Madhya Pradesh High Court
Union Of India vs Malkhan Singh on 29 August, 2012
1
Writ Petition No. 12831/2012
29.8.2012
Shri S.A. Dharmadhikari, learned counsel for the petitioners.
Shri Vijay Tripathi, learned counsel for respondent.
Heard.
This petition under Article 227 of the Constitution of India is directed against the order dated 20.3.2012 passed by the Central Administrative Tribunal, Jabalpur Bench, Jabalpur; whereby, an order dated 4.6.2010 imposing penalty of removal from service on respondent passed by the Appellate Authority has been set aside and petitioner employer has been directed to provide all consequential benefits to the respondent.
The respondent while posted as Postal Assistant, Sehore was chargesheeted on 27.10.2009 for misappropriating amount of Rs.4,10,165/. The denial of charges led to holding of departmental enquiry culminating into an order of punishment dated 29.12.2009; whereby, he was reverted from the post of Postal Assistant in Pay Scale 520020200 + Grade Pay Rs.2400/ to the post of Postman in the Pay Scale of 520020200 + Grade Pay Rs.2000 fixing him in the initial scale of pay.
That, appellate authority, i.e., Director, Postal Services Indore Region in exercise of his powers under Rule 29 (1) (v) of Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short Rules of 1965) decided to revise the order of punishment and accordingly caused notice on the respondent on 6.1.2010. By that 2 time the respondent has retired on attaining the age of superannuation on 31.12.2009.
Rule 29 (1) (v), Rules of 1965 stipulates that notwithstanding anything contained in these rules the Appellate Authority, within six months of the date of the order proposed to be revised; may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order may under these rules or under the rules repealed by Rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit.
The Rule further provides that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in Clauses (v) to (ix) of Rule 11 or to enhance the penalty imposed by the order sought to be revised to any of the penalties 3 specified in those clauses, and if an inquiry under Rule 14 has not already been held in the case, no such penalty shall be imposed except after an inquiry in the manner laid down in Rule 14 subject to the provisions of Rule 19, and except after consultation with the Commission where such consultation is necessary.
The notice by the appellate authority was thus in exercise of the powers conferred by Rule 29 (1) (v) of Rules of 1965. The action initiated culminated into an order dated 4.6.2010; whereby, after considering the representation dated 17.3.2010 and 8.4.2010 preferred by the respondent, he was directed to be removed from service. The order gave rise to challenge before the Tribunal on the ground that it was beyond the powers of the Appellate/Revisional Authority to have inflicted the punishment of removal after the petitioner had retired from service. It was stated that having retired from service, punishment, if any, could have been inflicted only in accordance with Rule 9 of Central Civil Services (Pension) Rules, 1972 (for short Pension Rules, 1972).
The Tribunal by impugned order set aside the order of punishment dated 4.6.2010 holding:
8. The Appellate Authority's review order has been passed using the provisions of CCS (CCA) Rules, 1965, which in this case, was after retirement of the employee. The review order of Appellate Authority, enhancing the punishment of Government servant is, in its effect, like continuation of disciplinary proceedings. For Disciplinary proceeding, instituted while government servant was in service, the provisions of Rule 9 of CCS (Pension) Rules, 4 1972 are applicable. Since, the applicant had already retired, he could only be imposed penalty under Rule 9 of CCS (Pension) Rules, 1972. Thus the order of Appellate Authority, under CCS (CCA) Rules, 1965 is not maintainable."
The conclusion arrived at by the Tribunal in the given facts of the present case cannot be faulted with as it was beyond the powers of the appellate/revising authority to have inflicted any penalty upon the petitioner much less the penalty of removal from service when the respondent employee had already retired from service. In this context reference can be had of decision in R. Jeevaratnam v. State of Madras (AIR 1966 SC 951); wherein, it is observed:
"(4) The order dated October 17, 1950 directed that the appellant be dismissed from service with effect from the date of his suspension, that is to say, from May 20, 1949. In substance, this order directed that (1) the appellant be dismissed, and (2) the dismissal do operate retrospectively as from May 20, 1949. The two parts ,of this composite order are separable. The first part of the order ,operates as a dismissal of the appellant as from October 17, 1950. The invalidity of the second part of the order, assuming this part to be invalid, does not affect the first part of the order. The order of dismissal as from October 17, 1950 is valid and effective. The appellant has been lawfully dismissed, and he is not entitled to claim that he is still in service."5
However, there is a considerable force in the contentions putforth on behalf of the petitioner that while setting aside the order passed by Appellate Authority and holding that it is Rule 9 of Pension Rules, 1972 which gets attracted in respect of an employee who is retired from service, incumbent it was upon the Tribunal to have remitted the matter to the appellate authority for taking recourse to the procedure as is prescribed under sub rule (2) of Rule 9 of Pension Rules, 1972.
Learned counsel appearing for respondent fails to cause any dent to the aforesaid submission putforth by learned counsel for the petitioner.
Subrule (2) of Rule 9 of Pension Rules, 1972 stipulates: "9. Right of President to withhold or withdraw pension (2)(a) The departmental proceedings referred to in subrule (1), if instituted while the Government servant was in service whether before his retirement or during his re employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service :
Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President."6
Thus, while affirming the conclusion drawn at by the Tribunal that it is beyond the powers of the Appellate/Revising Authority to inflict the punishment of removal from service after retirement of respondent, We, however, modify the order and remit the matter to the appellate authority for taking recourse to the procedure as is prescribed under Rule 9 (2) of Pension Rules, 1972. Let the same be done within a period of three months from the communication of this order.
In the result petition is allowed to the extent above. Parties to bear their own costs.
(AJIT SINGH ) (SANJAY YADAV)
JUDGE JUDGE
VT