M A Beg vs Union Of India And Ors

This instant O.A. has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 praying for the following reliefs:-

"(i) Quash Memorandum dated 11-8-2015 (Annexure -A.1), report dated 1-6-2016 (Annexure-A.2) and order dated 28-4-2017 (Annexure-A.3).

(ii) direct the respondent to continue paying the provisional pension to the applicant pursuant to order dated 30-10-2013 (Annexure-A.9) till pendency of the judicial proceedings;

(iii) direct the respondent to pay the arrears of provisional pension, if any, with interest."

The factual matrix of the case, as noticed from the records, is as under:-

2.1 The applicant was appointed as a Production Assistant in Doordarshan - respondent No.2 on 25.02.1977. After securing his regular promotions, he became the Assistant Controller of Programmes in Delhi on 23.10.2000.

2.2 The applicant was involved in a criminal case under Section 109 IPC read with Section 13 (2) & 13 (1) (e) of the Prevention of Corruption Act, 1988. He was placed under suspension w.e.f. 05.01.2002. His suspension was revoked on 06.10.2003. He, along with one Zuli  Huma Beg, was convicted  by  the  Court  of  Special  Judge-03,  CBI,  New  Delhi  vide  its judgment dated 05.07.2011. The Criminal Court sentenced the applicant to undergo  rigorous  imprisonment  for  a  period  of  three  years  and  also imposed a fine of `25,000/- vide aforesaid judgment. Operative part of the said judgment reads as under:-

"6. I therefore, sentence the convict Mumtaz Afzal Beg to undergo rigorous imprisonment for a period of three years u/s 13 (1) (e) read with Section 13 (2) of the PC Act and also impose a fine of Rs.25,000/-; in default, to further undergo RI for a period of six months.

So far as convict Zuli Huma Beg is concerned I sentence the convict Zuli Huma Beg to undergo Simple Imprisonment for a period of one year u/s 109 IPC read with Section 13 (2) r/w 13 (1) (e) of the PCT Act, 1988 and also impose a fine of Rs.10,000/-, in default, to further undergo SI for a period of three months."

2.3 The  applicant  challenged  his  conviction  before  the  Hon"ble  High Court of Delhi in Crl. M.B. No.1401/2011 in Crl. A.994/2011. The Hon"ble High Court, vide its order dated 13.10.2011 (Annexure A-6), suspended the sentence of the applicant till the disposal of the criminal appeal; operative part of which reads as under:-

"17. Keeping in view the facts of the case and submission of the Ld. Counsel for the parties, I deem it fit to suspend the sentence of the applicant/convict till the disposal of the Criminal Appeal.

Accordingly applicant/ convict shall be released on bail on furnishing a bail bond of Rs.50,000/- with one surety of the like amount to the satisfaction of the trial court."

2.4 Respondent No.1, vide impugned Annexure A-1 memorandum dated 11.08.2015, informed the applicant that in view of his conviction in the criminal case by the criminal court vide its judgment dated 15.07.2011, the disciplinary  authority,  i.e.,  President  of  India,  had  decided  to  impose penalty of forfeiture of entire pensionary benefits under Rule 9 of CCS (Pension) Rules, 1972 (for short „Pension Rules"). The applicant was given liberty of making representation against the penalty proposed, within a period of fifteen days from the receipt of the said memorandum.

2.5 As required under Rule 9 (1) of the Pension Rules, the respondents consulted the Union Public Service Commission (UPSC) in the matter, who, vide Annexure A-2 letter dated 01.06.2016, advised for withholding of full pension and gratuity of the applicant on permanent basis. The relevant part of the UPSC advice is extracted below:-

"5. In view of the findings discussed above and also taking into account all other aspects relevant to the case, the Commission consider that the charges established against the CO constitute grave misconduct on his part and the ends of justice would be met if a penalty of „withholding of full pension and gratuity as admissible to Shri M.A. Beg, (the CO) on permanent basis" is imposed on him. They advise accordingly."

2.6 Acting on the advice of the UPSC and keeping in view the conviction of the applicant in the criminal court, the disciplinary authority, vide its impugned Annexure A-3 order dated 28.04.2017, imposed the penalty of withholding of full pension and gratuity of the applicant on permanent basis. The operative part of the said order reads as under:-

"And whereas the Disciplinary Authority i.e. the President after careful consideration of the relevant records, the advice tendered by the UPSC, representation dated 23.8.2016 of Shri M.A. Beg on the advice of UPSC and the facts and circumstances of the case, has come to the conclusion that Shri M.A. Beg has been found guilty of grave misconduct and the advice dated 01.06.2016 tendered by the UPSC is appropriate and, therefore, the same be accepted and that the ends of justice would be met if the penalty of withholding of full pension and gratuity as admissible to Shri M.A. Beg on permanent basis is imposd on him."

Aggrieved by the impugned memorandum dated 11.08.2015 (Annexure A-1), UPSC advice dated 01.06.2016 (Annexure A-2) and penalty order dated 28.04.2017 (Annexure A-3), the applicant has filed the present O.A. praying for the reliefs as indicated in paragraph (1) above.

In support of the reliefs claimed, the applicant has pleaded the following important grounds:-

3.1 The applicant was convicted in the criminal case on 05.07.2011 when he was still in service. The conviction of the applicant was suspended by the Hon"ble High Court of Delhi vide order dated 13.10.2011. As a result of the suspension of conviction by the High Court, the respondents did not choose to initiate any disciplinary enquiry (DE) proceedings against the applicant. Hence, there was no justification for the respondents to pass impugned Annexure A-3 penalty order withholding of full pension and gratuity of the applicant.

3.2 According to Rule 9 (4) of the Pension Rules, if judicial proceedings are instituted against a retired government servant, the said government servant would be entitled to receipt of provisional pension under Rule 69 of the Pension Rules.

3.3 The respondents had decided to pay provisional pension in the year 2013 under Rule 69 of the Pension Rules because the appeal of the applicant against his conviction was still pending in the Hon"ble High Court of Delhi. There is no change in the circumstances since 2011 and till date. Hence, forfeiture of pension of the applicant is in violation of Rule 69 (b) of the Pension Rules, as the judicial proceedings are still continuing.

3.4 The respondents were paying provisional pension to the applicant in terms of Rule 69 (1) (b) of the Pension Rules even after his retirement even though the trial court had convicted him in July 2011 itself.

3.5 The Hon"ble Supreme Court has held that pension is neither a bounty nor charity by the State but is in the nature of deferred wages to a retired government servant to sustain him in the evening of his life, who had served the Government during his prime years.

3.6 Rule 19 of CCS (CCA) Rules, 1965 has no applicability in the present matter, as the applicant was permitted to retire from service on attaining the age of superannuation and despite his conviction, he was also sanctioned the provisional pension in view of pendency of his appeal before the Hon"ble High Court against the conviction order.

Pursuant to the notices issued, the respondents entered appearance and filed their reply wherein they have made the following important averments:-

4.1 Following the conviction of the applicant in the criminal case vide Court of Special Judge-03, CBI, New Delhi order dated 05.07.2011 under the provisions of Prevention of Corruption Act, the disciplinary authority, i.e., President of India, tentatively decided to impose the penalty of forfeiture of entire pensionary benefits on the applicant invoking the provisions of Rule 9 of the Pension Rules. Accordingly, impugned Annexure A-1 memorandum dated 11.08.2015 was issued to the applicant and his representation there-against was sought. The applicant submitted his representation dated 19.10.2015, which was considered by the President on merits and found it liable to be rejected.

4.2 In terms of Rule 9 (1) of the Pension Rules, the UPSC was consulted in the matter, who, vide its Annexure A-2 letter dated 01.06.2016, advised that the ends of justice would meet if a penalty of „withholding of full pension and gratuity as admissible to Shri M.A. Beg on permanent basis" is imposed on the applicant.

4.3 The UPSC advice was tentatively accepted by the President and its copy was forwarded to the applicant vide O.M. dated 23.06.2016 seeking his comments/representation. The applicant submitted his representation dated 23.08.2016 on the advice of UPSC. After careful consideration of the records and the advice of UPSC, the disciplinary authority, vide impugned Annexure A-3 order dated 28.04.2017, imposed the penalty of forfeiture of pension and gratuity of the applicant.

4.4 The DE proceedings were initiated against the applicant under Rule 19 of CCS (CCA) Rules, 1965 in the backdrop of the CBI Court judgment dated 05.07.2011. The DE proceedings were continued even after the retirement of the applicant on 31.03.2013. He was accordingly sanctioned provisional pension under Rule 69 of the Pension Rules.

4.5 In consultation with the Department of Legal Affairs, it was decided that even after the conviction of the applicant vide CBI Court judgment dated 05.07.2011, it would be necessary to issue him a show cause notice and accordingly Annexure A-1 memorandum dated 11.08.2015 was issued to him seeking his representation in regard to the penalty intended to be imposed on him.

4.6 The respondents, after the receipt of applicant"s representation against Annexure A-1 memorandum and after giving due consideration to his representation, the President of India, after consulting the UPSC in the matter, decided to impose the penalty of forfeiture of pension and gratuity of the applicant on permanent basis vide Annexure A-3 order 28.04.2017.

4.7 The Hon"ble Supreme Court in the case of Deputy Director of Collegiate v. S. Nagoor Meera, 1995 AIR SC 1364 has held that merely because the sentence is suspended and/or accused is released on bail, the conviction does not cease to be operative. Hence, passing of the orders of dismissal, removal/ reduction in rank of a government servant, who has been convicted by a criminal court, is not barred merely because the sentence/ order is suspended by the appellate court.

The applicant filed a rejoinder to the reply filed on behalf of respondents, in which he had tried to invoke sympathy of the respondents stating that his wife is a heart patient, he has a marriageable daughter, his ancestral house at Srinagar is damaged beyond repairs and the pension is only source of livelihood for him and his family, and if the pension is not paid, he and his family would suffer irreparable loss and injury.

On completion of pleadings the case was taken up for hearing the arguments of the parties on 03.04.2018. Arguments of Mr. Anil Mittal, learned counsel for applicant and that of Mr. Rajeev Sharma, learned counsel for respondents were heard.

I have given due consideration to the rival pleadings of the parties and arguments of their counsel.

It is not in dispute that the applicant has been convicted, along with one Zuli Huma Beg, by the Court of Special Judge-03, CBI, New Delhi vide its judgment dated 05.07.2011 under Section 109 IPC read with Section 13 (2) & 13 (1) (e) of the Prevention of Corruption Act, 1988. He has been sentenced to undergo rigorous imprisonment for a period of three years and also to pay a fine of `25,000/- vide the aforesaid judgment. The applicant has appealed against the conviction order before the Hon"ble High Court of Delhi, which is still pending. However, vide order dated 13.10.2011 (Annexure A-6), the Hon"ble Court has only suspended the sentence of the applicant till the disposal of the criminal appeal, and has not given any stay against his conviction. Hence in the eyes of law, the applicant continues to be a convict as of now.

Taking cognizance of the conviction of the applicant by the criminal court, the respondents have initiated disciplinary proceedings against the applicant under Rule 19 of CCS (CCA) Rules, 1965, which clearly stipulates that if a government servant is convicted in a criminal case, the disciplinary authority can take disciplinary action against the applicant. Before a show cause notice vide impugned Annexure A-1 memorandum could be issued to him, the applicant had superannuated from service. Therefore, the respondents have correctly sanctioned him provisional pension and continued the DE proceedings against him under Rule 9 of the Pension Rules.

The respondents after following the procedure contemplated under Rule 9 of the Pension Rules, which also includes consultation with the UPSC, have finally decided to impose the penalty of withholding of full pension and gratuity on permanent basis, vide impugned Annexure A-3 order dated 28.04.2017. I do not find anything amiss in the Annexure A-3 order in view of the fact that the Hon"ble High Court has only suspended the sentence of the applicant and has not stayed his conviction. As observed hereinabove, the applicant stands as a convict in the eyes of law and, therefore, the respondent were fully justified to take appropriate disciplinary action against him in accordance with the CCS (CCA) Rules, 1965.

The Hon"ble Apex Court has also observed in Deputy Director of Collegiate v. S. Nagoor Meera (supra) that mere suspension of sentence or the accused is released on bail does not mean that the conviction ceases to be operative.

In the conspectus of discussions in the pre-paragraphs, I do not find any merit in this O.A. It is accordingly dismissed. There shall be no order as to costs.