Central Administrative Tribunal - Delhi
Shri Trilok Chandra vs Union Of India on 8 April, 2010
Central Administrative Tribunal Principal Bench OA No.1474/2009 New Delhi, this the 8th day of April, 2010 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri Trilok Chandra, Retired SE (C) R/o 163, Rama Apartment, Plot No.2, Sector-II, Dwarka, New Delhi 110 075. . Applicant. (By Advocate : Sh. D. R. Gupta) Versus 1. Union of India Through the Secretary Ministry of Urban Development Nirman Bhawan, New Delhi 110 001. 2. The DGW (CPWD) C/O C.V.O. Nirman Bhawan, New Delhi 110 001. .. Respondents. (By Advocate : Sh. R. V. Sinha) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri Trilok Chandra, a retired Superintending Engineer (C) of Central Public Works Department, the Applicant herein, being aggrieved by the impugned order dated 28th January, 2009 (Annexure-A1) issued by order and in the name of the President of India, wherein, it was ordered to withhold 20% of the monthly pension otherwise admissible to him for a period of three years and that his gratuity be released if not required to be withheld otherwise, has assailed the said order in this OA with following prayers :-
(i) To allow the O.A. with costs on Respondents.
To quash the impugned order dated 28.01.2009, as at A-1 after declaring it illegal being against rule 9 of the Pension Rules read with Rule 8 (5) (b).
To direct the Respondent to finalise the Pension and other retrial benefits of the Applicant as if no penalty has been imposed on him.
(iv) To allow interest on delayed payment on account of withholding of the retrial benefits of the applicant @18%p.a..,
(v) Any other order/relief or direction which this Honble Tribunal may deem fit, just and proper in the facts and circumstances of the case and to meet ends of justice. 2.1 The facts of the case would reveal that while the Applicant was working as Superintendent Engineer (C), Central Public Works Department (now retired) was proceeded against under Rule 14 of the CCS (CCA) Rules, 1965 vide memorandum dated 29.08.2000 for the charge that as Superintending Engineer in the office of the Appropriate Authority, Income-Tax Department , New Delhi during the financial year 1994-95 made excessive valuation of the property known as Shiela Hotel, 9, Qutub Road, New Delhi, without taking into account all the relevant factors necessary for proper estimation of the value of the said property, with a view to favour the parties to the agreement of transfer, and also thereby attempted to cause financial loss to the Government. He, by the said act showed lack of integrity, lack of devotion to duty, and he conducted himself in a manner which was unbecoming of a Government Servant. The Applicant retired from Govt. Service on attaining the age of superannuation on 31.03.2005. Therefore, the disciplinary proceeding against the Applicant had been deemed to be the proceedings under Rule-9 of the CCS (Pension) Rules, 1972. An FIR was registered by the CBI based on source information that a fraud was allegedly committed to induce the Central Government to preempt the property (M/s Shiela Hotel) by preparing a false agreement in respect of that property at a very exorbitant rate at Rs.10.50 crore. Along with 3 others, the Applicant was charged by the special Judge in the order dated 16.05.2003 for the offence u/s 120B of IPC read with Section 420 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. The Applicant moved the Honble High Court against the said charges which was decided by the Honble High Court of Delhi vide its judgment dated 3.5.2005, by discharging the Applicant along with others from the said criminal charges. However, the President of India on the advice of the UPSC imposed punishment of withholding of 20% monthly pension for a period of 3 years and being aggrieved by the said order, the applicant is before the Tribunal in the present OA.
2.2 It is the case of the Applicant that though he requested the Respondents to drop the disciplinary case against him as there was no revenue loss to the Government but the disciplinary case was continued against him only, though the decision taken was a collective decision in the alleged misconduct. The Applicant did not admit the charge. The article of charge is quoted below :-
Article-1 That Sh. Trilok Chandra, while functioning as Superintending Engineer in the office of the Appropriate Authority, Income Tax deptt., New Delhi, during the financial year 1994-95, made excessive valuation of the property known as Shiela Hotel, 9-Qutub Road, New Delhi, without taking into account all the relevant factors necessary for proper estimation of the value of the said property, with a view to favour the parties to the agreement of transfer, and also thereby attempted to cause financial loss to the Government.
By his aforesaid acts, the said Shri Trilok Chandra displayed lack of integrity, lack of devotion to duty, and he conducted himself in a manner which is unbecoming of a Government servant, thereby contravening Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964. 2.3 An enquiry was conducted in the said charge as per the provisions of CCS (CCA) Rules 1965 by the Commissioner for Departmental Inquiries (Inquiry Authority). As the Applicant retired on 3.3.2005, the disciplinary proceeding against him, as mentioned above, had been deemed to be proceedings under Rule 9 of the CCS (Pension) Rules, 1972. After the detailed enquiry, the Report was submitted on 31.10.2006. Analysis of evidence and the conclusion arrived at by the Inquiry Authority is extracted below :-
G. ANYALYSIS OF EVIDENCES
1. The main allegation is on excessive valuation of property by the CO for the purpose of deciding preemptive purchase or otherwise by the Appropriate Authority (AA), Income Tax under the relevant provisions of IT Act. The case of prosecution is that the application in Form 37-I was filed for obtaining no objection certificate from Appropriate Authority. The sale consideration as shown as Rs.10.5 crore (Ex.P-1, page-199). The CO was working as SE under Member (Technical) and was mainly responsible for valuation of the property. It has been alleged that the CO assessed the fair market value of the property as Rs.15.26 crores as against apparent consideration of Rs.10.5 Crore (Page 53 to 61 of Ex. D-1)
2. It has also been alleged that the CO in his valuation report also wrote that the permissible FAR is as per existing building and as per the existence of the property And before formation of DDA. This was also confirmed by SW-1. It has also been alleged that the CO wrote letters to the transferor and transferee on 20th March, 1994 to have sanctioned plans and other details but without obtaining the same the CO submitted valuation report. The CO has defended that he was suppose to submit valuation report within 30 days in view of time limit to 90 days for issuing no objection certificate under the Act. While the argument of the CO could be acceptable but at the same time the CO would have made remarks to the effect in his valuation report that he is yet to obtain the vital documents from the transferor/transferee as same is also a vital input for valuation.
3. The valuation made for Rs.15.26 Crore, was approximately 45% higher than sales consideration. Since this was more than 15% consideration of building the AA considered the same for preemptive purchase. The second valuation was also made by the CO in which he assessed the property at Rs.24 Crores, which were more than 100% of the consideration between transferor and transferee. In this case the CO took basis of sale instance of other property for the purpose of valuation. Even at that stage the CO did not point out that he could not get the papers as requested by him earlier to take a view regarding the controversy of unauthorized/illegal construction if any. The CO has defended that this valuation was done at the instance of Member, Appropriate Authority. However, no written directions were available in this regard in the file. The CO has further defended that after preparing the report the CO has no role to play and it is for the Appropriate Authority to accept or otherwise. It is true that report to be considered by the Members of Appropriate Authority for preemptive purchase or otherwise. The PO has argued that the valuation report of the CO is important and vital input for Members of Appropriate Authority for taking decision for preemptive purchase or otherwise. Therefore, the argument of CO is not acceptable.
4. The market value of the said property was assessed by Shri V.K. Chahbra (Ex P-15) who valued the property at Rs.2.5 Crore, Shri V.K. Chhabra who was registered valuer was also one of the prosecution witness. Unfortunately, he died therefore he could not appear for deposition. It has been claimed by the C.O. his valuation was Ridiculous based on valuation report by Shri O P. Purohit who made valuation of Rs.9.96 Crore.
5. There was a dispute on the construction of hotel (legal or illegal) therefore valuation also differed from valuer to valuer. The considerations of sale instance were also different at different time and therefore valuation varied. It has been observed from the valuation report (Ex P-15) that it was not appropriate to compare the property in question to the properties at Connaught Place area, Kanjunjunga Building which have better amenities, parking space, better approach, located in the main road and wide road. Therefore, these were not comparable. It is apparent that the CO failed to consider these issues in his valuation report.
6. The CO has also submitted a tabular statement of different valuations stating that the valuation by the CO was not exorbitant. Valuation of Shri Purohit was exclusive of fixtures (Rs.1.05 crores) whereas the valuation of CO was inclusive of fixtures. The CO has tried to establish that his first valuation resulted in Rs.7,820/- per sq. feet and second valuation resulted in Rs.12,265/- per sq. feet. Whereas valuation by Shri Purohit resulted in Rs5.486 per sq. feet (Para F012 ante of CO case refers). Here what is critical is cut off value of 15% over the apparent consideration. As alleged the first valuation is 45% excess and second valuation is 130% in excess. While one could appreciate variation of 10% lower or higher limits in the valuation between the two valuers, but such difference of 130% in excess. While one could appreciate variation of 10% lower or higher limits in the valuation between the two valuers, but such difference of 130% may not be in order. The valuation done by Shri Purohit appears to be more or less in order.
7. The CO has also submitted a copy of judgment of Honble High Court as his difference document in which the Honble High Court in a similar case discharged him. The decision of the Courts is based on facts and circumstances of the case presented to them. It is also a fact that the CBI Court framed the charges and CO was later discharged at the High Court. The consideration in the Judgment of the Court relate to criminal misconduct under the relevant provisions of PC Act/Cr.PC/IPC etc. whereas the consideration in the present case is for misconduct under CCS Conduct Rules under which CO has been charge sheeted. Since the basic consideration in Both the cases is different therefore it may not be appropriate to consider the judgment in isolation. Anyway, both the PO and CO have not specifically argued based on this judgment in their briefs.
8. There are other circumstantial evidence as cited in para (x) of the imputation. No direct evidence is available showing that the CO was aware of these facts while making valuation of the property. PO has further argued that the CO handled Shri S. K. Pahwa show was also involved in the other property transaction and at that time the property was acquired by Appropriate Authority. Therefore, Shri Pahwa was aware of the rules and procedures of Appropriate Authority at that time i.e. 1993-1994. The CO in his defence has stated that the property acquired was assessed at Rs.85 lacs plus therefore the Government gained Rs.85 laks. Based on this evidence the possibility of acquaintance by the transferor/transferee and the CO cannot be totally ruled out. Other circumstancial evidence as cited by the prosecution is not appearing directly against the CO but considering the background of handling of another case of the same person by the CO, based on preponderance of probability possibility of COs role as alleged in the imputation cannot be ruled out. CO also tried to argue the ultimately the Government has not suffered any loss as no preemptive purchase was made based on the decisions of the Government. Here the question is not ultimate loss but the question is act of omission and commissioner by the CO. The evidence on record indicates that the excess valuation of more than 15% was not only once but also twice, even to the extent of 130%. Even though it has been stated that the Government would have to pay only the amount indicated in Form 37-1 had the preemptive purchases was made, which was later found within the limit of 15% by Shri Prohit. At the same time valuation even though unconfirmed by witness and conservative to the tune of Rs.2.5 Crores also existed. This is a hypothetical situation, whether on preemptive purchase Government would have later suffered a loss or not while auction/sale. What is important here is of act of CO. Even for the sake of argument that one consider that the first valuation was somewhat comparable and nearer to the market value but the second valuation of Rs.24 Crore was certainly on the much higher side which also resulted in the decision of preemptive purchase by the Appropriate Authority, based on in put by the CO. The second valuation would have certainly tempted the AA to go for the decision of preemptive purchase. I, therefore, hold that the CO as alleged, make the excessive valuation.
10. In view of the discussions in the preceding paragraphs, depositions made before the undersigned, the written submissions of PO and CO I hold the charge against the CO as substantiated.
H. FINDINGS Article Charge-I : PROVED 2.4 A copy of the said report was transmitted to the Applicant who submitted his representation dated 11.6.2007 (Annexure A6). The Disciplinary Authority consulted the Union Public Service Commission (UPSC) on the IAs Report, and the Applicants representation thereon. The UPSC after detailed analysis tendered its advice vide its letter dated 14.01.2009 (Pages 18 to 25). The conclusion arrived at by UPSC is as follows :-
9. In the light of their findings as discussed above and after taking into account all relevant facts, the Commission are of the view that the charges under the Article are partially proved against the CO. the Commission consider that the ends of justice would be met in this case if 20% (twenty per cent) of the monthly pension of Shri Trilok Chandra is withheld for three years. His gratuity if not required otherwise may be released to him. They advise accordingly. 2.5 The Disciplinary Authority having considered the relevant aspects and objective assessment of the case accepted the advice of the UPSC and ordered withholding of 20% of the monthly pension otherwise admissible to the Applicant for a period of 3 years. The relevant part of the penalty order reads as follows :-
5. The President has found that the evidence on record conclusively establishes the charge that the said Shri Trilok Chandra, as the Superintending Engineer (Civil), made excessive valuation of the property in question, without taking into account all the relevant factors necessary for proper estimation of the value of the value of the said property.
6. The President has carefully considered the records of the inquiry the findings of the Inquiring Authority, the submissions made by Shri Trilok Chandra, the statutory advice tendered by the UPSC, and all other facts and circumstances relevant to this case. Considering the circumstances in totality and an objective assessment of the entire case, the President has accepted the advice tendered by the UPSC; and accordingly hereby orders that 20% (twenty per cent) of the monthly pension otherwise admissible to the said Shri Trilok Chandra, be withheld for a period of three years, and that his gratuity be released if not required to be withheld otherwise. Having been aggrieved by the above order of the President, the Applicant is before us in this OA.
3. Shri D.R. Gupta, the learned counsel representing the Applicant, giving the background of the case, contended that the Applicant had not been found guilty of grave misconduct or grave negligence either in the charge or in the findings of the Inquiry Authority or in the advice of the UPSC and even in the order passed by the President of India. The contention raised by Shri Gupta is that the pension is a statutory right and could not have been tinkered with without conforming to the justifiable grounds given in the CCS (Pension) Rules. Another contention he raised is about the delay in passing the order in the disciplinary case which has prejudiced the Applicant. He further submitted that the Applicant having been honourably discharged of the charges in criminal case, the disciplinary case should have been dropped. Reliance has been placed on the judgment of Honble High Court of Delhi in WP (C) No.12759-61 of 2006 in the case of Union of India Versus T.P. Venugopal, and the judgment of the Tribunal in the matter of D.P. Mathur & Others Versus Union of India & Others (OA No.397/2009 and OA No.448/2009 decided together on 01.12.2009).
4. On the contrary, Shri R.V. Sinha, learned counsel for the Respondents very vehemently opposed the contentions put forward by Shri Gupta. Shri Sinha submitted that there was no procedural infirmity or illegality in the disciplinary case warranting the Tribunal to intervene in the orders passed by the Competent Authority. He further submitted that the imposition of penalty and quantum of punishment comes within the right of the Disciplinary Authority and the Tribunal has no power to direct the Respondents to reconsider and he relied on the judgment of the Honble Apex Court in the matter of Government of Andhra Pradesh Versus B. Ashok Kumar [AIR 1997 SC 2447]. Referring to the judgment of Honble High Court setting aside the charges framed against the Applicant by the Trial Court, Shri Sinha argued that the scope of departmental proceedings and criminal proceedings being different, the disciplinary proceeding could be processed even when the High Court quashed the charges of criminal case, and the final order in the disciplinary case was passed following the proper process. He also submitted that due to proper procedure having been followed in the case, there was long period to finalise the disciplinary proceedings against the Applicant. Referring to the contention raised by the counsel for the Applicant that he was made a scapegoat for collective decision, Shri Sinha clarified that each functionary in the CPWD hierarchy used to discharge specific responsibilities and the Applicant as the Superintending Engineer was in charge of the valuation report preparation and he did not take into account relevant inputs and materials in the valuation of the property. As such, he contends, the Applicant is alone responsible for the said misconduct. In support of his contentions, Shri Sinha placed his reliance on the judgments of Honble Supreme Court in the matters of Paramananda Versus State of Haryana and Others [1989 (2) SCC 177], and State Bank of India Versus Samarendra Kishore Endow [1994 (1) SLR 516] to submit that the Tribunal has no powers to substitute its own discretion for that of the Disciplinary Authority.
5. Having heard the rival contentions, we perused the pleadings and have given our utmost considerations to their arguments as well.
6. The main contention of the counsel for the Applicant relates to the satisfaction of the President about the Applicant having been found guilty of the charge of grave misconduct or negligence. It is urged that the power of the President for withholding the pension is solely dependent on the condition that the Applicant (Charged officer) is guilty of not only of misconduct/negligence but also of grave misconduct/negligence. Rule 9(I) of the CCS (Pension) Rules, 1972, relevant in this case, reads as follows :-
9. Right of President to withhold or withdraw Pension (I) The President resolves 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. (emphasis added)
7. In D.V. Kapoor Versus Union of India and Others [AIR 1990 SC 1923] while interpreting what constitutes a grave misconduct/negligence within the CCS (CCA) Rules and CCS (Pension) Rules, the Honble Supreme Court observed thus :-
5. It is seen that the President has reserved to himself the right to withhold pension in whole or in part therefore whether permanently or for a specified period or he can recover from pension of the whole or part of any pecuniary loss caused by the Government employee to the Government subject to the minimum. The condition precedent is that in any departmental enquiry or the judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service of the original or on re-employment. The condition precedent thereto is that there should be a finding that the delinquent is guilty of grave misconduct or negligence in the discharge of public duty in office, as defined in Rule 8(5), explanation (b) which is an inclusive definition, i.e. the scope is wide of mark dependent on the facts or circumstances in a given case. Myriad situation may arise depending on the ingenuity with which misconduct or irregularity was committed.
6. As seen the exercise of power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry of judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment either in whole or in part permanently or for a specified period or to order recovery of the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs.60.
8. In T.P. Venugopal case (supra) it was held that once the charged officer had retired, the Inquiry Authority was duty bound to return the finding whether the Charged Officer committed grave misconduct/negligence. We extract here below the relevant paragraphs of Honble High Court of Delhi Judgment :-
15. The findings which have come in the enquiry report against the respondent only indicate that the level of negligence of the respondent may not be as high or might not have been expected of him. None of the findings in the report anywhere indicate that respondent misconducted himself gravely or committed grave negligence in permitting his subordinates to introduce fraudulent documents, incomplete processing and passing the bills without proper verification. Simply because the respondent passed impugned bills on the same date does not constitute any grave misconduct on the part of respondent in handling the bills. May be that respondent passed those 10 alleged fraudulent claims in undue haste, but then this conduct of the respondent by itself does not prove charges of grave misconduct against him.
.....
17. The Tribunal, therefore, rightly held that enquiry officer except recording the findings of conduct unbecoming a Government Servant has not recorded reasons as well as findings as to commission of grave misconduct or grave negligence by the respondent. We also find that in the Memorandum issued to the respondent under Rule 14 of the CCS (CCA) Rules, 1965, petitioner has not leveled any such allegations against the respondent of having committed himself in such a manner so as to constitute grave misconduct or grave negligence and to invite penalty under Rule 3 of the CCS (CCA) Rules. (emphasis supplied)
9. A close scrutiny of the only Article of charge it is clear that the Applicant has not been specifically and categorically charged with grave misconduct or grave negligence. The charge has been framed for lack of integrity, lack of devotion to duty and he conducted himself in a manner unbecoming of a Government Servant, thereby contravening Rules 3(I)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964. In the criminal case, the Trial Court framed the charge on same facts, which on challenge before Honble High Court was set aside and the Applicant was discharged. The discharge was not on benefit of doubt but on merits and the same was passed after considering the evidence produced by the CBI. No conspiracy could be established. The judgment of the Honble High Court reveals that Prosecution case clearly indicate absence of any motive to conspire with high ranking officials like Trilok Chandra and S.R.Goyal so as to obtain a false valuation and thereby dishonestly procure a preemption order. While setting aside the charge framed by the learned Trial Court, the Honourable High Court observed as follows :
9. In Union of India Vs. Prafulla Kumar AIR 1979 SC 36, The Supreme Court said that in exercising his jurisdiction u/s 227 of the Constitution judge cannot act merely as a post office or a mouth piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. On such examination if the judge finds that there is grave suspicion against the accused which has not been properly explained, the court is justified in framing a charge. In the presence case the very foundation, i.e. the motive to profit out of an order of preemption is altogether absent. There is no grave suspicion that the accused have committed any offence.
10. In view of the above, all the petitions are allowed. The impugned order is set aside. The petitioners are discharged. Thus, we come to the considered opinion that the charge framed against the Applicant was not of grave misconduct or grave negligence both in letter and spirit.
10. We advert to the IAs finding and the advice rendered by the UPSC in the case to find out whether gravity of the case against the Applicant had been recorded. The IA has taken into account the circumstantial evidence and preponderance of probability in presuming that the COs role as alleged in the imputation cannot be ruled out. The IAs report dated 31.10.2006 does not mention any where that the Applicants conduct in the alleged charge is grave. It is noted that the IAs report is dated 31.10.2006 and the Applicant has retired on 31.03.2005, one year and 5 months before the IAs Report was submitted by which time the Rule 9 of CCS (Pension) Rules, 1972 had already been invoked. The UPSC in its advisory letter dated 14.1.2009 has held that the charges under the Article are partially proved against the CO. what has been observed to have been proved, as per the UPSC letter, is that the Applicant made excessive valuation of the property without taking into account all the relevant factors necessary for proper estimation. We note that the UPSC has not found such a misconduct on the part of the Applicant as grave, while recommending 20% of the monthly pension of the Applicant to be withheld for 3 years. It was argued by the counsel for the Applicant that the President of India has mechanically followed the advice of the UPSC without proper and rational analysis of the case and application of mind. It was also urged that in the absence of any finding by IA in his report or advice of the UPSC to state that the Applicants misconduct was grave, the President could not have come to the conclusion to impose penalty of withholding of 20% of the monthly pension for a period of 3 years. We are in agreement with the above contention.
11. The counsel of the Respondent has relied on the judgment of Honourable Supreme Court in the case Govt. of A.P. Vs. B. Ashok Kumar[1AIR-997 -SC-2447] but the facts of the case are far different from the present OA. In Ashok Kumar case (supra)it was found that the respondent, an inspector of police, demanded and accepted illegal gratification for not prosecuting an offender, a penalty would have effect on the maintenance of law and order and Honourable Supreme Court held that imposition of penalty was the right of the disciplinary authority who dismissed the respondent, the tribunal had no power to direct the appellant to reconsider the matter and the appeal was allowed and order of Tribunal was set aside. In the present OA the Respondents have not followed the CCS (Pension) Rules and as such the Presidential order is violative of the Rule 9 of theCCS (Pension) Rules 1972.We, therefore, note that the Ashok Kumar case (supra) is clearly distinguishable.
12. As the Counsel for the Respondents has raised the issue of Tribunals power to intervene in the matter of disciplinary cases, at this stage, we may examine the settled legal position on the powers of the Tribunal as to what extent this Tribunal can interfere in the matters of disciplinary proceedings. We note our power is limited. We have gone through many judgments of Honourable Supreme Court of India in the matters relating to the Inquiry, and orders of the Disciplinary and Appellate Authorities and identified the guiding principles in the subject. Some of the relevant decisions of the Honourable Apex Court referred to by us are viz: B.C. Chaturvedi versus Union of India [1995 (6) SCC 749]; State of Tamil Nadu versus S. Subramanyan, [1996 (7) SCC 509]; State of Tamil Nadu versus K.V. Perumal [1996 (5) SCC 474]; Om Kumar versus Union of India (2001) 2 SCC 386); M.V. Bijlani versus Union of India [2006 SCC - 5-88] ; State of Rajasthan versus Mohd Ayub Naz [2006 SCC-1-589SC] ; Govt. of A.P. versus Nasrullah Khan [2006 STPL (LE) 36733 SC]; Govt. of India Versus George Philip [2007 STPL (LE) 37755 SC]; Union of India Versus S.S. Ahluwalia [2007 SCC (7) 257] ; and Moni Shankar versus Union of India [2008 SCC (3) 484]. The common threads running through these decisions of the Honourable Apex Court are that generally the Tribunal should not interfere with the decision of the executive in the matters of disciplinary proceedings unless those are found to be suffering from certain procedural, legal, statutory improprieties and infirmities. On certain grounds only the Tribunal can closely scrutinize the relevance or irrelevance of facts; availability or absence of evidence; proportionality or otherwise of the punishment; compliance or otherwise of the audi alteram partem; compliance or otherwise of the Wednesbury principle, probability of preponderance doctrine and the like. In the background of the position in law, we find that the Disciplinary Authority has not found the proved misconduct of the Applicant as grave and order so passed by the Disciplinary Authority does not conform to the Rule 9 of CCS (Pension) Rules 1972. Hence, the Tribunal has the authority to interfere and quash such an illegal order.
13. Taking into account the facts and circumstances of the case, the settled legal position; the Rule 9 of the CCS (Pension) Rules, 1972, and our analysis on the issues, we come to the considered conclusion that the Respondents have not made out a case of grave misconduct or grave negligence on the part of the Applicant which has to be the main basis for the President to impose the penalty of withholding of 20% of monthly pension of the Applicant for a period of 3 years.
14. Resultantly the Original Application succeeds and the impugned order dated 28.1.2009 is quashed and set aside. We direct the Respondents (i) to restore the full pension of the Applicant, as if no punishment has been awarded to him. (ii) to refund and release him the pension amount already recovered from the Applicant and (iii) to complete all action on (i) and (ii) above within a period of 3 months from the date of passing of this order. There is no order as to costs.
( Dr. Ramesh Chandra Panda ) ( V.K. Bali )
Member (A) Chairman
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