Delhi High Court - Orders
Sk Kaushik vs Delhi Development Authority & Ors on 3 June, 2020
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Asha Menon
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 3335/2020, C.M. No.11732/2020 (for stay)
SK KAUSHIK .....Petitioner
Through: None
versus
DELHI DEVELOPMENT AUTHORITY & ORS. .....Respondents
Through: Mr. Arun Birbal, Advocate for
R/DDA
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
ORDER
% 03.06.2020 [VIA VIDEO CONFERENCING]
W.P. (C) 3335/2020, C.M. No.11732/2020 (for stay)
1. None appears for the petitioner.
2. The Court Master informs us that an SMS has been received from Mr. Srivastava, counsel for the petitioner, to the effect that he is suffering from high fever and seeking accommodation.
3. Mr.Arun Birbal, counsel for the respondents Delhi Development Authority (DDA) appears on advance notice.
4. The challenge in this petition is to the order dated 28 th January, 2010 of the Central Administrative Tribunal (CAT), Principal Bench in O.A. No.904/2017 filed by the petitioner, impugning the charge-sheet in disciplinary proceedings initiated against him post his retirement. It was W.P. (C) 3335/2020 Page 1 of 4 the contention of the petitioner that since the charge-sheet has been issued after four years of the alleged act which furnished cause of action if any for issuance of charge-sheet, the serving of the charge-sheet was contrary to Rule 9(2)(b)(ii) of the Central Civil Services (Pension) Rules, 1972 [CCS (Pension) Rules].
5. CAT has however dismissed the said challenge of the petitioner reasoning, (i) that an FIR was lodged by the respondent DDA against the petitioner while still in service; (ii) that the Sessions Judge while dismissing the prosecution against the petitioner, directed departmental proceedings to be initiated against the petitioner; (iii) the challenge to the said part of the order of the Sessions Judge by the petitioner before this Court was also dismissed; and (iv) thus, the charge-sheet was a continuation of the FIR lodged against the petitioner within four years of the cause of action.
6. We have drawn attention of the counsel for the respondents DDA to Rule 9(2)(b)(i) of the CCS (Pension) Rules which provides that the departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re- employment, shall not be instituted save with the sanction of the President of India. The departmental proceedings against the petitioner in the present case have not been initiated with the sanction of the President of India. We have thus enquired from the counsel for the respondents DDA that when the rule does not permit initiation of departmental proceedings, save in a particular manner only i.e. with the sanction of the President of India, how the proceedings can be initiated otherwise. Attention has also been drawn to the recent dicta of the Supreme Court in W.P. (C) 3335/2020 Page 2 of 4 Chairman-Cum-Managing Director, Mahanadi Coalfields Limited vs. Rabindranath Choubey, 2020 SCC OnLine SC 470 holding that post- retirement, disciplinary proceedings can be initiated only if the Service Rules permit so and not otherwise. Here, it is found that the Rules do not permit initiation of disciplinary proceedings post-retirement, save with the sanction of the President of India and which, admittedly, has not been taken.
7. Counsel for the respondents DDA has drawn our attention to Rule 9(6)(a) of the CCS (Pension) Rules providing that departmental proceedings shall be deemed to be initiated on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date. It is informed that the petitioner was placed under suspension on 6th January, 1998. It is also however fairly informed that the suspension was revoked on 22nd August, 2008, i.e., before his retirement on 30th November, 2010. Once the suspension was not in force on the date of the retirement, we are prima facie of the opinion that the departmental proceedings cannot be said to have been initiated before retirement.
8. The second contention of the counsel for the respondents DDA is that the initiation of departmental proceedings is in accordance with the order of the Sessions Judge and as affirmed by this Court.
9. Prima facie, no merit appears in the said contention.
10. The direction of the Sessions Judge for initiation of departmental proceedings cannot make the departmental proceedings otherwise not maintainable under the Rules, maintainable. Mention may also be made, W.P. (C) 3335/2020 Page 3 of 4 that this Court while dismissing CRL.M.C.1118/2015 preferred by the petitioner, vide order dated 31st March, 2016 has observed that the observations pertaining to initiation of proceedings by the administrative authority is the subject matter of administrative authority to deal with in the matter. Thus it appears that the window was left open for the administrative authorities to decide.
11. Counsel for the respondents DDA has drawn our attention to Rule 3(1) of the CCS Rules and to Section 56 of the Delhi Development Act, 1957.
12. Issue notice.
13. Notice is accepted by Mr. Arun Birbal, counsel for the respondents DDA.
14. Counter-affidavit if any be filed within six weeks. Rejoinder within four weeks thereafter.
15. List for hearing on 20th October, 2020.
16. Till then, the departmental proceedings initiated against the petitioner are stayed, but no further dues other than pension being already paid be released in favour of the petitioner.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J.
JUNE 03, 2020 s/pkb W.P. (C) 3335/2020 Page 4 of 4