Sh. Moti Lal Shakya vs Union of India (UOI) and Others

Suresh Kait, J.—The petitioner, being aggrieved by the order dated 04.12.2001 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in OA No. 1713/2001 has filed the present writ petition.

The brief facts of the case are that the petitioner joined as Postman on 15.07.1955 and in due course he became Postal Assistant. The petitioner retired on 31.01.1991 as Sub Postmaster on superannuation after putting in 35 years of service. Since the departmental proceedings were going on, the petitioner was granted provisional pension. It is not in dispute that the departmental proceedings were held ex parte as the petitioner was sick and was unable to participate in the enquiry and could not cross examine the prosecution witnesses. The allegation of the petitioner is that the enquiry was conducted behind him and thus had been denied proper opportunity to defend himself. By Presidential order dated 12.03.1993 his pension was withheld permanently and gratuity was released.

The petitioner being aggrieved by the aforesaid order had challenged before the Central Administrative Tribunal, Allahabad Bench in OA No. 1485/1993 and the Tribunal had disposed of the OA with the following directions to the respondents which is as under:

Keeping these facts in mind that there is some scope for the authorities to reconsider the matter and see whether a lesser penalty either in terms of reduction in the quantum of pension withheld or in the number of years for which pension should be withheld, can be imposed on the petitioner.

We, therefore, disposed of the application with the observing that the Appellate Authority may reconsider whether in the facts and circumstances of the case lesser punishment may be imposed on the petitioner.

In pursuance of directions of the Tribunal, Allahabad Bench, the petitioner made representation to the President on 14.02.1997 for reconsideration of the penalty imposed upon him. The President while complying the directions of the Tribunal had referred the case of the petitioner to the UPSC for advice regarding reconsideration of the penalty. However, the UPSC reiterated their earlier recommendation of withholding full pension permanently w.e.f. 01.04.1993.

The petitioner being aggrieved by the aforesaid order dated 16.04.1998 has filed the second OA No. 1171/1998 before the Central Administrative Tribunal, Principal Bench, New Delhi. While issuing notice in the aforesaid OA, the Tribunal had passed the interim order dated 05.06.1998 which is reproduced below:

In the meantime respondents may consider the case of the petitioner for payment of compassionate allowance if admissible under the Rules.

Inspite of the directions, the respondents did not consider the pleas taken by the petitioner. The Tribunal was constrained to pass the orders, therefore, vide orders dated 28.06.1999, the Tribunal quashed the presidential order dated 16.04.1998, as under:

We have carefully perused the order passed by the president order dated 16.04.98 and we are of the considered opinion that the order does not speak of the fact of negligence or grave misconduct.

In O.A. No.196/88 D.R. Vajaj v. Union of India decided on 30.7.93 it has been held that a condition precedent before exercising a power in Rule 9(1) of CCS Rules is not established. In D.V. Kapoor Vs. Union of India and others, the Apex Court of the land has held that before withholding of pension as a measure of punishment the president is to record a finding that the delinquent officer is guilty of grave misconduct or negligence. In absence of a finding to the effect the President was not be competent to impose the penalty of withholding any pension or part of it.

Looking to the misdeeds of the applicant the order imposing penalty of withholding pension dated 16.04.1998 is hereby quashed. Liberty is however reserved to take further steps in the matter of giving an opportunity of showing cause to the petitioner as expeditiously as possible against the proposed action regarding imposing of penalty. No order as to cost.

The Tribunal further directed to complete the aforesaid proceedings. The petitioner had again made representations on 29.07.1999 and 11.10.1999 to the respondents to release his pension w.e.f. 01.04.1993, as presidential order dated 16.04.1998 was quashed by the Tribunal and no other such order withholding pension was in existence after 28.06.1999.

The President, issued a fresh show cause notice to the petitioner vide order dated 13.12.1999. Pursuant to the aforesaid show cause notice, the petitioner had submitted his representations to the President. The petitioner, strongly alleged in his further/supplementary representation dated 15.12.2000 regarding the prejudicial view and the hostile approach of the UPSC in his case. He had alleged that the UPSC had made a prestige issue in his case and bent upon inflicting severe penalty on him. Further, the petitioner had alleged that the President, without applying his mind independently and without considering representation dated 15.12.2000, simply followed the advice of the UPSC mechanically and issued the impugned order vide Memo dated 19.02.2001 and again imposed the penalty of withholding full pension permanently.

The petitioner, again, being aggrieved by the fresh punishment order dated 19.02.2001, and non payment of arrears of pension for the period 01.04.1993 to 18.02.2001, has filed OA No. 1713/2001 before the Central Administrative Tribunal, Principal Bench at New Delhi. By an order dated 04.12.2001, the Tribunal dismissed the OA regarding the main prayer of the petitioner to quash the impugned order dated 19.02.2001. However, the Tribunal directed the respondents to make payment of pension to the petitioner for the period from 01.04.1993 to 18.02.2001. In pursuance of the aforesaid directions, the respondents have made full payment of pension from 01.04.1993 to 18.02.2001.

The other issues raised by the petitioner, which are un-answered, are that the Tribunal have not considered the following facts, while dismissing the OA: (a) regarding violation of statutory rules without considering the representation dated 14.12.2000; (b) the Tribunal has over looked the fact that the President has passed the impugned order dated 19.02.2001 mechanically without considering the representation; (c) the Tribunal has also not considered the fact that the enquiry officer�s whole enquiry was conducted ex parte as petitioner was sick and unable to attend the same and could not cross examine the prosecution witnesses; (d) there was no gross misconduct on the part of the petitioner as is clear from the fact that FIR lodged by the respondents against the petitioner was not persuaded by the respondents and court had to close that case for want of evidence; (e) the Tribunal has dismissed the OA in limine, without considering the quantum of punishment.

The legal issue raised by the petitioner, had neither been dealt with by the department nor by the Tribunal.

Learned Counsel for the petitioner argued that Rule 9 of CCS(Pension), Rules 1972 has not been complied with. Therefore, without complying with the said rule, the presidential order imposing withholding of full pension is illegal and against the statute.

Provision in Rule 9 of CCS (Pension), Rules 1972 is as under:

(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 or 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: provided that the Union Public Service Commission shall be consulted before any final orders are passed:

Provided further that where a part of pension is withheld of withdrawn, the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five (Rupees One thousand nine hundred and thirteen from 1-4-2004 �see GID below Rule 9) per mensem.

(2)(a) The departmental proceedings referred to in Sub-rule (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.

We have gone through the pleadings before the Tribunal and before us. The respondents herein have not clarified anywhere specifically that they have fully complied with the aforesaid Rule 9 of CCS (Pension), Rules 1972. Though, at one point they have submitted that they had sent all the records to UPSC as well as to the President and only thereafter, the President has passed the order in question. We have seen the reply filed by the respondent; however, we did not find any averment for the same. We have also gone through the order passed by the UPSC and the President, second time, it clearly shows that they were determined to pass the order and reached at a definite conclusion i.e. to reject the representation of the petitioner. We have seen the order passed by UPSC and disciplinary authority, there is no averment on the legal issue raised by the petitioner. Accordingly, the aforesaid authorities have completely bypassed the said issue.

After going through the above discussion, we have observed that the respondents have violated the statutory procedure while non supplying the recommendation of the initial disciplinary authority i.e. Superintendent of Post Office, Etah Division.

Learned Counsel for the petitioner has relied upon two judgments which are as under:

1) Central Administrative Tribunal, Ernakulam Bench in the case of T.N. Sukumaran v. Union of India and Ors. in OA No. 455/2000 decided on 12.04.2002.

2) Kailash Nath Gupta Vs. Enquiry Officer, (R.K. Rai), Allahabad Bank and Others, wherein their lordships held that the quantum of punishment is extremely limited but when relevant factors are not taken note of which have some bearing on the quantum of punishment the court can certainly direct reconsideration or in an appropriate case indicate the punishment to be awarded.

Learned Counsel for the respondents has also relied upon the judgment of the Supreme Court in the case of Regional Manager, U.P.S.R.T.C., Etawah and Others Vs. Hoti Lal and Another, wherein their lordships held which is as under:

In the Union of India v. Ganayutham it was held as follows: (SCC pp 478-79, paras 31-34)

The current position of proportionality in administrative law in England and India can be summarized as follows:

(i) To judge the validity of any administrative order of statutory discretion, normally the Wendnesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury test.

(ii) The court would not interfere with the administrator�s decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU principles.

Learned Counsel for the respondents has filed the written submissions wherein he strongly refuted the contention of the petitioner. These two grounds are: (i) if, there is jurisdictional error or legal error committed by the respondents, only then needs interference by the Courts in exercise of its extra-ordinary power of judicial review; (ii) the petitioner had challenged the inquiry report, advice of the UPSC before the Allahabad Bench of Central Administrative Tribunal in OA No. 1485/1993 and in RA No. 128/1995. However, the submissions were not accepted. The same was again challenged before the Central Administrative Tribunal, Principal Bench in OA No. 1171/1998. The Tribunal vide its order dated 28.06.1999 did not interfere with the other findings except the penalty order. He further submitted that findings of the Tribunal in these OAs were not challenged by the petitioner. Thus, the submission of the petitioner on various grounds is barred by principle of res judicata and theory of estoppel.

As the issue of resjudicata is concerned, the legal issue which the petitioner has raised has neither been properly dealt with by the respondents while passing the presidential order nor by the Tribunal. Since the Tribunal had not gone to that extent and in the absence of pleadings and documents, we are also not touching this issue. Therefore, in our opinion, the second plea raised by the learned Counsel for the respondents has no weightage.

As far as the first plea is concerned, learned Counsel for the respondents has rightly pointed out that until and unless there is a jurisdictional error or a legal error, the Court should not interfere in exercise of its extra-ordinary power of judicial review. However, in the present case, we are fully convinced that there is a legal error committed by the respondents while passing the presidential order of imposing withholding of full pension.

Learned Counsel for the respondents has also relied upon the judgments on the aforesaid two submissions which are as under:

Hope Plantation Ltd. v. Taluk Land Board and Anr. reported in 1995 (5) SCC 590, paras 26, 27, 29 and 31.

B.C. Chaturvedi v. Union of India reported in 1995 (6) SCC 749, paras 17 and 18.

Regional Manager, U.P.S.R.T.C., Etawah and Others Vs. Hoti Lal and Another,

Damoh Panna Sagar Rural Regional Bank and Another Vs. Munna Lal Jain,

Chairman-cum-M.D., T.N.C.S. Corpn. Ltd. and Others Vs. K. Meerabai,

Since we are not convinced on both the aspects, therefore, we are not discussing the aforesaid judgments.

We have gone through all the decisions taken by the respondents from time to time and the directions issued by the Tribunal. We have heard both the counsel at length, as both contested with tooth and nail.

We have observed that the respondents have violated the statutory procedure prescribed in Rule 9 of CCS (Pension) Rules 1972, firstly, the President was not supplied the specific recommendation of the initial disciplinary authority while forwarding the enquiry officer�s report, and secondly, charged officer�s comments were also not sent to the President for his consideration. We are, therefore, of the considered opinion that non-supply of essential documents to the President has resulted in miscarriage of justice in the present case.

Since this is a clear cut case of the violation of the statutory provisions, therefore, we need not to go into the other pleas raised by the petitioner. We, again could remit the matter back to the respondents for passing a fresh order while complying with the statutory provisions of Rule 9 of CCS (Pension), Rules 1972. However, we are of the view that the respondents had not considered the issue on an earlier two occasions. Therefore, by sending third time, will not serve the purpose. Keeping in view the rounds of litigation and the facts and circumstances of the case, we are convinced that there is a clear cut violation of the aforesaid statutory provisions, therefore, we quash the order dated 04.12.2001 passed by the Central Administrative Tribunal in OA No. 1713/2001 to the extent of imposition of penalty of withholding full pension permanently and accordingly set aside the order dated 19.02.2001 passed by the President. We further direct the respondents to consider the case of the petitioner and calculate his pension till date with 8% interest and accordingly release the same within six weeks from the receipt of the copy of this order. However, there shall be no order, as to costs.

The writ petition is disposed of accordingly in the aforesaid terms.