Central Administrative Tribunal - Jodhpur
Pritam Singh vs M/O Communications on 16 October, 2019
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CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH
...
Original Application No. 290/00367/2017
RESERVED ON : 26.09.2019
PRONOUNCED ON: 16.10.2019
CORAM:
HON'BLE MRS. HINA P.SHAH, MEMBER (J)
Pritam Singh son of Shri Heera Singh by caste Baghela
(Thakur) aged 68 years, the then Superintendent of Post
Offices, Churu at present resident of Gediya Colony, Oil
Factory, Baran.
...Applicant
By Advocate: Shri S.P.Arora)
Versus
1. Union of India through the Secretary to Govt. Ministry
of Communication Dept. of Posts, Sanchar Bhawan,
New Delhi-110 001.
2. The Chief Post Master General, Raj. Circle, Jaipur
3. The Post Master General, Western Region, Jodhpur.
4. The Director of Accounts, Raj. Circle, Postal, Jaipur
...Respondents
By Advocate: Shri B.L.Tiwari)
ORDER
Per Mrs. Hina P.Shah The applicant has filed the present OA praying for the following reliefs:-
i) The Original Application may very kindly be allowed.
ii) By an appropriate order or direction, order dated 24.7.2017 passed by Post Master General, 2 Rajasthan Western Region, Jodhpur denying provisional pension, the payment of DCRG and amount of leave encashment etc. to the applicant Annexure A/1 may kindly be quashed and set aside; (ii) the respondents may very kindly be directed to pay the provisional pension to the applicant from 1.8.2007 and to pay the arrears of provisional pension and pay the interest on delayed payment of amount of G.P.F. and CGEISW, and to pay the amount of Leave Encashment, Gratuity etc. etc. with interest @ 18%; iii); Any other appropriate order or direction which is deemed fit and proper may very kindly be granted in favour of the applicant ;
v) Costs may very kindly be granted in favour of the applicant.
2. The case of the applicant is that he joined the respondent department on 18.5.1967 and while working on the post of Superintendent of Post Offices, Churu, a complaint was submitted before the Central Bureau of Investigation (CBI) against the applicant for demanding bribe and on the basis of said complaint, a trap was laid by the CBI on 3.8.1999 and the applicant was allegedly caught red handed. Pursuant to this, the applicant was placed under suspension. The CBI after conducting investigation in the case had filed charge sheet on 18.12.1999 against the applicant in the Court of Special Judge, CBI Cases, Jodhpur. Special Criminal Case No. 3/2000 was registered and charges were framed. After trial, the applicant was 3 convicted under Section 7 read with Section 13(1) (d) and 13(2) of Prevention of Corruption Act vide judgment dated 18.1.2003. Against the judgment dated 18.1.2003, the applicant filed S.B. Criminal Appeal No.97/2003 before the Hon'ble Rajasthan High Court wherein vide order dated 27.1.2003, the Hon'ble High Court admitted the appeal and suspended the sentence awarded to the appellant. The said appeal is still pending adjudication. Pursuant to the judgment dated 18.1.2003 the respondents vide order dated 16.6.2004 imposed penalty of dismissal from service on the applicant (Ann.A/3). Against the dismissal order dated 16.6.2004, the applicant approached this Tribunal by way of filing OA No. 119/2007 and the same was dismissed vide order dated 25.10.2010. The applicant has challenged the order of this Tribunal in D.B. Civil Writ Petition No.6029/2015 before the Hon'ble High Court, which was also dismissed on 9.1.2017. The applicant submitted application on 21.7.2016 (Ann.A/4) before respondent No.3 for grant of provisional pension and other retiral benefits. The respondent No.3 vide order dated 20.12.2016 sanctioned a sum of Rs. 25,598/- to the applicant on account of payment of CGEIS-80 and the said amount has been received by the applicant without any interest. A sum 4 of Rs. 26,829/- has also been paid towards GPF to the applicant vide sanction dated 12.7.2016 which has also been received by him without interest.
The applicant has pleaded that the order of dismissal dated 16.6.2004 was issued because the Criminal Court vide judgment dated 18.1.2003 convicted the applicant, but against the aforesaid judgment, the applicant has filed S.B.Criminal Appeal No.97/2003 before the Hon'ble High Court wherein the Hon'ble High Court vide order dated 27.1.2003 admitted the appeal and suspended the sentence awarded to the appellant and the appeal is still pending adjudication. Thus, the applicant is entitled to get the provisional pension and other retiral benefits like gratuity, leave encashment etc. as per Rule 69 of Central Civil Services (Pension) Rules, 1972. The respondents in an arbitrary and illegal manner declined to grant provisional pension and other retiral benefits to the applicant vide order dated 24.7.2017 (Ann.A/1). Therefore, aggrieved by the action of the respondents, the applicant has filed the present OA.
3. The respondents have raised preliminary objection and stated that the present matter is not maintainable and on 5 limitation the OA deserves to be dismissed. The respondents pointed out that the applicant while working as Superintendent of Post Offices, Churu Division was caught red handed by the CBI in relation to offences under Prevention of Corruption Act and after trial, came to be convicted with rigorous imprisonment and fine was awarded by the Court of Special Judge, CBI, Jodhpur vide judgment dated 18.1.2003. In Criminal Appeal No.97/2003, the Hon'ble High Court vide its interim order dated 27.1.2003 only suspended sentence awarded to the applicant. In view of DOPT OM dated 4.3.1994 read with relevant CCS (CCA) Rules, 1965, the Disciplinary Authority may proceed against the convicted officer for imposition of appropriate penalty. The Disciplinary Authority issued a show-case notice dated 24.12.2003 and after considering the representation of the applicant and all relevant aspects of the case including gravity of misconduct, after due application of mind passed order of dismissal dated 16.6.2004, which has been affirmed by this Tribunal in OA No.119/2007 vide its order dated 25.10.2010. The DB CWP No.6029/2015 filed by the applicant against the order dated 25.10.2010 has been dismissed by the Hon'ble High Court dated 9.1.2017. The respondents have further submitted 6 that the punishment order of dismissal from service was passed by the competent authority not merely on the basis of applicant's conviction in the corruption case, but dismissal order was passed after due consideration of all aspects pertaining to the case including the gravity of misconduct that lead to his conviction. The CGESI-80 amount does not form part of retiral benefits and as such no interest is payable. A sum of Rs. 26,829/- includes earned interest and no separate interest is payable on delayed payment.
The respondents have further submitted that the applicant was dismissed from service vide order dated 16.6.2004 as a punishment under Rule 11 read with Rule 19 of CCS (CCA) Rules, 1965 and such type of punishment entails forfeiture of his past services, making him disentitled for retiral and other service benefits. The dismissal of service not only results into denial of retiral benefits by virtue of Rule 24 of CCS (Pension) Rules, 1972, but also the benefit of leave encashment in terms of Rule 9 of CCS (Leave) Rules, 1972. The amount of GPF and CGEGI does not contain any provision for entitlement of any interest on delayed payment. The respondents further stated that Rule 69 of CCS (Pension) Rules, is applicable in the event of 7 retirement of an employee after attaining the age of his superannuation during pendency of department or judicial proceedings and this provision is not applicable in case of dismissal of an employee like the applicant.
4. The applicant has filed rejoinder to the reply filed by the respondents and while reiterating the averments made in the OA stated that he is entitled to provisional pension as per Rule 69 of the CCS (Pension) Rules, 1972.
5. Heard Shri S.P.Arora, counsel for the applicant and Shri B.L.Tiwari, counsel for respondents and perused the material available on record.
6. The plea of the applicant is that since the criminal proceedings are pending before the Hon'ble High Court, therefore, as per Rule 69 of CCS ( Pension) Rules, 1972, he is entitled for provisional pension. Rule 69 of CCS (Pension) Rules, 1972, provides as under:-
"69. Provisional pension where departmental or judicial proceedings may be pending -
(1) (a) In respect of a Government servant referred to in sub-rule (4) of Rule 9, the Accounts Officer shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the government servant, or if he was under suspension on the date of retirement up to the 8 date immediately preceding the date on which he was placed under suspension.
(b) The provisional pension shall be authorized by the Accounts Officer during the period commending from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the Competent Authority.
(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final order thereon."
Since the sentence awarded to the applicant has been suspended by the Hon'ble High Court in SB Criminal Appeal No.97/2003 vide its order dated 27.1.2003 but the said appeal is still pending adjudication, therefore, he is entitled to provisional pension. The learned counsel for the applicant further placed reliance on para-8 of the judgment of the Hon'ble Karnataka High Court in WP No.5938 of 2004 (S- CAT) in the case of N.K.Suparna vs. Union of India and Ors. decided on 23.9.2004, which is in the following terms:-
"8. In order to answer this point, it would be beneficial to first notice the provisions of Rule 69 of the Rules itself. Clause (b) of Sub Rule (1) of Rule 69 reads as follows:-
"69(1)(b):-
The provisional pension shall be authorised by the accounts officer during the period commencing from the date of retirement upto and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority."9
The provision of Clause (b) is quite clear, plain, unambiguous and does not admit more than one meaning. Clause (b) in unmistakable terms directs that a delinquent employee will be entitled to provisional pension from the date of retirement upto and including the date on which the final order that may be made by the competent authority, after the conclusion of the departmental or judicial proceedings. The key words for our purpose are 'after the conclusion of departmental or judicial proceedings'. The interpretation suggested by the learned CGSC for the department is not acceptable to us for more than one reason. It is well settled that the appeal is a continuation of the original proceeding. Since the petitioner being aggrieved by the judgment and order of the CBI Court has preferred appeal to this Court and the same is pending, we have to necessarily hold that the proceedings are pending. Undoubtedly, the pendency of the appeal in this Court is a judicial proceeding. It also needs to be noticed that the final order envisaged under Rule 9(1) of the Rules in terms of Clause (b) of Sub Rule (1) of Rule 69 of the Rules is required to be passed by the President of India only after the conclusion of the departmental or judicial proceedings. In the instant case, since the judicial proceedings, we mean the launching of prosecution against the petition have not been concluded so far in terms of finality, the President of India invoking the power conferred upon him under Sub Rule (1) of Rule 9 would not arise. Therefore, the impugned order passed by the President of India in the purported exercise of power under Rule 9(1) of the Rules should be condemned as without authority of law inasmuch as the necessary condition to invoke that power did not exist as on the date of the impugned order nor does it exist as on today also."
Therefore, the learned counsel for the applicant states that as his case is also pending before Hon'ble High Court, he is entitled to provisional pension as in that case also provisional pension was withheld by the department and 10 the Hon'ble High Court had ordered to pay the provisional pension forthwith.
7. On the other hand, the learned counsel for the respondents pointed out that the applicant in earlier round of litigation i.e. OA No.119/2007 has prayed for quashing of the dismissal order dated 16.6.2004 as well as order dated 19.2.2007 with all consequential benefits. It is the claim of the respondents that since the provisional pension and payment of DCRG and Leave Encashment were consequential reliefs alongwith dismissal order, therefore, the same cannot be adjudicated in the present OA as the provisional pension is part and parcel of the consequential benefits to the dismissal order. The respondents state that since the said matter was dismissed by this Tribunal on 25.10.2010 and thereafter the same was carried further to the Hon'ble High Court. The Hon'ble High Court vide its order dated 19.1.2017 upheld the judgment of this Tribunal. Therefore, the applicant cannot re-agitate the issue of provisional pension which was part and parcel of the consequential benefits to the dismissal order. As the order of this Tribunal had attained finality before the Hon'ble High Court and the applicant had thereafter not challenged the same before the Hon'ble Apex Court, the 11 applicant cannot now raise grievance pertaining to his provisional pension. The respondents further stated that the judgment relied upon by the applicant is not applicable to the present case, since in the said matter, the facts and circumstances were completely different and the order of dismissal was not challenged in the said writ petition. The respondents also state that the present case is barred by limitation as the applicant is seeking provisional pension whereas the dismissal order passed by the respondents dated 16.6.2004 has already been challenged in 2007 and thereafter it has attained finality, therefore, now in the year 2017 the applicant cannot again re-agitate the matter and raise the question of provisional pension and other benefits which were consequential to the dismissal order. They further reiterated that the dismissal order which was passed as per rules does not entitled the applicant for any retiral benefits and therefore, the present OA deserves to be dismissed.
8. Considered the rival contentions of both the parties.
9. The applicant in the present OA was held guilty and convicted by the Special Judge CBI, Jodhpur vide judgment dated 18.1.2003. Thereafter, the Disciplinary Authority 12 arrived at the conclusion that it was a fit case to be proceeded against under Rule 19 of CCS (CCA) Rules, 1965. Accordingly, a show cause notice dated 24.12,2003 was given to him for making representation against the proposed punishment of dismissal from service. After considering his representation, the Disciplinary Authority imposed a penalty of dismissal from service vide order dated 16.6.2004. Being aggrieved by the penalty order, the applicant presented a revision petition before the President of India challenging the validity of order dated 16.6.2004, but the same was rejected on 19.2.2007. The said order of dismissal dated 16.06.2004 and the order passed on his revision dated 19.2.2007 was challenged by the applicant in OA No.119/2007. Vide order dated 25.10.2010, the said OA was dismissed. Thereafter the applicant has challenged the order passed in OA No.119/2007 before the Hon'ble High Court by filing D.B.Civil Writ Petition No.6029/2015, which was also dismissed by the Hon'ble High Court vide order dated 09.01.2017. In view of above developments, it is evident that the order of dismissal form service has passed the test at the level of this Tribunal as well as before the Hon'ble High Court.
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10. The controversy involved in the instant OA is also not res-integra, and the same has already been decided by this Tribunal as well as by the Hon'ble Delhi High Court.
The Principal Bench of this Tribunal in the case of P.C.Misra vs. Union of India and Ors. in OA No.1175/2012 decided on 13.9.2013 observed as under:-
"28. Here one has to consider the plea put forth by the learned counsel for the respondents that if we were to accept that full provisional pension would be continued to be admissible till the issue has been finally decided by the last court of appeal, this is likely to have dangerous implication for the administration.
29. We have considered the matter very carefully and we find that in view of the answers provided to the issues framed above, there is merit in the basic contention of the respondents. We have already discussed that a criminal act is a crime against the State and, therefore, by implication it could also be against the people at large. If we accept the plea of the applicant that the suspension of criminal sentence would indefinitely remain in limbo and all the rights existing prior to the criminal sentence are suo motu to be continued, then this would not only put fetters on the provision of Rule 9(1) of the Pension Rules, 1972 but also by and large render the provisions of Rule 41 meaningless. This is not the spirit of the legislature. A punishment is always expected to have a deterrent effect. A point of equilibrium has to be arrived at between the individual justice and deterrent punishment. If it is overweighed on the side of individual justice, the cause of the Government and that of ordinance happen to be undermined.
30. In view of our above discussion, we are very clear in our opinion that Rule 41 and Rule 9 are two different rules. We are also of the view that the applicant has not been able to establish his case for grant of continued provisional pension for the reasons that we have discussed above. Original Application thus stands dismissed leaving the parties to bear their own costs. We leave it open, at the same time, to the applicant to apply for compensate allowance u/r 41 of the CCS (Pension) Rules, 1972 which the respondent authorities may consider on its merits."
The Hon'ble Delhi High Court in W.P.(C) 12470/2018 in the case of P.C.Misra, DANICS/JOINT DIRECTOR (RETD.) 14 vs. Union of India and Ors. vide judgment dated 26.11.2018 in para 30 to 40 the Hon'ble High Court has observed as under:-
"30. The decision in N.K. Suparna (supra) was assailed before the Supreme Court. The SLP was, however, withdrawn by the petitioner on 20.08.2008. Thus, the issue decided by the Karnataka High Court in N.K. Suparna (supra) has not received the seal of approval of the Supreme Court.
31. Having given our anxious consideration to the matter, we cannot persuade ourselves to agree with the view taken by the Karnataka High Court in N.K. Suparna (supra). Under clause
(b) of Rule 69(1), the relevant expression used is "from the date of retirement upto and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority". Pertinently, while making the said rule by resort to proviso to Article 309 of the Constitution of India, the President uses the expression "final" only once i.e. in relation to orders which are passed by the competent authority. However, no such word or expression is used before the word "conclusion of departmental or judicial proceedings". If the intendment of the President - while framing the said rule was to release provisional pension to the government servant upto the date of "final" conclusion of departmental or judicial proceedings, the President would have used the said expression "final" before the words "conclusion of departmental or judicial proceedings", just as he used the expression "final" in respect of the orders to be passed by the competent authority. Thus, the plain grammatical and literal interpretation of clause (b) of Rule 69(1) does not support the interpretation that the conclusion of departmental or judicial proceedings means the "final" conclusion of departmental or judicial proceedings.
32. Rule 69(2), inter alia, provides that no recovery shall be made from the provisional pension after the conclusion of the proceedings if the pension finally sanctioned is less than the provisional pension, or the pension is reduced or withheld either permanently, or for a specified period. Thus, whatever is released by way of provisional pension to the government is not secured or recoverable from him. Rule 69(1)(a) provides that the provisional pension shall be equal to the maximum pension which would have been admissible on the basis of the qualifying service of the government servant. Thus, if the interpretation sought to be advanced by the petitioner were to be accepted, it would mean that the government would have to pay - month after month, the provisional pension, which - in most cases would be equal to the full pension, even though the government servant stands convicted by the Trial Court of conduct which 15 tantamount to a serious and grave misconduct, merely because his criminal appeal is pending before the higher Court. This could not have been the intendment of the President while framing either Rule 69(1)(b), or Rule 9(1) of the Pension Rules.
33. The decision in the appeal may not come for years for myriad reasons. Firstly, the heavy pendency of criminal appeals would come in the way of disposal of the appeal on an early date. Secondly, even the Government servant/ appellant may seek adjournments to delay the disposal of the appeal. Is it to be accepted that a government servant - who stands convicted of a corruption charge before a criminal Court, should continue to receive provisional pension, just as good as the full pension, only on account of pendency of his criminal appeal? In our view, the answer to this question has to be an emphatic "No".
34. If the interpretation of the petitioner were to be accepted, the conviction would not attain finality even for purposes of Rule 19 of the CCS (CCA) Rules, or Rule 9 of the Pension Rules even after dismissal of the Criminal Appeal, because the petitioner would still have a right to prefer a Special Leave Petition under Article 136 of the Constitution of India before the Supreme Court. There would be no end to this process as the petitioner could file one petition after another and seek review, recall, or even file a curative petition. Pertinently, the conviction of the petitioner has not been stayed by the appellate court and only his sentence has been suspended. Therefore, for all purposes, he is a convict. To permit such a convict to draw provisional pension - which in most cases would be equal to the full pension, would be to make a mockery of the law. The same would mean that despite his conviction by the criminal court involving a serious and grave case of misconduct, he would get away without any adversity, and would continue to remain a burden on the State. Thus, in our view, for purposes of Rules 9(1) and 69(1)(b) of the Pension Rules, the judicial proceedings have attained conclusion upon the conviction of the petitioner by the trial Court, and the competent authority is entitled to pass final orders for withdrawing the whole or part of the pension permanently or for a specified period; for forfeiture of the Gratuity, and; for ordering recovery of the pecuniary loss caused to the government due to the grave misconduct established in the judicial proceedings.
35. The decision in K.C. Sareen (supra) was not brought to the notice of the Karnataka High Court when it decided N.K. Suparna (supra). The Punjab & Haryana High Court in Central Administrative Tribunal, Chandigarh Bench (supra), primarily, relies upon N.K. Suparna (supra) and Akhtari Bi (supra). Unfortunately, the decision of the Supreme Court in K.C. Sareen (supra) was not noticed even by the Punjab and Haryana High Court Bench while rendering its decision. 16
36. In V.K. Bhasker (supra), the respondent employee had been dismissed from service by resort to Rule 19(i) of the CCS (CCA) Rules consequent upon his conviction in the corruption case. He assailed his dismissal from service on the ground that his criminal appeal was pending. The tribunal allowed the O.A. of the respondent on the premise that his appeal against his conviction and sentence was pending. The Supreme Court set aside the said order by, inter alia, observing:
"5. The Tribunal was, therefore, not right in holding that the respondent could not be dismissed by invoking the provision of Rule 19(i) of the Rules because the appeal filed by him against the conviction and sentence is pending in the High Court".
37. The petitioner has also placed reliance on the judgment of Allahabad High Court in Uma Shanker Bharti (supra). In this case, while in service, the petitioner was charged under section 302 IPC. He was convicted on 22.09.1988 by the learned Additional Sessions Judge. He preferred an appeal, which was admitted. Thereafter, he retired on superannuation on 30.09.1989. He demanded his retiral benefits. The same were denied on the ground that he stood convicted and sentenced to life imprisonment. The submission advanced by the petitioner before the High Court was that when he was convicted, he was not a pensioner but in active service and, therefore, Regulation 4 of the Pension Regulations for the Army, 1961 („Army Regulation‟, for short) was not attracted.
38. Firstly, we may observe that a perusal of the judgment shows that not only the conviction, but also the sentence under section 302 IPC had been stayed during pendency of the appeal by the High Court vide order dated 16.03.1990. Consequently, despite the petitioner‟s conviction under section 302 IPC, on 22.09.1988 he was granted bail on the very next date i.e. 23.09.1988. On this short ground, Uma Shanker Bharti (supra) is distinguishable. Though we have reservations with the interpretation given by the Allahabad High Court that the petitioner was not a "pensioner", but in active service while he was convicted and, therefore, Army Regulation 4 was not attracted since the same provides that the competent authority may withhold or withdraw pension if a "pensioner" is convicted of a serious crime, we need not delve into the said issue since the facts, as noticed above, were materially different in Uma Shanker Bharti (supra) from the facts in the present case. We may only observe that the expression used is "a pensioner" in Army Regulation 4, since the pension can be withheld or withdrawn only from a "pensioner", and not from a serving officer in active service. If the departmental or judicial proceedings was pending when the government servant was in active service, it matters not whether the finding of guilt is returned in the said proceedings before or after the retirement of the government servant. In either case, the government is 17 entitled to take disciplinary action against the government servant. Only the nature of the action/ penalty that may be imposed would vary. Obviously, in respect of a retired government servant, the option to dismiss or remove him from service, or subject him to any other major or minor penalty in terms of Rule 11 of the CCS (CCA) Rules is not available. The government can only withhold or withdraw the pension and/ or gratuity, and make recovery of pecuniary loss suffered by the government.
39. The submission of Mr. Mishra that the withholding of 100% monthly pension and forfeiture of gratuity is unconstitutional has no merit. There is no absolute right in a government servant to receive either pension or gratuity. Under a duly framed law, the same can be withheld and withdrawn. Rule 9 of the Pension Rules, having been framed by the President in exercise of his constitutional power contained in proviso to Article 309 of the Constitution, the same has statutory force in terms of the said Article of the Constitution.
40. For the aforesaid reasons, we find no merit in this petition and dismiss the same leaving the parties to bear their respective costs. We may, however, add that in the eventuality of the petitioner‟s criminal appeal succeeding, his claim for pension and other retiral dues, which have been denied to him by virtue of the order dated 19.01.2016, would need reconsideration in the aforesaid light.
A Coordinate Bench of this Tribunal at Bangalore in the case of D.Mariswamy Gowda vs. Regional Provident Fund Commissioner, 2004(2) SLJ 88 CAT, dated 28.3.2003, has also considered the similar controversy in the following manner:-
"5. The contention raised by the learned Counsel for the applicant that once a sentence is suspended and/or the accused is released on bail, there is no final order of the Criminal Court, does not hold the field for the reason that the Hon'ble Supreme Court in Deputy Director of Collegiate Education (Admn.) Madras v. S. Nagoor Meera, (1995) 3 SCC 377=1995(2) SLJ 89 (SC) in the context of second proviso to Article 311(2) of the Constitution, which is in pari materia with Rule 15 of the EPF Staff (CCA) Rules held that: "this clause, it is relevant to notice, speaks of 'conduct which led to his conviction on a criminal charge'. It does not speak of sentence or punishment awarded.
Merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be 18 operative." (Emphasis supplied). After considering the judgment in the case Rama Narang v. Ramesh Narang, (1995) 2 SCC 513, the Hon'ble Supreme Court held that: "We are, therefore, of the opinion, that taking proceedings for and passing orders of dismissal, removal or reduction in rank of a Government servant who has been convicted by a Criminal Court is not barred merely because the sentence or order is suspended by the Appellate Court or on the ground that the said Government servant accused has been released on bail pending the appeal." (Emphasis supplied).
6. In Paragraphs 9 and 10 the Hon'ble Supreme Court further held as under:
"......It should be remembered that the action under Clause (a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311(2). As held by this Court in Shankar Das v.Union of India (1985) 2 SCC 358:
'Clause (a) of the second proviso to Article 311(2) of the Constitution, confers on the Government the power to dismiss a person from service 'on the ground of conduct which has led to his conviction on a criminal charge'. But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a Government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since Clause (a) of the second proviso to Article 311 (2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly." .
10. What is really relevant thus is the conduct of the Government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a Criminal Court. Until the said conviction is set aside by the appellate or other higher Court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice."
(Emphasis supplied) The aforementioned law so laid down by the Hon'ble Supreme Court squarely applies to the facts of the present case. The contentions raised by the applicant are not tenable. The applicant was afforded opportunity of hearing vide show cause notice dated 18.12.2000. There 19 is no illegality or arbitrariness in passing the order of dismissal dated 30.3.2001. The Hon'ble Supreme Court in the aforementioned case of S. Nagoor Meera has specifically held that if the said conviction is set aside by the appellate or other higher Court, the matter can always be reviewed in such manner that the delinquent official suffers no prejudice. The appellate order dated 18.1.2002, as extracted hereinabove, is a detailed and speaking and well reasoned order. In our considered view having regard to the aforesaid law laid down by the Hon'ble Supreme Court in Tulsiram Patelas well as S. Nagoor Meera (supra) cases there is no illegality, arbitrariness or infirmity in the orders dated 30.3.2001 as well as 18.1.2002.
7. In view of the findings recorded hereinabove the present O.A. is dismissed under the provisions of the Section 19(3) of the A.T. Act at the stage of admission itself. No costs.
11. In the instant OA, the applicant is seeking provisional pension on the ground that the appeal filed before the Rajasthan High Court being SB Criminal Appeal No.97/2003 is pending. In the said appeal vide order dated 27.1.2003, the Hon'ble High Court had admitted the appeal and suspended the sentence awarded to the applicant. It is settled law that mere filing of an appeal and stay of execution of the sentence does not take away the effect of conviction. Unless the appeal is allowed and the conviction is set-aside by the appellate court, the Disciplinary Authority can proceed with the imposition of penalty. The Disciplinary Authority has applied its mind, considered the points raised by the applicant in his representation against show-cause notice and after considering the conduct of the 20 applicant which led to his conviction on a criminal charge, has arrived at the conclusion that the said conduct was such as to render the further retention of the applicant undesirable in the public service. It cannot, therefore, be said that the order of dismissal was passed by the Disciplinary Authority without applying its mind to the nature of the conduct of the applicant which led to his conviction on a criminal charge and which has rendered him undesirable to be retained in service. The Disciplinary Authority also took into consideration the plea of the applicant with regard to imposition of penalty on the basis of his conviction. It is also clear that the order of the Disciplinary Authority and Revising Authority has already been upheld by this Tribunal and also by the Hon'ble High Court.
12. So far as release of provisional pension, DCRG and Leave Encashment is concerned, I find no merit in the contention of the applicant in view of the ratio decided by the Hon'ble Delhi High Court in the case of P.C.Mishra vs. Union of India vide judgment dated 26.11.2018 wherein while dealing with a similar controversy the Hon'ble Delhi High Court has also dealt with the ratio decided by the Hon'ble Apex Court in various judgments on the issue and 21 also the ratio of the Hon'ble Karnataka High Court in the case of N.K.Suparna vs. Union of India and Ors. on which reliance has been placed by the applicant. So far as payment of interest on the amount of GPF and CGEGIS is concerned, I find no illegality in the action of the respondents.
13. That apart, if the matter is looked into from another angle, the applicant had already challenged the order of dismissal and the order rejecting his revision petition in earlier round of litigation in OA No.119/2007, wherein he has prayed for quashing and setting aside these orders along with consequential benefits. The relief prayed by the applicant in the instant proceedings for provisional pension, DCRG and Leave Encashment comes within the consequential reliefs of the dismissal order, which has already attained finality, therefore, these cannot be re- agitated in the present OA.
14. In view of above discussions, I find no merit in this OA and the same is liable to be dismissed, which is accordingly dismissed. However, in case the applicant succeeds in criminal appeal pending before the Hon'ble High Court, his claim for pension and other dues, which have been denied 22 to him by virtue of the order dated 16.06.20004, would need reconsideration. No order as to costs.
(HINA P.SHAH) JUDL. MEMBER R/