Central Administrative Tribunal - Delhi
Dr. V.T. Prabhakaran vs The Union Of India on 21 December, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI Original Application No.2046/2011 New Delhi, this the 21st day of December, 2011 Coram: Honble Mr. Justice V.K. Bali, Chairman Honble Dr. Veena Chhotray, Member (A) Dr. V.T. Prabhakaran, Ex-Principal Scientist, IASRI, 346, DDA (SFS) Flats, Pocket 2, Sector 19, Dwarka, New Delhi 110 075 Applicant (By Advocate: Shri R.N. Singh) Versus 1. The Union of India, Through its Secretary, Department of Agricultural Research & Education, Krishi Bhawan, New Delhi 110 001 2. The Indian Council of Agricultural Research, Through its Secretary, Krishi Bhawan, New Delhi 110 001 3. The President, Indian Council of Agricultural Research, Krishi Bhawan, New Delhi 110 001 4. The Director, Indian Agricultural Statistics Research Institute, PUSA, New Delhi -110 012, 5. Dr. Sain Dass, Inquiry Officer, House No.2075, Sector-9, HUDA, Karnal-132 001 Respondents (By Advocate: Shri Gagan Mathur) O R D E R
By Dr. Veena Chhotray:
The applicant, an Ex-Principal Scientist in the Indian Agricultural Statistics Research Institute, under the ICAR, superannuated from service on 28.2.2009. Vide the order dated 18.4.2011 a penalty of withholding of pension by 10% for a period of three years has been imposed under Rule 9 of the CCS (Pension) Rules, 1972 as extended to ICAR employees. Besides the impugned penalty order, the charge memorandum dated 19.7.2005 and the Memorandum dated 24.3.2009 treating the disciplinary proceedings as continued according to the provisions of the Pension Rule 9 and forwarding the inquiry report for representation, have been challenged.
By way of relief the OA seeks quashing the aforesaid orders (Annex A-1 to A-3) along with the directions for grant of full retirement benefits with exemplary interest. Para 8 (v) also seeks a declaration about the CCS (Pension) Rule 9 being arbitrary and ultra vires of Articles 14, 16 and 21 of the Constitution. Even though certain interim reliefs had also been prayed, no such directions were issued by the Tribunal. As the matter would be argued before us, the learned counsel for the applicant would not be touching the relief as per Para 8 (v). Hence our consideration also is confined to the remaining prayers in the OA.
2.1 The brief factual and litigation background of the case is that the applicant had been issued a charge-sheet dated 16.12.2003 containing five articles of charge. On a challenge through the OA 395/2004 by the order of the Tribunal three of these charges were quashed. This order attained finality. Subsequently, another charge sheet dated 19.7.2005 (impugned in the present OA) was issued in respect of the remaining two charges (Annex. A/3).
2.2 These charges pertained to a cause of action occurring during the years 2000-2001. The substance of these charges was that while working as the Principal Scientist he had misused the internet system of the office by displaying objectionable materials on the electronic board and e-mail; had made derogatory and disrespectful remarks against his superior officers by publishing undesirable material on public notice board and had made false and baseless allegations against the Director and the other officers of IASRI. It ws alleged that the misdemeanor pertained to lack of devotion to duty i.e. an infringement of Rule 3 of the applicable Service Rules.
2.3 The departmental inquiry was conducted, in which as per the respondents despite repeated opportunity the applicant did not fully participate. The applicant, however, has his own version to rebut the reasons assigned by the respondents for his non-participation. In effect, it was an ex-parte inquiry. By the inquiry report dated 26.2.2009 both the articles of charges were held as proved.
2.4 Since the applicant superannuated from service on 28.2.2009, vide the ICAR Memorandum dated 24.3.2009 (Annex A/2, this also has been challenged in the present OA) it was communicated to the applicant that the earlier disciplinary proceedings had continued under the CCS (Pension) Rule 9. Further, tentatively agreeing with the findings of the IO, the Disciplinary Authority i.e. President, ICAR, forwarded a copy of the Inquiry Report to the applicant for making his representation. A reply was submitted vide the applicants letter dated 6.4.2009.
2.5 However, at that stage the applicant filed another OA 1055/2009 assailing the continuation of the departmental proceedings vide the impugned memorandum dated 24.3.2009. Vide its order dated 10.11.2009 the OA was allowed (Annex A/28). The Tribunal set aside the impugned order and held that the charges against the applicant cannot be said to constitute grave misconduct, and on this ground the applicant cannot be proceeded against under the CCS (Pension) Rule 9. It was also held that there would be no further proceedings against the applicant in regard to Articles of Charge contained in the Memorandum of Charge dated 19.7.2005. Directions for payment of full retiral benefits, as eligible were also issued.
2.6 This order of the Tribunal was challenged by the respondents through the Writ Petition (C) No.2292/2010. Vide a common order dated 26.7.2010 the Honble High Court set aside the Tribunals order taking the view that it was at a premature stage. The following operational directions were issued:-
36. Since the respondent of WP (C) No.2292/2010 has approached the Tribunal at a premature stage without awaiting a decision by the disciplinary authority, we are of the opinion that WP (C) No.2292/2010 has to be allowed and the impugned order dated 10.11.2009 passed by the Tribunal is required to be set aside with further observations that the opinion expressed by the Tribunal that the misdemeanour alleged and proved is not a grave misconduct stands obliterated and that the disciplinary authority would decide the issue uninfluenced by the observations made by the Tribunal and as guided by the present decision. 2.7 In pursuance of the aforesaid directions of the Delhi High Court, the respondents have passed the Presidential order dated 18.4.2011 (Annex A/1, the subject of challenge in the present OA). After consideration of the submissions by the applicant dated 6.4.2009, the inquiry report and the records of the case, the applicant has been held as guilty of grave misconduct. The conclusive findings as recorded in para 19 of this order are reproduced as here under:
19. WHEREAS after considering the records of the inquiry and the facts and circumstances of the case, the President, I.C.A.R. being the Disciplinary Authority in this case, is of the opinion that Dr. V.T. Prabhakran, Principal Scientist (Retired) indulged himself in an act of gross indiscipline by using derogatory, offending and insulting remarks against his superiors and making representations directly to the higher officers in the Council. The Articles of Charge against him are very serious and he is guilty of grave misconduct. This is followed by imposition of the penalty of withholding of pension as per the stipulated terms, to meet the ends of justice.
This has occasioned the present OA.
3. The learned counsels, Shri R.N. Singh and Shri Gagan Mathur would argue the case respectively for the applicant and the respondents.
4. The learned counsel Shri Singh would submit that even though in the OA several grounds have been taken to challenge the impugned decisions, he would be mainly highlighting a few prominent grounds, which according to him would suffice to vindicate the stand of the applicant. The following grounds would be averred by the learned counsel: (i) The inquiry officer in this case was junior to the applicant and had not been changed despite the requests to the Disciplinary Authority. A plea of the IO being biased against the applicant has also been raised. (ii) The reasons assigned by the Disciplinary Authority in Para 17 of the Order do not constitute valid grounds to justify the findings of the Articles of Charge in this case proving the applicant guilty of grave misconduct. Thus, as per the learned counsel, the action of the respondents in withholding the pension of the applicant under the CCS (Pension) Rule 9 could not be held as in consonance with law.
5. The respondents learned counsel, Shri Gagan Mathur would of course rebut these contentions and submit that the decision to withhold a part of the pension for a limited period was a well considered one, taken after following the due procedure as prescribed under the Rules and after according adequate opportunity of defence to the applicant. The learned counsel would also submit that the charges in this case were serious in nature and taking a light view of the matter would undermine the discipline of the Institution and would not be in the interest of the Organization or in the public interest.
6. We have carefully considered the respective submissions, the material on record and the law on the subject. Our view is as follows:-
6.1 The settled law is that Pension is not a bounty, but a well deserved and hard earned entitlement of a public servant in lieu of rendering of years of service. This has been upheld by the Honble Supreme Court as well as the High Courts in a catena of judgments. As a logical corollary, the pensionary benefits of a public servant cannot be interfered with lightly. To put these entitlements on a different pedestal altogether, certain inbuilt safeguards have been incorporated in the Rules themselves. These have been further zealously guarded by judicial pronouncements. The CCS (Pension) Rule 9 is an example to illustrate this point.
6.2 Rule 9, while prescribing the right of the President to withhold or withdraw pension to take care of certain contingencies in the broader interests of the organization and public administration; stipulates the exercise of this power only in the name of the President. An important conditionality is that such an extreme step can only be taken if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service [Rule 9(i)]. Read with the much broader scope of penalties both minor and major prescribed under the CCS (CCA) Rules (Rule 11), the limited scope of evoking the jurisdiction under the CCS (Pension) Rule 9 is evident. This applies irrespective of whether the disciplinary proceedings had been instituted while the Government servant was in service and had been deemed to have continued despite the retirement (as is the case here) or it is instituted after the retirement as per the provisions of sub-rule 2 (b) of Rule 9.
6.3 While deciding the Writ Petition in this case, the Honble High Court has considered at length as to what would constitute grave misconduct. This is preceded by a discussion about what is misconduct. The Honble Apex Courts observations in State Bank of Punjab & Ors Vs Ram Singh, Ex-Constable(1992 (4) SCC 54) have been relied upon and extracted:
..Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected. Then follows the consideration of grave misconduct. Para 33 states that acts of moral turpitude, dishonesty and corruption would obviously be aggravated forms of misconduct. This is not only because of the morally depraving nature of the act but even for the reason that they would be attracting the penal laws. However, this would not mean that only such kind of indictments would be grave misconduct. Para 34 dwelling on the subject further elaborates about the difficulty to put in a straight jacket formula as to what kind of acts would constitute misconduct. Considering the key significance of this propounding of law by the Honble High Court in the context of the present OA, we quote below:
34. It would be difficult to put in a strait jacket formula as to what kinds of acts sans moral turpitude, dishonesty, bribery and corruption would constitute grave misconduct, but a ready touchstone would be where the integrity to the devotion to duty is missing and the lack of devotion is gross and culpable it would be a case of grave misconduct. The issue needs a little clarification here as to what would be meant by the expression integrity to the devotion to duty. Every concept has a core value and a fringe value. Similarly, every duty has a core and a fringe. Whatever is at the core of a duty would be the integrity of the duty and whatever is at the fringe would not be the integrity of the duty but may be integral to the duty. . 6.4 The contentions of the applicants learned counsel and the reasons cited in the impugned order holding the present case as one of grave misconduct need to be considered within the purview of the law as defined by the Honble High Court.
6.4.1 The relevant para 17 mentions four reasons: Briefly summed up these are (i) The applicant has intentionally delayed the disciplinary proceedings against him by not participating in the oral hearings and by approaching the Court of law repeatedly. The failure on the part of the applicant to face the inquiry and prove his innocence is opined to have compounded the gravity of the charge against him. (ii) Even the undue delay on medical grounds on umpteen number of occasions by giving medical certificates from different hospitals, particularly on the dates of the hearings has been mentioned. (iii) All these acts are stated to be with a specific motive in mind to delay the matter till his retirement to take undue advantage of technicalities of procedures. Thus, even if in the ordinary course of things on completion of inquiry during the service, the applicant could have been let off with a minor penalty such as censure; the same is stated to have been prevented by the applicant himself by delaying the proceedings. This is attributed to be a clever and dishonest misdemeanor on the part of the applicant, from the consequences of which he cannot be allowed to get away. (iv) Another argument given is about the acts in question constituting an unlawful, willful behaviour by a public officer in relation to the duties of his office and thus definitely constituting a grave misconduct.
6.4.2 We find a merit in the contention of the applicants learned counsel to the extent that the reasons given as at serial nos. (i), (ii) and (iii) above cannot be construed to constitute grave misconduct. Surely, these were not the charges framed against the applicant. If as per the respondents the applicants misconduct on the grounds deserved to be a subject of disciplinary action that would have required separate framing of the charges on those lines. In the given context, these cannot be taken as the grounds to hold the misconduct as grave. Even at the cost of repetition, we would like to clarify that these arguments are not germane to the basic issue.
6.4.3 However, we need to proceed further. The present one is a case of the findings of the Disciplinary Authority having been arrived at in conjunction of multiple factors. Of these, one factor is certainly relevant to the basic issue, while the rest as stated in the impugned order are not. This one factor is as expressed in para 17 (iii) of the Order, being reproduced as here under:
17.(iii) It is evident that the language used by the Charged Officer on the notice board of the Institute or in the e-mail is highly derogatory, offending and insulting to his superiors. It could be worth mentioning that the High Court has said that the term misconduct in office can be defined as any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Further, misconduct can also be defined as wrongful intention and a transgression of some established and definite rule of action, a forbidden act, dereliction from duty, unlawful behaviour. In the instant case, from the Articles of Charge, it is evident that the misconduct of the Charged Officer is intentional one and willful in character and, therefore, the said misconduct can definitely be said to be a grave misconduct. The need, therefore, is for the competent authority to reconsider the matter only on this ground.
6.4.4 As regards the plea raised by the applicants counsel regarding the inquiry and the consequent follow up action having been vitiated on account of the inquiry officer being allegedly junior to the applicant; the same is not found to be tenable. The records reveal that the applicant had made several representations requesting for change of the Inquiry Officer on various grounds which inter alia included the plea of his being junior besides being biased. However, vide the ICAR Memorandum dated 30.7.2007 (Annex A/16) these had been rejected by a reasoned order. Even the impugned order in para 16 (ii) deals with this issue and thus expresses the views of the Disciplinary Authority:
16 (ii) Dr. Sain Dass, Inquiry Officer was holding the position of a Project Director which is higher than the Principal Scientist and is vested with the powers of Head of the Department in respect of Project Directorate. As such Project Director is sufficiently higher in rank than a Principal Scientist. Certainly while dealing with the basic issues raised in this OA, we would not like to transgress to determine seniority issue of the applicant qua the Inquiry Officer.
7. To conclude, for the reasons elaborated in para 6, we do not find the impugned penalty order dated 18.4.2011 in its present form as sustainable and in consonance with law. Even through the applicants learned counsel would urge for giving a quietus to the present issue, that may not be the appropriate course. To meet the ends of justice the OA is allowed partly and disposed in terms of the following directions:-
The impugned penalty order dated 18.4.2011 is quashed and set aside.
The matter is remitted to the respondents for passing a fresh order by the competent authority only on the ground raised in para 17 (iii) of the order dated 18.4.2011. While reconsidering the matter, the law as propounded on the subject by the Honble High Court in the WP (C) 2292/2010 vide its common order dated 26.7.2010 (and cited by us in the body of our order) would be kept in mind.
The reasoned and speaking fresh order as per serial no.(ii) above is to be passed within a period of three months from the date of receipt of a copy of this order.
The prayer of the applicant regarding restoration of full pensionary benefits would depend upon the view being taken by the competent authority in the order now to be passed. No direction at this stage is being given with regarding to the prayer for interest at exemplary rate.
No orders as to costs.
(Dr. Veena Chhotray) (V.K. Bali)
Member (A) Chairman
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