Central Administrative Tribunal - Cuttack
Gopinath Tripathy vs Union Of India (Uoi) And Anr. on 9 November, 2004
Equivalent citations: 2005(3)SLJ28(CAT)
ORDER M.R. Mohanty, Member (J)
1. Applicant named Gopinath Tripathy, a retired Telecom employee was charge-sheeted on 24.11.1993 under Rule-9 of the Central Civil Services (Pension) Rules, 1972 for contravention of the provisions of Rule 3(i)(ii) and (iii) of CCS (Conduct) Rules, 1964. Ultimately, he faced with an order of punishment (under Annexure-1, dated 23.4.1996) by which 25% of his monthly pension have been asked to be withheld for a period of five years. As regards the gratuity amount, it has been ordered that the release of the same can be considered only after conclusion of the another disciplinary proceedings instituted vide Order No. 8/40/94-Vig.II(i) dated 13.07.1994 and Memorandum No. 8/40/94-Vig.II(ii) dated 13.7.1994. Being aggrieved by the said order of punishment, the applicant has filed this Original Application u/s. 19 of the Administrative Tribunals Act, 1985 with prayers (i) to quash the impugned order of punishment that was passed under Annexure-1 dated 23.4.1996 and (ii) to direct the respondents to pay full pension and gratuity to the applicant.
According to the applicant, while he was working as the Director of Telecom (Hqrs.) with effect from 17.5.1993, there were expansion of Orissa Telecom net work (in the remotest corner of the State) and, that is why certain items of materials were necessitated and since, as per the report, such essential items were not available in the local Circle Store Depot (as directed by the then Chief General Manager (Telecommunications) proposal for local purchase of those essential items were processed by the Assistant Director Material Management/Asst. General Manager (Plg.) and ultimately, those items were procured from local market. Though the applicant (being the D.G.M. Planning) had no major role to play in effecting local purchase, yet he was proceeded with under Rule 9 of the Central Civil Services (Pension) Rules, 1972. It is the further case of the applicant that in the Charge Memo, it was not specified as to which rule/orders to have been violated. It is also the case of the applicant that the rule, as pointed out in the charge-memo had no application to the present case; as no specific purpose of covering the acts of misconduct has been pointed out therein. It is also the case of the applicant that the memo dated 24.11.1993 enclosing the charge and statement of allegations did not contain the list of witnesses through whom the article of charges were proposed to be sustained and, thus, there were violation of Rules. Before the Commissioner of Departmental Inquiries though four documents were produced by the Presenting Officer, the applicant was not given opportunity to cross-examine the author of the same and, that, therefore, the applicant has raised a point that non-supply of the list of witnesses is stated to have vitiated the proceedings. Before the C.D.I., the applicant requested for calling upon some officers as defence witness but the said prayer of the applicant has been stated to have been denied to him. It is the case of the applicant that the C.D.I. hurriedly closed the enquiry. Even though the applicant in his letter dated 5.9.1994 and 24.12.1994 requested to allow him to be defended by a Defence Assistance, no reply was given to him and, as such, he was denied the opportunity to defend his case adequately before the C.D.I. Though the applicant asked in his letter dated 15.3.1994 to supply to copy pf documents specified at Sl. No. 2 of the listed document (which was promised, in letter dated 6.1.1995 to be supplied after receipt it from the Directorate of Telecommunications, New Delhi) the same was not supplied to him, according to the applicant such non-supply of vital document seriously prejudiced him in defending his case before the C.D.I. Finally, it has been submitted by the applicant that since the proposal was approved by the highest authority i.e. General Manager (Plg.) the proceedings/punishment against him was uncalled for.
2. By filing a counter, the respondent-Department have contested the master by stating therein that before issuing the order to make local purchase of the materials, no report (regarding non-availability of essential materials) from the Circle Store was obtained; that there was no assessment also as to how much materials were necessary for the intended expansion work; that without any assessment and without verification of the stores, it was decided to make local purchases that though the file was processed through different officers, the applicant played a vital role in passing the final order for local purchase; that proceedings have also been initiated against other two officers (i.e. Asst. Director (MM) and the Chief Accounts Officer in-charge of planning) in the matter; that prior to making local purchases, quotations were not obtained following prescribed procedures and that too without prior approval of the appropriate authorities i.e. Directorate of Telecom Stores; that the items purchased were not proprietory items and that while making local purchases the rates of Telecom Stores Organisation were not taken into consideration, intentionally and that the materials were purchased at high rates; that Shri B.K. Jena, the then Asst. Director (MM) has been awarded with punishment of reduction of pay, by two stages for four years and that enquiry is pending as against the Chief Accounts Officer. It has been clarified by the respondents that though the General Manager (Planning) (in his office note dated 23.6.1992 and 14.7.1992, Annexure-6) had passed orders to call for tenders but the said order has not been complied with by the applicant and that ignoring the departmental rules and the orders of the higher Authorities, the applicant and other officers purchased the materials at high rates and such action is not expected from a Government servant. It has been submitted by the respondents that the name of witnesses did not mention, because no oral evidence was proposed to be adduced on behalf of the Disciplinary Authority in order to sustain the Articles of charge; that the applicant did not chose to bring any witness in his defence to rebut the allegations against him that the applicant was given full opportunity to defend his case; that, no specific prejudice has been claimed by the applicant in his original application by any of conduct of the respondents. Respondents have denied the allegation of the applicant that he had ever requested for placing any defence witnesses. With regard to supply of documents, it has been submitted by the respondents that he was allowed ample opportunity to peruse the documents; which he also did and obtained the xerox copies of the same on 15.3.1994. It has been submitted by the respondents that the applicant has not stated what were the actual requirement and what was the necessity for purchase of materials worth of Rs. 1.27 crores while processing the file. It has been pointed out that though such materials were available in the Departmental stores and though the General Manager (Plng.) has no power to make local purchase of such an amount; by splitting up the amount, the purchases were made and Bills were passed. It has been submitted that by virtue of such action serious financial loss has been caused to the Department. Finally, it has been submitted by the respondents that since no irregularity has been committed by the respondents in the matter of disciplinary proceedings and while awarding the punishment, the interference of this Tribunal is not warranted.
3. Heard learned Counsel appearing for the parties and perused the materials placed on record. Though opportunity was given, learned Counsel for the applicant did not bring on record any rejoinder controverting the assertions made by the respondents in their counter.
4. Following the principles of natural justice is the public policy in a democracy. Principles of natural justice are sometime codified. Even in the process of codification, certain area still remains barren; for which judge-made-laws step into fill up the gap. For example, although supply of the enquiry report and giving an opportunity to an employee to represent his case before imposition of penalty, had to be laid down by the Apex Court of India in the case of Ramzan Khan v. Union of India and Ors., , although codified rules remained silent in that regard. In the present case, as it appears, certain documents were taken on record (as evidence) in the enquiry (by the CDI) but no opportunities were given to the applicant to examine/cross-examine the authors of those documents. In fact those documents could not have been taken to the record (as evidence) without confronting those documents to their authors and had the authors of those documents been produced before the C.D.I., then the applicant would have availed an opportunity to examine/cross-examine them. Thus, the applicant was really denied opportunity of putting up an effective defence in course of enquiry that was conducted by the C.D.I. This denial of opportunity is bound to take a long way to treat the proceedings that was initiated against the applicant. Without knowing the witnesses, the applicant could not have blindly called upon any such person to be examined/cross-examined by him. On us of present nature was certainly not shifted to the charged officer/applicant. It was for the Department to bring home the charge against the applicant and it was certainly not a case where the charged officer/applicant was to prove his innocence.
5. While dealing with a case of present nature, one must understand the spirit of the service jurisprudence; where relationship is essentially master and servant. On retirement; which, in ordinary parlance, is a termination of service; all relationships stand severed between master and servant; but for the reason of the pension Rules, certain amount of relationship still exists between the erstwhile master and the erstwhile servant in recognition of which pensions are paid to an erstwhile servant. The scheme of various pension Rules go to show that a Government servant (like the present applicant) earns pension in course of his employment. He gets minimum pension at the end of 10th years of his employment. He gets proportionately higher pension keeping in space with the period of service he renders. Thus, a Government servant earns pension in course of his actual employment and, therefore, it is aptly said that the pension is not bounty to be paid to a Government servant at the evening hours of his life. For the reason of this relationship in the pension rules, the erstwhile master retains the limited power to proceed against an erstwhile employee and on proceeding against him, at post retiral stage, the erstwhile master retains the power to withhold or to reduce the pension in full or in part. The language appended to Rule 9 of the relevant pension Rules goes to show that only when any action of a Government servant (committed during his active service to Government) leads to financial loss to the Government; then only his pension can be withheld in part or in full, after giving him due opportunity, as per the Rules.
6. We are aware that the Courts/Tribunals are not to re-appreciate the evidence nor do they hear the appeal in disciplinary matters. However, in catena of judgments, the Hon'ble Apex Court has held that the power of judicial review also equally applies in disciplinary matters and parameters within which such intervention can take place have also been elaborated by the Hon'ble Apex Court in the case of B.C. Chaturvedi v. Union of India and Ors., .
In other words, whereas ordinarily the Courts/Tribunals would not interfere in the disciplinary matters but it is not without power to intervene to restore the rule of law and to render justice if the facts of the case so demand. In the instant case, which is a proceeding initiated under Rule 9 of the CCS (Pension) Rules, 1972 for withholding a portion of pension earned by the applicant by virtue of his long years of service, for certain actions that he had taken while working as Deputy General Manager (Plng.) in the Office of the Chief General Manager, Telecom, Orissa. Action in such a case can be taken only by invoking Rule 9 of the CCS (Pension) Rules, 1972 as stated earlier but we find in the instant case, the respondents initiated the disciplinary proceedings against him in the charge memo dated 24.11.1993 alleging contravention of the provisions of the Rule 3(1)(i) (ii) and (iii) of the Central Civil Services (Conduct) Rules, 1964. But the provisions of CCS (Conduct) Rules, 1964 are not applicable (ref. Rule 7(3) of the CCS (Conduct Rules) to the retired personnel which renders the charge memo legally untenable. This is an instance of total non-application of mind; because Rule 9 of Pension Rules, 1972 provides that action against a pensioner (for withholding whole or a part of pension) can be taken by the President only on the ground of either "grave misconduct" or for "causing pecuniary loss to the exchequer"; as the charge memo dated 24.11.1996 no-where whisphers that the applicant was either guilty of grave misconduct or had caused pecuniary loss to the Government, we hold that no case under Rule 9 could be made out. Further, as the applicant is a retired Government servant, the provisions of CCS (Conduct) Rules, 1964 cannot be applied to him. Therefore, the charge memo framed against the applicant is bad in law ab initio.
7. We have also perused the report of the Inquiry Officer and the advice of the Union Public Service Commission. The Inquiry Officer has found Article-Ill as not proved at all and in respect of Articles-I and II his finding is that these are partly proved. The enquiry report concludes that out of six element of allegations put under charge No. I, only two are proved (being factual) and in respect of charge No. II, out of five allegations, two are proved (being factual) and others not proved. The Inquiry Officer nowhere in his report has given the finding of any grave misconduct on the part of the applicant; nor has he found the applicant being guilty of causing pecuniary loss to the exchequer. The advice of the U.P.S.C. broadly has gone alongwith the findings of the enquiry report. They have also held that Articles-I and II of the charge are partly proved and Article-Ill not proved. However, we are surprised to note that although their findings were the same as that of the Inquiry Officer, on what basis they could hold the opinion that, "ends of justice would be met in this case, if 25% (twenty five per cent) of the monthly pension otherwise admissible to Shri G.N. Tripathy is withheld for a period of five years," is not clear. We also do not find in the advice of the U.P.S.C. that any light has been thrown as to whether the applicant was guilty of either grave misconduct or he caused any pecuniary loss to the Government; as otherwise it is not legally tenable to order withholding of a part of the pension against a pensioner.
8. Another significant feature of the case is that while discussing the liability of the applicant, for resorting to procurement of Stores, on the basis of three quotations instead of calling for tender and for repeating orders on the same firm, U.P.S.C. have advised the President that as all these proposals which were initiated by the applicant, had been concurred by the C.A.O. under whose jurisdiction detailed scrutiny of the financial proposal comes; responsibility cannot be fixed on the applicant for any error and omission. Thus, there is hardly any scope for levelling allegation of misconduct or of causing loss to the Exchequer.
9. Having regard to the above legal and factual infirmities in the action initiated against the applicant under Rule 9 of CCS (Pension) Rules, 1972 and in the face of the findings of the Inquiry Officer and the advice of the U.P.S.C. to the President, we are of the view that the Disciplinary Authority was not properly advised by the concerned authorities in the matter. As this is also our finding that there was serious legal lacunae in the framing of charge memo, we have no hesitation to hold that charge memo dated 24.11.1993 is wholly untenable and is liable to be quashed. We order accordingly. Consequently, the order of punishment dated 23.4.1996 must also go and the respondents are hereby directed to pay the full pension to the applicant, as he is/was otherwise entitled to under the Rules.
In the result, this original application is allowed. There shall be no order as to costs.