Central Administrative Tribunal - Bangalore
K S Chandrasekhar vs Revenue on 16 August, 2024
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OA.Nos.170/00015/2023/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00015/2023
ORDER RESERVED ON: 18.07.2024
ORDER PRONOUNCED ON: 16.08.2024
CORAM:
HON'BLE MR. JUSTICE B.K. SHRIVASTAVA, MEMBER(J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
K.S. Chandrasekhar, S/o Late Sommaiah, Aged 72 years,
Retired Deputy Commissioner of Customs and Central Excise,
O/o the Commissioner of Central Excise II,
Queens Road, Bangalore (presently Bangalore North
West GST Commissionerate),
Residing at No. 131, 1st Floor, 13th Cross, 1st Stage, Sanjay Nagar,
Bangalore - 560 094, Mobile: 8217590373,
Email: [email protected] ... Applicant
(By Advocate Shri Vikram Phadke)
Vs.
1. Union of India, represented by its Deputy Secretary to the
Government of India, Ministry of Finance, Department of
Revenue, Central Board of Indirect Taxes and Customs (Office
of Chief Vigilance Officer), 2nd Floor, Hudco Vishala Building,
Bhikaji Cama Place, New Delhi - 110 001.
2. The Chairman, Central Board of Indirect Taxes & Customs,
Ministry of Finance, Department of Revenue, North Block,
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OA.Nos.170/00015/2023/CAT/BANGALORE
New Delhi - 110 001.
3. The Chief Vigilance Officer, Central Board of Indirect Taxes &
Customs, 2nd Floor, Hudco Vishala Building, Bhikaji Cama
Place, New Delhi - 110 001.
4. The Senior Accounts Officer, Central Pension Accounting
Office, Trikoot II, Bhikaji Cama Place, New Delhi - 110 001.
(By Shri Vishnu Bhat, Sr. Panel Counsel)
ORDER
PER: JUSTICE B.K. SHRIVASTAVA, MEMBER (J)
This OA has been filed on 22.12.2022 for quashment of the impugned order dated 23.06.2022 (Annexure - A1) by which the 100 per cent of monthly pension and the remaining amount of gratuity of the applicant has been withheld on permanent basis. The reliefs claimed in para 8 of the OA are as under:
"1. Quash Annexure A-1 order and direct the respondents to continue to disburse to the applicant, the monthly pension due to him and other attendant benefits.
2. Such other relief as may be prayed for and this Hon'ble Tribunal may deem fit to grant.
3. Grant the cost of this Original Application."3
OA.Nos.170/00015/2023/CAT/BANGALORE
2. Looking to the pleadings of both parties and the documents, the following facts are admitted facts in this case:-
a) The applicant had retired from the post of Deputy Commissioner, Central Excise on 31.05.2011.
b) During the period from 08.02.2008 to 03.12.2008, the applicant was posted as Assistant Commissioner of Customs, Air Cargo Complex, Nedumbassery, Cochin.
c) In relation to the aforesaid period, a criminal case/FIR was registered against the applicant on 28.12.2012. After investigation the charge sheet was filed on 20.01.2014 and the Court framed the charges against the applicant on 21.11.2016.
On 04.05.2017 the Special Court decided the CC No. 44/2014 and convicted the applicant for the offence under Section 120B of I.P.C read with Section 13(2) read with 13(1)(a), 13(1)(d) and 14(b) of Prevention of Corruption Act, 1988.
d) The Trial Court sentenced to the applicant to undergo rigorous imprisonment for one year each and to pay fine of Rs. 15 lakhs each in default to undergo simple imprisonment for three months each under Section 13(2) read with 13(1)(a) and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act. He was further sentenced to undergo rigorous imprisonment 4 OA.Nos.170/00015/2023/CAT/BANGALORE for one year each and to pay fine of Rs. 15 lakhs in each under Section 120 B read with 13(2), 13(1) of Prevention of Corruption Act.
e) The applicant preferred the Criminal Appeal No. 468/2017 before the Hon'ble High Court of Kerala at Ernakulam Bench and by order dated 02.06.2017 the Hon'ble High Court suspended the sentence but did not suspend the conviction.
f) A notice was issued to the applicant on 10.08.2020. Thereafter, the applicant submitted the reply to the notice in August 2020 (Annexure - A2). Thereafter, the matter was forwarded to the UPSC for seeking advice on 29.09.2021. The advice (Annexure - A3) was received on 31.12.2021. Vide letter dated 13.01.2022 (Annexure - A4) the advice was communicated to the applicant for seeking his response.
g) The applicant did not submit the reply of the aforesaid notice and filed OA No. 83/2022 before this Tribunal. On 16.02.2022, the Tribunal permitted to the applicant to withdraw the OA with liberty to file representation before the respondents as specified in the memorandum dated 13.01.2022. It was also mentioned by the Tribunal that the said representation will be 5 OA.Nos.170/00015/2023/CAT/BANGALORE filed within 10 days and the appropriate competent authority will decide the aforesaid representation.
h) In compliance with the aforesaid order of C.A.T (Annexure - A5), the applicant submitted the representation on 18.02.2022 (Annexure - A6). After consideration of the aforesaid representation, the impugned order (Annexure - A1) was passed on 23.06.2022.
3. In the impugned order, the following punishment has been awarded in para 5.
"And therefore, after considering the facts and circumstances of the case, the Disciplinary Authority has decided to impose penalty of withholding of 100% (hundred per cent) of monthly pension and remaining amount of gratuity on permanent basis otherwise admissible to Shri K.S. Chandrasekhar, Deputy Commissioner (Retd.) "on permanent basis" in the Summary proceedings initiated vide Show Cause Notice 4/2020 dated 10.08.2020 in agreement with UPSC advice dated 31.12.2021. It is ordered accordingly."
4. Against the aforesaid order, the present OA has been filed by the applicant. It is submitted by the applicant that the aforesaid order is illegal, arbitrary, unjust, unreasonable and irrational and also violate Article 14 & 16 of the Constitution of 6 OA.Nos.170/00015/2023/CAT/BANGALORE India. The applicant also submitted that the show cause notice dated 10.08.2020 cannot be treated as a commencement of the departmental proceedings. After more than four years of the incident, the departmental proceedings cannot be initiated. As per applicant, Rule 9 of the CCS (Pension) Rules or any provision in pari materia with that. Rule 9 of the CCS cannot be invoked. The aforesaid rule can be invoked only in certain specified circumstances. In the aforesaid situation, the impugned order is liable to be quashed.
5. The respondents opposed the claim of the applicant by filing the reply statement on 18.04.2023. It is submitted by the respondents that a show cause notice was given to the applicant before imposing the penalty. The advice was also taken from UPSC and the appropriate penalty has been awarded to the applicant. As per K.C. Sareen case decided by the Hon'ble Apex Court the action has been taken against the applicant. The notice dated 10.08.2022 is neither starting nor continuation of any kind of departmental proceedings. It is an outcome of criminal proceedings concluded against the applicant vide Court judgment dated 04.05.2017.
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6. It is also submitted by the applicant that the action could not be taken against the applicant because he preferred the appeal before the High Court and the sentence was suspended. On the other side, it is submitted by the respondents counsel that there was no any bar to initiate and finalise the departmental action after the conviction awarded by the Trial Court. Any conviction was not suspended. As per K.C. Sareen case, the justified action has been taken in this case. Therefore, the OA is liable to be dismissed.
7. It is true that the incident of criminal case was related to the period from 17.01.2008 to 22.10.2008. The FIR was registered on 28.12.2012 and the conviction was passed on 04.05.2017. Thereafter, the notice was issued on 10.08.2020. The applicant submitted the reply in August, 2020. After taking the advice from UPSC the impugned order was passed. The UPSC advice dated 31.12.2021 was also communicated to the applicant on 13.01.2022. It is the contention of the applicant that after retirement, the action could not be taken against the applicant under the aforesaid Rule 9.
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8. In the case of K.C. Sareen vs. CBI, Chandigarh (2001) 6 SCC 584, the Hon'ble Apex Court considered the aforesaid important question related to the conviction by Trial Court and the departmental action taken by the Government after the conviction from the Trial Court. It is observed in the aforesaid case:
"The legal position, therefore, is this: Though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction the court should not suspend the operation of the order of conviction. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position that we have to examine the question as to what should be the position when a public servant is convicted of an offence under the PC Act. No doubt when the appellate court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC 9 OA.Nos.170/00015/2023/CAT/BANGALORE Act, de hors the sentence of imprisonment as a sequel thereto, is a different matter.
Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction it is public interest which suffers and sometimes even irreparably. When a public servant who is convicted of corruption is allowed to 10 OA.Nos.170/00015/2023/CAT/BANGALORE continue to hold public office it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction the fall out would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction."
9. In the case of Secretary, Local Self-Government Department and others vs. K Chandran Civil Appeal Nos. 7437-7438/2021 decided on 15.03.2022, the Hon'ble Apex Court considered the Full Bench judgment of Hon'ble High Court of Kerala related to the DCRG and said in para 39 to 43 as under:
"39. We also believe that it is a very restrictive view to disburse DCRG on account of the proceedings against a pensioner coming to an end, even where a conviction has 11 OA.Nos.170/00015/2023/CAT/BANGALORE arisen. This is especially so where the convicted person has availed of the remedy of appeal. An appeal is a continuation of the proceedings in trial and would be, thus, a continuation of judicial proceedings. For example, if no appeal had been filed, can it be said that despite conviction in the criminal case, the State is without authority of forfeiting the DCRG or pension for that matter? If it is not so, as we believe, then the pendency of the appeal cannot disentitle the State from withholding the DCRG, considering that it is a hiatus period within which certain arrangements have to be made which would be dependent on the outcome of the appeal.
40. Learned counsel for the respondent did seek to contend before us that if the appeals are pending over a long period of time it should not prejudice the respondents. That is a matter for them to take up before the High Court for disposal of the appeals, which are undoubtedly quite old.
41. We have aforesaid also clarified that there is no question of any other departmental proceedings arising independently against the respondents, as the conclusion of the criminal proceedings would entitle the State to pass appropriate orders based solely on the result of the aforesaid proceedings.
Conclusion:
42. We are, thus, of the view that the impugned judgment of the Full Bench of the Kerala High Court cannot be sustained, and it cannot be opined that the DCRG would 12 OA.Nos.170/00015/2023/CAT/BANGALORE have to be released to the respondents pending consideration of the criminal appeal.
43. The impugned judgment is set aside and the appeals are accordingly allowed leaving the parties to bear their own costs."
10. The applicant drew attention towards Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. & others (2003) 2 SCC 111and submitted that the Sareen case is not applicable in the present case. He drew attention towards para 59 in which it is stated:-
"A decision, as is well-known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well-settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."
11. It is submitted by the applicant that the Sareen case is not applicable to the retired government servant but in view of the aforesaid quoted para of Sareen case the contention of the applicant counsel cannot be accepted. The action may be taken against the government servant after retirement, if he is convicted by the Criminal Court. In this case, no any fresh departmental proceeding was initiated. Only show cause notice 13 OA.Nos.170/00015/2023/CAT/BANGALORE was issued after the judgment of Criminal Court. It cannot be treated as proceedings for taking the departmental action by initiating the departmental enquiry. By following the principle of natural justice, the notice was issued to the applicant and the advice received from UPSC was also communicated to the applicant. The Sareen case is applicable in the present case also.
12. OA No. 23/2021 was earlier decided by another Bench of this Tribunal on 06.12.2022 titled Mr. B Lakshman Kumar vs. Union of India & Anr. The facts of the present case are identical with the aforesaid case. In the aforesaid case, the incident had happened between the period from 02.07.2008 to 17.10.2008. Charge sheet was issued by the Department on 06.10.2020. In the Special C.C. No. 14/2009 the applicant was convicted for the offence under Section13(1)(d) read with 13(2) of Prevention of Corruption Act and the stay was granted by the Hon'ble High Court of Kerala upon the sentence only on 21.10.2014. Before this date, the applicant was superannuated on 31.03.2013. Show cause notice was issued to the applicant on 5/15.06.2017 and thereafter the impugned order dated 09.11.2020 was passed, withholding full pension and remaining gratuity of the applicant.
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13. In the aforesaid case of B Laxman Kumar, the Division Bench quoted Rule 19(1) of Rules 1965 and also quoted Rules 9(1) and 69(1)(b) of Rules 1972. The following two questions were framed by the Division Bench for deciding:-
"(1) whether the entitlement of the applicant to receive the provisional pension in terms of Rule 69 of the Rules, 1972 could be limited by invoking the powers under Rule 9(1) of Rules, 1972 by the President of India.
(2) whether invoking of Rule 19(1) of the Rules 1965 pursuant to conviction order passed by a competent court is justifiable?"
14. For deciding the aforesaid two questions, the Division Bench placed the relevance upon K.C. Sareen case (supra) and Secretary, Local Self-Government case (supra) and also placed relevance upon the following cases:-
i) P.C. Misra Danics / Joint Director (Retd) vs. Union of India others W.P. (C) No. 12470/2018 decided on 26.11.2018 by the Division Bench of Hon'ble High Court of Delhi.
ii) S.P. Mishra vs. Union of India and Anr. W.P. (C) No. 13056/2018 dated 07.12.2018 decided by Hon'ble High Court of Delhi.
iii) OA No. 612/2015 decided by C.A.T, Cuttack Bench 15 OA.Nos.170/00015/2023/CAT/BANGALORE
iv) OA No. 367/2017 decided by C.A.T, Jodhpur Bench
v) Special Civil Application No. 10336/2019 Kishorbhai Nanjibhai Patel vs. State of Gujarat decided by the Hon'ble High Court of Gujarat on 09.06.2022.
vi) V.K. Bhaskar vs. Union of India & others. in OA No. 1184/1987 decided on 25.07.1991 by C.A.T, Principal Bench.
15. The Division Bench in the aforesaid case after mentioning the various decisions, took a note of OM dated 21.07.2016 and held that an appeal against the conviction or stayed on the sentence would not come to the assistance of convicted government servant unless the conviction itself is stayed pursuant to the conviction order passed by the competent court. The Division Bench dismissed the case of petitioner by observing in paras 20 & 21 as under:-
"20. In terms of this office memorandum, action taken under Rule 19(i) of Rules, 1965, against the convicted Government servant cannot be held to be unjustifiable. An appeal against the conviction or stay on the sentence would not come to the assistance of convicted Government servant, unless the conviction itself is stayed pursuant to conviction order passed by the competent court. Thus, invoking of Rule 19(i) of Rules, 1965 and issuing the 16 OA.Nos.170/00015/2023/CAT/BANGALORE penalty order withholding the pension and gratuity cannot be held to be unjustifiable.
21. We are conscious about the decision of N.K.Suparna (supra), but in view of the judgment of Sareen's case (supra) an authoritative pronouncement made by the Hon'ble Apex Court consistently followed by the other benches of the CAT, we find it appropriate to consider the same as relevant for the disposal of the present OA. Similarly, the ratio of the recent judgment of the Hon'ble Apex Court in K.Chandran's case supra would throw some light on the controversy involved herein albeit the issue of DCRG was involved therein. Since, only the operation of the sentence has been stayed by the Hon'ble High Court of Karnataka not the conviction of the applicant, keeping the observations of Hon'ble Apex Court in Sareen and K.Chandran's case (supra), the pendency of judicial proceedings before the Hon'ble High Court cannot come to the assistance of the applicant. The decision taken by the respondents being in conformity with the statutory provisions, no interference is warranted by this Tribunal."
16. Therefore, it appears that the issue involved in this case is squarely covered with the issue involved in OA No. 23/2021 which was decided by the Division Bench of this Tribunal. There is no any ground for taking any different view. In the present case, no any fresh enquiry was initiated. After retirement of the 17 OA.Nos.170/00015/2023/CAT/BANGALORE applicant the criminal proceedings were completed and the Trial Court passed the judgment and convicted the applicant. After his conviction the department has taken the action against the applicant by following the principles of natural justice. Sufficient opportunities were provided to the applicant and thereafter the impugned order has been passed.
17. Therefore, no any ground is found to interfere in the aforesaid impugned order. Therefore, OA is dismissed.
18. Parties shall bear their own costs.
(DR SANJIV KUMAR) (JUSTICE B.K. SHRIVASTAVA)
MEMBER (A) MEMBER (J)
/ms/