Delhi High Court
Uoi And Ors. vs Central Administrative Tribunal on 15 November, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 15.11.2018
+ W.P.(C) 3092/2003
UOI & ORS. ..... Petitioners
Through : Sh. R.V. Sinha with Sh. A.S. Singh and
Sh. Amit Sinha, Advocates.
versus
CENTAL ADMINISTRATIVE TRIBUNAL ..... Respondent
Through : Sh. Sanjeev Saraswat with Ms.
Tejaswini Chandrashekhar, Advocate, for
Respondent No.2.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE PRATEEK JALAN
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
1. Aggrieved by the action of the petitioner [hereafter referred to as "the
Union"] in directing the withholding of his pension, the second respondent
approached the Central Administrative Tribunal (CAT) in an application,
contending that his previous 29 years' employment which culminated in the
voluntary retirement being sanctioned with effect from 19.04.1999 entitled
him to draw pension.
2. The salient facts are that the second respondent [hereafter "the
applicant"] had joined the Union Department of Telecommunications in
1970 where he continued and rose to the position of General Manager. On
19.04,1999, he was permitted to voluntarily retire which he did from that
date. The next month, i.e. on 19.05.1999, he sought permission to take
commercial employment with M/s. Bharti Cellular Ltd. The Union sought
certain explanation from him through its letter of 02.06.1999 which he
provided by reply dated 22.06.1999. The applicant claimed before the CAT
that upon not receiving any reply/response, "the deemed approval in terms
of Rule 10(4) of the CCS (Pension) Rules, 1972" [hereafter referred to as
"the CCS Rules"] operated and that the permission originally sought on
19.05.1999 to which clarification furnished on 22.06.1999 enabled him to
continue in the commercial employment which he had obtained in the
meanwhile and - for which he reported for duties on 01.07.1999.
3. The Union resisted the proceedings, contending firstly that it never
consented to the commercial employment application and that in fact on
09.09.1999, it had issued a Show Cause Notice (SCN) upon becoming aware
that the applicant had joined commercial employment on 01.07.1999. It
further submitted that by virtue of Rule 10(6), it was no longer required to
seek any further extension but rather upon being informed about the
applicant's joining employment it was entitled to take up proceedings and
recover the pension which had been released/granted in the meanwhile.
4. The CAT, by the impugned order, granted relief to the applicant, after
noticing the relevant provisions, i.e. Rules 10(4) and 10(6). The CAT
reasoned as follows:
"13. If one has regard to Rule 10(4) ibid if the Government
servant, after retirement, makes an application for commercial
employment, and the Government does not refuse to grant the
permission applied for or does not communicate the refusal to
applicant, the Government shall be deemed to have granted the
permission applied for. However, this is subject to proviso that
in case the information is found defective the period of 90 days
was commenced from the date of the defects have been removed.
Rule 10(6) ibid, provides a provision which entitles the
Government to withdraw pension for a period of commercial
employment, provided a show cause notice issued.
14. In the light of this provision, applicant had made request
to the respondents to take up commercial employment on
19.05.1999 which was sought to be processed with DOT by
letter dated 2.6.1999. In this communication of 2.6.1999,
respondents have, with reference to the application dated
19.5.1999, directed applicant to furnish the requisite
information and it was stipulated that the limit of 90 days as
prescribed under Rule 19(4) would commenced from the date of
receipt of such information. Applicant furnished to the
respondents all the requisite information on 22.6.1999 and from
that date the period of 90 days had commenced on 22.9.1999. In
absence of any communication of refusing the permission to
applicant or any order passed to refuse such permission, the
presumption has been drawn in favour of applicant for deemed
grant of permission. In so far as the proviso to Rule 10(4) is
concerned, there is nothing on record to establish that any
order has passed by respondents after 22.6.1999 to indicate that
the information furnished by applicant in any manner was
defective or insufficient for which further clarification was
sought from him which could have leased a life of 90 days for
deemed permission from the date of submission of requisite
clarification by applicant. The resort of respondents to show
cause notice dated 9.9.1999 cannot be read as an order passed.
Further in proviso to Rule 10(4) ibid, rather it is a
memorandum issued under Rule 10(6) of Rules which is on
subsequent to deemed grant of permission. The attempt of
respondents that they have sought clarification from M/s. BCL
in July, 2000 can be of no avail as there is nothing on record to
establish that information furnished by applicant on 22.6.1999
was in any manner defective or insufficient, as such as per Rule
10(4) and as respondents have neither refused the permission
nor communicated the same upto 22.9.1999, the same is deemed
to have been granted on 22.9.1999, i.e. expiry of 90 days from
the date the requisite information was furnished by applicant on
22.6.1999. As such it cannot be held that applicant has sought
commercial employment within two years of his retirement
without any permission. Accordingly, orders passed on
20.9.2000, under Rule 10(6) of Rules ibid, cannot be
sustained."
5. It is highlighted on behalf of the UOI that the CAT overlooked the
salient fact that a SCN was in fact served upon the applicant and that proof
of this was available on the record in the form of postal certificate. It was
highlighted furthermore that the CAT ignored the correct position in law that
upon being informed that the applicant had obtained commercial
employment on 01.07.1999, the Central Government was no longer bound to
seek any further clarification but straightaway proceeding with the SCN
which it did on 09.09.1999.
6. Learned counsel for the applicant, on the other hand, has resisted the
UOI's petition, contending that firstly the applicant had obtained
commercial employment and had worked only for a period of one year with
M/s. Bharti Cellular Ltd. It was urged besides that the applicant at no stage
was served with the SCN and that upon the expiry of period of 3 months
from 22.06.1999, the deemed approval provision by virtue of Rule 10(4)
operated proprio vigore. Learned counsel also relied upon the judgment of
the Supreme Court in State of Haryana & Ors. v. S.K. Singhal AIR 1999 SC
1829 and Dinesh Chandra Sangma v. State of Assam and Ors. 1978 ILLJ 17
SC.
Analysis and Conclusions:
7. The relevant rules dealing with the issues are extracted below:
"Rule 10(4):
(4) Where within a period of [ninety days] of the date of
receipt of an application under sub-rule (3), the Government
does not refuse to grant the permission applied for or does not
communicate the refusal to the applicant, the Government shall
be deemed to have granted the permission applied for:
Provided that in any case where defective or insufficient
information is furnished by the applicant and it becomes
necessary for Government to seek further clarifications, and/or
information from him, the period of [ninety days] shall be
counted from the date on which the defects have been removed
and/or complete information has been furnished by the
applicant.
Rule 10(6):
(6) If any pensioner takes up any commercial employment at
any time before the expiry of two years from the date of his
retirement without the prior permission of the Government or
commits a breach of any condition subject to which permission
to take up any commercial employment has been granted to him
under this rule, it shall be competent for the Government to
declare by order in writing and for reasons to be recorded
therein that he shall not be entitled to the whole or such part of
the pension and for such periods as may be specified in the
order :
Provided that no such order shall be made without giving the
pensioner concerned an opportunity of showing cause against
such declaration :
Provided further that in making any order under this sub-
rule, the Government shall have regard to the following factors,
namely :-
(i) the financial
circumstances of the
pensioner concerned;
(ii) the nature of, and the
emoluments from the
commercial
employment taken up
by the pensioner
concerned; and
(iii) any other relevant
factor.
8. The factual discussion would show that the applicant was permitted to
retire voluntarily in terms of his request with effect from 19.04.1999. He
sought for permission to seek commercial employment in terms of Rule
10(6) on 19.05.1999. In terms of Rule 10(4), if no decision were
communicated by the Central Government, on the expiry of 90 days from
the date of receipt of application, permission can be deemed to have been
granted. An exception, however, is that if the application does not provide
sufficient information, the period spent in obtaining the information is
excluded. Rule 10(6) spells out the consequence that would visit the
petitioner for not securing prior permission before obtaining commercial
employment. The second proviso - to Rule 10(6) spells out further
conditions before an adverse order can be made.
9. In the present case, the request of the applicant (on 19.05.1999) did
not contain certain particulars which the Central Government deemed
crucial. It, therefore, wrote to the applicant on 02.06.1999. The particulars
included a copy of the appointment letter, of the private employer. The
response to this was given on 22.06.1999 by the latter which enclosed a copy
of M/s. Airtel Limited's appointment letter dated 01.06.1999 which stated
that the appointment was to be effective immediately. In the light of this
letter, on 09.09.1999, the Central Government proposed to proceed against
the applicant and denied pension. The applicant successfully contended
before the Tribunal that this proposal was barred by time.
10. According to the petitioner/applicant, the reply of 22.06.1999 was
received by it on 02.07.1999. There is evidence on the record to show that
the previous day, i.e. on 01.07.1999, the applicant had jointed the
employment and services of M/s. Airtel Limited. Furthermore, the Union has
brought on record the application for release of pension and the declaration
given by the applicant, to his bank in terms of the rules. That declaration is
ambiguous; at one stage, the applicant stated that he had not accepted any
commercial employment. However, quite contrary to it, he also stated that it
stated that he had not accepted any commercial employment in India. Under
the same entry, a self-declaration of having accepted commercial
employment after obtaining previous sanction of the Central Government
was also given.
11. From the above factual analysis and the conclusions recorded by the
CAT, this Court is of the opinion that the Tribunal clearly erred in holding
that the 90 day period aided the applicant and that deemed approval was
given in terms of Rule 10(4). Once the petitioner's application for seeking
commercial employment was given and information elicited on 02.06.1999 -
to which in fact he responded on 22.06.1999, a communication which
appears to have been received by the Central Government on 02.07.1999, he
could not have proceeded on the assumption that there was a deemed
approval. What is a matter of record is that on 01.07.1999 he proceeded to
join the duties of M/s. Airtel Limited. No doubt, the Show Cause Notice was
issued later and there is some controversy whether it was received within
time, however, this Court is of the opinion that given the length of time, it
would not be appropriate to withhold the entire relief, i.e. the payment of
pension for the period that the petitioner had employment. The deemed
approval given by the CAT is set aside to the extent that the applicant is held
entitled to pension for the period prior to 01.10.1999. Consequently, the
Union of India is directed to refund the applicant's pension withheld for the
period from 01.10.1999 onwards.
12. The writ petition is partly allowed in the above terms.
Order dasti.
S. RAVINDRA BHAT
(JUDGE)
PRATEEK JALAN
(JUDGE)
NOVEMBER 15, 2018
