Uoi vs Sh. R.S. Saun & Anr.
2010 Latest Caselaw 2693 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             WP(C) No.3484/2010

%                         Date of Decision: 20.05.2010

UOI                                                        .... Petitioner
                       Through Mr. R.V. Sinha, Advocate

                                  Versus

Sh. R.S. Saun & Anr.                               .... Respondent
                  Through Mr. Naresh Kaushik, and Ms. Amita
                          Kalkal Chaudhary, Advocates for
                          respondent No. 2

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether reporters of Local papers may be             YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?               NO
3.    Whether the judgment should be reported              NO
      in the Digest?




ANIL KUMAR, J.

*

The petitioner, UOI has challenged the order dated 1st

February, 2010 passed by the Central Administrative Tribunal,

Principal Bench in OA 2704/2009 titled as R.S. Saun Vs. Union of India

through Secretary, Government of India, partly allowing the application

of the respondent and setting aside the order of dismissal of the

respondent from service and compulsorily retiring him from the service

from 28th August, 2009 pursuant to notice dated 26th August, 2008 and

also granting liberty to the petitioner to withdraw the notice dated 26th

August, 2008, if permissible under law and to issue fresh notice to the

respondent dismissing or removing him from service, and pass fresh

orders on the said notice.

Brief facts to comprehend the controversies are that the

respondent was found guilty under Section 7 & 13(2) r/w Section 13(1)

(d) of the Prevention of Corruption Act, 1988 and had been convicted

and sentenced to undergo rigorous imprisonment of three years and to

pay fine of Rs. 10,000/- for the offence under Section 13(2) r/w Section

13(1) (d) and in default of payment of fine, simple imprisonment of three

months. The respondent was also sentenced to undergo rigorous

imprisonment for two years and to pay fine of Rs. 5,000/- for the

offence under Section 7 of the Prevention of Corruption Act, 1988 and

in default of payment of fine, simple imprisonment of one and a half

months.

The petitioner took action against the respondent under Rule

19 of the CCS (CCA) Rules, 1965 and gave a notice to retire him

compulsorily from the service. However later on, contrary to notice to

compulsorily retire him, dismissed him from service.

The respondent challenged his dismissal on the ground that

since the show cause notice was given only to compulsorily retire him

from the service, he could not be dismissed. The respondent contended

that the punishment more than the proposed in the show cause notice,

to him, dated 26th August, 2008, could not be awarded by order dated

28th August, 2009, i.e., of dismissal from service.

The plea of the respondent was contested on behalf of the

petitioner relying on proviso to Rule 11 of CCS (CCA) Rules, 1965. It

was contended that in every case in which the charge of possession of

assets disproportionate to known sources of income or the charge of

acceptance from any person of any gratification as a motive or reward

for doing any official act is established, the penalty from removal from

service or dismissal from service shall be imposed and therefore, the

petitioner was justified in awarding the penalty of dismissal from

service, though the show cause notice dated 26th August, 2008 was

given for compulsorily retiring the respondent.

The Tribunal after considering the pleas and contentions of the

parties held that there could be mistake in the notice dated 26th

August, 2008, but it was for the petitioner to correct it, if permissible

under Rules and therefore, the only punishment which could be

awarded under Rule 11 of CCS (CCA) Rules was of compulsorily retiring

the respondent and therefore, the order of dismissal dated 28th August,

2009 dismissing the respondent form service was set aside and instead,

it was held that the respondent is compulsorily retired from service

w.e.f. 28th August, 2009. The Tribunal also held that the petitioner

shall be at liberty to withdraw the notice dated 26th August, 2008, if

permissible under law and then issue fresh notice to the respondent

dismissing or removing him from service in accordance with Rules and

pass fresh orders on the said notice.

The learned counsel for the petitioner has vehemently argued

that penalty other than as provided in Clause (viii) or (ix) only could be

imposed under Rule 11 of CCS(CCA) Rules and therefore, the Tribunal

has erred in setting aside the order of dismissal though, the notice for

show cause was given only for compulsorily retiring the respondent.

Perusal of Rule 11 of CCS (CCA) Rules, however reflects that in

exceptional cases and for reasons in writing, any other penalty could be

imposed by the petitioner. The petitioner has not produced any noting

or any other writing to show that before giving the notice dated 26th

August, 2008, it was not decided to impose the penalty of compulsorily

retiring the respondent. If the petitioner had given the notice for

compulsorily retiring the respondent as a special penalty which is

provided under proviso to Rule 11 of CCS(CCA) Rules, 1965, it was for

petitioner to produce the relevant record to show that it was a mistake

and not on account of a conscious decision taken by them.

Rule 11 of the CCS (CCA) Rules is as under:-

PENALTIES AND DISCIPLINARY AUTHORITIES

11. Penalties

"The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely:-

Minor Penalties-

(i). -------

Major Penalties

(v). ........

(vi). .....

vii) compulsory retirement;

viii) removal from service which shall not be a disqualification for future employment under the Government.

ix) dismissal from service which shall ordinarily be a disqualification for future employment under the Government:

Provided that, in every case in which [the charge of possession of assets disproportionate to known sources of income or the charge of acceptance] from any person of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty mentioned in Clause (viii) or Clause (ix) shall be imposed:

Provided further that in any exceptional case and for special reasons recorded in writing, any other penalty may be imposed."

The learned counsel for the petitioner, however could not refute

that since the President provisionally came to the conclusion that the

applicant is not a fit person to be retained in service and should be

compulsorily retired, the punishment proposed by notice dated 26th

August, 2008 only could be imposed and the punishment of dismissal

of service by order dated 28th August, 2009 could not be passed.

In the circumstances, the decision of the Tribunal partly

allowing the original application and holding that the respondent has

been compulsorily retired from service w.e.f. 28th August, 2009

pursuant to show cause notice/memorandum dated 26th August, 2008

seeking compulsorily retiring the respondent cannot be faulted.

In the facts and circumstances, the learned counsel for the

petitioner has not challenged the decision of the Tribunal permitting the

petitioner to withdraw the notice dated 26th August, 2008, if permissible

under law and to issue fresh notice to the respondent dismissing or

removing him from service and pass fresh order on the said notice.

Rather the petitioner wanted that this Court should reiterate the order

passed by the Tribunal. Since the Tribunal has given liberty to the

petitioner to withdraw the notice, if permissible under law and give the

fresh notice, no such further directions are required from this Court.

In the entirety of the facts and circumstances, the petitioner

has failed to make out a case of illegality or irregularity or any

perversity in the order of the Tribunal dated 1st February, 2010, which

will require any interference by this Court in exercise of its jurisdiction

under Article 226 of the Constitution of India.

The writ petition is, therefore, without any merit and it is

dismissed.

ANIL KUMAR, J.

MAY 20, 2010                                      MOOL CHAND GARG, J.
„rs‟