Rps Panwar vs Union Of India & Anr.
2008 Latest Caselaw 948 Del

                            Reportable
*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP (C) No. 3012 of 2008

                                                   Reserved on : May 16, 2008
%                                              Pronounced on : July 04, 2008

RPS Panwar                                               . . . Petitioner

                   through :                  Mr. H.K. Gupta with
                                              Mr. G.S. Chamman, Advocates

             VERSUS

Union of India & Anr.                                    . . . Respondents

                   through :                  Mr. R.V. Sinha with
                                              Mr. A.S. Singh, Advocates


CORAM :-
    THE HON‟BLE MR. JUSTICE A.K. SIKRI
    THE HON‟BLE MR. JUSTICE J.R. MIDHA

      1.     Whether Reporters of Local newspapers may be allowed
             to see the Judgment?
      2.     To be referred to the Reporter or not?
      3.     Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J.

1. The petitioner herein had joined the Department of

Telecommunications (for short, „DOT‟) as Engineering Supervisor on

19.1.1968 and got promotions from time to time. By the year 1999,

he had risen to the rank of ITS Group-A (SAG Level) as GM

(Telephones) and was posted at Moradabad. In July 2003, he was

transferred as GM (Telephones) to Muzaffarnagar, where on

18.9.2003 he was arrested by the CBI. It was on the basis of FIR

registered by the CBI on 12.9.2003 on the allegation of

disproportionate assets and his failure to intimate the same to the

authorities. Since his detention exceeding 48 hours, order was passed

on 23.9.2003 under Rule 10(2) of the CCS (CCA) Rules, 1965 placing

him under deemed suspension with effect from 18.9.2003, i.e. the

date of his arrest. Though the petitioner was granted bail after a

period of two months, i.e. on 18.11.2003, his suspension continued

as it was extended from time to time.

2. The petitioner was also served with the charge sheet dated

25.10.2004 under Rule 14 of the CCS (CCA) Rules. This was

followed by another charge sheet dated 13.12.2004 under Rule 16

for minor penalty proceedings in which, after eliciting his reply,

displeasure was conveyed. However, insofar as suspension of the

petitioner is concerned, his employer kept on extending the same

from time to time. Lastly on 15.2.2006, the suspension was

extended by 180 days, though the petitioner was attaining the age of

superannuation on 30.4.2006. This was followed by letter dated

13.4.2006 stating that the petitioner would continue under

suspension even after his retirement. Notwithstanding this, by

another order dated 28.4.2006 he was permitted to retire on

30.4.2006. The said Office Memorandum dated 28.4.2006 reads as

under :-

             "                 OFFICE MEMORANDUM

             Subject:-    Retirement   of     Officers   of   DOT/BSNL/MTNL
             during April, 2006.
                                            ******

On attaining the age of superannuation, Shri R.P.S. Panwar (Staff No. 690), an officer of SAG of ITS Group „A‟, presently working as General Manager, BSNL, U.P. (West)

Telecom Circle is permitted to retire from Government service with effect from 30.04.2006 (A/N).

2. Since, Shri R.P.S. Panwar (Staff No. 690), GM, is under suspension and his vigilance clearance is withheld, he may be paid provisional pension only as per Rule 69 of the CCS Pension Rules, 1972.

3. Charge reports may be furnished to all concerned.

(Amarjit Singh) Under Secretary to the Govt. of India."

3. The provisional pension of the petitioner was accordingly sanctioned,

which he started getting with effect from 1.5.2006. After the

retirement, the petitioner was served with another charge sheet

dated 5.10.2006 alleging various irregularities committed by him

during the period 19.4.1999 to 16.6.2003 while providing and

extending the tenure of security guards, which according to the

disciplinary authority amounted to misconduct. This was followed

by yet another charge sheet dated 15.3.2007 levelling as many as 7

articles of charges. These also relate to the period 2000-03 when the

petitioner was posted and functioning as GM (Telephones),

Moradabad. Vide his representation dated 6.6.2007, the petitioner

challenged the issuance of charge sheets dated 5.10.2006 and

15.3.2007 and initiation of disciplinary proceedings pursuant thereto,

served upon him after 30.4.2006, i.e. after his retirement. However,

vide communication dated 30.7.2007, his representation was turned

down. After receiving the aforesaid rejection, the petitioner

preferred OA No. 1658/2007 before the Central Administrative

Tribunal, which was filed in September 2007, challenging the

issuance of the aforesaid two charge sheets on the ground that after

his retirement no such disciplinary action could be taken. We may

note that after the filing of the said OA, two more charge sheets

were issued to him on 25.10.2007 and 30.10.2007, which were,

naturally, not the subject matter of challenge before the Tribunal as

when the OA was filed challenging earlier two charge sheets, these

charge sheets were not served. We may also point out that the

petitioner has submitted that the disciplinary proceedings were not

only in violation of Rules, but were also illegal on the ground of

mala fides and arbitrariness and further that they were not

sustainable as they relate to events which took place more than four

years before such institution. The Tribunal has dismissed the OA of

the petitioner vide its order dated 31.3.2008 holding that such an

action could be taken against the petitioner even after his retirement.

Challenging this judgment of the Tribunal the instant petition is

preferred.

4. It is not in dispute that the aforesaid two charge sheets were served

upon the petitioner after his retirement/superannuation, which

occurred on 30.4.2006. As per Rule 9 of the CCS (Pension) Rules

(hereinafter referred to as „Pension Rules‟), charge sheet can be

served against a retired officer also under certain conditions, and one

of them being that the event for which the charge sheet is issued

should be within four years from the date of issuance of the charge

sheet. This Rule also stipulates that if the departmental proceedings

are instituted against a Government servant before his retirement or

during his reemployment, it shall be deemed that those proceedings

are under Rule 9 and shall be continued and concluded by the

authority by which they were commenced even after his retirement

in the same manner as if the Government servant had continued in

service. The Rule also points out that where a Government

employee is placed under suspension, then the departmental

proceedings shall be deemed to be instituted on the date when he

was placed under suspension.

5. Before the Tribunal, case of the petitioner was that the alleged

irregularities pertain to a period which was more than four years old

and, therefore, no such charge memos could be issued after his

retirement. On the other hand, the respondents pleaded that since

the petitioner was placed under suspension with effect from

18.9.2003, even when the charge sheets are issued on 5.10.2006 and

15.3.2007 respectively, they shall relate back to the date of

suspension and it would be deemed as if the departmental

proceedings were instituted from the date of suspension, i.e.

18.9.2003. On that date, the petitioner was very much in service

and, therefore, there was nothing wrong in the institution of the

departmental proceedings.

6. The Tribunal has accepted the submission of the respondent and

dismissed the OA. Before us issue remains the same. Everything

turns upon the interpretation of Rule 9, shades whereof have already

been highlighted by us.

7. Before we come to the interpretation of this Rule, it would be

necessary to take note of the respondents‟ averments on certain

aspects. As per the respondents, the petitioner was placed under

suspension in terms of Rule 10(2) of CCS (CCA) Rules, 1965 with

effect from 18.9.2003 vide order dated 23.9.2003 consequent upon

his detention in CBI custody exceeding a period of 48 hours. The

petitioner was due for retirement on superannuation on 30.04.2006,

by which time the investigation of CBI could not be concluded. At

this juncture, the cases against the petitioner were reviewed and it

was found that 10 other departmental cases/complaints against him

were pending and it was decided to club all the cases. Accordingly,

the respondents issued order dated 13.4.2006. As regards averments

made by the petitioner that he was delivered the said order only on

11.1.2007, it is submitted that he deliberately avoided to receive the

same and left the headquarters without seeking permission and

without informing his whereabouts. Various efforts were made by

the Circle Office of the respondents to deliver the order to him, but

he avoided to receive it. The CBI took 2½ years in investigating the

matter in view of the voluminous records which were to be

scrutinized and ultimately filed its charge sheet on 30.6.2006. It is

only after those investigations that the allegations against the

petitioner in respect of various irregularities were crystallized and,

therefore, charge sheet dated 5.10.2006 and 15.3.2007 were issued

to him after his retirement. According to the respondents, therefore,

there was no delay in issuance of the charge sheets. As soon as the

irregularities came to light the matter was got thoroughly

investigated in consultation with the CVC, and finding the petitioner

prima facie responsible for grave misconduct, departmental

proceedings were instituted by the impugned memorandum of

charges with the approval of the President of India.

8. Now, let us turn to Rule 9 :-

"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 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 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 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.

(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his 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 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 complaint or report of a Police Officer, of 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."

We are primarily concerned with sub-rule 2(a) and sub-rule (6)

of Rule 9 of the Pension Rules.

9. It is clear from clause (a) of sub-rule (6) of Rule 9 that for the

purpose of Rule 9, departmental proceedings are treated to have

been instituted on the date on which the statement of charges is

issued to the Government servant or pensioner. However, if the

Government servant has been placed under suspension from an

earlier date, then they are deemed to have been instituted on the

date of suspension. Clause (a), thus, talks of departmental

proceedings, whereas clause (b) of sub-rule (6) deals with judicial

proceedings, criminal as well as civil. Insofar as criminal proceedings

are concerned, these are deemed to be instituted on the date on

which the complaint or report of a Police Officer is made, of which

the Magistrate ultimately takes cognizance. If sub-rule (6) of Rule 9 is

applicable to the present case, then the proceedings will be deemed

to be instituted on 18.9.2003 when the petitioner was in service and

thereafter it would continue under this Rule by virtue of sub-rule

2(a).

10. The moot question, however, is as to whether clause (a) of sub-rule

(6) of Rule 9 applies even when a Government servant retires while

under suspension but till that time charge sheet is not issued, which

comes to be issued subsequent to the date of retirement. Contention

of learned counsel for the petitioner was that sub-rule (6) will have

no application for two reasons :-

(i) on the retirement of a Government servant, relationship of

employer-employee ceases to exist and even when a person

was facing suspension, such suspension also comes to an end on

the date of retirement. Therefore, if the charge sheet is issued

on a subsequent date after his retirement as on the date of

issuance of charge sheet, he is no more under suspension. Sub-

rule (6), therefore, would not apply in such a situation; and

(ii) in the present case, even otherwise the suspension of the

petitioner was not in contemplation of departmental

proceedings, but in contemplation of criminal proceedings. In

fact, it was a deemed suspension on the ground that the

petitioner had been arrested by the CBI and he remained in

custody for more than 48 hours. The suspension was,

therefore, relatable to the criminal case and no orders were

passed suspending him in contemplation of disciplinary

proceedings. On this ground also, argued the learned counsel

for the petitioner, sub-rule (6) could not have been applied to

the present case.

11. We may deal with the second submission in the first instance. Rule

10 of the CCS (CCA) Rules provides for suspension. It could be

during the pendency of or in contemplation of disciplinary

proceedings. It could also be during the pendency of or in

contemplation of criminal proceedings, as is clear from the reading of

Rule 10, the relevant portion whereof is as under :-

"10. SUSPENSION

(1) The Appointing Authority or any authority to which it is subordinate or the Disciplinary Authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension -

(a) where a disciplinary proceeding against him is contemplated or is pending; or

(aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or

(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:

Provided that ....... "

12. It is, thus, clear that the suspension can relate to either disciplinary

proceedings or criminal proceedings. In the present case, deemed

suspension order was passed under sub-rule (2) of Rule 10 of the CCS

(CCA) Rules, which is manifest from its bare perusal :-

" ORDER

WHEREAS a case against Shri R.P.S. Panwar, General Manager (Telecom), Muzaffarnagar, in respect of a criminal offence is under investigation.

AND WHEREAS, the said Shri R.P.S. Panwar was detained in custody on 18.09.2003 for a period exceeding forty-eight hours.

NOW, THEREFORE, the said Shri R.P.S. Panwar is deemed to have been suspended with effect from the date of his detention i.e. 18.09.2003 in terms of sub-rule (2) of Rule 10 of CCS (CCA) Rules, 1965 and shall remain under suspension until further orders.

By order and in the name of the President.

(D.P. Saini) Under Secretary to the Govt. of India"

It is clear that it was because of his detention exceeding 48

hours that he was treated under deemed suspension. This suspension

was extended from time to time. The orders passed extending the

suspension after every 180 days are identically worded with change

of dates. Therefore, purpose would be served in taking note of one

such order. While extending suspension, order dated 19.4.2004 inter

alia stated as under :-

"WHEREAS, a case against Shri R.P.S. Panwar, GM, Muzaffarnagar, in respect of a criminal offence is under investigation and he is under suspension with effect from 18.09.2003 vide this office order of even number dated 23.09.2003.

xx xx xx"

13. However, a very significant development took place after passing of

orders dated 15.2.2006, which has changed the nature of suspension

order. As pointed out above, the petitioner was to attain the age of

superannuation on 30.4.2006. The case of the continuation of the

petitioner‟s suspension beyond superannuation was, therefore,

considered by the President and orders dated 13.4.2006 was passed

stating that he would continue to be under suspension till finalization

of all cases and decision on treatment of suspension period would be

taken only on the conclusion of all such cases. This order does not

limit the scope of cases to criminal case alone but, in no uncertain

terms, mentions about the departmental cases as well, as is clear from

the operative portion o the said order dated 13.4.2006, which is as

follows :-

"NOW THEREFORE, the President has carefully considered the case of Shri R.P.S. Panwar and keeping in view that 10 departmental cases, in addition to a criminal case in which he was formally placed under deemed suspension, are pending against him, has ordered that Shri Panwar will continue to be under suspension till finalization of all the cases (departmental/ criminal) and a decision on treatment of his suspension period will be taken only on conclusion of all such cases, depending on the outcome thereof

By order and in the name of the President."

This order, thus, in no uncertain terms and unambiguously

records the decision making process. Having regard to the pendency

of 10 departmental cases, in addition to a criminal case, the President

had decided that he would continue to be under suspension "till

finalization of all the cases (departmental/ criminal....." . Since his

continuation was treated, by the said order, pending departmental

cases as well, the petitioner cannot argue that the suspension was

only with reference to the criminal investigation and had nothing to

do with the departmental cases.

We, therefore, do not accept the submission of learned counsel

for the petitioner in this behalf.

14. We now proceed to deal with the first submission, namely,

applicability or otherwise of sub-rule (6) of Rule 9 to those

Government employees who have retired from service. No doubt,

in Common Law, after the retirement and/or when there is cessation

of employer-employee relationship, there is no question of employee

remaining under suspension. If we apply this principle of Common

Law, viz. once an employee retires, the employer-employee

relationship comes to an end, the sequitur would be that the

employer cannot take disciplinary action against his retired employee

and punish him for that. However, sub-rule 2(a) of Rule 9 creates

legal fiction and for the purpose of departmental action treats such a

delinquent officer as an employee of the Government. No doubt,

the nature of penalties which can be imposed after retirement are

different as it would be absurd to inflict the punishment prescribed

under Rule 11 of the CCS (CCA) Rules on a retired employee. To

remove this absurdity, Rule 9 provides for different kinds of

punishments, which relate to forfeiture and/or cut in pension and

gratuity. It is for this reason the pension and gratuity are not

released to the Government employee, against whom the disciplinary

proceedings are pending, at the time of retirement and he is only

given provisional pension. Once we understand and accept this

position, extending this deeming provision or legal fiction, to a

situation provided under sub-rule (6) of Rule 9 would also be

understandable. The President had passed specific orders dated

13.4.2006 extending the suspension till the conclusion of

departmental cases as well as criminal cases. This deemed

suspension, for the purpose of departmental cases, would continue

even after retirement. Once the matter is looked into from this

angle, there is no difficulty in concluding that even when the charge

sheets were served after the retirement, the deemed date of initiation

of disciplinary proceedings would be the date of suspension.

15. Learned counsel for the petitioner, relying upon the judgment of the

Supreme Court in Bengal Immunity Co. Ltd. v. State of Bihar & Ors.,

1955 SCR 646, had argued that the legal fiction is to be limited to the

purpose for which it was created and should not be extended

beyond that legitimate field. There is no doubt about this

proposition of law. Having regard to the purpose for which Rule 9

in the Pension Rules has been introduced, as highlighted and

discussed in detail hereinabove as well as in para 17 below, our

opinion is in tune with the law laid down by the Apex Court in

Bengal Immunity (supra) and does not run contrary to the principle

laid down therein.

16. We may point out at this stage that learned counsel for the petitioner

had referred to and relied upon the same judgments which were

cited before the learned Tribunal. The learned Tribunal, after

holding that deemed provisions contained in sub-rule (6) of Rule 9

would be applicable to the present case, dealt with those judgments

and distinguished all those judgments as not applicable and discussion

in this respect can be found in paras 15 & 16 of the judgment of the

Tribunal. Since we are in agreement with the reasoning given by the

Tribunal and the manner in which the said case law is dealt with, we

do nothing more than to reproduce the said paras :-

"15. Now we deal with the cases cited by the learned counsel for the applicant in the OA:-

G. Kumararaj‟s case, the issue was whether retiral benefits would be admissible to the applicant who had been suspended on account of registration of case by CBI but no DE had been initiated nor any charge sheet had been filed in the criminal court. It was held that mere registration of a case against him could not be treated as commencement of judicial proceedings and hence retiral benefits were admissible.

Bani Singh‟s case, the issue was regarding inordinate delay of over 12 years in initiation of disciplinary enquiry. Hence we do not find it relevant to the present case, facts being different.

Janakiraman‟s case, the issue was the procedure to be adopted in the event of promotion of employees against whom departmental proceedings were pending and when sealed cover procedure is to be resorted to. Thus, this case also does not support the applicant‟s case herein.

16. Now we also deal with the cases cited by the applicant during the course of hearing:-

Case of Gurpreet Singh Bhullar and Anr. v. UOI & Ors., (2006 SCC (L&S) 658) relates to pendency of a criminal case against a selectee - under Regulation 5(5), IPS (Appointment by Promotion) Regulations, 1955 for provisional inclusion in the select list. It was held by the Hon‟ble Supreme Court that proceedings should be treated as pending only if a charge had been framed by the court. The facts of this case are entirely different to the case in hand.

In State of Bihar & Ors. v. Mohd. Idris Ansari (JT 1995 (4) SC 134) charge sheet was issued to a retired government servant for acts of omission/commission which were atleast 6 years old. While the alleged misconduct of the applicant was in 1986-87, enquiry was initiated in 1993. Hon‟ble Supreme Court dismissed the appeal filed by the State Government, as the proceedings were not in consonance with Rule 43(B) of the Bihar Pension Rules, and were time barred being more than 4 years old.

Same was the case in S. Ramanujam v. Commissioner for Departmental Inquiries and Ors. (1986 (4) SLR 530) where the Government servant retired on 31.07.1978 and the Memorandum was issued on 31.01.1981 in respect of acts of omission/commission relating to the years 1971 and 1974-75. Application was allowed as charge sheet was barred by limitation of 4 years and he had not been placed under suspension. The facts being different do not advance the case of the applicant.

Learned counsel for applicant also placed reliance on K. Padmanabha Rao v. Accountant General, API, Hyderabad & Ors., (1987 (4) ATC 756). In that case the enquiry proceedings were quashed by the Hon‟ble High Court even prior to retirement of applicant. Hence, there was no enquiry under the CCS (CCA) Rules, 1965 pending against him which could be continued under the Pension Rules. It was held that consequent on the judgment of the High Court in W.P. 985/1982, it is not competent for the department to continue with the enquiry commenced against the applicant under the CCS (CCA) Rules even for the limited purpose of withholding or withdrawing his pension in whole or part under Rule 9 of CCS (Pension) Rules. The applicant having been allowed to retire without any conditions, would, therefore, be entitled to full pension, gratuity and other terminal benefits consequent on his retirement. This case also does not support the applicant herein.

With regard to S.K. Mathur v. UOI & Ors., (2005 (2) CAT 286), learned counsel for respondents has submitted that the decision of the Tribunal is under challenge before the Hon‟ble High Court. Hence, we cannot take cognizance of this decision."

No further arguments were advanced before us.

17. The reason for creating this legal provision and curtailing the

common law right of the employees is too obvious. A Government

employee gets gratuity on his retirement and also starts earning

pension, which he continues to get for the reminder of his life. So

much so, after his death his family is also entitled to family pension.

These benefits are given for rendering long and faithful service by

such Government employees. However, if it is found that during his

employment he had committed some act of indiscipline or

misconduct, it would naturally have bearing on these terminal dues

like gratuity and pension. For this reason, when the irregularities

committed while in service are noticed and when the disciplinary

proceedings are initiated, the Government has taken upon itself the

right to continue the same after retirement as well. In such cases,

where the gross misconduct is found to have been committed while

in service, allowing such a person to earn full pension for rest of his

life after retirement may not be proper as the pension is given for

not only long service but for sincere and faithful discharge of duties.

It is for this reason that even when no inquiry was instituted when

the Government servant was in service, provision is made to proceed

against him departmentally even after his retirement. However, at

the same time, balance is struck by providing that the alleged

irregularity should not be of a period more than four years old. This

provision obviates the possibility of harassing retired Government

servants by digging up old issues.

18. Once the aforesaid position is to be accepted as irrefutable, it is not

difficult to find the answer to the issue arising out of the situation at

hand. Here the petitioner was suspended while still in service and

investigation into the alleged irregularities initiated. It is to be borne

in mind that sometimes having regard to the complicated nature of

charge, substantial time is taken in the investigation. In the present

case itself, the FIR against the petitioner was lodged in September

2003, i.e. much before the petitioner‟s retirement on 30.4.2006.

Keeping in view the fact that the petitioner remained in custody for

more than 48 hours, though initially order of deemed suspension

was passed, the President chose to extend this order from time to

time after re-assessment, keeping in view the seriousness of the

charges leveled against the petitioner. In such cases, where the

investigation gets completed after the retirement, the very purpose of

introducing Rule 9 of the Pension Rules, would be defeated if the

contention of the petitioner is accepted and it is held that the

provision of deemed suspension would not be applicable.

19. For all these reasons, we dismiss this writ petition with no order as to

costs.

(A.K. SIKRI) JUDGE

(J.R. MIDHA) JUDGE July 04, 2008 nsk