Bikram Chand Rana vs Himachal Pradesh Road Transport Corporation

Prashant Kumar Mishra, J

The instant Appeal is directed against the judgment dated 23.04.2022 passed by the High Court of Himachal Pradesh at Shimla in Letters Patent Appeal No. 188/2021, whereby the intra-courtappeal preferred by the appellant against the judgment dated 19.07.2021 of the learned Single Judge in Civil Writ Petition Original Application No. 5144/2019 came to be disposed of.

The appellant was working in the respondent-Himachal Pradesh Road Transport Corporation1 as a Clerk from 1979 onwards. In 2000, he was promoted to the post of Senior Assistant. He continued in service until he retired upon attaining the age of superannuation on 28.02.2009.

The allegation against the appellant is that between May and July 2006, he was involved in the leak of the question paper of the Combined Pre-Medical Test, 2006 ,“CPMT”. We note that the respondent-Corporationcontends that prior to the same, in the course of his employment, the appellant had already been suspended twice for non-performance of delegated duties.

On  28.07.2006,  FIR  No.  140/2006  was  registered  at  Police  Station  West Shimla  against  the  appellant  and  other  accused  persons  under  Sections  406, 418, 420 and 120B of the Indian Penal Code, 1860 ,“IPC”  for their involvement in the CPMT paper leak. In connection with the said FIR, the appellant was arrested on 24.11.2006 at about 5:30 p.m. and was released on bail on the next day by the Court of the Judicial Magistrate First Class-III, Shimla.

Parallel to abovementioned criminal case, the respondent-Corporation initiated departmental proceedings against the appellant. On 19.01.2007, a charge-sheet was issued to the appellant under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 vide Memorandum No. HRTC-DM-HMR-ESTT-3-188/PF/04-5855 by the Divisional Manager, HRTC, Hamirpur Division. The Memorandum proposed to hold a departmental inquiry and set out two articles of charge, namely: (i) the allegation of involvement in the CPMT paper leak; and (ii) the allegation of disregard of Central Civil Services (Conduct) Rules, 1964, specifically Rule 3 thereunder. The departmental inquiry was entrusted to an Officer of the Dharamshala Division.

The Inquiry Report, dated 26.02.2009, records that the departmental case rested primarily on the fact that FIR No. 140/2006 had been registered against the appellant in respect of the CPMT paper leak scam; that he had been taken into Police custody and subsequently released on bail; and that his name appeared  at  Serial  No.  20  in  a  list  of  accused  persons  forwarded  by  the  Home Department to various departments. Two departmental witnesses were examined, both of whom merely proved receipt of official correspondence directing the initiation of departmental action. In his defence, the appellant admitted being taken into police custody for 22 hours but denied any involvement in the paper leak. He further provided an explanation of the alleged financial  transactions  and  mobile  phone  usage  relied  upon  by  the  Police,  and asserted  that  no  misconduct  had  been established  against him.  Upon  analysis of the oral and documentary evidence, the Inquiry Officer concluded that there was no material on record establishing the appellant’s involvement in the CPMT paper leak or any violation of the CCS (Conduct) Rules. We specifically note that the Inquiry Officer had stated:

“….Apart from this, the case is under consideration of Honourable Court  and  until the Court's decision,  it would  not be appropriate to say anything. Based on the documents, it is not seemed that the Accused was involved in the scam.”

Shortly  after,  on  28.02.2009,  the  appellant  superannuated;  however,  he was not paid his full retiral benefits. While provisional pension was released to him,  his  gratuity  and  other  terminal  benefits  were  withheld  on  account  of  the pendency of the criminal proceedings arising out of FIR No. 140/2006.

The appellant has drawn our attention to the fact that following his retirement, he made several representations to the respondent-Corporation. On 07.12.2010, he submitted a detailed representation to the Managing Director of the respondent-Corporation,contending, inter alia, that several others who were co-accused in the same CPMT paper leak case had not been subjected to departmental  proceedings  by  their  respective  departments. In  support  of  this contention,  the  appellant  relied  upon  information  obtained  under  the  Right  to Information Act, 2005, furnishing a list of such officers, some of whom, according to the appellant, had initially been suspended but whose suspension orders were later revoked, and some of whom were even granted promotions.

On  18.12.2013,  the appellant  sought  a  copy  of  the  departmental  inquiry report  from  the  Divisional  Manager  of  the  respondent-Corporation,  Hamirpur, stating that the same was required for defending proceedings before the Court. As no copy was furnished to him, the Divisional Manager, Hamirpur, by communication dated 23.12.2013, requested the Managing Director of the respondent-Corporationto supply a copy of the inquiry report so that it could be provided to the appellant. The appellant again approached the respondent- Corporation by way of a representation dated 09.02.2015, reiterating his grievance regarding the withholding of his gratuity and pensionary benefits.

Ultimately, on 28.05.2015, the charges against the appellant were found to be not proved and a copy of the enquiry report was supplied to him. On 04/14.06.2015, the appellant approached the Himachal Pradesh State Administrative Tribunal vide Original Application No. 1594/2015, seeking directions for release of his gratuity and regular pension with consequential benefits. As the Tribunal was subsequently abolished, the Original Application was transferred to the High Court of Himachal Pradesh at Shimla, where it was renumbered as Civil Writ Petition Original Application No. 5144/2019 and dismissed by the learned Single Judge on 19.07.2021. Aggrieved, the appellant approached the Division Bench of the High Court by way of Letters Patent Appeal No.  188/2021  on  07.09.2021.  The  Division  Bench  concurred  with  the  findings of the learned Single Judge and disposed of the same on 23.04.2022, albeit impressing  upon  the  concerned  Trial  Court  to  expedite  the  trial  arising  out  of FIR No. 140/2006, in which the appellant had been arrayed as an accused. The appellant now prefers the instant Appeal before this Court.

The narrow question of law that arises for our consideration is the correct statutory  interpretation  of  Rule  69(1)(c)  of  the Central  Civil  Services  (Pension) Rules, 1972 “1972 Rules”, reproduced below:

“69. Provisional pension where departmental or judicial proceedings may be pending.—

(...)

(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon:

Provided that where departmental proceedings have been instituted under Rule 16  of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for imposing any of the penalties specified  in  Clauses  (i),  (ii)  and  (iv)  of  Rule  11  of  the  said rules,  the payment of gratuity shall be authorized to be paid to the Government servant.”

The appellant contends that the expression “departmental or judicial proceedings”in Rule 69(1)(c) must be construed to mean that gratuity becomes payable upon the conclusion of either set of proceedings.

Such a submission totally misapprehends the nature of the Rule. As the learned Single Judge had rightly noted at the first instance, Rule 69(1)(c) operates  as  an  ‘embargo’  or  a statutory  bar,  not  as  an  enabling  provision.  The use of the ordinary disjunctive“or”expands the scope of this bar, indicating that gratuity shall not be paid so long as either departmental or judicial proceedings are pending. The appellant places reliance on the case of Babu Manmohan Das Shah & Ors. vs. Bishun Das 1967 [1] SCR 836 at p. 839, specifically that:

“…..Theordinary rule of construction is that  a  provision of a  statute must be construed in accordance with the language used therein unless there are compelling reasons, such as, where a literal construction  would  reduce  the  provision  to  absurdity  or  prevent  the manifest  intention  of  the  legislature  from  being carried  out. There  is no  reason  why  the  word“ or ”should  be  construed  otherwise  than  in its ordinary meaning.…..”

Applying  the  aforesaid  reasoning,  it  is  the  construction  advanced  by  the appellant that would in fact yield an anomalous result. Rule 69(1)(c) of the 1972 Rules has a wide import and operates in respect of any proceeding that may be pending  against  an  employee  at  the  time  of  retirement;  indeed,  the  breadth  of the provision reflects its protective character. If the appellant’s interpretation were accepted, an employee could contend that once any one set of proceedings against him/her stands concluded, the embargo stands lifted and gratuity must be released. This would altogether defeat the purpose of the provision, which is to safeguard the financial interests of the State.

Even in the instant case, where both the proceedings stem from identical allegations, their nature, scope, and standard of proof remain fundamentally different. By way of illustration,let us consider if the converse were true i.e., the criminal case against the appellant had concluded in an acquittal due to failure to establish guilt beyond reasonable doubt. It would nevertheless be possible that the appellant was eventually found liable in the pending departmental proceedings on a preponderance of probabilities. An acquittal in that case could not  be  determinative.  If  such  an  approach  is  impermissible  in  one  direction,  it cannot be countenanced in the other either. Moreover, this distinction assumes increased  significance  in  the  instant  case,  as  the  Inquiry  Officer  had  expressly noted that the matter was sub judice and any definitive conclusion would rest on the outcome of the criminal trial.

The appellant also seeks to take refuge of Rule 9(1) of the 1972 Rules, the operative portion of which reads as follows:

“9. Right of President to withhold or withdraw pension

(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement.”

The appellant relies on the above Rule to urge that the respondent- Corporation  would  not  be  left  remediless,  as  any  amounts  disbursed  could  be recovered in the event of a subsequent conviction. This submission has already been clearly negatived by the Division Bench in the following terms:

“5. The aforesaid provision of Rule 9 of CCS (Pension) Rules, 1972 has to be considered at the stage when the employee concerned has been found guilty, which situation would arise only upon conclusion of judicial proceedings in the present case, as the same are still said to be pending.…..”

Simply put, the provision is downstream in its operation and cannot be invoked to  justify  the  release  of  gratuity  during  the  interregnum  when  proceedings  are admittedly pending, on the premise that recovery could be  effected at a later stage.

All  of  the  appellant’s  remaining  contentions  pertain  to  questions  of  fact. We  are  not  unmindful  of  his  advanced  age  and  the  circumstance  that  he  was exonerated in departmental proceedings. He has also brought to our notice that the students accused in the CPMT paper leak, who had been charged under Sections  109,  420  and  120B  of  the  IPC  read  with  Section  S-7  of  the  Himachal Pradesh Prevention of Malpractices at University, Board or other Specified Examinations Act, 1984, were acquitted thereof vide judgment dated 28.01.2016 in Criminal Case No. 68-2/2008. These aspects may, no doubt, lend some support to the appellant’s case in the criminal trial, but cannot alter the statutory position governing the release of gratuity under Rule 69(1)(c) of the 1972 Rules.

Therefore, we find no reason to interfere with the impugned judgment. The Appeal is, accordingly, dismissed. We, however, reiterate the direction issued by the High Court and impress upon the Trial Court concerned to expedite the trial arising out of FIR No. 140/2006.