S.P. Mishra vs Union Of India & Anr.
2018 Latest Caselaw 7221 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of Decision: 07.12.2018

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+      W.P.(C) 13056/ 2018

       S.P. MISHRA                                         ..... Petitioner
                          Through:       Mr. Shanker Raju and Mr. Nilansh
                                         Gaur, Advocates

                                versus

       UNION OF INDIA AND ANR                              ..... Respondent

                          Through:       Mr. Ripu Daman Bhardwaj, CGSC
                                         with Mr. T.P. Singh, Adv. For R-1.
                                         Mr Naresh Kaushik and Mr.
                                         Omung Gupta, Advocates for R2
       CORAM:
       HON'BLE MR. JUSTICE VIPIN SANGHI
       HON'BLE MR. JUSTICE A.K. CHAWLA


VIPIN SANGHI, J. (ORAL)

1. The petitioner has preferred the present writ petition to assail the order dated 16.10.2018 passed by the Central Administrative Tribunal (CAT/ Tribunal) in O.A. No. 541/ 2016. The tribunal had rejected the said O.A. of the petitioner. The petitioner had preferred the said O.A. to, inter alia, assail the order dated 14.12.2015 passed by the Govt. of India, Ministry of Communications & Information Technology, Department of

Telecommunications, whereby the President, in exercise of his powers under Rule 9(1) of CCS (Pension) Rules, 1972 (hereinafter referred to as the Pension Rules), had imposed the penalty of withholding 100% of the monthly pension otherwise admissible to the petitioner, as well as forfeiture of his full gratuity on permanent basis. The petitioner also sought a direction to the Respondents to sanction and pay provisional pension to the petitioner w.e.f. December 2015, till the conclusion of the judicial proceedings against him.

2. The petitioner was working as a General Manager (GM) of the Telecom Department in Gujarat. A Criminal Case bearing number 7/06 was instituted against him by the CBI on the allegation that he had demanded and accepted illegal gratification of Rs.35,000/-. The Special Judge CBI, Gujarat convicted the petitioner vide judgment dated 15.12.2009 and sentenced him to jail for a period of three years. He attained the age of superannuation on 31.01.2012 i.e., after his conviction. The petitioner has assailed his conviction and sentence before the jurisdictional High Court in a Criminal Appeal which is pending consideration. In the meantime, his sentence stands suspended.

3. The appointing authority initially served a show cause memorandum under Rule 19 of CCS (CCA) Rules, 1965 upon the petitioner on 19.04.2010, proposing dismissal of the petitioner from service. While this memorandum was still under process, the petitioner attained superannuation on 31.01.2012. He was paid provisional pension under Rule 69 of the Pension Rules. After the petitioner's superannuation on 31.01.2012, vide order dated 07.08.2012, punishment of 100% cut in

pension on permanent basis and forfeiture of gratuity was imposed upon the petitioner under Rule 9 of the Pension Rules. However, while passing this order, the petitioner was not provided a copy of the advice received from the UPSC. Consequently, the petitioner assailed the said order dated 07.08.2012 in O.A. No. 3107/2012. Upon that Original Application being dismissed, he preferred W.P.(C.) No. 2552/2014. The order dated 07.08.2012 was set aside. Thereafter, the petitioner was furnished with the advice of the UPSC and after considering his representation, the impugned order dated 14.12.2015 was passed by the Disciplinary Authority imposing the punishment of 100% cut in pension on permanent basis, and forfeiture of gratuity vide order dated 14.12.2015. The O.A. in question was thus, preferred by the petitioner against this order dt. 14.12.2015 in this aforesaid background.

4. Ld. Counsel for the petitioner vehemently submits that an appeal is a continuation of the original proceedings and unless and until the conviction of the petitioner is upheld by the appellate court, it cannot be said that the said conviction and sentence has attained finality. He submits that punishment under Rule 9 of the CCS Pension Rules cannot be imposed till the time the departmental/ judicial proceedings against the government servant attain finality and stand concluded i.e. till after the right to appeal against conviction is fully exhausted. He, therefore, submits that, since he has preferred a criminal appeal against his conviction before the High Court - which is still pending, the disciplinary/ judicial proceedings against him have not attained finality.

5. Mr. Raju further submits that the petitioner is entitled to provisional pension under Rule 69 of the Pension Rules till the finalization of the petitioner's criminal appeal. Provisional pension commences from the date of retirement up to and including the date on which "after the conclusion of the departmental or judicial proceedings, final orders are passed by the competent authority". Thus, in view of the pendency of the criminal appeal, it cannot be said that the judicial proceedings stand concluded. Reliance is placed upon N.K.Suparna vs. Union of India, ILR 2004 KAR 4628.

6. On the other hand, Ld. Counsels for the respondents fully support the impugned order. Mr. Bhardwaj, CGSC for respondent no.1 submits that mere pendency of the criminal appeal does not come in the way of the President in passing an order by reference to Rule 9(1) of the Pension Rules.

7. Having heard learned counsels for the parties, perused the impugned order and the record, we are of the view that there is no merit in the present petition and the impugned order does not call for interference.

8. At the outset, we may state that we have dismissed a similar writ petition, being W.P. (C) 12470/ 2018, titled, P.C. Misra, Danics/JOINT Director (Retd.) v. Union of India, on 26.11.2018 wherein the petitioner sought grant of provisional pension under Rule 69 (1) (b) of Pension Rules on the ground that his criminal appeal against his conviction was pending before this court and, thus, the departmental/ judicial

proceedings against him had not attained finality and did not stand concluded. While rejecting the contention of the petitioner, we had observed that:

18. The thrust of the petitioner‟s submission is that since his criminal appeal is pending before the High Court against his conviction and sentence, and as the sentence has been suspended by the appellate court, his conviction has not attained finality since appeal is a continuation of the original proceedings. He also relies upon Rule 69(1)(b), which provides that the provisional pension shall be authorized during the period commencing from the date of retirement upto and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority. The submission is that the judicial proceedings cannot be said to have attained conclusion in view of the pendency of the criminal appeal.

19. The aforesaid submission of the petitioner has not merit.

20. In K.C. Sareen v. CBI, Chandigarh, (2001) 6 SCC 584, the appellant was charged for offences under section 13(2) of the Prevention of Corruption Act and sections 120, 201 and 420 IPC. He was convicted at trial, inter alia, under section 13(2) of the Prevention of Corruption Act. The appeal of the appellant before the High Court against his conviction and sentence was admitted and his sentence was suspended. Founded upon the appellant‟s conviction, the disciplinary proceedings were initiated against him and he was dismissed from service. The appellant moved the High Court to have his conviction also suspended during pendency of his criminal appeal. That application was rejected. The appellant then approached the Supreme Court. The submission of the appellant before the Supreme Court was: "7. ... ... as a trial can logically reach its final end only when the appellate court decides the matter the

conviction passed by the trial court cannot be treated as having become absolute... ...".

21. The appellant placed reliance on the judgment of the Supreme Court in Akhtari Bi v. State of Madhya Pradesh, (2001) 4 SCC 355, wherein the Supreme Court observed that:

"5. Appeal being a statutory right, the trial court's verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction."

22. The submission of the appellant premised on the observation made in Akhtari Bi (supra) was rejected by the Supreme Court by observing:

"8. By the said observation this Court did not mean that the conviction and sentence passed by the trial court would remain in limbo automatically when they are challenged in appeal. The said observation was made in a different context altogether when notice of the executive government was drawn to the need to appoint requisite number of Judges to cope up with the increased pressure on the existing judicial apparatus, and for highlighting the consequences of non-filling existing vacancies of Judges in the High Courts. We are unable to appreciate how the said observation can be culled out of the said context for the purpose of using it in a different context altogether such as this where the convicted accused is seeking to have an order of conviction suspended during the pendency of the appeal".

23. The Supreme Court observed that:

"11. ... ... when the appellate court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, dehors the sentence of imprisonment as a sequel thereto, is a different matter".

24. The observations made by the Supreme Court in the following paragraph of K.C. Sareen (supra) are most pertinent in the present context. The said paragraph reads as follows:

12. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant is found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate

or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public interest which suffers and sometimes, even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fallout would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only (sic) public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction." (emphasis supplied)

25. The position is no different in the present case. The ratio of the aforesaid judgment is clearly applicable in the facts of the present case. The petitioner is liable to be treated as corrupt until he is exonerated by a superior court

on merits and not on mere technical grounds - such as lack of, or irregular sanction to prosecute. Mere pendency of his appeal does not even temporarily absolve him from the findings of guilt. Though the petitioner stands convicted and sentenced by the Trial Court, he is nevertheless seeking to assert his claim for provisional pension which, in the fact and circumstances, is equivalent to his regular pension, during pendency of his criminal appeal. Thus, the petitioner is asserting his claim, as if he is a government servant who has retired without any blemish, even though he stands convicted and sentenced by the trial court for conduct which also tantamounts to grave misconduct. He is seeking to draw, on a monthly basis, provisional pension equivalent to his regular and full pension, which would not be recoverable even if his criminal appeal were to be dismissed.

26. In our view, the State is not obliged to financially support a government servant who has been found guilty in a case of corruption by the criminal court- either provisionally (during pendency of this criminal appeal, or otherwise). Such a government servant, who stands convicted in a corruption case, ought to be considered as a parasite and a burden, not only on the government, but on the society at large. There is no reason why public money should be doled out to him, only to await the decision of the appellate court, which is pending at his behest against his conviction and sentence. Of course, the situation could change if, and when, the criminal appeal of the convicted Government Servant is allowed. If the exoneration is on merits, he may be entitled to claim revocation of the Order Under Rule 19(i) of the CCS (CCA) Ruels or Rule 9 of the Pension Rules- as the case may be. However, if the exoneration is on purely technical grounds, whereas the findings of fact which constitute grave misconduct remain undisturbed, he may not even be entitled to derive benefit of his exoneration. The would have to be examined by the Government in each case, on the facts of that case.

27. Reliance placed by Mr. Mishra on the judgment in Jitender Kumar Srivastava & Anr., (supra) is misplaced. In that case, while in service, the government servant was charged under various sections of the IPC and PC Act. When he retired on superannuation, the trial was still not complete. The State of Jharkand, inter alia, sanctioned 90% provisional pension to the respondent. The remaining 10% pension and salary payable during the suspension period was withheld pending outcome of the criminal case/ departmental inquiry against him. He was also paid leave encashment and gratuity. Aggrieved by the withholding of his 10% pension and non release of other dues, the respondent preferred a writ petition before the High Court. On the direction of the High Court, the respondent made a representation to the government, which was rejected. Consequently, he again approached the High Court and the High Court dismissed the writ petition. The Supreme Court

- in the course of its judgment, observed that the right to receive pension had been recognized as a right to property by the Constitution Bench in its decision in Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330. The Supreme Court also observed that there was no provision or rule for withholding provisional pension, or for withholding pension/ gratuity when the departmental proceedings or judicial proceedings are still pending.

28. The aforesaid material fact distinguishes the present case from Jitender Kumar Srivatava (supra). As noticed above, in the present case, the judicial proceedings have resulted in the conviction of the petitioner, though his criminal appeal is pending consideration before this court. But as noticed above, for the purpose of invoking Rule 9(1) of the CCS Pension Rules, it is sufficient that the grave misconduct of the government servant has been established in the departmental or judicial proceedings irrespective of the pendency of the appeal either before a departmental or a judicial authority, as the case may be.

29. In N.K. Suparna (supra), the petitioner retired on attaining the age of superannuation while being prosecuted before the Special CBI Court in a corruption case. The petitioner stood convicted and sentenced on the corruption charge on 31.12.2001 i.e. one month before attaining the age of superannuation. The petitioner‟s appeal before the High Court against the conviction and sentence was preferred and was pending, wherein the sentence awarded to her was suspended. The President of India invoked his power under Rule 9(1) of the Pension Rules and forfeited the pension and gratuity payable to her. The petitioner N.K.Suparna raised a similar plea, that since the criminal appeal was pending, the judicial proceedings have not come to an end and the criminal appeal was a continuation of the trial. The Karnataka High Court interpreted clause

(b) of Rule 69(1) of the CCS Pension Rules to mean that a delinquent employee would be entitled to provisional pension from the date of retirement upto and including the date on which the final order may be made by the competent authority after conclusion of departmental or judicial proceedings. The words "after conclusion of departmental or judicial proceedings" were interpreted as conclusion of the appellate proceedings and not the original proceedings on the premise that an appeal is a continuation of the original proceedings. The Division Bench held that the final order envisaged under Rule 9(1) of the CCS Pension Rules - in terms of clause (b) of sub rule (1) of Rule 69, would require to be passed by the President only after the conclusion of the departmental or judicial proceedings. The Division Bench observed:

"8. ... ... In the instant case, since the judicial proceedings, we mean the launching of the prosecution against the petitioner have not been concluded so far in terms of finality, the President of India invoking the power conferred upon him under sub-rule (1) of Rule 9 would not arise. Therefore, the impugned order passed by the President of India in the

purported exercise of power under Rule 9(1) of the Rules should be condemned as one without authority of law inasmuch as the necessary condition to invoke that power did not exist as on the date of the impugned order nor does it exist as on today also".

30. The decision in N.K. Suparna (supra) was assailed before the Supreme Court. The SLP was, however, withdrawn by the petitioner on 20.08.2008. Thus, the issue decided by the Karnataka High Court in N.K. Suparna (supra) has not received the seal of approval of the Supreme Court.

31. Having given our anxious consideration to the matter, we cannot persuade ourselves to agree with the view taken by the Karnataka High Court in N.K. Suparna (supra). Under clause (b) of Rule 69(1), the relevant expression used is "from the date of retirement upto and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority". Pertinently, while making the said rule by resort to proviso to Article 309 of the Constitution of India, the President uses the expression "final" only once i.e. in relation to orders which are passed by the competent authority. However, no such word or expression is used before the word "conclusion of departmental or judicial proceedings". If the intendment of the President - while framing the said rule was to release provisional pension to the government servant upto the date of "final" conclusion of departmental or judicial proceedings, the President would have used the said expression "final" before the words "conclusion of departmental or judicial proceedings", just as he used the expression "final" in respect of the orders to be passed by the competent authority. Thus, the plain grammatical and literal interpretation of clause (b) of Rule 69(1) does not support the interpretation that the conclusion of

departmental or judicial proceedings means the "final" conclusion of departmental or judicial proceedings.

32. Rule 69(2), inter alia, provides that no recovery shall be made from the provisional pension after the conclusion of the proceedings if the pension finally sanctioned is less than the provisional pension, or the pension is reduced or withheld either permanently, or for a specified period. Thus, whatever is released by way of provisional pension to the government is not secured or recoverable from him. Rule 69(1)(a) provides that the provisional pension shall be equal to the maximum pension which would have been admissible on the basis of the qualifying service of the government servant. Thus, if the interpretation sought to be advanced by the petitioner were to be accepted, it would mean that the government would have to pay - month after month, the provisional pension, which - in most cases would be equal to the full pension, even though the government servant stands convicted by the Trial Court of conduct which tantamount to a serious and grave misconduct, merely because his criminal appeal is pending before the higher Court. This could not have been the intendment of the President while framing either Rule 69(1)(b), or Rule 9(1) of the Pension Rules.

33. The decision in the appeal may not come for years for myriad reasons. Firstly, the heavy pendency of criminal appeals would come in the way of disposal of the appeal on an early date. Secondly, even the Government servant/ appellant may seek adjournments to delay the disposal of the appeal. Is it to be accepted that a government servant - who stands convicted of a corruption charge before a criminal Court, should continue to receive provisional pension, just as good as the full pension, only on account of pendency of his criminal appeal? In our view, the answer to this question has to be an emphatic "No".

34. If the interpretation of the petitioner were to be accepted, the conviction would not attain finality even for

purposes of Rule 19 of the CCS (CCA) Rules, or Rule 9 of the Pension Rules even after dismissal of the Criminal Appeal, because the petitioner would still have a right to prefer a Special Leave Petition under Article 136 of the Constitution of India before the Supreme Court. There would be no end to this process as the petitioner could file one petition after another and such review, recall, or even file a curative petition. Pertinently, the conviction of the petitioner has not been stayed by the appellate court and only his sentence has been suspended. Therefore, for all purposes, he is a convict. To permit such a convict to draw provisional pension - which in most cases would be equal to the full pension, would be to make a mockery of the law. The same would mean that despite his conviction by the criminal court involving a serious and grave case of misconduct, he would get away without any adversity, and would continue to remain a burden on the State. Thus, in our view, for purposes of Rules 9(1) and 69(1)(b) of the Pension Rules, the judicial proceedings have attained conclusion upon the conviction of the petitioner by the trial Court, and the competent authority is entitled to pass final orders for withdrawing the whole or part of the pension permanently or for a specified period; for forfeiture of the Gratuity, and; for ordering recovery of the pecuniary loss caused to the government due to the grave misconduct established in the judicial proceedings.

35. The decision in K.C. Sareen (supra) was not brought to the notice of the Karnataka High Court when it decided N.K. Suparna (supra). The Punjab & Haryana High Court in Central Administrative Tribunal, Chandigarh Bench (supra), primarily, relies upon N.K. Suparna (supra) and Akhtari Bi (supra). Unfortunately, the decision of the Supreme Court in K.C. Sareen (supra) was not noticed even by the Punjab and Haryana High Court Bench while rendering its decision.

36. In V.K. Bhasker (supra), the respondent employee had been dismissed from service by resort to Rule 19(i) of

the CCS (CCA) Rules consequent upon his conviction in the corruption case. He assailed his dismissal from service on the ground that his criminal appeal was pending. The tribunal allowed the O.A. of the respondent on the premise that his appeal against his conviction and sentence was pending. The Supreme Court set aside the said order by, inter alia, observing:

"5. The Tribunal was, therefore, not right in holding that the respondent could not be dismissed by invoking the provision of Rule 19(i) of the Rules because the appeal filed by him against the conviction and sentence is pending in the High Court".

37. The petitioner has also placed reliance on the judgment of Allahabad High Court in Uma Shanker Bharti (supra). In this case, while in service, the petitioner was charged under section 302 IPC. He was convicted on 22.09.1988 by the learned Additional Sessions Judge. He preferred an appeal, which was admitted. Thereafter, he retired on superannuation on 30.09.1989. He demanded his retiral benefits. The same were denied on the ground that he stood convicted and sentenced to life imprisonment. The submission advanced by the petitioner before the High Court was that when he was convicted, he was not a pensioner but in active service and, therefore, Regulation 4 of the Pension Regulations for the Army, 1961 („Army Regulation‟, for short) was not attracted.

38. Firstly, we may observe that a perusal of the judgment shows that not only the conviction, but also the sentence under section 302 IPC had been stayed during pendency of the appeal by the High Court vide order dated 16.03.1990. Consequently, despite the petitioner‟s conviction under section 302 IPC, on 22.09.1988 he was granted bail on the very next date i.e. 23.09.1988. On this short ground, Uma Shanker Bharti (supra) is distinguishable. Though we have reservations with the

interpretation given by the Allahabad High Court that the petitioner was not a "pensioner", but in active service while he was convicted and, therefore, Army Regulation 4 was not attracted since the same provides that the competent authority may withhold or withdraw pension if a "pensioner" is convicted of a serious crime, we need not delve into the said issue since the facts, as noticed above, were materially different in Uma Shanker Bharti (supra) from the facts in the present case. We may only observe that the expression used is "a pensioner" in Army Regulation 4, since the pension can be withheld or withdrawn only from a "pensioner", and not from a serving officer in active service. If the departmental or judicial proceedings was pending when the government servant was in active service, it matters not whether the finding of guilt is returned in the said proceedings before or after the retirement of the government servant. In either case, the government is entitled to take disciplinary action against the government servant. Only the nature of the action/ penalty that may be imposed would vary. Obviously, in respect of a retired government servant, the option to dismiss or remove him from service, or subject him to any other major or minor penalty in terms of Rule 11 of the CCS (CCA) Rules is not available. The government can only withhold or withdraw the pension and/ or gratuity, and make recovery of pecuniary loss suffered by the government.

9. In the present case, the conviction of the petitioner has not been suspended.

10. Thus, in view of our judgment in P.C. Misra (Supra), we are of the view that for purpose of passing orders under Rule 19 (i) of the CCS (CCA) Rules, or Rule 9 of the Pension Rules - as the case may be, the conviction of the government servant in respect of an offence which also tantamount to misconduct, is sufficient, and the pendency of the criminal

appeal before the appellate Court is not an impediment to passing of an order under the above provisions. Mere filing of an appeal against conviction does not automatically stay the conviction.

11. In these circumstances, we find absolutely no merit in this petition. The same is, accordingly, dismissed.

VIPIN SANGHI, J

A. K. CHAWLA, J DECEMBER 07, 2018