Calcutta High Court (Appellete Side)
Dr. Sunirmal Sarkar vs Union Of India & Ors on 8 May, 2023
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:- Hon'ble Mr. Justice Subrata Talukdar
And
Hon'ble Mr. Justice Aniruddha Roy
FMA 4516 of 2014
With
CAN 1 of 2014 (Old No. CAN 8550 of 2014)
CAN 2 of 2020 CAN 3 of 2020
Dr. Sunirmal Sarkar
vs.
Union of India & Ors
For the Appellant: Mr. Kalyan Bandyopadhyay, Sr. Adv.,
Mr. Joytosh Majumdar, Adv.,
Mr. Siddhartha Ghosh, Adv.,
Mr. Sayan Sinha, Adv.
For the Respondents: Mr. Kumar Jyoti Tewari, Adv.,
Mr. Tarun Jyoti Tewari, Adv.,
Ms. Arpita Chatterjee, Adv.
Reserved on: 19.01.2023
Judgment on: 08.05.2023
ANIRUDDHA ROY, J.:
1. This mandamus appeal had arisen from the impugned judgment and order
dated May 07, 2014 passed in WP No. 2131(W) of 2011 (Dr. Sunirmal
Sarkar vs. Union of India & Ors.) whereunder the writ petition filed by the
appellant was partially allowed only to the extent allowing the appellant to
receive the provisional pension.
2
Facts
:-
2. The appellant writ petitioner is a qualified Homeopathy Doctor. He was an
employee of the National Institute of Homeopathy (for short, NIH) and had
served his employer in various capacities and posts from time to time. The
appellant opted for voluntary retirement on and with effect from March 20,
2008 from his employment and was governed under the provisions of the
Central Civil Services (Pension) Rules, 1972 (for short, CCS Pension
Rules).
3. Having opted for the said voluntary retirement from his service, the
appellant did not receive his pension and retiral benefits. The appellant after
about 2 years from his retirement received a letter dated January 07, 2010
Annexure P-3 to the writ petition from the fourth respondent informing
the appellant that he had declared an amount of Rs. 1,65,492/- as income
under the heading "income from business or profession" for the
assessment year 2005-06 while filing his income tax return and the said
income was not shown under the head "income from other sources" or any
other head in the statement containing the declaration of income for the
financial year 2004-05. The appellant was requested to furnish the details
and nature of the source of income to the aforesaid extent of Rs. 1,65,492/-
as declared by the appellant.
4. The appellant immediately by his letter dated January 15, 2010, Annexure
P-4 to the writ petition replied to the said letter of his employer dated
January 07, 2010 and informed that since none of the relevant papers upon
which the respondents purportedly relied on were supplied to the appellant,
the appellant was not in a position to deal with the charge. It was also
informed by the appellant that upon the relevant materials being furnished
to the appellant he would be in a position to respond thereto.
5. By a letter dated February 10, 2010 Annexure P-5 to the writ petition, the
fourth respondent instead of providing the necessary materials to the
appellant called upon the appellant to furnish the requisite documents in
connection with the declaration of the said income of Rs. 1,65,492/- as
stated above.
6. On March 24, 2010 the appellant received an impugned order dated March
24, 2010 stating that the appellant while serving the second respondent at
the post of Reader, filed a saral/income tax return for the assessment year
2004-05 before the Income Tax Department in March, 2006 in which he
declared his income to the extent of Rs. 1,65,492/- from business or
profession while the appellant at the relevant point of time also drew the
"non-practicing allowance". It was also mentioned that the appellant did
not obtain any prior consent from his employer to carryout his private
practice, thus, the appellant alleged to have committed grave misconduct by
concealing the truth from his employer. The departmental proceeding was
initiated with the sanction of the competent authority under the said CCS
Pension Rules read with the bye-laws of the second respondent
governing the condition of service of the appellant. Along with the said
decision of the employer, the alleged memorandum, statement of article of
charges, statement of imputations of misconduct or misbehavior in support
the article of charges framed against the appellant and the list of documents
on the basis of which the article of charges were framed against the
appellant, were furnished to the appellant, Annexure P-6 to the writ
petition.
7. In response to the said memorandum and its annexures dated March 24,
2010, the appellant by its letter dated April 03, 2010, Annexure P-7 to the
writ petition, replied thereto denying that there was any misconduct or
misbehavior on his part and he also stated that he did not undertake any
private practice while he was drawing the non practicing allowance during
the period 2004-05. The appellant also stated that no such charges or
allegation was raised against the appellant during his service tenure. He had
an unblemished career record. The initiation of the disciplinary proceeding
was mala fide exercise by the second respondent at the behest of some of its
employees.
8. Subsequent to the said letter dated April O3, 2010 submitted by the
appellant, which was not replied to by his employer, the appellant submitted
two further letters dated June 23, 2010 and July 16, 2010 Annexure P-8 to
the writ petition. The appellant demanded his pension and other retiral
benefits.
9. Both the said letters dated June 23, 2010 and July 16, 2010 were also not
replied to by the second respondent. The appellant then through his
advocate served a legal notice dated October 09, 2010, Annexure P-9 to the
writ petition with a demand to release the pension and other retiral
benefits in his favour.
10. The appellant contended that the enquiry officer and the disciplinary
authority was the same which is ex facie in violation of the settled legal
principles and the disciplinary proceeding proceeded wholly without
jurisdiction. The respondents could not produce any witness to prove their
case against the appellant. The respondents in fact were unable to prove the
alleged charges against the appellant.
11. The appellant further contended that the appellant and his family members
possessed certain cultivable lands at Bishnupur, Police Station Gaighata.
Several crops were cultivated. The sale produce from such agricultural
products arising out of the said lands constituted the family income of the
appellant which was shown to be Rs.1,65,492/- for the year 2005-06.
Challenging the said action of the respondents, the appellant filed the writ
petition with the following prayers:-
"a) A writ or writs in the nature of mandamus be kindly issued
commanding the respondent authorities, its servants, assigns,
men and agents to forthwith release the pension and other
retiral benefits due to the petitioner from the. Respondent No.2,
without any further delay.
b) A writ or writs in the nature of mandamus be Kindly issued
quashing the instant disciplinary proceedings initiated against
the petitioner vide the said memorandum no.A-
20012/1/85/NIH/ SS/4123 dated 24.03.2010 issued by the
respondent No.4 and all its annexures.
c) A writ of certiorari be kindly issued commanding the
Respondent authorities, its servants, assigns, men and agents
to certify and transmit the records pertaining to this case before
this Hon'ble Court so that conscionable Justice may be done.
d) A writ of prohibition be kindly issued prohibiting the
respondent authorities, its servants, assigns, men and agents
from withholding the person and other retiral benefits due to
the petitioner from the Respondent No.2.
e) A Writ of Prohibition be kindly issued prohibiting the
respondent authorities, its servants, assigns, men and agents
from giving any further effect to the said memorandum no.A-
20012/1/85/ NIH/ SS/4123 dated 24.03.2010 issued by the
respondent No.4 and all its annexures.
f) Rule NISI in terms of prayers above.
g) An interim order may kindly be passed commanding the
respondent authorities, its servants, assigns, men and agents
to forthwith release 50% of the pension and other retiral
benefits due to the petitioner from the Respondent No.2,
without any further delay.
h) An interim order may kindly be passed staying the instant
disciplinary proceedings initiated against the petitioner vide the
said memorandum no.A-20012/1-85/NIH/SS/4123 dated
24.03.2010 issued by the respondent No.4 and all its
annexures, till disposal of the instant application..
i) Ad-interim orders may kindly be issued prohibiting the
respondent authorities, its servants, assigns, men and agents
from giving any further effect to the said memorandum no.A-
20012/1/85/NIH/SS/4123 dated 24.03.2010 issued by the
respondent No.4 and all its annexures, till disposal of the
instant application.
j) Ad-interim orders in terms of prayers (g)-(i) above.
k) Any further order/orders be kindly passed as Your
Lordships may deem fit and proper".
12. Pursuant to the direction made by the Writ Court the respondent no.2 to 4
filed their affidavit-in-opposition affirmed on July 07, 2011 and the
appellant filed its affidavit in reply affirmed on July 22, 2011.
13. The writ petition was dismissed by the said impugned judgment and order
dated May 07, 2014.
Submissions:-
14. Mr. Kalyan Bandyopadhyay learned senior counsel being ably assisted by
Mr. Jyotosh Majumder, learned counsel appearing for the appellant writ
petitioner submitted that, the charge sheet would show that the alleged
offence pertains to the Assessment Year 2005-2006. The respondents in
paragraph 3(d) to its affidavit-in-opposition stated that the alleged offence of
the appellant was for the year 2004-2005.
15. Mr. Bandyopadhyay then referred to Clause 9(2)(b)(ii) of the CCS Pension
Rules and submitted that, the departmental proceeding, if not instituted
while the Government Servant was in service, whether before his retirement
or during his reemployment, shall not be in respect of any event which took
place more than four years before such institution of departmental
proceeding. Relying heavily upon this provision, the learned senior counsel
for the appellant submitted that, if the alleged offence for the year 2004-
2005 the statutory period for issuing charge sheet was due to expire on
expiry of the four years after the occurrence of the alleged offence, i.e. on
March 31, 2009. As such, the charge sheet issued on March 24, 2010,
which was issued after four years having expired on March 31, 2009, was
expressly barred by limitation and liable to be set aside on this ground
alone.
16. The learned senior counsel then submitted that, the appellant had filed his
Income Tax Return for the Assessment Year 2005-2006 on March 20, 2006
as would be evident from the appellant's intimation under Section 143(1) of
the Income Tax Act, 1961 issued by the Income Tax Department, the same
was filed before this Court at the time of hearing. It was submitted that even
if, assuming but not admitting that filing of the Income Tax Returns by the
appellant was to be taken as the starting point of limitation, even then the
charge sheet was to be filed by March 19, 2010, i.e., by a period of four
years from the date of the relevant offence in terms of the said Clause
9(2)(b)(ii) of the CCS Pension Rules. The charge sheet admittedly having
been issued on March 24, 2010 was, therefore, expressly barred by law of
limitation and was liable to be set aside.
17. Clause 9(2)(b)(iii) of the CCS Pension Rules provided for the departmental
proceeding to be conducted by such authority and in such place as the
President may direct and in accordance with the procedure applicable to
departmental proceedings in which an order of dismissal of service would be
made in relation to the Government Servant during his service.
18. He submitted that, while framing the said Rule under CCS Pension Rules,
the framers of the rule contemplated the expression "President" to be the
President of India. Clause 9 of the CCS Pension Rules provided for the
right of President to withhold/withdraw the pension of Central Government
employee. It is, thus, the exclusive domain and authority of the President of
India and no other authority to exercise its power under Clause 9 of the
CCS Pension Rules and not the President of the NIH. The Scheme of Rule 9
and particularly Clause 9(b) of the CCS Pension Rules made it very clear
that where the disciplinary proceeding, had not been instituted, while
government servant was in service whether before his retirement, or during
his re-employment, the same should not be instituted save with sanction
of the President of India and shall be conducted by such authority and in
such place as the President of India may direct and in accordance with the
procedure applicable to the departmental proceeding against the said
alleged delinquent employee.
19. Mr. Bandyopadhyay, learned senior counsel, submitted that, on a careful
scrutiny of the records in this case, it would be evident that at no stage of
the disciplinary proceeding any sanction was obtained from the President of
India far to speak of before initiation thereof against the appellant. He
submitted that, the entire disciplinary proceeding including its initiation
from the stage of issuance of charge sheet suffered from serious infirmities
in law and dehors the provisions laid down under Clause 9 of the CCS
Pension Rules. The entire proceeding was wholly without jurisdiction and
beyond authority. By no stretch of imagination the president of the NIH can
be treated as the "President" as mentioned under Rule 9 of the CCS
Pension Rules.
20. Mr. Bandopadhyay then proceeded to submit that, assuming though not
admitting the president of the NIH had the power to sanction the
disciplinary proceeding against the appellant, such sanction was invalid in
absence of the delegation of such power upon the president of NIH by the
governing body of NIH and/or ratification of action of the president taken for
emergency purpose, by the governing body of NIH.
21. The senior counsel then referred to Clause 10.1, 10.3, 10.6 and 10.7 from
the National Institute of Homeopathy Rules (for short, NIH Rules).
22. He submitted that, it would appear from a plain reading of the provisions
laid down under Clause 10.1 and Clause 10.3 of the NIH Rules that the
Governing Body of NIH shall have general control over the affairs of NIH and
shall have full power to formulate its by laws, as they are essential for
regulation of business of NIH and in particular with reference to the objects
mentioned in Clause 10.3 of the NIH Rules.
23. Referring to Clause 10.6 of the NIH Rules he submitted that the Governing
Body had the power to delegate to the president of NIH, powers for
conducting its business, as the Governing Body deems fit, subject to
confirmation of the actions of the President. No such powers vested with
Governing Body was delegated by the Governing Body to the President of
NIH nor any subsequent ratification of such action of the President of NIH
by the Governing Body was granted by the Governing Body so that the
President could take the disciplinary action against the appellant. In
absence of such delegation, the president of NIH did not have the power and
authority to initiate disciplinary proceeding against the appellant.
24. Referring to Clause 10.7 from the NIH Rules, learned senior counsel
submitted that the President of NIH had the power to exercise the functions
of the Governing Body only in case of emergency for furtherance of the
objects of NIH and to remove any deadlock. The action of the President in
such event shall have to be reported to the Governing Body for necessary
ratification and necessary ratification should come from the Governing
Body in this regard. No such ratification was either called for by the
President of NIH to initiate disciplinary proceeding against the appellant nor
was there any.
25. Mr. Bandyopadhyay further submitted that the voluntary retirement
obtained by the appellant w.e.f. March 20, 2008 was an event subsequent to
vigilance proceeding against the appellant. The NIH authority having
knowledge of such vigilance proceeding against the appellant allowed the
appellant for his voluntary retirement without raising any objection thereto
contemporaneously. The NIH Authority, thus, could not contend anything to
the contrary after accepting the voluntary retirement of the appellant
without any objection and, therefore, the NIH authority at this belated stage
cannot withhold the terminal benefits of the appellant. The conduct of the
NIH authority was not only illegal or wrongful but also in mala fide exercise
of their power and discretion.
26. In support of his contentions learned senior counsel for the appellant had
relied upon the following decisions:-
(i) The decision of the Hon'ble Supreme Court In the matter
of: Punjab State Power Corpn. Ltd. Vs. Atma Singh Grewal,
reported in 2014 (13) SCC 666 (Prs. 2-4).
(ii) The decision of the Hon'ble Supreme Court In matter of:
Brajendra Singh Yambem vs. Union of India, reported in
1967 SCC Online SC 1/1972 SLR 44 (pr.13).
(iii) The decision of the Hon'ble Supreme Court In matter of:
State of Assam and Another vs. Raghava Rajgopalachari,
reported in 1967 SCC Online SC 1/1972 SLR 44 (Pr.13.)
27. Mr. Bandyopadhyay referring to Article 309 of the Constitution of India
submitted that the provisions laid down thereunder dealt with the
recruitment and conditions of service of persons serving the Union or a
State of the country. It provided that subject to the provisions of the
Constitution, acts of the appropriate legislature may regulate the
recruitment and conditions of service of persons appointed to public services
and posts in connection with the affairs of the Union or of any State. The
said provisions also, inter alia, provided that it shall be competent for the
President or such person as he may direct in the case of services and posts
in connection with the affairs of the Union, to make rules regulating the
recruitment and the conditions of service of persons appointed to, such
services and posts until provision in that behalf is made by or under an act
of appropriate legislature under Article 309 of the Constitution and any
rules made shall have effect subject to the provisions of any such act.
Pursuant to the said provisions of the Constitution, the said CCS Pension
Rule was framed.
28. He then submitted that, from a conjoint reading of Article 309 of
Constitution and Rule 9 of the CCS Pension Rules, it is clear that, the
President, meaning thereby the President of India, reserves the right of
withholding a pension or gratuity or both either in full or part of a
government servant, who had suffered, inter alia, a departmental proceeding
and found guilty of grave misconduct or negligence during the period of
service, including service rendered upon re-employment after retirement and
the Union Public Service Commission shall be consulted before any final
order is to be passed.
29. Mr. Bandyopadhyay further submitted that the punishment inflicted upon
the appellant is totally disproportionate. The allegation related to a sum of
Rs.1,65,492/- for which the entire retiral benefits of the appellant was
withheld after serving the employer for more than 30 years. Mr.
Bandyopadhyay submitted that, the writ petition should be allowed directing
the respondents authorities to forthwith release and pay the retiral benefits
to the appellant without any further delay and the entire disciplinary
proceeding should be declared as illegal and void and be set aside.
30. Mr. Kumar Jyoti Tewari, learned counsel appearing for the respondents,
submitted that the appellant had received the Non Practising Allowance
from the Government of India for working as Assistant Professor of NIH in
March, 2006. The appellant submitted FORM SARAL with the Income Tax
Department with a disclosure of his income at a sum of Rs. 1,65,492/-. On
enquiry it was detected that the appellant drew non practising allowance
during the period despite giving a undertaking not to do any private practice
without taking prior approval from the competent authority. This was his
service condition.
31. Mr. Tewari further submitted that on the basis of the Office Memorandum
issued by the Director, Central Vigilance Commission (for short, CVC) on
March 22, 2010, the President of NIH issued a charge sheet on March 24,
2010 (at Page 70 to the Paper Book). In his reply to the said Memorandum
dated March 24, 2010 the appellant admitted that he made a mistake while
signing his Income Tax declaration prepared by his tax consultant at page
77 to the Paper Book. The appellant writ petitioner filed a writ petition
before this Court praying for release of the pensionary benefit and other
retiral dues and also sought for quashing of the disciplinary proceeding
under the said Memorandum dated March 24, 2010.
32. By the impugned Judgment and Order dated May 07, 2014 the Writ Court
refused to quash the disciplinary proceeding but directed the respondents to
release provisional pension till the conclusion of the disciplinary proceeding.
Challenging the said impugned Judgment and Order dated May 07, 2014,
the instant appeal was filed.
33. Mr. Tewari also submitted that learned senior counsel appearing for the
appellant had raised the two principal issues for consideration in the instant
appeal which, inter alia, as follows:-
"1) The charge Sheet was issued in respect of an event which
took place more than four years before the issuance of such
Memorandum dated 24.03.2010. Accordingly, it is barred by
law in view of Rule (2)(b) (ii) of The Central Civil Services
(Pension) Rules, 1972.
2) Charge Sheet was issued without the sanction the President
of India in violation of Rule (2)(b)(i) of The Central Civil Services
(Pension) Rules, 1972".
34. By way of reply to the aforesaid two issues, Mr. Tewari referring to page 64
of the Paper Book submitted that the income disclosed by the appellant in
respect of the Assessment Year 2005-2006, i.e. for the period between
April 01, 2005 and March 31, 2005 was as shown therein. He submitted
that, the Assessment Year is the year which comes after the Financial Year.
This was the time in which the income earned during the Financial Year was
assessed and tax, if any, was paid. SARAL FORM submitted by the
appellant was in March, 2006 for the income earned by him during
Financial Year 2004-2005 (for the period April 01, 2005 to March 31,
2006), whereas in the facts of the present case, the incident took place in
March 2006 and the last date of submitting return was March 31, 2006.
The charge sheet was issued within time on March 24, 2010 in terms of
Rule 9 (2)(b)(ii) of the said CCS Pension Rules. Such fact, according to Mr.
Tewari, was admitted by the appellant in his writ petition at paragraph 50
thereof.
35. Mr. Tewari then relied upon Sub-Article 3 to Article 77 of the Constitution
of India. He submitted that the President of India shall make rules for the
convenient transaction of the business of the Government of India and for
the allocation amongst ministers of the said business. He then referred to
Rules 2, 3 and 4 of the Government of India (Allocation of Business)
Rules, 1961 (for short, the said 1961 Rules). He submitted that, the said
1961 Rules was framed on January 14, 1961. From a combined and
harmonious reading of Rules 2, 3 and 4 of the said Rules, it would appear
that, the business of the Government of India shall be transacted through
the Ministries of various departments, Secretariat and offices specified in the
First Schedule to the said 1961 Rules.
36. He further submitted that, Sub-Rule 1 to Rule 4 of the said 1961 Rules
stated that the business of the Government of India allocated to Cabinet
Secretariat was and shall always be deemed to have been allotted by the
Prime Minister. Sub-Rule 1 to Rule 3 of the said 1961 Rules stated that the
distribution of subjects amongst the departments shall be specified under
the Second Schedule of the Business Rules, 1961 and shall include all
attached and subordinate officers or organizations including public sector
undertakings with their respective areas of work.
37. Mr. Tewari further submitted that sanction for any person in respect of any
offence was required to be accorded in the manner as provided under Sub-
Rule 3 to Rule 3 of the 1961, Rules. Referring to the Serial No. 2 under the
First Schedule (Rule2) to the said 1961 Rules which dealt with the Ministry
of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy
(Ayush) Ayurveda Yoga Aur Prakratic Chikitsa, Unani, Siddha or
Homeopathy (Ayush) Mantralaya. Serial No. 15 dealt with the Ministry of
Health and Family Welfare (Swasthya Aur Parivar Kalyan Mantralaya). He
submitted that, all the issues and matters requiring taking action at the
level of Government in regard to National Institute of Homeopathy shall
be in charge of the concerned ministers. From the said 1961 Rules, it would
further be evident that, the President would act through the concerned
ministers and the personal satisfaction of the President was not at all
required in view of the decision rendered. In support the learned counsel for
the respondents had relied upon the following decisions of the Hon'ble
Supreme Court:-
(i) In the matter of: Samsher Singh vs. The State of Punjab
& Anr., reported at (1974) 2 SCC 831.
(ii) In the matter of: State of M.P. & Ors. Vs. Dr. Yashwant
Trimbak, reported at (1996) 2 SCC 305.
(iii) In the matter of: PU Myllai Hlychho & Ors. Vs. State of
Mizoram & Ors., reported at (2005) 2 SCC 92.
38. Mr. Tewari then submitted that whenever the Constitution provided for the
satisfaction of the Governor/President as the case may be for exercise of any
power or function, it was not meant that a personal satisfaction was
required to be achieved by the President or the Governor but the satisfaction
was in the constitutional sense under the Cabinet System of Government.
Sanction by the President of India, according to him, meant the sanction
granted by the Minister-in-Charge of the concerned department of the
Government of India as the President of India functions with the aid and
advice of the Council of Ministers of Government of India. He then
submitted that, in the instant case, as per Memorandum of Association of
NIH, the Union Minister of Health and Family Welfare, Government of India
or Union Minister for the State with the Health and Family Welfare dealing
with the Department of Ayush or Deputy Minister of Health and Family
Welfare dealing with the Department of Ayush is the President of NIH.
Nobody can be the President of the Governing Body of NIH save and except
the Hon'ble Minister, of Ministry of Health and Family Welfare, Government
of India. Sanction was granted by the President of NIH, that is, the President
of the Governing Body of NIH being the concerned minister of the concerned
department and the same shall be treated as sanction granted by the
President of India in view of the said 1961 Rules.
39. He then submitted that in view of Sub-Article 3 to Article 77 of the
Constitution of India, the said 1961 Rules considering the ratio of the
decision of the Hon'ble Supreme Court In the matter of: Samsher Singh
(supra), the necessary sanction was granted by the President of NIH being
the concerned Minister-in-Charge of the concerned Department should be
and should have to be treated as the Sanction granted by the President of
India.
40. In view of the above submissions, Mr. Tewari further submitted that, the
present appeal should be dismissed and NIH should be permitted to
complete the disciplinary proceeding against the appellant.
Decision:
41. After considering the rival contentions of the appearing parties and on
perusal of materials on record, at the outset on a close scrutiny of the
averments made in the writ petition and the impugned judgment dated May
07, 2014, it appears to this Court that, the point taken and the issue raised
before this Appellate Court by Mr. Kalyan Bandyopadhyay learned senor
counsel appearing for the appellant that to initiate the disciplinary
proceeding against the appellant a prior sanction was required to be
obtained from the President of India in view of the provisions laid down
under Rule 9(2)(b) of the CCS Rules and in absence of such prior
sanction, as in the instant case, the initiation and fate of the
disciplinary proceeding was bad in law and stood vitiated and in
absence of any delegation of power to initiate such a disciplinary
proceeding in favour of the President of NIH by the President of India,
the disciplinary proceeding against the appellant stood vitiated were
not raised either in the writ petition or argued before the Hon'ble Single
Judge during the adjudication of the writ petition. In the above factual
backdrop, this Appellate Court first proceeds to deal with the permissibility
of raising the aforesaid issues on behalf of the appellant for the first time
before this Appellate Court.
42. On a careful consideration of the point argued and the issue raised on
behalf of the appellant, as narrated above, for the first time before this
Appellate Court, it appears to this Court that those issues travel to the root
of the matter. If the disciplinary proceeding is declared to be bad in law, a
nullity and stood vitiated then the entire gamut of the appellant's case
would be of a different complexion.
43. It is trite that the Appellate Court in exercise of its Appellate Jurisdiction is
authorized to exercise the power and jurisdiction of the Trial Court in its
entirety and in addition the Appellate Court is vested with the power and
authority to set the clock right, if it finds that otherwise a serious
miscarriage of justice would take place. It is equally trite that an issue on a
point of law, even if not argued or taken before the Trial Court and if such a
point of law travels to the root of the cause which could change the entire
gamut of the matter in a particular fact situation, the Appellate Court has
jurisdiction and authority to examine those points of law raised before it
even for the first time.
44. In exercise of such power and authority of an Appellate Court, this Court
first proceeds to examine and consider the said two points raised for the
first time on behalf of the appellant before this Appellate Court.
45. The relevant provisions from the Constitution and the Rules as mentioned
above, on which the parties had made much deliberations at the outset, are
quoted below:-
"Constitution of India:-
309. Recruitment and conditions of service of persons
serving the Union or a State.- subject to the provisions of
this Constitution, Acts of the appropriate Legislature may
regulate the recruitment, and conditions of service of persons
appointed, to public services and posts in connection with the
affairs of the Union or of any State:
Provided that it shall be competent for the President or
such person as he may direct in the case of services and posts
in connection with the affairs of the Union, and for the Governor
of a State or such person as he may direct in the case of
services and posts in connection with the affairs of the State, to
make rules regulating the recruitment, and the conditions of
service of persons appointed, to such services and posts until
provision in that behalf is made by or under an Act of the
appropriate Legislature under this Article, and any rules so
made shall have effect subject to the provisions of any such
Act.
77. Conduct of business of the Government of India.-(1) All
executive action of the Government of India shall be expressed
to be taken in the name of the President.
(2) Orders and other instruments made and executed in the
name of the President shall be authenticated in such manner
as may be specified in rules to be made by the President, and
the validity of an order or instrument which is so authenticated
shall not be called in question on the ground that it is not an
order or instrument made or executed by the President.
(3) The President shall make rules for the more convenient
transaction of the business of the Government of India, and for
the allocation among Ministers of the said business.
CCS Pension Rules:-
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:
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 or withdrawn, the amount of such pension
shall not be reduced below the amount of rupees three
hundred and seventy-five (Rupees Three thousand five
hundred from 1-1-2006-see GID below Rule 49) 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 continued
and concluded by the authority by which they were
commenced in the same manner as of 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.
(b) The departmental proceedings, if not instituted while
the Government servant was in service, whether before
this retirement, or during his re-employment,-
(i) shall not be instituted save with the sanction of
the President,
(ii) shall not be in respect of any event which took
place more than four years before such institution,
and
(iii) shall be conducted by such authority and in
such place as the President may direct and in
accordance with the procedure applicable to
departmental proceedings in which an order of
dismissal from service could be made in relation to
the Government servant during his service.
(3) Deleted.
(4) In the case of Government servant who has retired on
attaining the age of superannuation or otherwise and
against whom any departmental or judicial proceedings
are instituted or where the departmental proceedings
are continued under sub-rule (2), a provisional pension as
provided in Rule 69 shall be sanctioned.
(5) Where the President decides not to withhold or
withdraw pension but orders recovery of pecuniary loss
from pension, the recovery shall not ordinarily be made
at a rate exceeding one-third of the pension admissible
on the date of retirement of a Government servant.
(6) For the purpose of this rule,-
(a) departmental proceedings shall be deemed to be
instituted on the date on which the statement of
charges is issued to the Government servant or
pensioner, or if the Government servant has been
placed under suspension from an earlier date, on
such date; and
(b) judicial proceedings shall be deemed to be
instituted-
(i) in the case of criminal proceedings, on the
date on which the Magistrate takes cognizance,
is made, and
(ii) in the case of civil proceedings, on the date
the plaint is presented in the Court.
Rules and Regulations of NIH:-
"10. Powers of the Governing Body
10.1 The governing Body shall have general control of the
affairs of the Institute and shall have Authority to do,
exercise and perform all the powers, acts deeds for the
planning. Establishment and running of the Institute,
consistent with the aims and objects of the Institute.
10.2 The Governing Body shall have powers to create
posts, subject to specific provision in the budget on scales
of pay applicable to similar posts under the Government of
India or on scales of pay approved by Government of
India, classify them into grades and specify their
designations, provided that no post carrying an initial
salary of Rs. 1,100/- or more may be created except with
the previous approval of the Government of India. In all
other matters, the Governing Body shall have full powers
in the matter of expenditure from the funds of the Institute
save in the matter of pay, allowances and concessions to
Government servants on foreign service which shall be no
greater than those admissible under the code rules of the
Government.
10.3 The Governing Body shall have full powers to make
such Bye-Laws as they shall think essential for the
regulation of the business of the Institute and in a
particular with reference to (i) the keeping of accounts, (ii)
the preparation and sanction of budget estimates, (iii) the
sanctioning of expenditure of expenditure, (iv) entering into
contracts, (v) any other purpose that may be necessary.
10.4 Subject to prior approval of the Government, the
Governing Body may alter, modify, rescind or add to the
Rules and Regulations of the Institute at any time by a
resolution passed by a majority of three-fifths of members
present and voting at any meeting of the Governing Body
which shall have been convened for the purpose after
giving due notice of such resolution to the members of the
Governing Body.
10.5 The Governing Body may accept the management
and administration of any endowment or trust fund or any
subscription or donation provided that the same is
unaccompanied by any condition inconsistent or in conflict
with the nature and object for which the Institution is
established.
10.6 The Governing Body may by resolution delegate to
the President and to the Secretary such of its powers for
the conduct of business as the Governing Body deem fit,
subject to the condition that action taken by the President
or by the Secretary shall be reported for confirmation at
the meeting of the Governing Body.
10.7 Nothing in the rules and regulations of the National
Institute of Homeopathy, Calcutta, shall prevent the
President from exercising any or all the powers of the
Governing Body in case of emergency for the furtherance
of the object of the National Institute of Homeopathy and
the action taken by the President on such occasions shall
be reported to the Governing Body subsequently for
ratification".
46. Article 309 of the Constitution provides that subject to the provisions of the
Constitution, acts of the appropriate legislature may regulate the
recruitment, and conditions of service of persons appointed, to public
services and posts in connection with the affairs of the Union or of any
State. It shall be competent for the President or such person as he may
direct in the case of services and posts in connection with the affair of the
Union to make rules regulating the recruitment and the conditions of service
of persons appointed to such services and posts until provision in that
behalf is made by or under any act of the appropriate legislature under the
said Article of the Constitution. Following the said constitutional mandate
the provisions relating to pension and gratuity including family pension,
which were spread over the Civil Services Regulations and various executive
instructions, were codified in 1972, in the form of Statutory Rules and the
said CCS (Pension) Rules, 1972 was framed. Under Rule 9 of the said CCS
(Pension) Rules the President reserved to himself the right of withholding a
pension or gratuity, or both, either in full or in part in respect of a
pensioner. The expression "President" used under Rule 9 had not been
defined specifically under Rule 3 being the definition section of the CCS
Pension Rules or even elsewhere in the said CCS Pension Rules. The
expression "President", therefore, must be construed and understood in
the light of the provisions laid down under Article 309 of the Constitution of
India, which was the source and authority of framing the said CCS Pension
Rules being the President of India. There was nothing in the language of
Rule 9 to construe any restriction on the right of the President to withhold
pension under this provision. On the other hand, the words "withholding"
and "withdrawing a pension" clearly convey the meaning that the
President is competent to withhold or withdraw full pension. Therefore, it
was only the President of the country, whose exclusive domain and
authority to withhold the pension of the appellant. This clearly inferred that
to withhold the pension of the appellant, it should have been the Act and
Decision of the President of India and not the President of NIH.
47. In the facts of this case, the appellant had voluntarily retired on and w.e.f.
March 20, 2008 and the departmental proceeding was initiated by issuing
the charge sheet dated March 24, 2010 at page 70 to the Paper Book. On
the same date the President of NIH had accorded sanction for initiation of
the said departmental proceeding against the appellant at page 68 to the
Paper Book. It is, thus, evident that, the departmental proceeding against
the appellant was not instituted while he was in service. In such fact
situation Rule 9(2)(b)(i) mandated a clear prohibition that such a
departmental proceeding against the appellant should not have been
instituted save with the sanction of the President of India. From a close
scrutiny of the materials on record, it would be evident that, a sanction was
accorded by the President of NIH appearing at page 68 to the Paper Book
and there was no sanction received by the NIH or its appropriate authority
from the President of India to institute the departmental proceeding against
the appellant. In absence of a prior sanction from the President of India in
terms of Rule 9(2)(b)(i) of the CCS Pension Rules the initiation of the
departmental proceeding against the appellant was bad in law and ultra
vires to Rule 9 of the CCS Pension Rules and accordingly stood vitiated.
48. Save and except the said document at page 68 to the Paper Book which was
a prior sanction granted by the president of NIH, the respondents also did
not produce any other document or evidence to show that any prior sanction
was obtained from the President of India to institute the departmental
proceeding against the appellant. Learned counsel for the respondent relying
upon the decision In the matter of: Samsher Singh (supra) submitted
that, whenever the Constitution required the satisfaction of the President for
exercise of any of its power or function, the satisfaction required by the
Constitution need not to be a personal satisfaction of the President of India
but the satisfaction in the constitutional sense under the Cabinet system of
Government. His submission was based upon the expression used
"sanction of the President" in Rule 9(2)(b)(i) of the CCS Pension Rules
which denoted and meant the sanction by President of India granted by the
Minister-in-Charge of the concerned Department of the Government of India
since the President of India functions with the aid and advice of the Council
of Ministers of the Government of India.
49. Referring to the document at page 68 to the Paper Book Mr. Tewari
submitted that since the President of NIH who is the Union Minister of
Health and Family Welfare, Government of India under which the NIH
functions, had accorded sanction, the same should be construed as the
sanction of the President of India in terms of Rule 9(2)(b)(i) of the CCS
Pension Rules. This contention raised on behalf of the respondents are
negated by this Court at the threshold upon a meaningful reading of the
said Rule 9(2)(b)(i) of the CCS Pension Rules which mandated sanction of
the President and no other mode had been mentioned therein for such
sanction. The framers of the said CCS Pension Rules did not think it fit to
provide for any other alternative mode but for granting sanction by the
President of India under the said CCS Pension Rules. Hence if the
contention raised on behalf of the respondents are accepted the same would
amount to amending, altering or modifying the relevant Rules of the CCS
Pension Rules by introducing a further provision, which the said Rule did
not even contemplate at all. Such an act is not permissible within the
domain of this Court while exercising its power under judicial review. Hence
the contention of the respondents are negated by this Court.
50. Article 77 of the Constitution under Part V dealt with the Conduct of
Government Business and the executive powers and authorities of the
President and Vice President of the country. Article 77 of the Constitution,
inter alia, provided that all executive action of the Government of India shall
be expressed to be taken in the name of the President. The orders and other
instruments made and executed in the name of the President of India shall
be authenticated in such manner as may be specified in the rules to be
made by the President of the country and the validity of an order or
instrument which is to be so authenticated shall not be called in question
on the ground that it is not an order or instrument made or executed by the
President of India. The President of India shall make Rules for more
convenient transaction of the business of the Government of India and for
the allocation among the Ministers of the business.
51. Whereas Article 309 of the Constitution under Part XIV dealt with the
services under the Union and the States, it dealt with the recruitment and
conditions of service of persons serving the Union or a State. From
purposive reading of the said two Articles of Constitution, this Court is of
the view that the scope and extent of application of those two articles are
completely different from each other with their respective independent limbs
in two different fields.
52. The power and authority to be exercised by the President of India for a
public service employee serving the Union is different from the general
executive power of the President of India as laid down under Article 77 of the
Constitution. Under Article 309 the President of India shall be competent
or, such persons as he may direct in the case of service and post in
connection with the affairs of the Union, to make rules regulating the
recruitment and the conditions of service of persons appointed to such
Union service and posts until provision in that behalf is made by or under
an act of the appropriate legislature under Article 309 of the Constitution
and any rules so made shall have the effect subject to the provisions of
such Act.
53. In exercise of such an independent power the said CCS Pension Rule was
framed governing the service condition of the appellant. In terms of Rule
9(2)(b)(i) of the CCS Pension Rules, the departmental proceeding as in the
instant case allegedly instituted against the appellant admittedly after his
retirement and without the sanction of the President of India. In the light
of the provisions laid down under Article 309 read with the said Rule
9(2)(b)(i) of the CCS Pension Rules, the prior sanction of the President of
India was a mandatory requirement and the same was not obtained in the
fact of this case.
54. In the matter of: Samsher Singh (supra) the constitutional provision
which was in issue before the Hon'ble Supreme Court was Article 166 of
the Constitution which is akin to and identical with Article 77 of the
Constitution of India and different from Article 309 of the Constitution of
India. As narrated above, both Articles 77 and 309 of the Constitution are
independent to each other and govern two different fields. One being the
general executive power of the President, the other being the power of the
President in respect of recruitment and conditions of service of persons
serving the Union, as in the instant case. In view of Article 309 when a
special rule, namely, CCS Pension Rules was been framed and Rule 9
(2)(b)(ii) thereunder specifically provided for a mandatory pre-requirement
for obtaining the sanction of the President of India before institution of the
departmental proceeding against the appellant after his retirement. In
absence of compliance of such mandatory pre-requirement, the subject
departmental proceeding stood vitiated inasmuch as the respondents in the
instant case has also not produced any decision of the Council of Ministers
to grant sanction under the directive of the President of India to initiate the
departmental proceeding against the appellant. Hence the ratio laid down In
the matter of: Samsher Singh (supra) has no application in the facts and
circumstances of the case.
55. The moment the CCS Pension Rule was framed in exercise of power
under Article 309 of the Constitution, the provisions thereunder had
acquired and received a flavor with a statutory sanction. When such
statute envisaged a specific provision, any action taken in exercise of
such provision must be taken strictly in adherence thereto and not in
any other mode whatsoever and any action taken in any mode without
compliance of such specific statutory provision would be expressly
forbidden in law. Accordingly, any action taken without compliance of
specific provisions of the said Rule, would be vitiated in law and wholly
without jurisdiction. The moment a statutory provision is engrafted in
terms of Article 309, the same cannot be treated merely as subjected to
an executive function of the President under Article 77 of the
Constitution of India but would be an exercise under a specific statute.
56. In the matter of :Yashwant Trimbak (supra) the issue before the Hon'ble
Supreme Court arose under Article 166 of the Constitution of India which
was akin to and identical with Article 77 of the Constitution of India. To
distinguish this judgment, Mr. Bandyopadhyay, Ld. Senior Counsel, in reply
relied upon a judgment of the Hon'ble Supreme Court In the matter of:
Brajendra Singh Yambem vs. Union of India & Anr., reported at (2016)
9 SCC 20.
57. The relevant observations of the Hon'ble Supreme Court In the matter of:
Brajendra Singh Yambem (supra) are quoted hereinbelow:
"43. The order of sanction to be granted by the President of
India as provided under Rule 9(2)(b)(i) of the CCS (Pension)
Rules, 1972 is for initiation of the disciplinary proceedings
against the appellant, which cannot be treated as an executive
action of the Government of India. Rather, it is a statutory
exercise of power by the President, under Rule 9(2)(b)(i) of the
CCS (Pension) Rules, 1972. The said Rules are framed by the
President of India in exercise of legislative power conferred
under Article 309 of the Constitution of India.
45. Discussing the scope and powers of the President and
Governor under Article 309, a Constitution Bench of this Court
in B.S. Yadav v. State of Haryana [B.S. Yadav v. State of
Haryana, 1980 Supp SCC 524 : 1981 SCC (L&S) 343 : AIR
1981 SC 561] , held as under: (SCC pp. 546-47, paras 44-45)
"44. It is in this context that the proviso to Article 309
assumes relevance and importance. The State Legislature
has the power to pass laws regulating the recruitment and
conditions of service of judicial officers of the State. But it
was necessary to make a suitable provision enabling the
exercise of that [Ed.: Emphasis in original.] power until
the passing of the law by the legislature on that subject.
The Constitution furnishes by its provisions ample
evidence that it abhors a vacuum. It has therefore made
provisions to deal with situations which arise on account
of the ultimate repository of a power not exercising that
power. The proviso to Article 309 provides, insofar as
material, that until the State Legislature passes a law on
the particular subject, it shall be competent to the
Governor of the State to make rules regulating the
recruitment and the conditions of service of the judicial
officers of the State. The Governor thus steps in when the
legislature does not act. The power, exercised by the
Governor under the proviso is thus a power which the
legislature is competent to exercise but has in fact not yet
exercised. It partakes of the characteristics of the
legislative, not executive, power. It is legislative
power.
45. That the Governor possesses legislative power under
our Constitution is incontrovertible and, therefore, there is
nothing unique about the Governor's power under the
proviso to Article 309 being in the nature of a legislative
power. By Article 158, the Governor of a State is a part of
the legislature of the State. And the most obvious exercise
of legislative power by the Governor is the power given to
him by Article 213 to promulgate ordinances when the
legislature is not in session. Under that article, he
exercises a power of the same kind which the legislature
normally exercises: the power to make laws. The heading
of Chapter IV of Part VI of the Constitution, in which Article
213 occurs, is significant: "Legislative Power of the
Governor". The power of the Governor under the proviso to
Article 309 to make appropriate rules is of the same kind.
It is legislative power. Under Article 213, he substitutes for
the legislature because the legislature is in recess. Under
the proviso to Article 309, he substitutes for the legislature
because the legislature has not yet exercised its power to
pass an appropriate law on the subject."
46. The distinction between the powers under Articles 77(3),
166(3) and 309, regarding the framing of Rules and
Regulations was discussed by a Constitution Bench of this
Court in Sampat Prakash v. State of J&K [Sampat
Prakash v. State of J&K, AIR 1970 SC 1118] , as under: (AIR
p. 1124, para 11)
"11. ... As an example, under Article 77(3), the President,
and, under Article 166(3) the Governor of a State are
empowered to make rules for the more convenient
transaction of the business of the Government of India or
the Government of the State, as the case may be, and for
the allocation among Ministers of the said business. If, for
the interpretation of these provisions, Section 21 of the
General Clauses Act is not applied, the result would be
that the rules once made by the President or a Governor
would become inflexible and the allocation of the business
among the Ministers would forever remain as laid down in
the first rules. Clearly, the power of amending these rules
from time to time to suit changing situations must be held
to exist and that power can only be found in these articles
by applying Section 21 of the General Clauses Act. There
are other similar rule-making powers, such as the power
of making service rules under Article 309 of the
Constitution. That power must also be exercisable from
time to time and must include within it the power to add
to, amend, vary or rescind any of those rules."
47. It becomes clear from a perusal of the constitutional
provisions and the decisions by the Constitution Benches of
this Court referred to supra that the powers under Articles
77(3), 166(3) and 309 operate in completely different fields. It
would thus, be clear that the Rules framed in exercise of power
under Articles 77(3) and 166(3) cannot be compared while
exercising power under Article 309 of the Constitution and
framing rules and regulations for recruitment and conditions of
service of persons appointed to such posts either in connection
with the affairs of the Union Government or a State
Government. It is for this reason that the statutory exercise of
power by the President of India under Rules 9(2)(b)(i) and (ii) of
the CCS (Pension) Rules, 1972 cannot be equated with power
exercised under Article 77(2) of the Constitution of India.
48. The High Courts and this Court can exercise power of
judicial review under Articles 226 and 32, respectively, of the
Constitution of India in cases of statutory exercise of power by
the President or Governor. In Yashwant Trimbak [State of
M.P. v. Yashwant Trimbak, (1996) 2 SCC 305 : 1996 SCC
(L&S) 510] , this Court held that the power of judicial review is
not available in case of executive exercise of power by the
President or the Governor. The said observation made by this
Court in the said case is not tenable in law in view of the
decision of this Court in the landmark judgment
of Kesavananda Bharati v. State of Kerala [Kesavananda
Bharati v. State of Kerala, (1973) 4 SCC 225] wherein this
Court has clearly held that the power of judicial review is part
of the basic structure of the Constitution of India.
49. The relevant portion of the judgment is extracted
hereunder: (Kesavananda Bharati case [Kesavananda
Bharati v. State of Kerala, (1973) 4 SCC 225] , SCC p. 452,
para 577)
"577. ... The observations of Patanjali Sastri, C.J.,
in State of Madras v. V.G. Row [State of
Madras v. V.G. Row, (1952) 1 SCC 410 : AIR 1952 SC
196 : 1952 Cri LJ 966] which have become locus classicus
need alone be repeated in this connection. Judicial review
is undertaken by the courts 'not out of any desire to tilt at
legislative authority in a crusader's spirit, but in discharge
of a duty plainly laid down upon them by the
Constitution'. The respondents have also contended that
to let the court have judicial review over constitutional
amendments would mean involving the court in political
questions. To this the answer may be given in the words
of Lord Porter in Commonwealth of Australia v. Bank of
New South Wales [Commonwealth of Australia v. Bank
of New South Wales, 1950 AC 235 at p. 310 (PC)] : (AC p.
310)
'... The problem to be solved will often be not so much
legal as political, social or economic, yet it must be
solved by a court of law. For where the dispute is, as
here, not only between Commonwealth and citizen
but between Commonwealth and intervening States
on the one hand and citizens and States on the other,
it is only the court that can decide the issue, it is vain
to invoke the voice of Parliament.'
There is ample evidence in the Constitution itself to
indicate that it creates a system of checks and balances
by reason of which powers are so distributed that none of
the three organs it sets up can become so pre-dominant as
to disable the others from exercising and discharging
powers and functions entrusted to them. Though the
Constitution does not lay down the principle of separation
of powers in all its rigidity as is the case in the United
States Constitution yet it envisages such a separation to a
degree as was found in Ranasinghe case [Bribery
Commr. v. Pedrick Ranasinghe, 1965 AC 172 : (1964) 2
WLR 1301 (PC)] . The judicial review provided expressly in
our Constitution by means of Articles 226 and 32 is one of
the features upon which hinges the system of checks and
balances."
50. The observation made by this Court in Yashwant
Trimbak [State of M.P. v. Yashwant Trimbak, (1996) 2 SCC
305 : 1996 SCC (L&S) 510] to the extent that orders of sanction
granted by the Governor are outside the scope of judicial
review, is untenable in law. The same is contrary not only to
the law laid down by this Court referred to supra, but also the
provisions of Articles 77(2) and 166(2) of the Constitution of
India. Therefore, the same has no application to the fact
situation for the reason that the President has exercised his
statutory power for grant of sanction under Rule 9(2)(b)(i) of the
CCS (Pension) Rules, 1972 to initiate the disciplinary action but
not the executive action against the appellant.
51. In the instant case, the action of the disciplinary authority
is untenable in law for the reason that the interpretation of the
CCS (Pension) Rules, 1972 which is sought to be made by the
learned Additional Solicitor General on behalf of the
respondents amounts to deprivation of the fundamental rights
guaranteed to the appellant under Part III of the Constitution of
India. Therefore, we have to hold that the disciplinary
proceedings initiated by the disciplinary authority after
obtaining sanction from the President of India under Rule
9(2)(b)(i) of the CCS (Pension) Rules, 1972 are liable to be
quashed".
58. In view of the above the ratio of the judgment In the matter of: Brajendra
Singh Yambem (supra), the ratio In the matter of: Yashwant Trimbak
(supra) shall not apply in the facts of this case.
59. In the matter of: Pu Myllai Hlychho (supra), in view of the discussions
already made hereinabove while distinguishing the previous two judgments
relied upon on behalf of the respondents and such discussion stands
reiterated. The ratio of the said judgment In the matter of: Pu Myllai
Hlychho (supra) shall not apply in the fact of this case. Inasmuch as, in the
fact of this case the respondents did not produce any sanction from the
Council of Ministers also.
60. Then comes the question of limitation in terms of Rule 9(ii)(b) of the CCS
Pension Rules. To decide this issue the relevant factors are discussed
hereinafter. The appellant was assessed under the Income Tax Act for the
for the Assessment Year 2005-06. This would make it evident that the
alleged incident of disclosure of income had happened for the Financial
Year 2004-05 ended as on March 31, 2005. The appellant retired on and
w.e.f. November 22, 2007. The NIH was allegedly intimated by the vigilance
commission by its letter dated January 25, 2008 as to the alleged
discrepancy in the income declared by the appellant. By a letter dated
January 07, 2010 the appellant was requested by the NIH to furnish the
details regarding the alleged discrepancy in income disclosed by the
appellant. The appellant then received an intimation dated March 24, 2010
issued by NIH with the Articles of Charges against the appellant.
61. From the bundle of facts mentioned above, it would be evident that the
moment the appellant had filed Form 16 for the Assessment Year 2005-
06 this being a record in the public domain, the NIH had its knowledge
and/or deemed knowledge of the same on the alleged incident. The
discrepancy in income was disclosed by the appellant on/or before March
31, 2004. The NIH served the Article of Charges upon the appellant on
March 24, 2010, after four years of the alleged event took place for
instituting the departmental proceeding against the appellant. Hence, the
initiation of the departmental proceeding against the appellant was also in
violation of Rule 9(2)(b)(ii) of the CCS Pension Rules.
62. Now comes the Doctrine of Proportionality/disproportionality.
Admittedly the appellant had served the NIH for more than 30 years with an
unblemished career record. Even after the knowledge of the vigilance
intervention, NIH accepted the proposal of voluntarily retirement of the
appellant and allowed him to retire as such on and w.e.f. November 22,
2007. The alleged departmental proceeding was initiated by NIH on March
24, 2010 when the appellant was served with the article of alleged charges.
The allegation was wrong description of income and discrepancy in the
income disclosed by the appellant for the Financial Year 2004-05 and the
Assessment Year 2005-06. The quantum involved was allegedly for a sum
of Rs. 1,65,492.00/-. It is trite that even if a delinquent employee is found
to be guilty of any misconduct, the employer has to balance the rule of
proportionality and disproportionality while inflicting punishment. In the
instant case the appellant had also not been found to be guilty, as yet, in
terms of the alleged charges. Taking into account the quantum of money
involved, i.e. only a sum of Rs. 1,65,492.00/-, the entire retiral benefits
including pension, gratuity and everything should not have been withheld
by the NIH. This clearly shows a perverse exercise of authority by the
employer. The punishment stands to be thoroughly disproportionate.
63. In view of the foregoing discussion and reasons, this Court finds that the
initiation of the departmental proceeding against the appellant was in
violation of the relevant provisions laid down under CCS Pension Rules and
as such the same 13 found to be without jurisdiction and stands vitiated.
The departmental proceeding including all incidental and
consequential orders passed therein against, the appellant stand thus,
quashed.
64. NIH shall release and pay the appellant all his retiral dues in entirety as
payable to him within a period of 8 weeks from the date of communication of
this order, taking into account as if there was no departmental proceeding
initiated against the appellant at any point of time.
65. The impugned order dated May 07, 2014 at page 143 to the paper-book
stands modified to the extent mentioned above.
66. Both the instant appeal being FMA 4516 of 2014, MAT 1512 of 2014 and
the writ petition WP No. 2131(w) of 2011 stand allowed.
I agree.
(Subrata Takukdar, J.) (Aniruddha Roy, J.)
