Union Of India (Uoi) And Anr. vs R.K. Mishra
2003 Latest Caselaw 1118 Del

JUDGMENT

D.K. Jain, J.

1. This writ petition by the Union of India is directed against order, dated 2 August 2001, passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short 'the Tribunal') in OA No.2582/2000. By the impugned order, the Tribunal has quashed the order, dated 24 August 2000, passed by the President, in his capacity as the disciplinary authority, imposing a penalty of 10% cut in the pension, otherwise admissible to the respondent, for a period of two years.

2. In nutshell, the background facts, relevant for the present purpose are as follows:

On the basis of some allegations, contained in the statement of imputations of misconduct and misbehavior, vide memo dated 9 September 1994, disciplinary proceedings were instituted against the respondent under Rule 16 of the CCS (CCA) Rules, 1965, which lays down the procedure for imposing minor penalties. Upon consideration of the explanation submitted by the respondent, the disciplinary authority came to the conclusion that a minor penalty specified in clauses (i) to (iv) of Rule 11 of the said Rules was warranted. A reference was made to the Union Public Service Commission (UPSC for short) seeking their advice. The UPSC was of the view that a minor penalty on the respondent, who was retiring on 31 October 1996, would not be sufficient. Vide their letter dated 29 March 1996, the UPSC, thus, advised that proceedings should be initiated against the respondent under Rule 14 of the said Rules for levy of major penalty. However, vide their letter dated 16 October 1996, the Ministry requested the UPSC to reconsider their advice as the President had come to the conclusion that there was no evidence on record to substantiate an allegation warranting initiation of major penalty proceedings. In the fresh reference it was pointed out that since the incident had taken place in the years 1986-88, it would not be possible to either convert or initiate disciplinary proceedings under Rule 9 of the CCS (Pension) Rules, 1972 (for short 'the pension Rules'), after respondent's superannuation on 31 October 1996. The UPSC, nonetheless, stuck to its earlier advice. The UPSC observed that there should not be any difficulty for proceedings to be continued under Rule 9 of the pension Rules after amending the charge sheet. Based on the said advice, a fresh memorandum dated 4 February1999 was issued to the respondent, affording an opportunity to him to make representation against the proposed major penalty of reduction of his monthly pension by 10% for a period of two years. On consideration of the objections filed by the respondent, vide order dated 24 August 2000, the aforementioned penalty was levied , which has been set aside by the Tribunal, by observing thus:

"We also find from the record that the UPSC has advised to convert the proceedings into a major penalty chargesheet but due to the retirement of the applicant during this interregnum the same could not have been done but taking the same stand the charges have been proved to be grave and on that basis Rule 9 of the Pension Rules was resorted to. The applicant has been deprived of a reasonable opportunity to defend and the action was not in accordance with the substantive procedure. For a major penalty the proceedings are to be drawn under Rule 14 of the CCS (CCA) Rules where a detailed oral enquiry is mandated and can be dispensed with only under rule 19(2) of the Rules or under Articles 310 and 311 of the Constitution. No such exceptions have been found in the present case as such, it was incumbent upon the respondents to have held the regular proceedings before coming to the conclusion of the grave charge against the applicant after according him a reasonable opportunity to defend in a summary procedure charges cannot be proved by converting into an irregular proceedings for a major penalty. Apart from it Rule 16 also envisages holding of enquiry in the manner of summary procedure laid down in Rule 14 (22 to 23) ibid but the same has not been followed in the present case. The ratio relied upon by the respondents would not have any application and this is not a case where the minor penalty has been imposed upon the applicant but it is a situation where, admittedly, the minor penalty has been converted into a major penalty on the advice of the Commission without following the laid down procedure. The action of the respondents does not conform to the laid down procedure and is against the law."

3. Assailing the impugned order, it is submitted by learned counsel for the petitioner that the Tribunal has failed to appreciate that since the respondent had superannuated during the period the second reference to the UPSC was pending, on receipt of the fresh advice of the UPSC, it was not possible to hold departmental proceedings against him for imposition of major penalty. It is asserted that since the respondent had been accorded an opportunity by issue of a memorandum dated 4 February 1999, to which he responded, the Tribunal has gone wrong in coming to the conclusion that principle of natural justice has been violated.

4. In support of the proposition that proceedings instituted prior to the retirement of a government servant could continue and concluded even after his retirement, Rule 9(2)(a) of the pension Rules is pressed into service.

5. We are unable to agree with learned counsel for the petitioner. Admittedly, when the respondent was in service a memorandum dated 9 September 1994 was issued to him, proposing action under Rule 16 of the 1965 Rules for misconduct. No charge of grave misconduct was levelled. Mercifully, when reference was made to the UPSC for opinion, the disciplinary authority was also of the opinion that on the basis of the evidence on record, a case for levy of minor penalty was made out. It was only when the UPSC reiterated its opinion, the disciplinary authority chose to convert the charge from Rule 16 to Rule 14 for levy of major penalty. It is pertinent to note that in the memorandum dated 4 February 1999, proposing major penalty, the imputations under consideration were the same as were annexed to the original memorandum dated 9 September 1994. We are in complete agreement with the learned Tribunal that mere issue of a fresh memorandum, after the retirement of the respondent on 31 October 1996, was not sufficient compliance with the procedure laid down for levy of a major penalty, even though the respondent had filed a representation against the proposed penalty. The penalty order exhibits a complete misapprehension about the procedure required to be followed by the disciplinary authority. Since, admittedly, departmental proceedings initiated against the respondent prior to his retirement were for levy of minor penalty, Rule 9(2)(a) of the pension Rules is of no avail to the petitioner. We have no hesitation in holding that the order imposing major punishment on the respondent is vitiated because of failure to follow the prescribed procedure. After all procedural fairness is as much essence of right and liberty as the substantive right itself.

For the foregoing reasons, no fault can be found with the order passed by the Tribunal. The writ petition is utterly misconceived and is dismissed accordingly with costs, quantified at Rs.5000/-.