Central Administrative Tribunal - Delhi
P.N. Pandey vs Union Of India Through Development ... on 16 November, 2010
Central Administrative Tribunal Principal Bench OA No.1785/2010 New Delhi this the 16th day of November, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. (Mrs.) Veena Chhotray, Member (A) P.N. Pandey, Technical Assistant (Retd.), 1032/41, D.D.A. Flats, Kalkaji, New Delhi-110 019. -Applicant (By Advocate Dr. Sumant Bhardwaj with Ms. Archna Pathak Dave and Mr. Mridula Ray Bhardwaj) -Versus- 1. Union of India through Development Commission (Handicrafts), Office of the Development Commission (Handicrafts), Ministry of Textiles, Government of India, West Block No.VII, R.K. Puram, New Delhi-110066. 2. Union Public Service Commission, through Secretary, Dholpur House, Shahjahan Road, New Delhi. -Respondents (By Advocate Shri Hilal Haider) O R D E R Honble Mr. Shanker Raju, Member (J):
By virtue of this OA applicant, who retired on superannuation on 28.02.2005 as Technical Assistant, impugns Presidential order dated 05.04.2010, passed under Rule 9 of the CCS (Pension) Rules, 1972, whereby a post-retiral penalty of forfeiture of entire pension and gratuity has been inflicted upon applicant.
2. While in service applicant was placed under suspension on 30.01.1987 on account of committing forgery in submission of certificates in his service record under Section 420/468/471 I.P.C. in which he was acquitted on 04.12.1995. Accordingly the department considered this to be an acquittal on merits by revoking suspension order on 15.03.1994 and treated the suspension period as spent on duty for all purposes. However, no proceedings were initiated against applicant till 03.10.2001 when a chargesheet under Rule 14 for a major penalty was served upon him, alleging him to have submitted forged high school and technical certificates and also taking LTC advance of Rs.4200/- during 1987 and claiming forged bill for an amount of Rs.4200/-.
3. With the summary of allegations the certificate of high school and technical certificate with copy of the letter issued by Secretary, U.P. Board, Allahabad dated 26.03.1987 were also appended. The enquiry officer (EO) only proved article-II of the charge and exonerated applicant, on receipt of which disciplinary authority (DA) ordered a further enquiry on the basis of a subsequent certificate issued by the Secretary, U.P. Board, Allahabad in 2005 and thereafter the applicant was held guilty of charge contained in article-I. Applicant, who has since retired on superannuation on 28.02.2005, the proceeding was treated as proceedings under Rule-9 of the Rules ibid and on proposal of penalty of 25% cut applicant was asked to submit a representation, which was forwarded to Union Public Service Commission (UPSC) for consultation and opinion, wherein the advice of UPSC held both the charges proved and proposed permanent cut in pension and gratuity, which when disagreed to by the DA to the extent of 25%, the proposal was put to the department of Personnel and Training by Ministry of Textile, on the basis of which a proposal of 100% pension and gratuity cut in the order passed is now impugned by the applicant.
4. Learned counsel of respondents has vehemently opposed the contentions and stated that due procedure has been adopted by the respondents while inflicting the penalty upon applicant, which do not suffer from any legal infirmity.
5. We have carefully considered the rival contentions of the parties and perused the material on record.
6. It is trite in law that while in service or post-retirement if the procedure prescribed has not been adopted, which is substantive one, causing prejudice to the concerned, the proceedings as well as the consequent orders are not only liable to be interfered in judicial review but also to be set aside. Applicant, who was proceeded against on the basis of the charge relating to falsification of certificate, for which a simultaneous trial has also been initiated in which applicant was honorably acquitted and once the respondents have deemed the acquittal of applicant pertaining to the offence and article I of charge in the disciplinary proceedings as acquittal on merits by treating the entire suspension period as spent on duty, the advice of UPSC to treat the acquittal on technical grounds would amount to approbating and reprobating simultaneously by the Government, which cannot be countenanced. Moreover, though there is no bar to hold enquiry even after acquittal, but once the acquittal is on merits, reasons are to be given before proceeding with in the disciplinary proceedings, which are lacking in the present case. On this count alone the finding recorded relating to withholding of entire gratuity and pension cannot be sustained in law. In the instant case the EO has recorded a finding of not guilty against the applicant on article-I of charge and admittedly the original documents were not available on record, the DA remanded back the case for further enquiry and in that course directed admission of documents, i.e., report from the educational authorities, i.e., Madhyamik Shiksha Parishads letter dated 05.12.2005, which has not been served upon applicant and his request for examining witnesses to authenticate the documents having not been acceded, the further enquiry and the finding recorded on which applicant has been held guilty and punished cannot be sustained. The Apex Court in State of U.P. v. Saroj Kumar Sinha, 2010 (2) SCALE 42 held that when charges are based on documents, which are relied upon to hold one guilty, if the documents are not proved by oral evidence, the penalty imposed cannot be sustained. The aforesaid has been reiterated by the Apex Court in LIC v. Ram Pal Bishan, 2010 (3) SCALE 121. On that basis also while the document was taken on record to record a finding in the second enquiry without supplying the document and without calling the witnesses, the enquiry and the consequent orders are vitiated.
7. In the result, for the foregoing reasons, leaving other grounds open, only on these two grounds the OA is allowed to the extent of quashing the impugned orders. However, the respondents are at liberty to resume the proceedings from the stage of curing illegality of the procedure and till then the applicant would continue in service from the date of infliction of penalty till a fining is recorded afresh. The arrears and provisional pension shall be disbursed within two months from the date of receipt of a copy of this order. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.