Central Administrative Tribunal - Delhi
Sh. H.L. Gulati vs Union Of India Through on 13 April, 2009
Central Administrative Tribunal Principal Bench OA No. 1675/2008 New Delhi, this the 13th day of April, 2009 Honble Mr. Shanker Raju, Member (J) Honble Dr. R.C. Panda, Member (A) Sh. H.L. Gulati, Senior Account Officer (Retd.), Group B, S/o Late Shri C.R. Gulati, R/o H.No. 6050/1, Sector-D, Pocket VI, Vasant Kunj, New Delhi. Applicant (By Advocate: Shri E.J. Verghese) Versus Union of India through 1. The Secretary, Ministry of Defence, South Block, New Delhi 110 001. 2. The Secretary, Ministry of Defence (Finance), South Block, New Delhi 110 001. 3. The CGDA, West Block V, R.K. Puram, New Delhi 110 066. Respondents (By Advocate: Shri R.N. Singh) O R D E R By Mr. Shanker Raju, Member (J):
Post retiral penalty of permanently withholding of 50% monthly pension and gratuity by a presidential order dated 30.11.2005 is assailed by applicant in this Original Application. He has also assailed order dated 01.08.2007 passed in review by which the penalty has been upheld.
2. Applicant, who was working as Senior Accounts Officer, was issued show cause notice on 01.01.1998 and on reply he was issued chargesheet under Rule 14 of CCS (CCA) Rules for a major penalty on 07.07.1998. Simultaneously, a criminal proceedings vide FIR dated 20.05.1998 were also initiated against him under Sections 120B/420/468/471/477A IPC & u/s 13(2) read with 13 (1)(d) of Prevention of Corruption Act, 1988. Special Judge, vide order dated 08.07.2005, finding no evidence with regard to conspiracy, discharged the applicant from the case, however, negligence was not ruled out. A revision petition preferred before the High Court was also turned down on 22.09.2006. Against the applicant, who retired on superannuation, enquiry was conducted as per Rule 9 (1) of CCS (Pension) Rules, 1972.
3. Basically, the allegations against the applicant are with regard to authorization of 36 fraudulent claims, non-following of the procedure by floating against fake sanctions, non-noting of purchase bills in the accounts section and non-following of the procedure, which have been viewed against him as failure in maintaining absolutely integrity and conducting in a manner unbecoming of a government servant. Enquiry officer, on analyzing the evidence, though marginally proved Article-I, partially proved Articles II & III, but Article-IV was not proved. Maintenance of absolute integrity has also not been proved. However, a technical lapse of non-following of the procedure, in nutshell, is the charge established against him. Enquiry Officer, nowhere in the enquiry report, has recorded any finding with reasons that the applicant has either committed a grave misconduct or a grave negligence. The aforesaid finding was agreed upon by the disciplinary authority and the matter had been referred to Union Public Service Commission for consultation and advice. Recording a finding of grave misconduct on its own, which was not recorded in the enquiry report, the president, vide order dated 30.11.2005, satisfied that the charges established against the applicant constituted a grave misconduct and imposed the penalty. The aforesaid order, when challenged before the President in review, the penalty was upheld by an order dated 01.08.2007.
4. Learned counsel for the applicant though taken several legal pleas yet, while referring to the decision of this Tribunal in OA No. 110/2005 in T.P. Venugopalanan v. Union of India & Ors., decided on 10.04.2006, stated that though post retiral penalty could be imposed by a presidential order under Rule 9(1) of Pension Rules, but the condition precedent is that there must be a finding either of a grave misconduct or a grave negligence in the enquiry report, which culminates at the stage of enquiry report. As no such finding has been recorded by the enquiry officer, therefore, imposition of punishment is without jurisdiction. The decision of Venugopalans case (supra), when carried by the Government before the High Court of Delhi in WP No.12759-61/2006, an order passed on 06.11.2007 upheld the finding of the Tribunal and reiterated the law. Applicant states that his case is covered by the decision of the Tribunal and the High Court (supra).
5. On the other hand, learned counsel for the respondents vehemently opposed the contentions raised by the applicants counsel and stated that a finding of grave misconduct and grave negligence is not to be recorded specifically, but to be inferred in its entirety of the charges established against the applicant. Learned counsel contends that the charge of the applicant of passing fictitious bills itself amounts to grave misconduct and, while referring to the CCS (Conduct) Rules, stated that act and conduct of a government servant, which is pre-judicial to the interest of government, is a grave misconduct. Learned counsel would also contend that the applicant, having failed to verify the specimen signatures, has acted negligently which is grave with culpable damage i.e. loss to the government and, as such, penalty imposed upon him does not suffer from any legal infirmity. He would further contend that the decision in Venugopalans case (supra), when carried before the Apex Court in SLP (CC 8065-8067/2008), by an order passed on 08.07.2008 Apex Court dismissed the SLP, which has an effect of attainment of finality of the decision in Venugopalans case (supra).
6. We have heard learned counsel for the parties and with their assistance examined the records of the case.
7. In Venugopalans case, a Senior Accounts Officer, who had been proceeded against, where a similar penalty had been imposed, the decision of the Apex Court in D.V. Kapoor v. Union of India, AIR 1990 (SC) 1923, was relied upon wherein it is ruled that exercise of powers under Rule 9(1) is hedged with a condition precedent that there must be a finding the enquiry report that the pensioner has committed any grave negligence or grave misconduct in discharge of his duties. As no such finding had been recorded in the enquiry report, the penalty was set aside. High Court of Delhi, while discussing the above, recorded as under:-
15. The findings which have come in the enquiry report against the respondent only indicate that the level of negligence of the respondent may not be as high or might not have been expected of him. None of the findings in the report anywhere indicate that respondent misconducted himself gravely or committed grave negligence in permitting his subordinates to introduce fraudulent documents, incomplete processing and passing the bills without proper verification. Simply because the respondent passed impugned bills on the same date does not constitute any grave misconduct on the part of respondent in handling the bills. May be that respondent passed those 10 alleged fraudulent claims in undue haste, but then this conduct of the respondent by itself does not prove charges of grave misconduct against him.
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17. The Tribunal, therefore, rightly held that enquiry officer except recording the findings of conduct unbecoming a Government Servant has not recorded reasons as well as the findings as to commission of grave misconduct or grave negligence by the respondent. We also find that in the Memorandum issued to the respondent under Rule 14 of the CCS (CCA) Rules, 1965, petitioner has not leveled any such allegations against the respondent of having committed himself in such a manner so as to constitute grave misconduct or grave negligence and to invite penalty under Rule 3 of the CCS (CCA) Rules.
8. Having regard to the above, on perusal of the enquiry report, we find that the charges of integrity, unbecoming of government servant and other severe charges have not been established. It is also not established that the act of the applicant is such which has led to loss to the government. However, what has been held proved against the applicant is only with regard to procedural irregularities without any culpability. Against the charge of non-following of the rules on a few instances, past practice has been followed and no finding either of grave misconduct or grave negligence has been recorded in the enquiry report.
9. In view of the facts and circumstances of the case and from scanning of the enquiry report, we are of the considered view that the condition precedent for recording of such a finding in the enquiry proceedings has not been fulfilled. It is only the President who has recorded such a finding on its own, but the Rule 9(1) stipulates that such a finding is to be recorded in the disciplinary proceedings, which is conspicuously missing. As such, when a finding of grave misconduct and grave negligence, being condition precedent under the relevant rules, has not been recorded, the imposition of penalty is not only against the dicta in D.V. Kapoors case (supra) but the issue involved in the case in hand is fully covered by Venugopalans case (supra). Hence, the penalty imposed upon the applicant is without jurisdiction and nullity in law. Resultantly, leaving other grounds open, present Original Application is allowed. Impugned orders are set aside. Withheld pension and gratuity of the applicant alongwith arrears and admissible rate of interest is directed to be paid to the applicant within a period of two months from the date a certified copy of this order is served upon the respondents.
(Dr. R.C. Panda) (Shanker Raju) Member (A) Member (J) /naresh/