CCS (CCA) Rules, 1965.
5. Rejoinder ejoinder has been filed by the applicant contending that the proceedings under Rule 19 of CCS (CCA) Rules, 1965 are in relation to the Government servant servant,, the same does not apply to a pensioner. Invoking of Rule 19 of CCS (CCA) Rules, 1965 abandoning the disciplinary inquiry is unjustifiable and the said proceedings cannot over overturn the restriction of invoking Rule 9 of the CCS (Pension (Pension) Rules, 1972 ('Rules, 1972' for short) within four years of occurrence of the event. The substantial right vested with the applicant has been taken away by initiating proceedings under Rule 19 of CCS (CCA) Rules, 1965 1965, that too during the pendency of statutory appeal before the Hon'ble High Court of Karnataka, Karnataka abandoning the inquiry process solely relying on the criminal conviction. The respondents ought to have awaited the decision of the th statu statutory appeal.
8 OA No.23/2021
6. The learned Counsel Mr.Saurabh R.K., representing the applicant inviting the attention of the Bench to the order passed by the Hon'ble High Court of Karnataka in the case of Shri N.K.Suparna vs. Union of India reported in ILR 2004 KAR 4628, 4628, submitted that the issue involved herein is squarely covered by the said decision. Further, drawing the attention of the Bench to Clause (b) of Sub-Rule-(1) of Rule 69 of the Rules, 1972 argued that final order under Rule 9(1) of Rules, 1972 is required required to be passed by the President of India only after the conclusion of the departmental or judicial proceedings. During the pendency of the statutory appeal before the Hon'ble High Court, no order under Rule 9(1) of the Rules, 1972 would have been passe passed, more particularly, where the Hon'ble High Court has stayed the order of sentence, considering the facts and circumstances of the case.
9 OA No.23/2021
7. The learned Counsel Shri Vishnu Bhat representing the respondents placing reliance on the judgment of the Hon'ble Apex Court in the case of K.C.Sareen vs. CBI, Chandigarh reported in (2001) 6 SCC 584 submitted that merely because the order of sentence is stayed by Hon'ble High Court, the applicant is not entitled to the relief claimed. C Conviction onviction of the offence under the PC Act continues continues, itt is a different matter if the order of conviction is suspended by the appellate court during the pendency of the sta statutory appeal. The decision in K.C.Sareen's case was not brought to the notice of the Hon'ble High Court while disposing of Shri N.K.Suparna's case (supra).
N.K.Suparna's The power conferred under Rule 9 of the Rules, 1972 on the President of India cannot be curtailed merely for the reason of statutory appeal filed against the conviction order by the applicant referring to Sub Sub--
Rule-((1) of Rule 69. If such an interpretation is given, the public servant who is convicted of corruption charges would enjoy all the the retirement benefits until the disposal of 10 OA No.23/2021 appeal/review before the higher courts resulting in sublime of public policy.
8. We have carefully considered the rival submissions made by the learned Counsel for the parties and perused the material on record.
9. The factual aspects of the matter are not disputed. The core question that arises for our consideration is, in the circumstances of conviction order made in a criminal case for the alleged offences under the PC Act and an appeal pending before the Hon'ble High Court against the said judgment of conviction order of the CBI Court in criminal case, (1) whether the entitlement of the applicant to receive the provisional pension in terms of Rule 69 of the Rules, 1972 could be limited by invoking the powers under Rule 9(1) of Rules, 1972 by the President of India.
11 OA No.23/2021
(2) whether invoking
i of Rule 19(1) of the Rules 1965
pursuant to conviction order passed by a competent court is justifiable?
10. It is beneficial to refer to Rule 19(1) of the Rules 1965 and Rules Rule 9(i) and 69(1)(b) of the Rules, 1972 and the same are quoted hereunder for ready reference. Rule 19(i) of the Rules 1965 Special Procedure in certain cases. Notwithstanding anything contained in Rule 14 and 18 18--
(i) Where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or
(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably pract practicable icable to hold an inquiry in the manner provided in these rules, or
(iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules,
(iv) the disciplinary authority ty may consider the circumstances of the case and make such orders thereon as it deems fit:
(v) Provided that the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case uunder clause (i):
(vi) Provided further that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule.12 OA No.23/2021
Rule 9(1) of the Rules, 1972 Right of President to withhold or withdraw pension (1) 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 gratuigratuity ty 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 re ment after retirement:"
"Rule 69(1)(b) of the Rules 1972 1972:
Provisional pension where departmental or judicial proceedings may be pending.
The provisional pension shall be authorized by the accounts officer during the period commencing from the date of retirement upto and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority."
Considering these Rules, the Hon'ble High court of Karnataka in Shri N.K.Suprana's (supra), case has ruled thus:
"8. ....................
The provision of Clause (b) is quite clear, plain, unambiguous and does not admit more than one meaning. Clause (b) in unmistakable terms directs that a delinquent employee will be entitled to provisional pension from the date of retirement upto and including including the date on which the final order that may be made by the competent authority, after the conclusion of the 13 OA No.23/2021 departmental or judicial proceedings. The key words for our purpose are 'after the conclusion of departmental or judicial proceedings'. The interpretation interpretation suggested by the learned CGSC for the department is not acceptable to us for more than one reason. It is well settled that the appeal is a continuation of the original proceedings. Since the petitioner being aggrieved by the judgment and order of the CBI Court has preferred appeal to this Court and the same is pending, we have to necessarily hold that the proceedings are pending. Undoubtedly, the pendency of the appeal in this Court is a judicial proceedings. It also needs to be noticed that the final final order envisaged under Rule 9(1) of the Rules in terms of Clause (b) of Sub Sub-rule rule (1) of Rule 69 of the Rules is required to be passed by the President of India only after the conclusion of the departmental or judicial proceedings. In the instant case, since the judicial proceedings, we mean the launching of the prosecution against the petitioner have not been concluded so far in terms of finality, the President of India invoking the power conferred upon him under sub sub-rule rule (1) of Rule 9 would not arise. Therefore, the impugned order passed by the President of India in the purported exercise of power under Rule 9(1) of the Rules should be condemned as one without authority of law inasmuch as the necessary condition to invoke that power did not exist as on the date of the impugned order nor does it exist as on today also.
9. This takes us to the next question whether the President of India is justified in forfeiting the gratuity payable to the petitioner? In terms of Clause (c) of SubSub-rule rule (1) of Rule 69 of the Rules, the petitioner is not entitled to be paid gratuity inasmuch as judicial proceedings are pending and the petitioner has been convicted and sentenced by the original Court. However, we hasten to add that the President of India ought to have awaited awaited the result of the appeal pending before this Court or in the event of further appeal to the Apex Court till the result of such appeal before passing final order in exercise of the power conferred upon him in Sub-rule Sub rule (1) of Rule 9 of the Rules.
Without awaiting awaiting for the finality of the proceedings, the President of India has issued the order forfeiting the gratuity also. The only thing he could have done under the circumstances is that he ought to have deferred the payment of gratuity. We clarify this posi position and direct accordingly."14 OA No.23/2021
11. It is apparent that the judgment of the Hon'ble Apex Court in Shri K.C.Sareen (Supra) was not brought to the notice to the Hon'ble High Court. The Hon'ble Apex Court in K.C.Sareen (supra) has observed thus:
"The legal position, therefore, is this: Though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction the court should not suspend the operation of the order of conviction. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position that we have to examine the question as to what should be the position when a public servant is convicted of an offence under the PC Act.. No doubt when the appellate court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act,, the superior court should normally suspend the sentence ooff imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act,, de hors the sentence of imprisonment as a sequel thereto, is a different matter.
Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum 15 OA No.23/2021 to cripple the social order if such men are allowed to continue to manage and operate public public institutions. When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact tha thatt an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entit entitled led to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction it is public interest which suffers and sometimes even irreparably. When a public servant who who is convicted of corruption is allowed to continue to hold public office it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction conviction the fall out would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only public office until he is exonerated after conducting a judicial adjudication adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction.
conviction."
Accordingly the Hon'ble Apex Court dismissed the said appeal filed by the public servant obser observing ving that it is open to the appellant therein to move the Hon'ble High Court for early hearing.
16 OA No.23/2021
12. In the case of P.C.Misra Danics /Joint Direct (Retd) vs. Union of India others - W.P. (C) No.12470/2018, dated 26.11.2018, the Hon'ble High Court of Delhi observed thus:
"30.
30. The decision in N.K. Suparna (supra) was assailed before the Supreme Court. The SLP was, however, withdrawn by the petitioner on 20.08.2008. Thus, the issue decided by the Karnataka High High Court in N.K. Suparna (supra) has not received the seal of approval of the Supreme Court.
31. Having given our anxious consideration to the matter, we cannot persuade ourselves to agree with the view taken by the Karnataka High Court in N.K. Suparna (su (supra).
pra). Under clause (b) of Rule 69(1), the relevant expression used is "from the date of retirement upto and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority". Pert Pertinently, inently, while making the said rule by resort to proviso to Article 309 of the Constitution of India, the President uses the expression "final"
only once i.e. in relation to orders which are passed by the competent authority. However, no such word or expression is used before the word "conclusion of departmental or judicial proceedings". If the intendment of the President - while framing the said rule was to release provisional pension to the government servant servant upto the date of "final" conclusion of departmental or judicial proceedings, the President would have used the said expression "final" before the words "conclusion of departmental or judicial proceedings", just as he used the expression "final" in respect respect of the orders to be passed by the competent authority. Thus, the plain grammatical and literal interpretation of clause (b) of Rule 69(1) does not support the interpretation that the conclusion of departmental or judicial proceedings means the "final"
"final" conclusion of departmental or judicial proceedings.
32. Rule 69(2), inter alia, provides that no recovery shall be made from the provisional pension after the conclusion of the proceedings if the pension finally sanctioned is less than the 17 OA No.23/2021 provisional pension, pension, or the pension is reduced or withheld either permanently, or for a specified period. Thus, whatever is released by way of provisional pension to the government is not secured or recoverable from him. Rule 69(1)(a) provides that the provisional pension pension shall be equal to the maximum pension which would have been admissible on the basis of the qualifying service of the government servant. Thus, if the interpretation sought to be advanced by the petitioner were to be accepted, it would mean that the government government would have to pay - month after month, the provisional pension, which - in most cases would be equal to the full pension, even though the government servant stands convicted by the Trial Court of conduct which tantamount to a serious and grave misconduct, misconduct, merely because his criminal appeal is pending before the higher Court. This could not have been the intendment of the President while framing either Rule 69(1)(b), or Rule 9(1) of the Pension Rules.
33. The decision in the appeal may not come for yeyears ars for myriad reasons. Firstly, the heavy pendency of criminal appeals would come in the way of disposal of the appeal on an early date. Secondly, even the Government servant/ appellant may seek adjournments to delay the disposal of the appeal. Is it to be accepted that a government servant - who stands convicted of a corruption charge before a criminal Court, should continue to receive provisional pension, just as good as the full pension, only on account of pendency of his criminal appeal? In our view, the answer to this question has to be an emphatic "No".
34. If the interpretation of the petitioner were to be accepted, the conviction would not attain finality even for purposes of Rule 19 of the CCS (CCA) Rules, or Rule 9 of the Pension Rules even after dismissal of the Criminal Appeal, because the petitioner would still have a right to prefer a Special Leave Petition under Article 136 of the Constitution of India before the Supreme Court. There would be no end to this process as the petitioner could file one petition after another and seek review, recall, or even file a curative petition. Pertinently, the conviction of the petitioner has not been stayed by the appellate court and only his sentence has been been suspended. Therefore, for all purposes, he is a convict. To permit such a convict to draw provisional pension - which in most cases would be equal to the full pension, would be 18 OA No.23/2021 to make a mockery of the law. The same would mean that despite his conviction conviction by the criminal court involving a serious and grave case of misconduct, he would get away without any adversity, and would continue to remain a burden on the State. Thus, in our view, for purposes of Rules 9(1) and 69(1)(b) of the Pension Rules, the judicial judicial proceedings have attained conclusion upon the conviction of the petitioner by the trial Court, and the competent authority is entitled to pass final orders for withdrawing the whole or part of the pension permanently or for a specified period; for forfeiture forfeiture of the Gratuity, and; for ordering recovery of the pecuniary loss caused to the government due to the grave misconduct established in the judicial proceedings.
35. The decision in K.C. Sareen (supra) was not brought to the notice of the Karnataka High High Court when it decided N.K. Suparna (supra). The Punjab & Haryana High Court in Central Administrative Tribunal, Chandigarh Bench (supra), primarily, relies upon N.K. Suparna (supra) and Akhtari Bi (supra). Unfortunately, the decision of the Supreme Cou Court rt in K.C. Sareen (supra) was not noticed even by the Punjab and Haryana High Court Bench while rendering its decision.
decision."
13. The Hon'ble High Court of Delhi in the case of S.P.Mishra vs. Union of India and Anr. - W.P. (C) No.13056/2018 dated 07.12.2018 has held that:
"9. In the present case, the conviction of the petitioner has not been suspended.
10. Thus, in view of our judgment in P.C. Misra (Supra), we are of the view that for purpose of passing orders under Rule 19 (i) of the CCS (CCA) Rules, or Rule 9 of the Pension Rules - as the case may be, the conviction of the government servant in respec respectt of an offence which also tantamount to misconduct, is sufficient, 19 OA No.23/2021 and the pendency of the criminal appeal before the appellate Court is not an impediment to passing of an order under the above provisions. Mere filing of an appeal against conviction does not automatically stay the conviction."
14. CAT, Cuttack Bench, in OA No.612/2015 considering the issue involved herein including Shri N.K.Suparna's 's case, held that the pendency of judicial proceedings in Hon'ble High Court cannot have any effect on the decision taken by respondents following conviction by trial court. However, observed observ that depending upon the outcome of the pending appeal before before the Hon'ble High Court, the applicant shall have liberty to seek his remedies in accordance with law.
15. The CAT, Jodhpur Bench in the order dated 16.09.2019 in OA No.290/00367/2017 has referred to para 30 and 31 of the judgment of Hon'ble High Court of Delhi in the case of P.C.Misra (supra).. Further it is observed as under: 20 OA No.23/2021
"A Coordinate Bench of this Tribunal at Bangalore in the case of D.Mariswamy Gowda vs. Regional Provident Fund Commissioner, 2004(2) SLJ 88 CAT, dated 28.3.2003, has also considered the similar controversy in the following manner:
considered manner:-
"5. The contention raised by the learned Counsel for the applicant that once a sentence is suspended and/or the accused is released on bail, there is no final order of the Criminal Court, does not hold ld the field for the reason that the Hon'ble Supreme Court in Deputy Director of Collegiate Education (Admn.) Madras v. S. Nagoor Meera, (1995) 3 SCC 377=1995(2) SLJ 89 (SC) in the context of second proviso to Article 311(2) of the Constitution, which is iin n pari materia with Rule 15 of the EPF Staff (CCA) Rules held that: "this clause, it is relevant to notice, speaks of 'conduct which led to his conviction on a criminal charge'. It does not speak of sentence or punishment awarded. Merely because the senten sentence ce is suspended and/or the accused is released on bail, the conviction does not cease to be operative." After considering the judgment in the case Rama Narang v. Ramesh Narang, (1995) 2 SCC 513, the Hon'ble Supreme Court held that: "We are, therefore, of the opinion, that taking proceedings for and passing orders of dismissal, removal or reduction in rank of a Government servant who has been convicted by a Criminal Court is not barred merely because the sentence or order is suspended by the Appellate Cour Courtt or on the ground that the 21 OA No.23/2021 said Government servant accused has been released on bail pending the appeal."
6. In Paragraphs 9 and 10 the Hon'ble Supreme Court further held as under:
"......It should be remembered that the action under Clause
(a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311(2). As held by this Court in Shankar Das v.Union of India (1985) 2 SC SCC C 358: 'Clause (a) of the second proviso to Article 311(2) of the Constitution, confers on the Government the power to dismiss a person from service 'on the ground of conduct which has led to his conviction on a criminal charge'. But that power like every other power has to be exercised fairly, justly and reasonably.
Surely, the Constitution does not contemplate that a Government servant who is convicted for parking his scooter in a no-parking parking area should be dismissed from service. He may, perhaps, not be eentitled ntitled to be heard on the question of penalty since Clause (a) of the second proviso to Article 311 (2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly." . 22 OA No.23/2021
10. What is really relevant thus is the conduct of the Government servant which has led to his conviction on a criminal charge. Now, in this ca case, se, the respondent has been found guilty of corruption by a Criminal Court. Until the said conviction is set aside by the appellate or other higher Court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal oorr other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice." The aforementioned law so laid down by the Hon'ble Supreme Court squarely applies to the facts of the present case. The contentions raised by the applic applicant ant are not tenable.
The applicant was afforded opportunity of hearing vide show cause notice dated 18.12.2000. There is no illegality or arbitrariness in passing the order of dismissal dated 30.3.2001. The Hon'ble Supreme Court in the aforementioned case of S. Nagoor Meera has specifically held that if the said conviction is set aside by the appellate or other higher Court, the matter can always be reviewed in such manner that the delinquent official suffers no prejudice. The appellate order dated 18.1.20 18.1.2002, 02, as extracted hereinabove, is a detailed and speaking and well reasoned order. In our considered view having regard to the aforesaid law laid down by the Hon'ble Supreme Court in Tulsiram Patel as well as S. Nagoor Meera (supra) cases there is no 23 OA No.23/2021 illegality, lity, arbitrariness or infirmity in the orders dated 30.3.2001 as well as 18.1.2002.
7. In view of the findings recorded hereinabove the present O.A. is dismissed under the provisions of the Section 19(3) of the A.T. Act at the stage of admission itself. No costs.
11. In the instant OA, the applicant is seeking provisional pension on the ground that the appeal filed before the Rajasthan High Court being SB Criminal Appeal No.97/2003 is pending. In the said appeal vide order dated 27.1.2003, the Hon'ble High Court had admitted admitted the appeal and suspended the sentence awarded to the applicant. It is settled law that mere filing of an appeal and stay of execution of the sentence does not take away the effect of conviction. Unless the appeal is allowed and the conviction is set-aside set aside by the appellate court, the Disciplinary Authority can proceed with the imposition of penalty. The Disciplinary Authority has applied its mind, considered the points raised by the applicant in his representation against show show--
cause notice and after considering considering the conduct of the applicant which led to his conviction on a criminal charge, has arrived at the conclusion that the said conduct was such as to render the further retention of the applicant undesirable in the public service. It cannot, therefore, therefore, be said that the order of dismissal was passed by the Disciplinary Authority without applying its mind to the nature of the conduct of the applicant which led to his conviction on a criminal charge and which has rendered him 24 OA No.23/2021 undesirable to be retained in service. The Disciplinary Authority also took into consideration the plea of the applicant with regard to imposition of penalty on the basis of his conviction. It is also clear that the order of the Disciplinary Authority and Revising Authority has already already been upheld by this Tribunal and also by the Hon'ble High Court.
16. The Hon'ble High of Gujarat referring to P.C.Misra (supra) has dismissed the Special Civil Application No. 10336 of 2019 (DD 09.06.2022 09.06.2022), (Kishorbhai Nanjibhai hai Patel vs. State of Gujarat) whereby the challenge was made to the order of withholding provisional gratuity and provisional pension owing to the conviction order passed by the Sessions Court challenged in Appeal before the Hon'ble High Court of Gujarat. The said criminal appeal, was admitted and the sentence of the trial court was suspended by the Hon'ble High Court. In such circumstances, considering the judgment of the Hon'ble Apex Court in K.C.Sareen (Supra) observed that the same was not noticed in the case 25 OA No.23/2021 of N.K.Suparna (supra) accordingly, dismissed the Special Civil Application.
App
17. In a recent judgment of the Hon'ble Apex Court in the case of Secretary, Local Self Government Department and ors. Vs. K.Chandran Etc. in Civil appeal Nos.7437 Nos.7437-7438 of 2021 (DD D 15.03.2022), the Hon'ble Apex Court while examining the challenge made to the Full Bench judgment of Hon'ble Kerala High Court as to the entitlement of an employee to the release of his Death Death-Cum-Retirement Retirement Gratuity (DCRG) during the pendency of an appe appeal al before the High Court on the conviction in a criminal case for violation of integrity norms for performance of official duties has held thus:
"39. We also believe that it is a very restrictive view to disburse DCRG on account of the proceedings against a pensioner coming to an end, even where a conviction has arisen. This is especially so where the convicted person has availed of the remedy of appeal. An appeal is a continuation of the proceedings in trial and would be, thus, a continuation of judicial pproceedings.
roceedings. For example, if no appeal had been filed, can it be said that despite conviction in the criminal case, the State is without authority of 26 OA No.23/2021 forfeiting the DCRG or pension for that matter? If it is not so, as we believe, then the pendency of the ap appeal peal cannot disentitle the State from withholding the DCRG, considering that it is a hiatus period within which certain arrangements have to be made which would be dependent on the outcome of the appeal.
40. Learned counsel for the respondent did seek to ccontend ontend before us that if the appeals are pending over a long period of time it should not prejudice the respondents. That is a matter for them to take up before the High Court for disposal of the appeals, which are undoubtedly quite old.
41. We have aforesaid also clarified that there is no question of any other departmental proceedings arising independently against the respondents, as the conclusion of the criminal proceedings would entitle the State to pass appropriate orders based solely on the result result of the aforesaid proceedings.
proceedings."
Conclusion:
42. We are, thus, of the view that the impugned judgment of the Full Bench of the Kerala High Court cannot be sustained, and it cannot be opined that the DCRG would have to be released to the respondents pending pending consideration of the criminal appeal.
43. The impugned judgment is set aside and the appeals are accordingly allowed leaving the parties to bear their own costs.
18. In V.K.Bhaskar vs. Union of India and others in OA No.1184/1987 dated 25.07.1991 by CAT, Principal Bench, the employee had been dismissed from service by resorting to Rule 19(i) of CCS (CCA) Rules pursuant to his conviction in the corruption case. The Tribunal has allowed 27 OA No.23/2021 the OA on the ground that the appeal against conviction was pending.
ending. The Hon'ble Apex Court setting aside the said order observed thus:
"5. The Tribunal was, therefore, not right in holding that the respondent could not be dismissed by invoking the provision of Rule 19(i) of the Rules because the appeal filed by hhim im against the conviction and sentence is pending in the High Court."
Rule 9 of the Pension Rules 1972 being framed by the President, the same has statutory force in terms of proviso to Article 309 of the Constitution of India.
19. In OM dated 21.07.2016 issued by the Government of India, clarification has been issued in this regard it is stated as under:
regard, "10. In many cases Government servants who have been found guilty by lower courts and have filed appeals in higher courts represent for reinstatement/ setting aside the penalty imposed under Rule 19(i) of the CCS (CCA) Rules, 1965. In such cases, the following observations 2001 of the Hon'ble Supreme Court in K.C. Sareen vs C.B.I., Chandigarh, (6) SCC 584 are to be kept in view:
When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated exonerated by a superior court. The mere fact that an appellate or revisional forum has decided 28 OA No.23/2021 to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold findings.
public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction it is public interest which suffers and sometimes sometimes even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office it impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the peo people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account account of the suspension of the conviction the fall out would be one of shaking the system itself.
11. Thus action against a convicted Government servant should be taken straight away under Rule 19(1). An appeal against the conviction or even a stay on the sentence will have no effect unless the conviction itself is stayed.
12. In view of the law laid down in various judgjudgements, including the ones quoted above, in cases of serious charges of misconduct, particularly involving moral tur turpitude, the Ministries/Departments /Departments should keep the following points in in view to take prompt action:
(i) All incriminating documents should be seized promptly to avoid their tempering or destruction of evidence.
(ii) Particular care needs to be taken for retention of copies of such documents while handing over the same to an investigating agency. These documents may be attested after comparison with the originals.
(iii)In case the documents have been filed in a court, certified copies of documents may be obtained.29 OA No.23/2021
(iv)Documentss and other evidence must be examined to
(iv)Document see whether any misconduct, including favour, harassment, negligence or violation of rules/instructions has been committed. If there is a prima facie evidence of misconduct, charge sheet under the appropriate rule m must be issued.
(v) Court judgements should be promptly acted upon:
(a) in cases of conviction action is to be taken under Rule 19(i) of the CCS (CCA) Rules, 1965;
(b) in cases of acquittal also, if the Court has not acquitted the accused honourably, charge charge sheet may be issued;
(c) an acquittal on technical grounds or where a benefit of doubt has been given to the accused will have no effect on a penalty imposed under CCS (CCA) Rules, 1965, as while in a criminal trial the charge has to be proved beyond reasonable doubt, in the departmental inquiry the standard of evidence is preponderance of probability.
(vi)An appeal by the accused against conviction, but where the conviction has not been overturned/ stayed, will have no effect effe on action taken under RuRule 19(i) of the CCS (CCA) Rules, 1965, even if Court has directed stay/ suspension of the sentence. "
20. In terms of this office memorandum, action taken under Rule 19(i) of Rules, 1965, against the convicted Government servant cannot be held to be unjustifiable. An appeal against the conviction or stay on the sentence would not come to the assistance of convicted Government servant, 30 OA No.23/2021 unless the conviction itself is stayed pursuant to conviction orderr passed by the competent court. Thus, invoking of Rule 19(i) of Rules, 1965 and issuing the penalty order withholding the pension and gratuity cannot be held to be unjustifiable.
21. We are conscious about the decision of N.K.Suparna (supra), but in view of the judgment of Sareen's case (supra) an authoritative pronouncement made by the Hon'ble Apex Court consistently followed by the other benches of the CAT, CAT, we find it appropriate to consider the same as relevant for the disposal of the present OA. Similarly, the ratio of the recent recent judgment of the Hon'ble Apex Court in K.Chandran's 's case supra woul would throw some light on the controversy contro involved herein albeit the issue of DCRG was involved therein. Since, only the operation of the sentence has been stayed by the Hon'ble High Court of Karnataka not the conviction of the applicant, keeping the 31 OA No.23/2021 observations of Hon'ble Apex Court in Sareen and K.Chandran case (supra), the pendency of judicial K.Chandran's proceedings before the Hon'ble High Court cannot come to the assistance of the applicant. The decision taken by the respondents being in conformity with the statutory provisions, no interference is warranted by this Tribunal.
22. For the reasons aforesaid, we find no merit in the application. Accordingly, stands dismissed. However, in the event of the applicant succeeding in the pending criminal appeal, the orders order impugned needs re re-consideration in as much as withholding of pension and gratuity as well as the other retiral benefits are concerned.
23. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.
32 OA No.23/2021