Central Administrative Tribunal - Chandigarh
Mahal Chand vs Chandigarh Administration on 2 May, 2024
1- O.A. No. 649/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/00649/2019
Pronounced on:02.05.2024
Reserved on:18.04.2024
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
HON'BLE MRS. RASHMI SAXENA SAHNI, MEMBER (A)
Mahal Chand son of Sh. Amir Chand, aged 65 years. Superintendent
(Retd.) (Group-A), Estate Office, UT Chandigarh, Resident of House No.
3601, Bector 37-D. Chandigarh-160036.
....Applicant
(By Advocate: Mr. J.R. Syal)
Versus
1. Union of India through Secretary Ministry of Home Affairs, North
Block, New Delhi 110 001.
2. Union Territory, Chandigarh, through Finance Secretary, U.T.
Chandigarh, Deluxe Building, Sector 9, Chandigarh. 160009.
3. Estate Officer, U.T. Chandigarh, Estate Office Building, Sector 17,
Chandigarh.160017
... .Respondents
(By Advocate: Mr. K.K.Thakur)
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act 1985 seeking the following relief:-
"(i) To quash the impugned order of the Respondent No.3 20.09.2018 conveyed vide Endst. No. 20.09.2018 277454/E-
1367(11) dated [A-7), whereby penalty of withholding whole pension of the Applicant with effect from the date of his conviction on 21.04.2018 has been imposed;
2- O.A. No. 649/2019
(ii) To quash the order of the Appellate Authority (Respondent No.2) dated 03.05.2019, conveyed vide Endst. No. 0015/2018- EO(R&J)/2019/ 7876 dated 15.05.2019 25.11.2016 [A-9], whereby the Appeal preferred by the Applicant has been dismissed;
(iii) After quashing the aforesaid orders, a direction may kindly be issued to respondents to restore the pension, permissible in view of the provisions of Rule 2.2 (b) of the Punjab Civil Services Rules, Volume-II, Part-I, to the Applicant, along with interest @18% p.a. from the date the same was withheld by the impugned orders of the Respondents No.3 & 2, till its actual payment."
2. The facts leading to filing of the present case are that in the year 2010, the applicant, while posted as Superintendent in the office of the Respondent No.3, was involved in a case FIR No.24 of 2010 dated 30.11.2010 registered at CBI/ACB/CHG under Sec. 120-B IPC read with Section 7 and 13(2) read with Section 13(1)(d) of the P.C Act, 1988 (Annexure A-1). Consequent upon the registration of the criminal case against the applicant, the Respondent No.3 placed him under suspension vide order dated 03.12.2010 (Annexure A-2). The Respondent No.3 issued an order dated 22.08.2012 (Annexure A-3) conveying that the applicant stands retired from Government Service with effect from 31.08.2012 (A.N) on attaining the age of superannuation, without prejudice to the outcome of CBI case I.C. CHG 2010A0024 pending against him. Vide order dated 30.10.2012 (Annexure A-4), the applicant was sanctioned 90% provisional pension 3- O.A. No. 649/2019 @ Rs.12200/- P.M. for six months, with effect from 1.9.2012 to 28.2.2013 under Rule 2.2 (c) and 9.14 (1(a) of the Punjab C.S.R. Volume-II, Part-1. Thereafter, the period of aforesaid provisional pension was allowed to be continued by the respondents from time to time. The Ld. Court convicted the applicant and sentenced him to three years of rigorous imprisonment and a fine of Rs.25000/- for the offence under Section 7 of the P.C. Act, 1988; three years of rigorous imprisonment and Rs.25,000/- a fine of for the offence under Section 13(2) read with Section 13(1)(d) of the P.C. Act, 1988 and three years of rigorous imprisonment and a fine of Rs.50000/- for the offence under Section 120-8 IPC vide judgment dated 21.05.2018 (Annexure A-5). The sentences were ordered to run concurrently. Against the aforesaid judgment the Applicant filed Criminal Appeal No. 8-2755-SB of 2018 (O&M) in the Hon'ble Punjab and Haryana High Court at Chandigarh. The appeal was admitted and the sentence of the Applicant was suspended during the pendency of the appeal on his furnishing fresh bail/surety bonds satisfaction of the Trial Court. The Respondent No.3 referring to the provisions of Rule 2.2(a) the Punjab C.S.R. Vol-II, Part- 1, read with provisions made under Rule 13 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970, imposed punishment of withholding of whole of the pension with effect from the date of conviction i.e.. 21.04.2018, vide order dated 20.09.2018. Feeling aggrieved, the applicant filed an appeal before Respondent No.2, which has been dismissed the appeal vide order dated 03.05.2019 (Annexure A-9).
4- O.A. No. 649/2019
3. The contention of the applicant is that the action of the respondents in withholding whole pension is in contravention of the provisions of Rule 2.2. (b) of the Punjab Civil Services Rules, Volume-II which provides that the amount of pension withheld should not ordinarily exceed one third of the pension originally sanctioned including any amount of pension to be so withheld, regard should be to the consideration whether the amount of the pension left to the pensioner in any case would be adequate for his maintenance. Reliance has been placed upon judgment of the Hon‟ble High Court in the case of Darshan Singh Vs. State of Punjab and Others, 2019 (1) SCT 703 and Mohan Singh Vs. State of Punjab, 2018 (1) SCT 565. In support of his contention that the action of the respondents in issuance of penalty order on the basis of conviction when the appeal regarding conviction is pending trial, is illegal, the applicant has placed reliance upon judgment of the Hon‟ble Karnatka High Court in the case of N.K. Suparna Vs. Union of India and Others, 2005 (3) AISLJ 507.
4. The respondents no. 1 to 3 have filed written statement defending their action of withholding the whole pension of the applicant. Reliance has been placed upon Pension Regulation 2.2 of the Punjab Civil Services Pension Rules in support of impugned order, withholding the whole pension of the applicant, passed by the respondents. It has been submitted that the applicant was held guilty and convicted for demanding and accepting Rs.1,00,000/- as bribe money, therefore, the respondents withheld the whole pension of the applicant with effect from the date of conviction i.e. 21.05.2018. The appeal against the conviction is pending before the Hon‟ble High Court, thus the conviction is still 5- O.A. No. 649/2019 operative though the applicant has been bailed out. Reference has been made to the instructions issued by the Government of Punjab, Department of Personnel and Administrative Reforms vide letter dated 05.08.1988, duly adopted by the Department of Personnel vide letter dated 16.09.1998 which provide 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 accused has been released on bail pending the appeal. The fact of concealment of FIR No.8 dated 04.12.2003 under Sections 420, 467, 468, 471 & 120-B IPC r/w Section 13(1)(b) and Section 13(2) of the PC Act, 1988, by the applicant has also been highlighted by the respondents.
5. The applicant has filed rejoinder reiterating his contentions made in the Original Application.
6. We have perused the pleadings and considered the arguments advanced and judgments produced in support thereof by learned counsel for both sides.
7. The issue for consideration by us is as to whether the respondents‟ action of imposing penalty of withholding full pension of the applicant is illegal.
8. The admitted facts are that the applicant has been held guilty and convicted by the learned Trial Court for demanding and accepting Rs.1,00,000/- as bribe money and sentenced him to three years of rigorous imprisonment and a fine of Rs.25000/- for the offence under 6- O.A. No. 649/2019 Section 7 of the P.C. Act, 1988; three years of rigorous imprisonment and Rs.25,000/- a fine of for the offence under Section 13(2) read with Section 13(1)(d) of the P.C. Act, 1988 and three years of rigorous imprisonment and a fine of Rs.50000/- for the offence under Section 120-B IPC vide judgment and order dated 21.05.2018 (Annexure A-5). The Criminal Appeal filed by the applicant against the conviction order is sub judice before the Hon‟ble High Court. However, during the pendency of the appeal, the sentence of the applicant has been suspended. Consequent upon conviction by the learned Trial Court, the respondents vide order dated 20.09.2018 imposed the punishment of withholding of whole pension of the applicant, which, according to the applicant, is illegal and not in consonance with the provisions of Rule 2.2(b) of the Punjab Civil Services (Punishment and Appeal) Rules. The learned counsel for the respondents, on the other hand, argued that the action of the respondents is in accordance with the Regulation 2.2 of the Punjab Civil Services Pension Rules.
9. We have perused the Rule 2.2 of Punjab Civil Services Rules (Vol.II), around which the whole issue revolves, and the same is reproduced hereunder:-
2.2 Recoveries from pensions:- a) Future good conduct is an implied condition of every grant of a pension. The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it if the pensioner be convicted of serious crime or be guilty of grave misconduct.
In a case where a pensioner is convicted of a serious crime, action shall be taken in the light of the judgment of the court relating to such conviction.
In a case not covered by the preceding paragraph, if the Government considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order,-
(i) serve upon the pensioner a notice specifying the action proposed to be taken against him and the grounds on which it is proposed to be taken and calling upon him to submit, within sixteen days of the receipt of the notice or such further time not exceeding fifteen days, as 7- O.A. No. 649/2019 may be allowed by the pension sanctioning authority, such representation as he may wish to make against the proposal; and
(ii) take into consideration the representation, if any, submitted by the pensioner under sub-clause (i).
Where a part of pension is withheld or withdrawn the amount of such part of pension shall not ordinarily exceed one-third of the pension originally sanctioned nor shall the amount of pension left to the pensioner be ordinarily reduced to less than three thousand five hundred rupees per month, having regard to the consideration whether the amount of the pension left to the pensioner, in any case, would be adequate for his maintenance. Xxxxxx Xxxxxx
(b) The Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if, in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re- employment after retirement: -
Provided that (1) Such departmental proceedings, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall after the final retirement of the officer, be deemed to be a proceeding under this article and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service;
(2) Such departmental proceedings, if not instituted while the officer was in service whether before his retirement or during his re-
employment-
(i) shall not be instituted save with the sanction of the Government,
(ii) shall not be in respect of any event which took place more than four years before such institution; and
(ii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service (3) No such judicial proceedings, if not instituted while the officer was in service, whether before his retirement or during his re-employment shall be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution; and The Public Service Commission should be consulted before final orders are passed.
Explanation-For the purpose of this rule-
(a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner. or if the officer has been placed under suspension from an earlier date. on such date; and
(b) a judicial proceeding shall be deemed to be instituted 8- O.A. No. 649/2019
(i) in the case of a criminal proceeding, on the date on which the complaint or report of the police officer on which the Magistrate takes cognizance, is made; and
(ii) in the case of a civil proceeding, on the date of presentation of the plaint in the court.
Note: As soon as proceedings of the nature referred to in the above rule are instituted, the authority which institutes such proceedings should without delay intimate the fact to the Accountant-General. The amount of the pension withheld under clauses (b) should not ordinarily exceed one-third of pension originally sanctioned, including any amount of pension to be so withheld, regard should be had to the consideration whether the amount of the pension left to the pensioner in any case would be adequate for his maintenance. From a perusal of the impugned order dated 20.09.2018, it is seen that the respondents, while imposing punishment of withholding of pension, referred to Regulation 2.2(a) of the Punjab Civil Services Pension Rules, which provides for withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. No doubt, the corruption is a serious crime having wide impact on the civil society as well as financial stability of the nation. However, the respondents did not consider the Rule aforementioned in whole, which provides further that " where a part of pension is withheld or withdrawn the amount of such part of pension shall not ordinarily exceed one-third of the pension originally sanctioned nor shall the amount of the pension left to the pensioner, be ordinarily reduced to less than three thousand five hundred rupees per month having regard to the consideration whether the amount of the pension left to the pensioner, in any case would be adequate for his maintenance. The argument of the learned counsel for the respondents is that the competent authority has been given power under this Rule to withhold/withdraw the whole pension in case the pensioner is convicted of serious crime or be guilty of grave misconduct. The interpretation of the Rule 2.2 with regard to jurisdiction of the authority to withhold 9- O.A. No. 649/2019 100% of the pension has been well defined, after a detailed discussion by the Hon‟ble High Court of Punjab and Haryana in the case of Darshan Singh (supra) and it has been held that more than 1/3 pension cannot be withheld where a person is held guilty by Criminal Court of Law and where a person guilty of a grave misconduct in departmental inquiry.
10. The Hon‟ble High Court while interpreting the Rule 2.2 of Punjab Civil Service (pension) Rules regarding recoveries from pension, in the case of Darshan Singh(supra) has given the findings as under:-
19. Furthermore, withholding of the pension not exceeding 1/3rd is for a reason which has been enumerated in Rule 2.2(a) itself. As per Rule 2.2(a) a person should be left with adequate amount for his/her maintenance. It cannot be said that the said clause will only applicable in case a person is found guilty of grave misconduct in the departmental inquiry but not where a person is convicted by a competent Court of Law Maintenance of a pensioner
20. Therefore, the sealing which has been put by Rule 2.2 (a) to not withhold more than 1/3rd of pension originally sanctioned, will be duly applicable in case of both i.e. where a person has been held guilty by the Criminal Court of Law and where a person has been held guilty of a grave misconduct in the departmental inquiry and, therefore, the interpretation being extended by the counsel for the respondents cannot be accepted.
21. In view of the above, the order (Annexure P- 10) is set aside. The opportunity is given to the respondents to pass fresh order in consonance with the provisions of Rule 2.2 (a), as interpreted by this Court on earlier occasion as noticed hereinbefore. The present writ petition is allowed in the above terms."
22. After the order is passed, the fresh order is passed by the respondents authority, in pursuance to the direction given above, whatever the difference of the pension the petitioner is found entitled for, the same will be released to him from the date it was stopped. Let the above mentioned exercise be carried out of passing the fresh order within a period of three months.
11. The ratio of Darshan Singh (supra) case has been reiterated by the Hon‟ble High Court in the case of Kaushalaya Devi Vs. State of Punjab (CWP No. 6187/2016 decided on 25.02.2019). Thus, applying the ratio of law settled by the Hon‟ble Jurisdictional High Court in the 10- O.A. No. 649/2019 case of Darshan Singh (supra) after interpreting the Rule 2.2 that the sealing of withholding of 1/3rd of pension would be applicable in case a pensioner is convicted by the Criminal Court, we do not find any reason to accept the plea of the respondents that they have jurisdiction to withhold whole of the pension of the applicant.
12. Further, though the applicant has been held guilty, convicted and sentenced by the Trial Court, still the conviction order has not attained finality as the same is under challenge before the Hon‟ble High Court in Criminal Appeal. In such cases, the punishment of whole of the pension would be harsh because the final outcome on the conviction of the applicant may turn either side and in case he is finally acquitted, it would not be possible to adequately compensate him for the hardships faced by him due to the impugned orders passed by the respondents. For holding this view, we are supported by judgment of the Hon‟ble High Court in the case of Mohan Singh (supra) wherein it has been observed as under:-
"I am further of the opinion that the criminal appeal of the petitioner is pending and is unlikely to be decided in the near future, it would be harsh on the petitioner if entire provisional pension is withheld. The petitioner cannot be allowed to be starved pending the decision of the appeal which may in some cases result in acquittal of the accused."
13. As a result of the discussion hereinabove, the impugned order dated 20.09.2018, further upheld vide order dated 03.05.2019 by the Appellate Authority, is held to be illegal and both the orders are hereby quashed and set aside. The respondents are directed to pass a fresh order in consonance with the provisions of Rule 2.2 of Punjab Civil Services (Pension) Rules, as interpreted by the Hon‟ble High Court in the 11- O.A. No. 649/2019 case of Darshan Singh (supra), and pay the consequent arrears of difference of pension to the applicant, within a period of two months from the date of receipt of a certified copy of this order. The Original Application stands allowed. No costs.
(RASHMI SAXENA SAHNI) (SURESH KUMAR BATRA)
MEMBER (A) MEMBER (J)
„mw‟