S.S. Ahluwalia vs Union Of India And Anr.
2001 Latest Caselaw 1972 Del

JUDGMENT

Dalveer Bhandari, J.

1. By this order I propose to dispose of CWP Nos. 637/96, 2169/97 & 638/96. All these petitions were filed by the petitioner, an officer of the Central Reserve Police Force (in short 'CRPF') with different prayers.

2. In CWP 637/96, the petitioner prayed for quashing and setting aside the order dated 12.5.1995 issued from the office of the Director General, PAO, CRPF pertaining to payment of gratuity, commutation value of pension and leave encashment.

3. In CWP 638/96, the petitioner prayed that order dated 12.7.1995 be quashed. He also prayed that the respondents be directed to regularies period of service with effect from 9.4.1993 to 30.5.1993 on duty instead of deduction these days from his earned leave. He has also prayed that the respondents be directed to redetermine the leave encashment claim of the petitioner at the time of his retirement without treating above mentioned period as earned leave and consequently to give benefit of 240 days leave encashment instead of 180 days as prescribed under Rule 39 of the CCS Rules, 1972.

4. In CWP 2169/97 the petitioner has prayed for release of his pension sanctioned by the President of India with effect from 1.4.1997 to be restored immediately. The petitioner has also prayed quashing of the order dated 17.3.1997 regarding penalty of 10% cut in the pension of the petitioner for one year.

5. CWP 637/96 was decided by the learned Single Judge vide its detailed judgment dated 3.4.2000 and the learned Single Judge also directed that the petitioner be reinstated in service with all consequential benefits including salary and pension. Against the judgment of the learned Single Judge an appeal was preferred. The Division Bench has remitted the matter for a fresh disposal of the writ petition in accordance with law because the learned Single Judge has dealt with the merits of CWP 2169/97 even though it was not listed on 3.4.2000 and is still pending, and was influenced by the merits of the case while arriving at a decision in CWP 637/96. In this view of the matter all these writ petitioner were directed to be listed for hearing before this Bench.

6. The petitioner joined as a Gentleman Cadet with effect from 28.6.1965. The petitioner got promotions from time to time. The petitioner on 15.3.1993 tendered his application for voluntary retirement with effect from 1.7.1993. The petitioner's application for seeking voluntary retirement was considered and rejected on 13.7.1993. The petitioner on 30.8.1993 and 10.8.1993 made representations to the respondents for re-examination of his case and permit him to proceed on voluntary retirement. On reconsideration the respondents accepted the volunatery retirement on 23.2.1994 subject to the condition of major penalty proceedings to be initiated vide memo dated 4.2.1994.

7. The petitioner submitted his representation dated 12.9.1994 raising legal pleas and other pleas as are being taken before this Court and prayed for setting aside/withdrawal of other later proceedings like charge sheet, major penalty etc. and for release of retirement benefits. The Enquiry Officer gave a finding that except Charge No. 1(partly proved), all other charges stand proved against the petitioner. On 12.5.1995 the respondents passed the impugned order and informed the petitioner that his retirement benefits cannot be released till pendency of inquiry proceedings.

8. The inordinate delay in settlement of hard earned dues of his entire career has caused tremendous financial loss and hardship to the petitioner as the action of the respondents is illegal, unjust and arbitrary and violative of Rule 43(d) of CRPF Rules, 1955 as also violative of Rule 9 of CCS (Pension) Rules, 1972 as well as violative of Article 14, 16 & 21 of the Constitution of India. When the petitioner did not receive any reply, he preferred a writ petition before this Court.

9. In the counter affidavit the averments and allegations of the writ petitions have been denied. It is mentioned int he counter affidavit, that the competent authority had considered the notice of voluntary retirement and rejected the same. The competent authority had also ordered that a major penalty proceeding should be initiated against the petitioner as the charges were of serious nature. However, vide representation of the petitioner dated 10.8.1993 the petitioner again requested the respondents to reconsider the voluntary retirement immediately due to adverse family conditions. On reconsideration of the case, voluntary retirement of the petitioner was accepted with specific stipulation that this would be without prejudice to the major penalty proceedings initiated against the petitioner will continue.

10. The departmental enquiry imposed a penalty of 10% cut in the monthly pension for a period of one year vide orders dated 17.3.1997. It is mentioned in the reply that in these circumstances, terming his voluntary retirement as ultra vires, illegal, unwarranted and unsustainable at this belated stage appears to be an after thought action of the petitioner and hence not tenable. It is mentioned in the reply that the respondents had affected voluntary retirement of the petitioner on his request with specific stipulation that this would be without prejudice to the major penalty proceedings initiated against the petitioner. It is submitted that the major penalty proceedings initiated against the petitioner is not bad in law and voluntary retirement orders passed by the competent authority is within the purview of rules and procedures.

11. Major penalty proceedings under Rule 14 of CCS (CCA) Rules, 1965 were initiated against the petitioner on the following charges:-

Article-I

Shri S.S. Ahluwalia, while posted and functioning as 2 I/C Bn CRPF during July, 1991 and in his capacity as Accounts Officer, committed a serious mis-conduct in that before proceeding on casual leave from 22.7.1991 to 24.7.1991, he did not handover the cash book to the cashier and unauthorisedly kept the cash book in his custody, thereby totally disrupting the recording of the daily Govt. cash transactions and daily accounting of Govt. cash. Shri S.S. Ahluwalia also deliberately did not hand over the SP stamps to Shri Hari Chand, Dy. Commandant of 103 Bn despite personal request by Shri Hari Chand for handing over the stamps, before proceeding on leave thereby causing delay and obstruction in Govt. work. Thus the said S.S. Ahluwalia failed to maintain absolute devotion to duty and acted in a manner unbecoming of a Govt. servant and thereby violated the provision contained in Rule 3(1) (ii) & (iii) of CCS (Conduct) Rules, 1964.

Article-II

That the said Shri Ahluwalia while posted and functioning in the aforesaid capacity, committed a serious mis-conduct in that in utter disregard to the lawful order passed by the Comdt. 103 Bn vide office order No. O-III-1/93-PA dated 31.7.1991 to hand over the charge of Accounts Officer to Shri K.C. Sharma. Dy. Comdt, he failed to hand over account books like pass books, cheque books etc. Thus the said Shri S.S. Ahluwalia failed to maintain absoluted devotion to duty and acted in a manner unbecoming of Govt. servant thereby violating the provisions contained in Rule 3(1) (ii) & (iii) of CCS (Conduct) Rules, 1964.

Article-III

That the said Shri S.S. Ahluwalia while posted and functioning in the aforesaid capacity committed a gross misconduct in that he did not sign the FVC bills and did not cancel the credit orders from 03.01.1991 to 20.07.1991 and 26.07.1991 to 02.08.1991. Thus the said Shri S.S. Ahluwalia failed to maintain complete devotion to duty and acted in a manner unbecoming of a Govt. servant, thereby violating the provisions contained in Rule 3(1) (ii) & (iii) of CCS (Conduct) Rules, 1964.

Article-IV

That the said Shri S.S. Ahluwalia while posted and functioning as 2 I/C of 103 Bn committed a gross misconduct in that he willfully and deliberately did not attend in time the Sainik Sammeian held on 02.08.1991 at 1000 hrs and though he had been informed of the same vide Comdt. 103 Bn Singnal No. D-XIII-1/91/CB dated 25.08.1991. He however appeared after the Commandant started the Sammelan proceedings. Thus the said S.S. Ahluwalia failed to maintain absolute devotion to duty and also acted in a manner unbecoming of a Govt. servant and thereby violated the provisions of Rule 3(1) (ii) &

(iii) of CCS (Conduct) Rules, 1964.

12. The petitioner denied the charges levelled against him. Accordingly the Enquiry Officer and Presenting Officer were appointed to enquire into the charges levelled against the petitioner. The Enquiry Officer held Article-I of the charge as partially proved and Articles-II, III & IV as proved. The case was referred to the Ministry of Home Affairs (for short MHA). The UPSC was also consulted. The UPSC held Article-I of the charge as not proved and Articles-II, III & IV as proved. Accordingly the case was referred to MHA on 18.12.1996 for approval of the competent authority for acceptance of the advice of the UPSC and award of punishment.

13. The petitioner submitted that the respondents have failed to appreciate that in terms of Rule 43(b) (1) read with Rule 43(d)(vi)(b)(II) of CRPF Rules, 1955. the petitioner had voluntarily retired as no adverse orders were passed within three months or uptil 1.7.1993 by the respondents rejecting his request/representation seeking voluntary retirement. It is submitted that there is a presumption clause under Rule 43 C in CRPF Act, 1955 presuming acceptance of request for voluntary retirement if no adverse order contrary to the same has been received, so the petitioner had retired from 1.7.1994.

14. It is also submitted that as on 1.7.1993, no departmental enquiry proceedings for imposing major penalty were pending against the petitioner (as only the proceedings for imposing minor penalty were pending) and there is no prosecution ever launched/contemplated against the petitioner in the court of law till 1.7.1993.

15. According to the petitioner under Rule 43 his request/representation dated 15.3.1993 stands accepted on 1.7.1993. He also submitted that all the charges levelled against him were untenable. There are documents on record to show that the petitioner, in fact, had handed over the cash book and singed the necessary documents and there is a valid explanation for reaching late by 5 minutes in the Sainik Sammelan. Even if these charges are accepted, then also at the most it is a case of minor penalty and not of major penalty. According to the petitioner this is a clear case of extreme harassment to the petitioner. It is submitted that the petitioner has unblemished record of 27 years of distinguished service in Army and CRPF and only to tender his retirement benefits, a delay tactic has been adopted as till date not even enquiry proceedings has been completed without giving any reason though the petitioner had already filed his reply giving his comment on the report of the Enquiry Officer way back in the month of March-April, 1995.

16. The petitioner also submitted that as per Rule 9 of the CCS (pension) Rules, 1972, no departmental enquiry proceedings can be initiated against the petitioner when there is no charge regarding any pecuniary loss to the government and secondly unless the President of India has given sanction to continue with the departmental enquiry proceedings but in the absence of same, the action of the respondents in still not dropping the departmental proceedings against the petitioner is on the face of it violative of CCS (Pension) Rules, 1972 particularly Rule 9.

17. The learned Single Judge while deciding this petition has mentioned on page 2 of the judgment that "The events enumerated in statement of imputations would relate to a period long prior to the application for voluntary retirement submitted by the petitioner on 15.3.1993. A reading of the Memo would show that they are all of very trivial in nature. I get the impression that such a Memo had been issued without any justification whatsoever." It is further stated that "If the respondents had disposed of the matter in 1993 and petitioner had been permitted to voluntarily retire as per his request the petitioner who had served the Army with all merits would have been able to get a good employment outside and owing to the acts and omissions of the respondents, till today he has not been able to get what he wanted in March 15, 1993 and 7 years had rolled by and according to the petitioner he would have been able to get a suitable employment consistent with his status and to 'his satisfaction."

18. The learned Single Judge observed that on 4.2.1994 a very interesting order was passed and the same had been reproduced on page 7 of the judgment and for ready reference the same order is reproduced as under:

SIGNAL

To : POLCENT R.A.F.

INFO        : DIGCENT R.A.AF./DD
              (ACTS)/106 raf Bn.
FROM        : D.D. (ESTT.)

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No. O.II-1129/73-Estt.I Dt. 23.2.94 U/C

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Ref your sig. No. R.VI-2/94-Estt. Dt 6.1.94 (.) Govt. have accepted voluntary retirement leopard S.S. Ahluwalia of 106 RAF. Bn. from the date of release from CRPF with the specific stipulation that this would be without prejudice to the major penalty proceedings initiated against the officer vide Memo No. D.Ex-24/91-Estt.I Dt. 4.2.94 will be continued against him even after his proceedings on voluntary retirement (.) Officer may be relieved from CRPF accordingly provided no dues are outstanding against him.

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Most IMDT. ASSTT. DIRECtor (ESTT.)

Copy forwarded to Shri N.J. Thomas, Desk Officer, MHA, New Delhi, for favor of information, with reference to their OM No. I-45027/31/93-Pers-II dated 6.1.94. The charge sheet for major penalty proceedings has already been served on the above officer on 23.2.94.

ASSTT. DIRECtor (ESTT.)"

19. Long after 1.7.93 the respondent accepted the voluntary retirement without prejudice to the major penalty proceedings. It is quite un-understandable now this Memo which was issued on 13.5.97 for minor penalty as I noticed above with reference to the trivial matter could snowball into proceedings for major penalty."

20. On 13.2.95 the Assistant Director (Estt.) wrote to the petitioner stating:-

Subject: Departmental Enquiry

A departmental enquiry was conducted against you by Shri M.S. Yadav, Commandant, CRPF who was appointed as Inquiry Authority. The report of the inquiry Officer is enclosed. The disciplinary authority will take a suitable decision after considering the report. If you wish to make any representation or submission, you may do so in writing to the disciplinary authority within 15 days of receipt of this letter."

21. The petitioner sent reply on 15.3.1995. The Learned Single Judge observed regarding the findings of the I.O. at page 15 of the judgment. The finding of the I.O. are reproduced as under:

FINDINGS OF THE I.O.

Article-I I.O. has himself stated that the charge is false. However, his observations on the points not raised in the Article of Charge are without jurisdiction. It proves that the I.O. has not acted in a just and fair manner because very often he crossed his jurisdiction as will be clear from the subsequent developments.

Article-II & III - The I.O. has miserably failed to find out the truth regarding these charges and he has observed silence on this aspect in the relevant paras. However, he has mechanically jumped to the conclusion in the tag end that the charges are proved. He has placed reliance on the information which is neither in the charge sheet nor furnished by the P.O. in his brief. It is evident from his observations at page 28 (75 Receipts Voucher/Credit Orders ready for cancellation). That he has not only crossed his jurisdiction but also cooled up information to make it so called evidence. Such conduct on the part of I.O. needs no comments from my side.

Article-IV- It is not a misconduct in the eyes of law but only an imagination on the part of Shri S.C. Rath then Comdt. 103 Bn. CRPF to falsely implicate me as is clear from the surrounding circumstances. However, I re-iterate my reply i.e. delay of few minutes was inadvertent and was caused purely by my illness of ASTHMA.

Learned Single Judge observed as under:

"There is nothing on record to show that anything could be said against the petitioner during his service nearly 25 years and to deal with him in the manner in which it has been done by the respondents, would clearly come within the mischief of Article 14, 16 & 21 of the Constitution of India. The order passed on 17.3.1997 would clearly show that it is not based on any evidence acceptable in law against the petitioner and the order has been passed on mere conjectures and surmises. It is a basic principle of law whenever a charge memo issued against the Government Servant there shall be something on record on the file of the employer concerned to show any act or misdemeanour on the part of the servant. The allegations levelled against the petitioner, especially when he had submitted his voluntary retirement application on 15.3.1993 smacks of total arbitrariness on the part o the respondents. The petitioner has been driven from pillar to post and had to approach this court in 1996 as the respondents had completely ignored their constitutional duties to the petitioner. In the light of these development the petitioner submits that he could be re-instated in service as is chances of getting employment outside is very remote and the respondent had completely ruined his life that way and therefore he has prepared to serve if re-instated in service."

22. In conclusion, the learned Single Judge allowed the writ petition directing the respondents to re-instate the petitioner in service with all consequential benefits including salary and promotion by a detailed judgment.

23. I have once again on the directions of the Division Bench of this court, heard the learned counsel for the parties and carefully scruitinized the documents on record. I have independently arrived at the same conclusions which were arrived at by my distinguished predecessor. Hon'ble Mr. Justice K. Ramamoorthy in this case. Learned Single Judge correctly observed that bare reading of the memo would show that all charges are of very trivial in nature and such a memo was issued without any justification whatsoever. I fully endorese the observations of the learned Single Judge. This indeed is a case of extreme harassment. Senior officials of the respondent sought to have carefully scrutinized these article of charges when the petitioner preferred representations against these charges particularly when he had submitted convincing reply to these charges. Such enquiries are bound to have demoralizing impact on officer who had spend their entire life in the service of the nation.

24. The writ petitions are allowed and the respondents are directed to re-instate the petitioner in service within two months from today with all consequential benefits including salary and promotion, as has been detailed in the said judgment of the learned Single Judge. The writ petitions are accordingly disposed of. The parties are directed to bear their own costs.