Central Administrative Tribunal - Delhi
Shri R P Verma (Retd. Apm) vs Union Of India Through on 1 February, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.3511/2011 Friday this the 1st day of February, 2013 Honble Shri George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member (A) Shri R P Verma (Retd. APM) r/o 45/3-B, Nagla Ageeta Agra 282002 ..Applicant (By Advocate: Shri G.S. Lobana) Versus 1. Union of India through Secretary, Department of Posts Dak Bhawan Sansad Marg, New Delhi-1 2. Director of Postal Services o/o Post Master General Agra Regiion, Agra (UP) 3. Senior Supdt. of Post Offices Agra Postal Division Agra (UP) 4. Senior Post Master Head Post Office, Agra (UP) ..Respondents (By Advocate: Shri R C Gautam) O R D E R (ORAL)
Shri G George Paracken:
This is the second round of litigation by the applicant. He is a retired Assistant Post Master of Agra Head Post Office. He superannuated from service on 31.03.2002. However, just few days before on 23.02.2002, the respondents initiated disciplinary proceedings against him under Rule 14 of the CCS (CCA) Rules, 1965 (for short Rules 1965). Articles of charges framed against him were as under:-
Article I That the said Shri R P Verma while working as APM SB Counter-II Agra HO during the period 5-2-99 to 23-2-99, 3-3-99, 7-5-99, 12-7-99 to 31-8-99, 2-9-99 to 4-9-99, 10-1-2000 to 13-1-2000, 2-2-2000, 4-2-2000 to 9-2-2000, 27-4-2000 to 28-4-2000. 31-7-2000, 6-9-2000 to 22-9-2000, 25-9-2000 to 28-10-2000, 13-11-2000 to 28-11-2000, 21-12-2000, 22-12-2000 to 10-2-2001, 26-2-2001 to 26-5-2001, committed grave misconduct inasmuch as he failed to check and challenged the fake cheque clearance vouchers/ pay-in-slip (SB-103) of deposits amounting to Rs.34,22,158.00.
On various dates (as the pay-in-slip contains fictitious/ counterfeit number of cheques and number of those cheques which has been tendered at other post offices) in respect of Agra HO SB Account No.912409, 912758, 910734, 913486 and 910882 which facilitated withdrawal of amounts accepted through fake clearance of cheques. Thus, the department has sustained a loss of Rs.34,22,158.00 (Rupees thirty-four lacs twenty two thousand one hundred fifty eight only) due to gross negligence, carelessness and non-observance of the rules by the said Shri RP Verma.
xx xx xx Article II
That the said Shri R P Verma while working as APM SB Counter-II Agra HO during the period 5-2-99 to 23-2-99, 3-3-99, 7-5-99, 12-7-99 to 31-8-99, 2-9-99 to 4-9-99, 10-1-2000 to 13-1-2000, 2-2-2000, 4-2-2000 to 9-2-2000, 27-4-2000 to 28-4-2000. 31-7-2000, 6-9-2000 to 22-9-2000, 25-9-2000 to 28-10-2000, 13-11-2000 to 28-11-2000, 21-12-2000, 22-12-2000 to 10-2-2001, 26-2-2001 to 26-5-2001, committed grave misconduct inasmuch as he allowed the depositors of Agra HO SB account No.912409, 912768, 910734 and 913486 to make deposits in their SB account in excess of prescribed maximum limit of Rs.100000.00 in a single account which facilitated withdrawals of heavy amounts.
xx xx xx Article III
That the said Shri R P Verma while working as APM SB Counter-I Agra HPO during the period 31-7-2000 to 4-8-2000, 30-10-2000 to 10-11-2000, 28-6-2001 to 26-6-2001, 3-7-2001 to 21-8-2001 committed grave misconduct inasmuch as he allowed opening of Agra HO MIS account No. 104662, 104724 through fake cheque clearance, pay-in-slip (SB 1203) on 16-8-2000, 24-8-2000 respectively. The department has already paid interest of Rs.30250.00 and 29700.00 to the depositors of above mentioned MIS accounts. Thus, the department has sustained a loss of Rs.7,10,950-00 due to his gross negligence carelessness and non-observance of the Rules.
xx xx xx Article IV
That the said Shri R P Verma while working as APM SB Counter-II Agra HO during the period 5-2-99 to 23-2-99, 3-3-99, 7-5-99, 12-7-99 to 31-8-99, 2-9-99 to 4-9-99, 10-1-2000 to 13-1-2000, 2-2-2000, 4-2-2000 to 9-2-2000, 27-4-2000 to 28-4-2000. 31-7-2000, 6-9-2000 to 22-9-2000, 25-9-2000 to 28-10-2000, 13-11-2000 to 28-11-2000, 21-12-2000, 22-12-2000 to 10-2-2001, 26-2-2001 to 26-5-2001, committed grave misconduct inasmuch as he failed to get noted SSC/BDS on withdrawal forms (SB-7) before acceptance of identification on withdrawal forms on different dates in respect of Agra HO SB account Nos. 912409, 912758, 912170, 910734, 913486 and 910882, which facilitated withdrawal of deposits made on the strength of fake clearance of cheques. Thus the department has sustained a loss of Rs.3403700.00.
2. According to the applicant, during the course of the inquiry he asked for certain additional documents but most of them have not been supplied to him. However, since he has already retired from service on 31.03.2002, the inquiry had proceeded against him under Rule 9(1) (2)(a) of the CCS (Pension) Rules, 1965. The said rule is reproduced as under:-
9. Right of President to withhold or withdraw pension [(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement :
Provided that the Union Public Service Commission shall be consulted before any final orders are passed :
Provided further that where a part of pension is withheld or withdrawn the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five per mensem.] (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.
3. As regards the first charge is concerned, the Inquiry Officer, vide its report dated 24.10.2003, held that it stood proved to the extent that he was lacking devotion to duty holding a supervisory post and he thereby violated Rule 3(1) (ii) of CCS (Conduct) Rules, 1965. Insofar as the second charge is concerned, the Inquiry Officer held that he was not found responsible for exceeding the balance in certain accounts over the prescribed limit. Thus the charge of lacking of integrity and devotion to duty leveled against him did not stand proved. As far as the third charge is concerned, the Inquiry Officer held that the applicant violated the instructions contained in Rule 31 (6), Instructions 10 (1 & 2) of Appendix-I and Rule 158 of POSB Manual Volume I. He is thus held responsible for loss of Rs.59,500/- towards MIS account and not for Rs.7,19,950/- as mentioned in the charge. According to the inquiry officer, the sub-article (2) of Article III of the charge that he was lacking in devotion of duty leveled against him was proved. As regards the fourth article of charge is concerned, the allegation of lacking devotion to duty in compliance with the instructions contained in Rule 31 (6) read with instructions 10 (1 & 2) of Appendix-I, Rule 35 (10) and rule 33 of POSB Manual Volume I against the applicant is fully established and thus he was held responsible for a loss of Rs.33,47,400/-, in all, to the Government under the SB accounts excluding the MIS. By virtue of the aforesaid position, the inquiry officer held that the charge of lacking in devotion to duty holding a supervisory post leveled upon the applicant stood fully proved.
4. However, the Disciplinary Authority of the applicant while he was in service, namely, the Senior Superintendent, Post Office, Agra Division, Agra, vide his letter dated 27.10.2003, disagreed with the findings of the inquiry officer. According to him, the aforesaid findings of the inquiry officer that the charge of lack of integrity leveled against the applicant in violation of Rule 3(1) (i) of CCS (Conduct) Rules, 1965 was not proved is not acceptable to him. The Disciplinary Authority further held that he failed to agree with the conclusion in the Inquiry Report that there was no evidence of lack of integrity on the part of the applicant. His functioning as APB (SB-II) Agra HO shows complete disregard for the procedures laid down which were to be followed meticulously. Therefore, the Disciplinary Authority disagreed with the findings of the Inquiry Officer and held that the charge leveled against the applicant stood proved and the Government has caused a loss of Rs.33,47,400/-. The copy of the said disagreement letter of the Disciplinary Authority filed as Annexure A-3 with this O.A. is reproduced as under:-
Department of Posts, India Officer of the Sr. Supdt. of Posts Offices Agra Division, Agra-2 To Shri R. P. Verma Retired APM Agra HO R/o House No.45/3 B Nagla Ajita PO Civil Lines, Agra-2 No.: F-6/1/Disc/R.P. Verma/ Retired APM/2001-02 Dated at Agra-2 the 27.10.2003 Sub: Inquiry against Shri R.P. Verma, Retired APM Agra HO under Rule-9 of CCS (Pension) Rules-1972 Supply a Copy of Inquiry Report The Inquiry Report of the Inquiry Officer has been received in the office (A copy of the same is enclosed). The Inquiry Officer has concluded that in the article IV amalgamated with article-1 of the charge, the facts mentioned in Sub Para 1 to 13 of para 9.1.2 of the Inquiry Report, clearly establish the gross negligence of Rules on your part while holding a Supervisory Post, which resulted in a loss of Rs.33,47,400/- to the Government of India. That you had failed to comply with the instructions of PO SB Manual Vol-1, the allegations levelled upon you stand proved.
As regards the view of the Inquiry Officer that the charge of Lack of Integrity leveled against you in violation of Rule-3(1) (i) of CCS (Conduct) Rules-1964, as not being proved, I fail to agree with the conclusion of Inquiry Report that there is no evidence of Lack of integrity Your functioning as APM (SB-II) Agra HO shows complete disregard for the procedures laid down which were to be followed meticulously. On the contrary there is no evidence that you acted in good faith when the irregularity was being carried out repeatedly.
I therefore find that all the charges levelled against you stand proved by which the Government has sustained as a loss of Rs.33,47,400/-
If you wish to make any representation you may submit it within 15 days of the receipt of this letter. If no representation is received within the stipulated period it will be presumed that you do not want to make any representation and further action will be taken on the merits of the case.
DA Inquiry Report dtd. 24.10.203 (Page No.01 to 59) Sd/-
Sr. Supdt. of Post Officer Agra Division Agra-28202 27.10.2003
5. The applicant submitted a representation against the findings of the inquiry officer as well as the final disagreement note of Sr. Superintendent of Post Offices stating that they were illegal. He has specifically stated that the final disagreement note by the said authority was against the provisions contained in Rule 15 (2) of the CCS (CCA) Rules, 1965.
6. However, the Disciplinary Authority, namely, the President, vide order dated 25.3.2004, imposed upon him the penalty of withholding of his 50% (fifty percent) pension and entire gratuity permanently. The relevant part of the said order is reproduced as under:-
4. The case was therefore placed before the President who after careful consideration of the facts and circumstances of the case came to a tentative conclusion that the proven grave charges against the charged official constituted serious mis-conduct for which he deserved action under Rule 9 of the CCS (Pension) Rules, 1972. He therefore, sought the advice of the Union Public Service Commission which has been tendered vide their letter No.F.3/365-03-SI dated 1.3.2004 (copy enclosed)
5. The Commission has carefully considered the facts, evidence and the inquiry report and observed that various omissions and commissions committed by the charged official are of grave nature. The charged official has failed to perform his duties as per the laid down rules and procedures over a sufficiently long time which involved considerable amount of money and therefore his failures could not be merely carelessness on his part. All the charges established against the charged official constituted grave misconduct. Therefore the Commission has advised that ends of justice would be met by awarding penalty of withholding of 50% (fifty percent) admissible pension permanently and forfeiture of his entire gratuity.
6. The President has carefully considered the advice of the Commission. The evidence on record clearly establish that the ex-official had failed to discharge the assigned duties diliquently and sincerely. He did not follow the laid procedure and rules which resulted in considerable pecuniary loss caused to the Govt. His contributory lack of sincerity to duty was instrumental in commitment of fraud. Deterrent action was therefore rightly decided to be taken against Sh. R.P. Verma. The President has therefore come to the conclusion that for the said proven grave charges against him, withholding of 50% (fifty percent) of admissible pension and forfeiture of gratuity on permanent basis would be appropriate as advised by the Commission. He has, therefore, accepted the advice of the Union Public Service Commission and ordered withholding of his 50% (fifty percent) pension and entire gratuity permanently.
By order and in the name of the President.
Sd/-
(R.K. Kumania) Desk Officer (VP)
7. The applicant, vide O.A.No.2524/2004, earlier challenged the legality, validity and correctness of Charge Sheet dated 22-3-2002, Inquiry Report dated 24-10-2003, Presidential Order (Disciplinary Authority) 25-3-2004 whereby 50% (fifty percent) of pension and entire gratuity admissible to the applicant has been withheld on permanent basis. This Tribunal disposed of the aforesaid OA, vide its order dated 23.9.2010, directing the respondents to forward the OA of the applicant as review petition to the competent authority, which in turn will dispose of the same by a speaking order, dealing with all the contentions raised in the OA, within a period of three months of such reference. It was also directed that the applicant would be at liberty to assail the order in appropriate proceedings. It was made clear that review shall be decided on merits, without taking into consideration the aspect of limitation. The relevant part of the said order is as under:-
Applicant, who retired on superannuation on 31.03.2002, by virtue of this OA, has impugned Presidential order dated 25.03.2004, whereby on continuing disciplinary proceedings post-retirement under Rule 14 of the CCS (CCA) Rules, 1965, holding him guilty of the charge, on disagreement by the Disciplinary Authority, in consultation with the UPSC, a penalty of withholding of 50% of the admissible pension and forfeiture of the entire gratuity on permanent basis has been inflicted.
2. Admittedly, no review has been preferred by the applicant against this order to the President, which is available under the relevant rules.
3. On our pointed query to the applicant as to filing of the review petition and this suggestion being put to the learned counsel of respondents that the present OA may be treated as a review of the applicant and be decided by the President, no serious resistance has come-forth.
4. Accordingly, leaving the grounds open, we dispose of this OA with a direction to respondent to forward the OA of the applicant as review petition to the competent authority, which in turn shall dispose of the same by a speaking order, dealing with all the contentions raised in the OA, including proportionality of punishment, within a period of 3 months of such reference. Applicant would be at liberty to assail that order in appropriate proceedings. We make it clear that the review shall be decided on merits, without taking into consideration the aspect of limitation. No costs.
8. As the respondents failed to comply with the aforesaid order, the applicant moved M.A.No.1040/2011 for execution of the order. Meanwhile the President issued the impugned order dated 13.05.2011 stating that there was no reason to modify the earlier order dated 25.03.2004. Accordingly, the review was dismissed.
9. Thereafter, the applicant sought certain information from the respondents vide his application dated 20.05.2011 and vide their letter dated 01.06.2011 he was informed that the Presidential order dated 13.05.2011 was approved by two members of the Postal Services Board on behalf of the President of India, in exercising the powers delegated to them.
10. The applicant has, therefore, again challenged the aforesaid impugned charge sheet dated 22.03.2002, inquiry officers report dated 24.10.2003, disagreement note dated 27.10.2003, Presidential order dated 25.03.2004, order dated 13.05.2011 and order dated 01.06.2011 in this O.A. The preliminary submissions of the learned counsel for the applicant challenging the aforesaid impugned orders are that the impugned order of Senior Superintendent of Post Offices dated 27.10.2003 is without authority and in violation of the principles of natural justice as held by the Apex Court in the case of Yoginath D. Bagde v. State of Maharashtra & another, (1999) 7 SCC 739 and in violation of the statuary requirement of Rule 15 (2) of the Rules 1965. The relevant part of the said judgment as well as Rule 15(2) ibid are reproduced as under:-
Having regard to the circumstances of this case, we are of the view that the Disciplinary Committee was wholly in error in disagreeing with the findings recorded by the Enquiry Officer and the charges levied against the appellant were not established.
It was lastly contended by Mr. Harish N. Salve that this Court cannot reappraise the evidence which has already been scrutinised by the Enquiry Officer as also by the Disciplinary Committee. It is contended that the High Court or this Court cannot, in exercise of its jurisdiction under Article 226 or 32 of the Constitution, act as the Appellate Authority in the domestic enquiry or trial and it is not open to this Court to reappraise the evidence. The proposition as put forward by Mr. Salve is in very broad terms and cannot be accepted. The law is well-settled that if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such to which no reasonable person would have reached, it would be open to the High Court as also to this Court to interfere in the matter. In Kuldeep Singh vs. The Commissioner of Police & Ors., JT 1998(8) SC 603 = (1999) 2 SCC 10, this Court, relying upon the earlier decisions in Nand Kishore vs. State of Bihar AIR 1978 SC 1277 = (1978) 3 SCC 366 = (1978) 3 SCR 708; State of Andhra Pradesh vs. Sree Rama Rao AIR 1963 SC 1723 = (1964) 3 SCR 25; Central Bank of India vs. Prakash Chand Jain AIR 1969 SC 983; Bharat Iron Works v. Bhagubhai Balubhai Patel & Ors. AIR 1976 SC 98 = (1976) 2 SCR 280 = (1976) 1 SCC 518 as also Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) & Ors. AIR 1984 SC 1805 = (1985) 1 SCR 866 = (1984) 4 SCC 635, laid down that although the court cannot sit in appeal over the findings recorded by the Disciplinary Authority or the Enquiry Officer in a departmental enquiry, it does not mean that in no circumstance can the court interfere. It was observed that the power of judicial review available to a High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and the Courts can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse.
In the instant case, we have scrutinised the reasons of the Disciplinary Committee and have found that it had taken its final decision without giving an opportunity of hearing to the appellant at the stage at which it proposed to differ with the findings of the Enquiry Officer. We have also found that the complainant's story with regard to the place at which the demand was allegedly made by the appellant was inconsistent. We have also noticed that the trap laid by the A.C.B., Nagpur against the appellant had failed and was held by the Enquiry Officer to be a farce and not having been laid with the permission of the Chief Justice. We have also noticed that there was absolute non- consideration of the statements of defence witnesses, namely, Dr. Naranje and Mr. Bapat, advocate, by the Disciplinary Committee. This factor in itself was sufficient to vitiate the findings recorded by that Committee contrary to the findings of the Enquiry Officer.
For the reasons stated above, we allow the appeal and set aside the judgment dated 21.6.1996 passed by the Bombay High Court by which the appellant's Writ Petition was dismissed. We hereby allow the Writ Petition and quash the order of dismissal dated 08.11.1993 passed by the State Government with the direction that the appellant shall be reinstated in service forthwith with all consequential benefits, including all arrears of pay which shall be paid to him within three months. There will be no order as to costs.
11. Rule 15 (2) of the Rules 1965 is also reproduced as under:-
1. xx xx xx xx
2. The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiring Authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.
12. Learned counsel for applicant has also stated that the Govt. of India, Department of Personnel and Training vide its O.M. No.F.No.11012/12/2010-Estt. (A) dated 12.11.2010 has reiterated the need for indicating only the tentative reasons for disagreement and not the final view in the matter. The said office memorandum is also reproduced as under:-
(12) Communicating tentative reasons for disagreement under Rule 15 (2). - Rule 15(2) of the Central Civil Services (Classification, .Control and & Appeal) Rules, 1965 states that The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiry Authority on any article of charge to the Government Servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not, to the Government servant.
2. The necessity of following the aforementioned rule 15(2) both in letter and spirit is reiterated. The communication forwarding the 10's report along with the tentative reasons for disagreement, if any, seeking comments / representation of the Charged Officer should reflect this position. All Ministries/ Departments are, therefore, requested to ensure that the communication forwarding 'the 10's report etc. does not contain phrases such as 'Article of charge is fully proved' or 'Article of charge is fully substantiated which could be construed to mean that the Disciplinary Authority is biased even before considering the representation of the charged officer and this would be against the letter and spirit of the CCS (CCA) Rules, 1965.
3. Ministry of Finance, etc. may bring the contents of the above OM to the notice of all concerned.
13. The second leg of the argument of learned counsel for applicant is that the respondents have violated the directions contained in proviso 2 to Rule 9 of the CCS (Pension) Rules, 1965. The said rule has already been extracted in para 2 of this order. According to the aforesaid proviso, it is incumbent upon an authority subordinate to the President to submit the report recording its findings to the President before any final order is passed. However, in the present case the subordinate authority has not submitted its own findings to the President. On the contrary, the Assistant Director General (VP) has issued the impugned order dated 13.05.2011 stating that the President has found no reason to modify the earlier order dated 25.3.2004 and therefore has rejected the Review Petition accordingly. Learned counsel for applicant has, therefore, argued that the respondents have not complied with the aforesaid provision and the impugned order has been passed in a very mechanical manner.
14. In this regard, the learned counsel for applicant has relied upon the order passed by the Ernakulam bench of this Tribunal in T.N. Sukumaran v Union of India & others 2003 (1) AISLJ (CAT) 252. The relevant part of the said judgment reads as under:-
Since the disciplinary proceedings against the applicant in this case was instituted by the 4th respondent by memorandum of charges dated 1.4.8.95 prior to the applicant's retirement in accordance with the provisions contained in Sub-rule 2 of Rule 9, the same has to be continued and concluded by the 4th respondent beyond the date of retirement of the applicant as if the applicant continued in service. According to the proviso to the Sub-rule, the 4th respondent the authority who instituted the proceedings against the applicant has to submit a report recording its finding to the President. On the basis of the report and the finding of the authority which instituted the proceedings and after getting the opinion of the UPSC, the Presidential Order withholding or withdrawing the pension can be issued. A reading of Annexure A23 would make it clear that a report of the 4th respondent the authority who instituted the disciplinary proceedings against the applicant by Annexure A17 memorandum of charges containing a finding that the applicant was guilty of the charges was neither received nor considered before passing the impugned order A23. Annexure A23 reads as follows:--
Government of India Ministry of Railways (Railway Board) No. E(1) and A) 98 AE 7-7 New Delhi, Dt. 2.7.1999 ORDER The President has considered the report of the Inquiry Officer appointed to inquire into the charges levelled against Sri T.N. Sukumaran, retd. Welfare Inspector/PGT Division vide charge memorandum No. V/VO/1064/210/89-J/392 dated 14.8.1995. The UPSC has also been consulted by the President as required under the rules. A Copy of the Commission's advice as contained in their letter No. F. 3/397/98-S.I dated 14.6.1999 is enclosed.
After taking all the facts and circumstances of the case into account, the President has observed that all the charges levelled against Sh. Sukumaran are proved on the basis of oral and documentary evidence on record, and has therefore, decided that a cut of 50% in the pension otherwise admissible to Sh. Sukumaran, be imposed upon him for a period of five years.
By Order and in the Name of the President Sd/-
(Inder Mohan) Joint Director Estt (D&A) Railway Board Sh. T.N. Sukumaran, Retd. Welfare Inspector/PGT, C/o The General Manager (P), Southern Railway, Chennai.
In the absence of a finding by the authority which instituted the disciplinary proceedings against the applicant holding that the applicant was guilty of the charges, the Presidential Order under Rule 9 of the Railway Services (Pension) Rules withholding or withdrawing the Pension of the applicant could not have been validly issued.
It is also pertinent to mention that the order does not contain the reason as to how the charges framed against the applicant was established on the basis of oral and documentary evidence. The evidence has not been discussed in the order and there is not even a statement that the President agreed with the finding of the Enquiry Officer or of the UPSC or of the Disciplinary Authority. If the 4th respondent had recorded a finding that the applicant was guilty of charges and sent a report along with the finding necesarily it would have been so stated in the A23 order. Under proviso to Sub-rule 2 of Rule 9 it is mandatory that the authority which instituted the proceedings should record a finding as to whether the ex-Railway servant was guilty or not and submit a report to the President. Only if the pensioner is found guilty of a grave misconduct in a departmental or judicial proceedings, the powers reserved with the President for withholding or withdrawing his pension can be issued. In this case there is no finding by the 4th respondent who instituted the proceedings. Since pension is not bounty but a property as has been held by the Apex Court in a Catena of decisions, the pensioner cannot be deprived of it except in accordance with the procedure laid down in the rules.
6. In the light of the above discussion, we find that the impugned order Annexure A23 cannot be sustained. It follows that Annexure A24 also is unsustainable. Now that the applicant is retired from service and the impugned orders Annexures A23 and A24 are not sustainable, we have to consider what relief the applicant is entitled to. Since there has not been a conclusion of the departmental proceedings initiated against the applicant while he was in service by recording a finding of the authority which instituted the proceedings the period for which the applicant was placed under suspension has got to be regularised as period spent on duty for the purpose of pay and allowances and drawa! of increments as also for computing the qualifying service for pension. However in the circumstances of the case, we are not inclined to grant the claim of the applicant for promotion to the applicant with effect from the date on which his junior Shri Johnson was promoted to higher grade.
7. In the result the application is partly allowed. The impugned orders Annexures A23 and A24 are set aside. Declaring that the period between 30.5.90 to 25.8.93 during which the applicant was placed under suspension is to be treated as service for the purpose of increment, salary and pension, the respondents are directed to pay to the applicant the difference between the pay, bonus and allowances and the subsistence allowance already paid to him for the period of suspension. The respondents are also directed to grant pension paid to him without any cut alongwith the DCRG and other benefits like commuted value of pension, leave encashment etc., treating the period between 30.5.90 to 25.8.93 as qualifying service. Order in this regard should be passed and the monetary benefits flowing therefrom shall be made available to the applicant within a period of three months from the date of receipt of receipt of a copy of this order. Interest on DCRG and other benefits shall also be granted as per rules. No order as to costs.
15. The respondents have filed their reply. The learned counsel for the respondents has also refuted the contentions of the applicants counsel. They have stated that as per the provisions of Rule 13(2) of the Rules 1965, Senior Superintendent of Post Offices, Agra Division, Agra is the competent authority to initiate the major penalty proceedings against the applicant. The inquiry officers report along with relevant records was forwarded to the competent authority, i.e., Director, Postal Services, Agra Region, Agra for his opinion / comments or further action. The case of the applicant was also reviewed by the competent authority (President of India) and finally decided the matter not to interfere with the earlier orders. They have also stated that before awarding the penalty of withholding 50% of pension and entire gratuity amount permanently, it was reiterated that the entire matter was considered thoroughly with reference to the related records. They have further stated that the Presidential order is based on the scrutiny carried out by the competent authority enjoying the delegation of powers on his behalf and as well as on the advice of the UPSC. Thus, it cannot be concluded by any standard of imagination that the President has not carefully considered the facts, evidence and inquiry report. On the contrary, the various omissions committed by the applicant are of very serious / grave and constitute grave misconduct on his part. It was for the said reason that the UPSC which is specialized statutory body has also advised that the ends of justice would be met by awarding penalty of withholding 50% of pension and entire gratuity amount permanently.
16. We have heard the learned counsel for applicant, Shri B S Lobana and the learned counsel for respondents, Shri R C Gautam. As already observed earlier, this is the second round of litigation by the applicant who has already retired from service on 31.03.2002. Since the disciplinary proceedings against him have been initiated before his retirement, they continued in terms of the provisions contained in terms of proviso 2 to Rule 9 of the CCS (Pension) Rules, 1965. The inquiry officer submitted his report on 24.10.2003. As stated earlier in this order, the inquiry Officer held that Article II and Sub Article (1) of Article III of the charges have not been proved. However, the Senior Superintendent of Post Offices, the then Disciplinary Authority, vide its final disagreement letter dated 27.10.2003, categorically held that all the charges leveled against the applicant stood proved and because of him Government suffered a loss of Rs.33,47,400/-. Obviously such a finding is in violation of Rule 15(2) of the CCS (CCA) Rules, 1965 which prescribes that the Disciplinary Authority shall give only his tentative reasons for disagreement. The Apex Court in Yoginath D. Bagdes case (supra) has also held that in such circumstances the impugned orders are to be quashed and set aside and the Applicant concerned shall be restored the benefits withdrawn by the respondents by way of punishment. Even the Department of Personnel & Training, vide its OM dated 12.11.2010 (supra), emphasized the need of issuing only tentative disagreement note.
17. Further, as stated earlier, the impugned disagreement letter dated 27.10.2003 was issued by the Sr. Superintendent of Post Offices, Agra Division, the then Disciplinary Authority of the applicant. As the applicant has already retired from service on 31.03.2002 and the further disciplinary proceedings are in terms of Rule 9(2) of the CCS (Pension) Rules, 1965, the disagreement note also should have been issued on behalf of the President and approved by the competent authority, as envisaged in the proviso to the aforesaid Rules extracted in paragraph 2 of this order. Instead, the then Disciplinary Authority has issued the disagreement letter to the applicant on his own. It is based on the aforesaid disagreement note and the representation made by the applicant against it, the Disciplinary Authority (President) has issued the impugned penalty. As is well settled position that if the basis of an order itself is illegal, the final order also gets vitiated.
18. Further, as rightly argued by the learned counsel of the Applicant, the impugned order dated 13.05.2011 has been issued in violation of the statutory provisions contained in Rule 9(2) of the CCS (Pension) Rules. It is seen that the authorities subordinate to the President has not applied its mind at all in this case. The said authority ought to have submitted a report regarding its findings to the President to enable him to take a decision in the Review Petition, which has not been done. It is in the said circumstances that the order of the Ernakulam Bench of this Tribunal in T.N. Sukumarans case (supra) becomes relevant in this case also.
19. In view of the above position, we quash and set aside the disagreement note dated 27.10.2003 and the orders dated 25.03.2004 and 13.05.2011 annexed with this OA with all consequential benefits including restoration of pension with payment of up-to-date arrears forthwith. Simultaneously, we also remand this case to the disciplinary authority to re-consider the issue and to pass a speaking order, if so desire, after giving the applicant tentative reasons as to why he is disagreeing with the inquiry officers report. He shall also take into consideration of the fact that the applicant has already retired from service way back on 31.03.2002.
20. The aforesaid directions shall be complied with, within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs.
( Shekhar Agarwal ) ( G George Paracken )
Member (A) Member (J)
/vb/