Union Of India & Ors. vs Sri Pal Jain
2015 Latest Caselaw 7296 Del

$~17
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 4335/2014 & CM. APPL No. 8685/2015
%                                       Judgment dated 23rd September, 2015

       UNION OF INDIA & ORS.                            ..... Petitioners
                Through : Mr. Ruchir Mishra and Mr. Ramneek Mishra,
                          Advocates.

                           versus

       SRI PAL JAIN                                  ..... Respondent
                 Through : Mr. Amit Pandey, Advocate for Mr. Manav
                           Kumar, Advocate.

CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

G. S. SISTANI, J. (ORAL)

1. Challenge in this writ petition is to the order passed by the Central Administrative Tribunal(hereinafter referred to as „the Tribunal‟) dated 03.01.2014.

2. The necessary facts to be noticed for disposal of this writ petition are that a charge sheet dated 19.10.2005 was issued to the respondent under Rule 14 of the CCS(CCA) Rules, 1965 for a major penalty inter alia for allegations that while the respondent was functioning as Sub Post Master at Govindpura Post Office, Delhi during the period from 03.03.2003 to 14.09.2004, he took illegal withdrawals from different saving accounts of Govindpura Post Office by affixing forged signature or thumb impression of the depositors on the withdrawal forms (SB-7) himself for his personal

use. Pertinently, the depositors from whose accounts the respondent illegally withdrew amounts had expired well before the date of withdrawals of amounts by the respondent. The Inquiry Officer in the inquiry report dated 07.09.2007 held the charges proved against the respondent and the inquiry report dated 07.09.2007 was not challenged by the respondent before the Tribunal. The inquiry report dated 07.09.2007 was agreed to by the Disciplinary Authority and the order dated 17.10.2007 imposing upon the respondent punishment of compulsory retirement from service under Rule 11 of CCS(CCA) Rules was passed.

3. Thereafter, the respondent was issued letter dated 19.03.2008 by the appellate authority proposing to enhance the penalty of compulsory retirement to that of dismissal from service within a period of six months of the date of punishment order dated 17.10.2007 proposed to be revised and the respondent was given opportunity to represent against the order dated 19.03.2008. The respondent submitted a representation dated 25.03.2008 against the notice dated 19.03.2008. The appellate authority in exercise of its power under Rule 29(1)(V) of CCS(CCA) Rules, 1965 and having considered the respondent‟s representation dated 25.03.2008 concluded that the penalty of compulsory retirement imposed by the disciplinary authority is not commensurate with the gravity of the charges held as proved against the respondent and finally passed an order dated 24.03.2009 enhancing the penalty of compulsory retirement from service to dismissal from service.

4. The Tribunal did not interfere with the inquiry report dated 07.09.2007 and the penalty order dated 17.10.2007 of the Disciplinary Authority but set aside the order dated 24.03.2009 of appellate authority and order dated

27.02.2010 of the higher authority and directed that the respondent would be entitled for all consequential benefits arising out of the order dated 17.10.2007 i.e. consequential to his compulsory retirement from service. The grounds for setting aside the aforesaid order dated 24.03.2009 by the Tribunal was that the time limit of six months prescribed under Rule 29 for revising the order by appellate authority is not only for initiation of the action to revise the order but also for passing the order and that in the present case the order dated 24.03.2009 was not passed within six month‟s time limit as prescribed under Rule 29 of CCS(CCA) Rules, 1965. That the order of dismissal and removal from service comes into effect from the date when it is passed, therefore, the order dated 24.03.2009 which is effective from retrospective date i.e. from the date of Disciplinary Authority‟s order dated 17.10.2007 cannot be sustained as order of dismissal from service could not be effected from a retrospective date and that the respondent‟s date of retirement from service on superannuation was 31.12.2007, therefore, no penalty otherwise than under the pension rules could not be imposed upon the respondent.

5. The contentions of the petitioners before the Court are that the impugned order is liable to be set aside on the following grounds:

(i) The six month‟s time limit as prescribed under Rule 29 is only for initiating action and not for passing final order and this is what has been categorically held by this Hon‟ble Court in the judgment dated 24.07.2013 in the case of Union of India & Ors. v. Dharam Pal Gupta, [WP.(C).3622/2013] decided on 24.07.2013;

(ii) The order dated 24.03.2009 is not retrospective in nature as it only substituted the penalty order dated 17.10.2007 of compulsory retirement from service with the order dated 24.03.2009 imposing penalty of dismissal from service and that the only logical interference which can be drawn from the reading of Rule 29 is that the order enhancing penalty passed under Rule 29 would take effect from the date of order of Disciplinary Authority and substitutes the said order; and

(iii) The disciplinary proceedings inquiry against the respondent stood completed before his due date of superannuation on 31.12.2007 and the order dated 17.10.2007 imposing upon the respondent punishment of compulsory retirement from service was passed well before 31.12.2007, therefore, the CCS Pension Rules 1972 were not applicable in the present case as the disciplinary proceedings ended with the imposition of penalty of compulsory retirement of respondent before 31.12.2007 and otherwise also Rule 9(2) CCS Pension Rules, 1972 permits the continuation of the disciplinary proceedings even against retired employees, and the only requirement in terms of Rule 9(2) is that the report recording findings are to be submitted before the President of India, therefore, without prejudiced to the contention inquiry against the respondent stood completed before the due date of superannuation, it is submitted that at best the Tribunal could direct the placing of report before the President of India but, in any case, keeping in view the gravity of the allegations proved against the respondent, the orders dated

24.03.2009 and 27.02.2010 should not have been set aside.

6. Counsel for the petitioner has placed strong reliance on the decision rendered by a Division Bench of this Court in the case of Union of India & Ors. v. Dharam Pal Gupta(supra). Mr. Mishra, counsel for the petitioners submits that an identical case had come up for hearing before the Division Bench. Reliance is placed on paras 13 to 17 of the judgment, which are reproduced below:

"13. Having heard the counsel for the parties we are of the view, it is an accepted position of the parties that Director Postal Services is the Appellate Authority. The Appellate Authority, in the absence of appeal could have exercise the power within a period of six months. In the case in hand the Director Postal Services, the Appellate Authority has within a period of six months issued notice to the respondent for enhancement of the penalty. Whether as submitted by the counsel for the respondent, the final order must also be passed within a period of six months is another issue which arises for our consideration.

14. In that regard the Director General Postal and Telegraph has issued a letter dated July 27, 1972 which is reproduced hereunder:-

"(4) How to reckon the period of revision of six months.- According to Rule 29 (1) (v), an Appellate Authority may within a period of six months of the date of the order proposed to be revised call for the records of any enquiry at any time either on his own motion or otherwise and revise any order made under these rules. In D.G., P & T., Letter No.15/10/67-Disc., dated the 22nd May, 1968 (not printed), it was stated that the Appellate Authority, calling for the relevant records of the case with a view to revising an order already passed within six months of the date of the order to be revised would be acting well within this time-limit. It has now become necessary, however, to revise this order in view of a recent judgment of a High Court. Accordingly, it is hereby clarified that it will be incumbent upon the Appellate Authority to make a specific mention of the fact that it proposes to revise the order already passed, when calling for the papers. In other words, the Appellate Authority should clearly indicate in the order calling for the records of the case that it proposes to revise the order already passed, when calling for the papers. In other words,

the Appellate Authority should clearly indicate in the order calling for the records of the case that it proposes to revise the order and it is in this connection the papers are being called for. At the same time, the Government servant should also be informed that the Appellate Authority proposes to revise the order. It is necessary to ensure that the intention of the Appellate Authority to revise the orders in this way is conveyed to all concerned within the stipulated period of six months from the date of the order proposed to be revised."

15. The said letter clarifies the position that the Appellate Authority is required to convey its intention to revise the orders within a period of six months. In other words it is not necessary that a final order in that regard has to be passed within the stipulated period of six months. A Full Bench of the Tribunal in a case reported in reported in (1991) 15 Administrative Tribunals cases 920 K.G.Mohanan v. General Manager, Telecommunication, Ernakulam & Ors. has taken a view in this regard in para 24. The same is reproduced hereunder:

"In the light of the foregoing, the correct legal position as regards the power of the appellate authority while exercising the power of revision is that it is incumbent on the said authority to call for the records of the enquiry and initiate the proceedings by issue of a notice to the government servant concerned within six months of the date of the order proposed to be revised, subject to what is stipulated in Rule 29(2). The said authority is also expected to dispose of the revision proceedings within a reasonable time. To this extent, decision of the Hyderabad Bench in Rajaram case does not lay down the correct interpretation of the scope of Rule 29(1)(v) of the CCS (CCA) Rules, 1965".

16. Even the High Court of Madras in its judgment reported as 2005 (1) CTC 566 in Union of India, represented by the Secretary to Government of Pondicherry, Revenue Department & Anr. v. V.Sekar [W.P.(C) Nos.6839/2002 and 6846/2002 decided on October 01, 2004] has taken the following view in so far as the Rule 29 of CCS (CCA) Rules is concerned.

"As far as the first contention of the learned counsel for the petitioner the Revision Authority initiated the proceedings on 21.3.2000 or revising the order dated 2.9.1999. On a reading of the Rule 29 along with its proviso, we are of the view that initiation is the point of time which is to be reckoned for finding out the compliance of the said rule for the purpose of limitation. In the case on hand, when the Disciplinary Authority passed orders on 2.9.1999, six months period within which, the Revising Authority is empowered to review the order of the Disciplinary Authority would expire by 2.3.2000. The Rule does not state that final orders should

have been passed within six months time in order to come within the prescribed time limit of Rule 29 of the CCS(CCA) Rules. The Rule only prescribes that the proceedings should be initiated within six months time. Therefore, when the Revising Authority passed orders on 23.2.2000, it will have to be held that the same was initiated well within the prescribed time limit and therefore, the order of the second respondent Tribunal on that score cannot be sustained."

17. We are in agreement with the aforesaid view of the Tribunal and High Court of Madras. We hold that the Director Postal Services, being the Appellate Authority has rightly exercised the power under Rule 29(1) (v) and the said power has been exercised within a period of six months by issuing a show cause notice to the respondent which shows that he has conveyed his intention to revise the order. We do not find any illegality in the exercise of power of enhancement of punishment by the Appellate Authority vide order dated February 17, 2011. To that extent the order of the Tribunal is liable to be set aside."

7. At this stage, having regard to the aforesaid decision, during the course of hearing, learned counsel for the respondent has submitted that the respondent is willing to give up his claim of pension for the years 2007- 2010 and also the period from 2007-2007 may be treated as period "Not on Duty". Subject to the condition on his making a representation to the appropriate authority, the punishment of dismissal of services may be reduced to compulsory retirement or any other punishment.

8. Learned counsel for the respondent further submitted that an amount of Rs.1,37,200/- (Rs.1,22,000/- Principle Amount plus Rs.15,000/- towards interest) stands deposited.

9. It was strongly submitted before us that the respondent is the only earning member of the family and there is none to support him during his old age.

10. As prayed, the legal questions are left open to be decided by the appropriate proceedings. We set aside the order passed by Tribunal with the following directions:

(i) We grant the leave to the respondent to make a representation to

the Disciplinary Authority on the above lines; and

(ii) We hope the Disciplinary Authority will take lenient view in the matter and reconsider the punishment awarded to the respondent while taking into account the stand of the respondent as noticed in para 7 aforegoing.

11. With these directions, present writ petition along with all pending applications are disposed of.

G.S.SISTANI, J

SANGITA DHINGRA SEHGAL, J SEPTEMBER 23, 2015 gr/pst