Central Administrative Tribunal - Delhi
Shri Sri Pal Jain vs Union Of India Through The on 3 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 685/2011 Reserved On:17.12.2013 Pronounced on:03.01.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (J) Shri Sri Pal Jain S/o Late Shri Ram Chander Jain Retired as Sub Postmaster Govindpura Post Office under Delhi East Postal Division, R/o 3087/A, Gali No.4, Gandhi Nagar, Delhi-110031 And address for service of notices C/o Shri Sant Lal, Advocate CAT Bar Room, New Delhi-110001. Applicant By Advocate: Shri Pradeep Kumar. Versus 1. Union of India through the The Secretary, M.O.C. & I.T. Department of Posts, Dak Bhawan, New Delhi-110 001. 2. The Chief Postmaster General, Delhi Circle, Meghdoot Bhawan, New Delhi-110 001. 3. The Director Postal Services (OP), O/o the C.P.M.G. Delhi Circle, Meghdoot Bhawan, New Delhi-110 001. .Respondents By Advocate: Shri D.S. Mahendru. ORDER
Honble Mr. G. George Paracken, Member (J) The issue involved in this case is whether the penalty of compulsory retirement inflicted on a delinquent employee under the provisions of Rule 14 of the CCS (CCA) Rules, 1965 can be enhanced under the provision for review contained in Rule 29 (1)(v), that too after his normal date of superannuation is over.
2. The brief facts of the case are that the Applicant was proceeded under Rule 14 of CCS (CCA) Rules, 1965. The charge against him was that while he was functioning as Sub Postmaster Govindpura Post Office, Delhi-110051 during the period 03.03.2003 to 14.09.2004, he allegedly took withdrawals from different Savings Accounts of Govindpura Post Office by affixing forged signature or thumb impression of the depositors on the withdrawal forms (SB-7) himself for his personal use. The Enquiry Officer has held a detailed enquiry into the matter and submitted his report on 07.09.2007 holding that the charges against the Applicant were proved. After receiving representation from the Applicant against the aforesaid report, the SSPOs, the Disciplinary Authority, vide his order dated 17.10.2007, inflicted the punishment of compulsory retirement from service upon the Applicant with immediate effect.
3. However, the Director Postal Services (O), Delhi Circle in his capacity as Revision Authority reviewed the aforesaid order of the Disciplinary Authority under Rule 29(1)(v) of the CCS (CCA) Rules, 1965 and gave notice dated 19.03.2008 proposing to enhance the penalty of compulsory retirement to that of dismissal from service and given an opportunity to make representation, if any, against the proposed enhancement. Accordingly, the Applicant made the representation on 25.03.2008. After consideration of the aforesaid representation, the said authority vide its order dated 24.03.2009 enhanced the penalty of compulsory retirement imposed upon the Applicant to that of Dismissal from Service with retrospective effect, i.e., from the date of compulsory retirement from service. Applicant made an appeal/petition dated 22.06.2009. In the order of the Disciplinary Authority it has also been observed that the Applicant was under suspension with effect from 21.10.2004 and he was being paid subsistence allowance at an amount equal to leave amount of half pay. Further, the Disciplinary Authority held that the period of his suspension from 21.10.2004 to 17.10.2007 shall be treated as non duty for all purposes and he was entitled for pay and allowances at the rate of 70% against the aforesaid order to the next higher authority, namely, the Chief Postmaster General and the said authority, vide its order dated 27.02.2010, rejected it. Meanwhile, the Applicant has also made an appeal dated 22.07.2009 to the same authority against the order of the Disciplinary Authority dated 26.12.2007 and same was also rejected vide order dated 05.08.2010.
4. The Applicant has, therefore, filed this OA seeking the following reliefs:-
(i) To quash and set aside the impugned orders dated 24.03.2009, 27.02.2010 and 05.08.2010 (Annexures A-2, A-3 and A-4);
(ii) To declare the Applicant to have retired from Government service w.e.f. 17.10.2007 as a result of Annexure A-1 order; and regularize the period of suspension as duty for retrial benefits;
(iii) To direct the respondents to release all the retrial benefits to the Applicant with arrears along with interest for delayed payments of the same which became due from 17.10.2007;
(iv) To grant such other or further benefits as this Honble Tribunal deem fit in the facts and circumstances of this case; and
(v) To award costs of this application.
5. The learned counsel for the Applicant at the outset, on instructions from the Applicant who is present in the court, submitted that he is not pressing his claim for regularization of the period of suspension as duty for retrial benefits, as prayed for in the relief clause. His only contention is that the decision of the Appellate Authority enhancing the punishment of compulsory retirement imposed by the Disciplinary Authority by invoking the provisions contained in Rule 29(1)(v) of the CCS (CCA) Rules, 1965 is illegal and arbitrary. In this regard he has submitted that the Revision Authority has issued the show cause notice dated 19.03.2008 under Rule 29(1)(v) of the CCS (CCA) Rules, 1965 after expiry of more than 6 months of the order of the Disciplinary Authority dated 17.10.2007. He has also stated in the reply dated 25.03.2008 to the aforesaid show cause notice that he had already retired from service and no further action under CCS (CCA) Rules, 1965 can be taken. However, the Revision Authority, after about one year of his aforesaid reply dated 25.03.2008, passed the impugned order dated 24.03.2009 enhancing the penalty of compulsory retirement to that of dismissal from service with retrospective effect, i.e., from the date of compulsory retirement from service. According to the learned counsel for the Applicant, the aforesaid order is illegal and without the sanction of the rules as no order under Rule 29(1)(v) of CCS (CCA) Rules, 1965, can be passed beyond six months from the date of the order proposed to be revised. The learned counsel for the Applicant has also submitted that the aforesaid impugned order of the Revision Authority is violative of Articles 14, 16 and 311(2) of the Constitution of India as well as the provisions contained in CCS (CCA) Rules, 1965. In this regard he has submitted that any order passed beyond the period of six months, cannot be considered as a valid order and in support of the said decision he has relied upon the judgment of the Bangalore Bench of the Tribunal in the case of Muthuswami vs. Postmaster General, Bangalore 1989(10) ATC 555. The relevant part of which reads as under:-
23. The span of 6 months to the appellate authority, under Rule 29(1)(v), ibid, is reasonably long, to enable him to revise the order of the DA suo motu, in justifiable circumstances. In this context, it is relevant to note, that according to Instruction No.11 of GOI, under the caption: Time-limit for passing final orders on the Inquiry Report, appearing on page 102 of Swamys Compilation; the normal time limit is stipulated as 3 months. It is learnt, that the total period for completion of the disciplinary proceeding, culminating with the orders of the DA, stipulated by the GOI, is normally 6 months. The bulk of spadework, in disciplinary proceedings, entailing recording of evidence and examining and cross-examining of witnesses and drawing up of the Inquiry Report and imposing the order of punishment, relates primarily to the role of the IO and the DA. The task of the appellate authority is comparatively easier, as it mainly relates to, only sifting and appreciation of evidence, already placed before him. Viewed in this background and on conjoint reading of Rules 23, 25 and 29 of 1965 Rules, it is clear that the time of six months specified in Rule 29, ibid, relates to, not mere initiation of the action by the appellate authority, to revise the order of the DA but to the actual effectuation of the order of revision. We are not persuaded by the submission of Shri Padmarajaiah, that this reasonably long-time is confined only to initiation of action as above, by the appellate authority i.e., merely to come to a decision that that effect and communicate the same, to the delinquent.
6. Another judgment relied upon by the Applicant in this context is one passed by the Honble High Court of Kerala in Joney Vs. Director of Telegraphs Kerala 1976 (KLT) 172 (Kerala) and its relevant part reads as under:-
It appears that the stand taken by respondents-the authorities who passed Exts.P6 and 8 orders respectively-is that the period of 6 months is not one within which the order under review itself should be passed but it is sufficient to initiate proceedings by way of review within six months. The words of the relevant rule (i.e. Rule 29 of the 1965 Rules) indicates, that the appellate authority within six months of the date of the order proposed to be reviewed, may call for the records of any inquiry and review any order made under the rules. Prima facie, it appears to me that the period of 6 months is the period within which not only the records are to be called for, but the order on review should also be passed..
7. He has also relied upon the order of this Tribunal in this regard in OA No.1858/2008 Ram Kumar Ahuja Vs. U.O.I. and Others decided on 06.05.2009. The relevant part of the said order reads as under:-
13. As we find that the period beyond penalty of compulsory retirement till the final order has been passed by the appellate authority is more than six months, the authority exercising the punishment was without any jurisdiction to issue such an order, which is nullity in law.
14. The revision preferred against the enhanced penalty when took this specific plea along with the decision of the High Court, though the grounds for consideration has been mentioned in para 1 of the order dated 23.6.2008, yet neither the same has been considered nor has any finding been recorded, which shows non-application of mind by the revisional authority to this ground raised by the applicant.
15. On this count alone, the order passed in revision cannot be sustained.
16. Resultantly, the OA is allowed. Impugned order is set aside. Respondents are directed to now treat the applicant as compulsory retire from service w.e.f. 27.9.2006. Retiral dues and other benefits, as admissible under the rules, shall now be disbursed to him within a period of three months from the date of receipt of a copy of this order, along with a simple interest @ 9% p.a. from the date it was due and till it is actually paid to the applicant. No costs.
8. The other contention of the Applicants counsel is that as the Applicants date of superannuation is 31.12.2007, no order under CCS (CCA) Rules, 1965 could have been passed against him as the master and servant relationship between the Respondents and him had already ceased to exist. Therefore, if at all any action was required to be taken by the Respondents, they could have only resorted to Rule 9 of the CCS (Pension) Rules, 1972 under which the President alone is vested with the powers to decide the matter and pass appropriate orders after consultation with the UPSC.
9. The other contention of the Applicants counsel is that dismissal of an employee is illegal and bad in law. In this regard he has relied upon an order of this Tribunal in the case of Satyendra Jeet Singh Vs. Chief Administrative Officer, Ministry of Defence ATR 1986 (2) CAT 268. The relevant part of the said order reads as under:-
.Neither Article 311 of the Constitution nor Rule 19 of the CCS (CC and A) Rules empowered the Disciplinary Authority to make an order of dismissal with retrospective effect. Employment of a government servant stands terminated by an order of dismissal or removal. Any such order being an executive or administrative order, can only be operative from the date it is passed or if the rule so lays down, from the date it is communicated. Such an order can only operative prospectively and not retrospectively. In the instant case the Disciplinary Authority passed the order of dismissal with effect from 5.4.76 pre-cumably on the assumption that since no inquiry was required to be held under Art. 311 of the Constitution or Article 19 of the CCS (CC & A) Rules where the order of dismissal of a Government servant is based on the ground of conduct which has led to his conviction on a criminal charge, the order could be passed operative from the date of his conviction by the Trial Court. Neither Rule 19 nor Article 311 expressly authorizes the Disciplinary Authority to make such an order with retrospective effect. No other Rule so empowering it has been brought to our notice. It goes without saying that only a legislation can operate retrospectively and not an administrative order. The order of the Disciplinary Authority being an administrative order, it cannot operate retrospectively; to that extent, the order is unsustainable; in other respects the order of dismissal is unexceptional. As the order validly operates from the date it is made, it will take effect from 19th April, 1977 and not from 5.4.1976 (AN). After the petitioner was suspended, he was never reinstated in service and on 19th April, 1977 he was dismissed from service. Till the order of dismissal was made, the petitioner was in fact under suspension. He would, therefore, be entitled to subsistence allowance as is admissible to him under the rules upto 19th April, 1977. The petitioner is accordingly allowed with the consequential benefit to the extent indicated above. In other respects, it stands dismissed with no order as to costs.
10. He has also relied upon an order of the Jodhpur Bench of this Tribunal in OA No.498/1988 - Gokul Das Vs. U.O.I. & Others decided on 12.01.1990 wherein it has been held that no penalty otherwise than, as provided under the Pension Rules, can be imposed on the Government servant after his superannuation. In other words, the retrospective operation of the said order is constitutionally invalid. The relevant part of the said order reads as under:-
8. In K.S. Rajasekhariah v. The State of Mysore and another (A.I.R. 1968 Mysore 206), the Court observed as follows:-
It is now well settled that a disciplinary proceeding against a Government servant comes to an end when he retires and there is no power in Government to retain him in service so that a punishment may be imposed on him in a pending disciplinary proceeding.
9. In State of Punjab v. Khemi Ram (A.I.R. 1970 SC 214). The Supreme Court observed as follows:
If disciplinary action is sought to be taken against a Government servant it must be done before he retires as provided by the said rule. If a disciplinary enquiry cannot be concluded before the (late of such retirement, the course open to the Government is to pass an order of suspension and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final order is passed therein.
10. In Satyendra Jeet Singh v. Chief Administrative Officer, Ministry of Defence (A.I.R. 1986 (2) C.A.T. 268) the Principal Bench of this Tribunal to which one of us (Shri Kaushal Kumar) was a party held that an order of dismissal cannot be made with retrospective effect. The Bench observed as follows:
Neither Article 311 of the Constitution nor Rule 19 of the C.C.S. (C.C.A.) Rules empowered the Disciplinary Authority to make an order of dismissal with retrospective effect. Employment of a Government servant stands terminated by an order of dismissal or removal. Any such order being an executive or administrative order, can only be operative from the date it is passed or if the rule so lays down, from the date it is communicated. Such an order an only operate prospectively and not retrospectively.
11. The position of the rule and law on the subject as indicated above make it clear that the impugned orders cannot be sustained.
12. In the result, we quash the impugned orders of dismissal dated 29.2.88 & 13.7.88 passed by the Disciplinary Authority and Appellate Authority respectively with consequential benefits regarding payment of Salary dues to the applicant till the date of his retirement on superannuation. However, this will not preclude the respondents from passing a fresh order in accordance with rules and law within a period of 3 months from the date of receipt of a copy of the judgment by the respondents.
13. There will be no order as to costs.
11. The Respondents have filed their reply. Their main contention is that the Applicant was charged with financial irregularity and has been duly approved in the enquiry proceedings held against him but the penalty imposed upon him by the Disciplinary Authority does not commensurate with the gravity of his misconduct. They have also stated that the show cause notice to enhance the penalty of compulsory retirement to that of dismissal from service was issued to the Applicant within a period of six months, as per DG, P&T letter No.6/1/72-Disc-I dated 27.07.1972 which states that the intention of the Appellate Authority to revise the orders should be communicated within a period of 6 months from the date of orders proposed to be revised. Since the revision of the punishment from compulsory retirement to that of dismissal from service was from the retrospective date, i.e., the date of compulsory retirement, the subsequent order enhancing the said order shall also take effect from the original date. Hence, there is no irregularity in the action of the Respondents dismissing the Applicant from retrospective effect.
12. The learned counsel for the Respondents has also relied upon the judgment of the Honble High Court of Madhya Pradesh in Writ Petition No.12381/2012 decided on 29.08.2012 Union of India Vs. Malkhan Singh and its relevant part is reproduced as under:-
The respondent while posted as Postal Assistant, Sehore was charge- sheeted on 27.10.2009 for mis-appropriating amount of Rs. 4,10,165/-. The denial of charges led to holding of departmental enquiry culminating into an order of punishment dated 29.12.2009; whereby, he was reverted from the post of Post 29.12.2009; whereby, he was reverted from the post of Postal Assistant in Pay Scale 520020200 + Grade Pay Rs.2400/- to the post of Postman in the Pay Scale of 520020200 + Grade Pay Rs.2000 fixing him in the initial scale of pay.
That, appellate authority, i.e., Director, Postal Services Indore Region in exercise of his powers under Rule 29(1)(v) of CCS(Classification, Control and Appeal) Rules, 1965 (for short Rules of 1965) decided to revise the order of punishment and accordingly caused notice on the respondent on 6.1.2010. By that time the respondent has retired on attaining the age of superannuation on 31.12.2009.
Rule 29 (1) (v), Rules of 1965 stipulates that notwithstanding anything contained in these rules the Appellate Authority, within six months of of the date of the order proposed to be revised;may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order may under these rules or under the rules repealed by Rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation Commission there such consultation is necessary, and may- (a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c)remit the case to the authority which made to or other authority directing such authority to make such further enquiry as it may consider proper in circumstances of the case; or
(d) pass such other orders as it may deem fit. The Rule further provides that no order imposing orenhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in Clauses (v) to (ix) of Rule 11 or to enhance the penalty imposed by the order sought to be revised to anyof the penalties specified in those clauses, and if an inquiry under Rule 14 has not already been held in the case, no such penalty shall be imposed except after an inquiry in the manner laid down in Rule 14 subject to the provisions of Rule 19, and except after consultation with the Commission where such consultation is necessary. The notice by the appellate authority was thus in exercise of the powers conferred by Rule 29 (1) (v) of Rules of 1965. The action initiated culminated into an order dated 4.6.2010; whereby, after considering the representation dated 17.3.2010 and 8.4.2010 preferred by the respondent, he was directed tobe removed from service. The order gave rise to challenge before the Tribunal on the ground that it was beyond the powers of the Appellate/Revisional Authority to have inflicted the punishment of removal after the petitioner had retired from service. It was stated that having retired from service, punishment, if any, could have been inflicted only in accordance with Rule 9 of Central Civil Services (Pension) Rules, 1972 (for short Pension Rules, 1972).
The Tribunal by impugned order set aside the order of punishment dated 4.6.2010 holding:
The Appellate Authority's review order has been passed using the provisions of CCS (CCA) Rules, 1965, which in this case, was after retirement of the employee. The review order of Appellate Authority, enhancing the punishment of Government servant is, in its effect, like continuation of disciplinary proceedings. For Disciplinary proceeding, instituted while government servant was in service, the provisions of Rule 9 of CCS (Pension) Rules, 1972 are applicable. Since, the applicant had already retired, he could only be imposed penalty underRule 9 of CCS (Pension) Rules, 1972. Thus the order of Appellate Authority, under CCS (CCA) Rules, 1965 is not maintainable."
The conclusion arrived at by the Tribunal in the given facts of the present case cannot be faulted with as it was beyond the powers of the appellate/revising authority to have inflicted any penalty upon the petitioner much less the penalty of removal from service when the respondent employee had already retired from service. In this context reference can be had of decision in R. Jeevaratnam v. State of Madras (AIR 1966 SC 951); wherein, it is observed:
"(4)The order dated October 17, 1950 directed that the appellant be dismissed from service with effect from the date of his suspension, that is to say, from May 20, 1949. In substance, this order directed that (1) the appellant be dismissed, and (2) the dismissal do operate retrospectively as from May 20, 1949. The two parts ,of his composite order are separable. The first part of the order ,operates as a dismissal of the appellant as from October 17, 1950. The invalidity of the second part of the order, assuming this part to be invalid, does notaffect the first part of the order. The order of dismissal as from October 17, 1950 is valid and effective. The appellant has been lawfully dismissed, and he is not entitled to claim that he is still in service."
However, there is a considerable force in the contentions put-forth on behalf of the petitioner that while setting aside the order passed by Appellate Authority and holding that it is Rule 9 of Pension Rules, 1972 which gets attracted in respect of an employee who is retired from service, incumbent it was upon the Tribunal to have remitted the matter to the appellate authority for taking recourse to the procedure as is prescribed under sub rule (2) of Rule 9 of Pension Rules, 1972.
Learned counsel appearing for respondent fails to cause any dent to the aforesaid submission put-forth by learned counsel for the petitioner.Sub-rule (2) of Rule 9 of Pension Rules, 1972 stipulates:-
"9. Right of President to withhold or withdraw pension (2)(a). The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re- employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service :
Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President."
Thus, while affirming the conclusion drawn at by the Tribunal that it is beyond the powers of the Appellate/Revising Authority to inflict the punishment of removal from service after retirement of respondent, We, however, modify the order andremit the matter to the appellate authority for taking recourse to the procedure as is prescribed under Rule 9 (2) of Pension Rules, 1972. Let the same be done within a period of three months from the communication of this order.
In the result petition is allowed to the extent above. Parties to bear their own costs.
13. We have heard the learned counsel for the Applicant Shri Pradeep Kumar and the learned counsel for the Respondents Shri D.S. Mahendru. Rule 29 of the CCS (CCA) Rules, 1965 reads as under:-
29. Revision (1) Notwithstanding anything contained in these rules-
(i) the President; or (ii) the Comptroller and Auditor-General, in the case of a Government servant serving in the Indian Audit and Accounts Department; or (iii) the Member (Personnel) Postal Services Board in the case of a Government servant serving in or under the Postal Services Board and Adviser (Human Resources Development), Department of Telecommunications in the case of a Government servant serving in or under the Telecommunications Board; or (iv) the Head of a Department directly under the Central Government, in the case of a Government servant serving in a department or office (not being the Secretariat or the Posts and Telegraphs Board), under the control of such Head of a Department; or (v) the appellate authority, within six months of the date of the order proposed to be revised or (vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be prescribed in such general or special order;
may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these rules or under the rules repealed by rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may-
(a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or (d) pass such other orders as it may deem fit:
Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (v) to (ix) of rule 11 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if an inquiry under rule 14 has not already been held in the case no such penalty shall be imposed except after an inquiry in the manner laid down in rule 14 subject to the provisions of rule 19, and except after consultation with the Commission where such consultation is necessary :
Provided further that no power of revision shall be exercised by the Comptroller and Auditor-General, Member (Personnel), Postal Services Board, Adviser (Human Resources Department), Department of Telecommunications or the Head of Department, as the case may be, unless-
(i) the authority which made the order in appeal, or (ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him. (2) No proceeding for revision shall be commenced until after- (i) the expiry of the period of limitation for an appeal, or (ii) the disposal of the appeal, where any such appeal has been preferred.
(3) An application for revision shall be dealt with in the same manner as if it were an appeal under these rules.
14. In this regard the Government of India has also issued Instructions vide MHA OM No. 39/2/68-Ests.(A) dated the 14th May, 1968 which reads as under:-
(1) Procedure to be followed while proposing enhancement of the penalty already imposed on a Government servant :-
Instances have been brought to the notice of this Ministry in which when orders of punishment passed by the subordinate authorities were reviewed under Rule 29 (1) of the CCS (CCA) Rules, 1965, and a provisional conclusion reached that the penalty already imposed was not adequate, the authorities concerned set aside/cancelled the order of punishment already passed by the subordinate authorities and simultaneously served show-cause notices for the imposition of higher penalties. Thereafter, the replies of the Government servants to show-cause notices were considered and the Union Public Service Commission also consulted, wherever necessary, before the imposition of enhanced penalties.
It is clarified that in case of the kind mentioned in the preceding paragraph, it is not appropriate to set aside/cancel the penalty already imposed on the Government servants, more so when the revising authority is the President, as strictly speaking cancellation of the penalty, if done in the name of the President amounts to modification by the President of the earlier order of the subordinate authority, for which prior consultation with the Union Public Service Commission is necessary under Regulation 5 (1) (c) of the UPSC (Exemption from Consultation) Regulations, 1958. The correct procedure in such cases will, therefore, be to take action in accordance with the first proviso to Rule 29 (1) of the CCS (CCA) Rules, 1965, without cancelling/setting aside the order of the subordinate authority. It is only at the final stage when orders are issued modifying the original penalty, that it would be necessary to set aside the original order of penalty.
15. From the above rule, it is clear that the procedure adopted by the Appellate Authority in enhancing the punishment vide Rule 29(1) (v) of the CCS (CCA) Rules, 1965 was improper and illegal. Further, the time limit of six months specified therein relates not only for initiation of action by the Appellate Authority to revise the order of the Disciplinary Authority but also to pass the order thereunder as held by the Bangalore Bench of this Tribunal in Muthuswamys case (supra). The same was the order passed by the Honble High Court of Kerala in Joneys case (Supra), wherein it has been held that the period of six months provided in Rule 29 of the CCS (CCA) Rules, 1965 is the period within which not only the records are to be collected for but the order of review should also be passed. Admittedly, in this case the Disciplinary Authority has passed the order of compulsory retirement on 17.10.2007. Even though the Appellate Authority, under Rule 29 of CCS (CCA) Rules, 1965, has issued note calling for his representation as to why the aforesaid punishment shall not be enhanced on 19.04.2008 but the actual order enhancing the punishment from that of compulsory retirement was passed only on 24.03.2009. Therefore, the aforesaid order has been issued in violation of the provisions contained in the aforesaid Rules and on this ground alone the impugned order of the Appellate Authority enhancing the punishment cannot survive. Secondly, we find that the Appellate Authority has passed its order dated 24.03.2009 under Rule 29 of the CCS (CCA) Rules, 1965 with retrospective effect from 17.10.2007, i.e., date on which Disciplinary Authority has imposed punishment of compulsory retirement upon the Applicant. As held by this Tribunal in Satendra Jeet Singhs case (supra), neither Article 311 of the Constitution of India nor Rule 19 of the CCS (CCA) Rules, 1965 empowers the Disciplinary Authority to make an order of dismissal with retrospective effect. Further, it has been stated in the said judgment that Employment of a Government servant stands terminated by the order of dismissal or removal and such an order being an executive or administrative, can only be operative from the date it is passed or if the rule so lays down from which it is communicated. Thirdly, we find merit in the contention of the learned counsel for the Applicant that compulsory retirement from service is also one of the classes of pension mentioned in Chapter-V of Rule 40 of CCS (Pension) Rules, 1972. Once an employee retires from service, no penalty otherwise than under the Pension Rules can be imposed upon him as held by the High Court of Mysore in the case of K.S. Rajasekhariah Vs. State of Mysore and Another AIR 1968 Mysore 206. The observation of the court in the said case was as under:-
It is now well settled that a disciplinary proceeding against a Government servant comes to an end when he retires and there is no power in Government to retain him in service so that a punishment may be imposed on him in a pending disciplinary proceeding.
The Apex Court also in State of Punjab Vs. Khemi Ram AIR 1970 SC 214 has held as under:-
If disciplinary action is sought to be taken against a Government servant it must be done before he retires as provided by the said rule. If a disciplinary enquiry cannot be concluded before the (late of such retirement, the course open to the Government is to pass an order of suspension and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final order is passed therein. We also find that the judgment of the High Court of Madhya Pradesh in the case of Malkhan Singh (supra), relied upon by the Respondents holds the same view.
16. In the above facts and circumstances of the case, we allow this OA. Consequently, we quash and set aside the impugned order dated 24.03.2009 of the Appellate Authority passed under Rule 29(1)(v) of the CCS (CCA) Rules, 1965 enhancing the punishment of compulsory retirement imposed upon the Applicant by the Disciplinary Authority dated 17.10.2007 to that of dismissal from service. We also quash and set aside the order dated 27.02.2010 passed by the higher authority rejecting the Petition of the Applicant dated 26.02.2009 against the aforesaid order dated 24.03.2009. Consequently, the Applicant is continued to be entitled for all consequential benefits arising out of the order of the Disciplinary Authority dated 17.10.2007 which shall be given to him within a period of 2 months from the date of receipt of a copy of this order. We also direct that the Respondents shall pass appropriate order in implementation of the aforesaid directions within the aforesaid period.
17. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh