Delhi High Court
P.C. Misra, Danics/Joint ... vs Union Of India And Ors. on 26 November, 2018
$~3.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 26.11.2018
% W.P.(C) 12470/2018
P.C. MISRA, DANICS/JOINT DIRECTOR (RETD.)
..... Petitioner
Through: Petitioner in person
versus
UNION OF INDIA AND ORS.
..... Respondent
Through: Mr. Gaurang Kanth, CGSC for R-1&2
Mr. Naresh Kaushik, CGSC with Mr.
Devik Singh and Mr. Lakshay Juneja for
R-3
Ms. Avnish Ahlawat, Standing Counsel,
GNCTD (Services) with Mr. N.K. Singh
for R-4&5
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 15.10.2018 passed by the Central Administrative Tribunal (CAT/
Tribunal) in O.A. No. 100/712/2016. The tribunal has rejected the said O.A. of
the petitioner. The petitioner had preferred the said O.A. to, inter alia, assail
the disciplinary proceedings undertaken against him vide memorandum/ show-
cause notice dated 21.07.2011; the order dated 19.01.2016 passed by the Govt.
of India, Ministry of Home Affairs, whereby the President imposed the penalty
of withholding 100% monthly pension otherwise admissible to the petitioner,
as well as forfeiting his full gratuity on permanent basis. He also sought a
declaration that the O.M. dated 04.03.1994 issued by the DOPT, Govt. of India
is invalid and inapplicable to cases of pensioners under Rule 9(1) of the CCS
(Pension) Rules, 1972 (Pension Rules for short) on the ground that it violates
Rule 69 read with Rule 9(4) of the Pension Rules and Article 300A of the
Constitution of India, and on the ground that Rule 9(1) of the Pension Rules is
violative of the welfare principle of State policy. He sought a declaration that
his regular pension and gratuity be sanctioned, and he be allowed commutation
of pension in accordance with the Rules. In the alternative, he sought a
direction that provisional pension under Rule 9(4) read with Rule 69 of the
Pension Rules be continued in accordance with PPO dated 09.03.2011.
2. The petitioner was working as a Selection Grade Officer of NCT of
Delhi in DANICS. A Criminal Case No.31/2008 was instituted against him by
the CBI on the allegation that he had demanded and received bribe while
working as Assistant Commissioner, Sales Tax Department. The Court of the
Special Judge-IV (PC Act) CBI, Tis Hazari, Delhi convicted the petitioner for
offences punishable under Section 7 and 13(1)(d) of the Prevention of
Corruption Act and sentenced him to undergo rigorous imprisonment for a
period of two years and to pay fine of Rs.10,000/-. He was convicted by the
Trial Court vide judgment dated 24.05.2010 and he was sentenced, as
aforesaid, on 26.05.2010. He attained the age of superannuation on 30.06.2010
i.e. after his conviction. Upon his superannuation, provisional pension was
sanctioned in favour of the petitioner on 14.12.2010 under Rule 69 of the
Pension Rules.
3. The appointing authority initially passed an order dated 02.02.2012
imposing punishment of withholding 100% pension and forfeiture of gratuity.
The petitioner was aggrieved by the same and preferred O.A. No. 1175/2002.
The O.A. was disposed of on 13.09.2013. The petitioner was not satisfied with
the order, and preferred W.P.(C.) No. 6509/2013 before this Court. During
pendency of the writ petition, the appointing authority withdrew the order dated
02.02.2012. After issuance of show cause notice to the petitioner, a fresh order
dated 19.01.2016 was passed and, consequently, the aforesaid writ petition was
disposed of on 18.05.2016 with liberty to the petitioner to challenge the order
dated 19.01.2016. The O.A. in question was then preferred by the petitioner in
the aforesaid background.
4. The submission of the petitioner - who appears in person is, firstly, that
the findings of guilt recorded by the Trial Court in the criminal trial are
perverse and contrary to the evidence on record. He claims that the important
witnesses in the case had turned hostile.
5. In our view, the aforesaid submission does not call for determination in
the present petition. During the course of arguments, the petitioner has taken
us through the judgment. We may only observe that though the recovery of the
tainted money was made from PW-9, who was posted as Reader/PA of the
petitioner, he had turned approver and implicated the petitioner. The Trial
Court found independent corroborative evidence to convict the petitioner in the
form of tape-recorded conversation of the petitioner, wherein the petitioner was
heard demanding bribe.
6. In any event, these aspects would be considered by the appellate Court,
as, against his conviction, the petitioner has already preferred his criminal
appeal before this Court. It is for the appellate court to consider the aspect
about the correctness of the judgment dated 24.05.2010 by which the petitioner
stands convicted, as aforesaid. As on date, he stands convicted. It is not the
petitioner‟s case that during pendency of his Criminal Appeal, his conviction
has been stayed by the Appellate Court. Merely his sentence has been
suspended.
7. The next submission of the petitioner is that the tribunal has wrongly
proceeded on the basis that the order dated 19.01.2016 was passed by the Govt.
of India under Rule 19 of the CCS (CCA) Rules, 1965. He submits that the
order has been passed by resort to Rule 9 of the CCS Pension Rules, 1972. He
submits that Rule 19 of the CCS (CCA) Rules could not have been invoked,
since the petitioner had already superannuated on 30.06.2010 i.e. before the
passing of the order dated 19.01.2016.
8. The further submission of the petitioner is that his provisional pension
had been sanctioned under Rule 9(4) read with Rule 69 of the Pension Rules, in
view of the fact that the petitioners appeal against his conviction and sentence
was pending before this Court. 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.
9. The petitioner further submits that Rule 69(1)(b) of the Pension Rules
states that provisional pension shall commence 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".
The submission is that in view of the pendency of the criminal appeal, it cannot
be said that the judicial proceedings stand concluded.
10. The petitioner has submitted that pension is not a bounty, and the same
has been earned by the petitioner on account of his past service. The same
cannot be forfeited, as such forfeiture would lead to petitioner‟s financial
distress and penury. He has placed reliance on the following decisions in
support of his submission:
i) Uma Shanker Bharti v. Chief Controler of Defence Accounts (P)
& Ors., 1995 LawSuit (All 765);
ii) N.K. Suparna v. Union of India, 2004 SCC online Kar 444
iii) Union of India & Anr. v. CAT, Chandigarh Bench, CWP No.982
of 2007 decided on 19.11.2010 by the Punjab & Haryana High
Court.
iv) State of Jharkhand & Ors. V. J.K. Srivastava & Anr., (2013) 12
SCC 210.
11. On the other hand, Mr. Kanth, Ld. Standing Counsel appearing for
respondent no.1 and 2 submits that mere pendency of the criminal appeal does
not come in the way of the government in passing an order by reference to
either Rule 19 (i) of the CCS (CCA) Rules, or Rule 9(1) of the Pension Rules.
He has sought to place reliance on the decision of the Supreme Court in Union
of India v. V.K. Bhasker, (1997) 11 SCC 383, wherein the Supreme Court
ruled that pendency of the appeal against conviction would not be a ground to
assail the order of dismissal passed by reference to Rule 19(i) of the CCS
(CCA) Rules. He also refers to the observation made by this Court in its
judgment rendered in U.O.I. v. Shri J.P. Sharama, W.P.(C.) No. 6465/2003
decided on 04.07.2008. This Court observed that the right of the President
under Rule 9(1) of the Pension Rules is not in any way fettered by the mere fact
that the government servant is released his gratuity and pension, since it is
always open to the President to withdraw the pension in full, or in part, and to
order recovery from the pension or gratuity, of the whole or any part of the
pecuniary loss caused to the government, as may be established in the
departmental or judicial proceedings. Thus, the mere fact that the petitioner was
granted provisional pension vide order dated 14.10.2010 does not estopp the
government from passing the order dated 19.01.2016 withholding 100% of the
pension of the petitioner and forfeiting the gratuity. Reliance has also been
placed on the decision of a learned Single Judge of the A.P. High Court, Mr.
Justice Naveen Rao in B.V. Koteswar Rao v. State of Telangana, in W.P.(C.)
No.15812/2017 decided on 14.03.2018.
12. Having heard learned counsel 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.
13. The submission of the petitioner that the order dated 19.01.2016 has been
passed by the government under Rule 19 of the CCS (CCA) Rules is plainly
incorrect. The said order dated 19.01.2016, in its material part, reads as
follows:
"8. AND WHEREAS, the representation dated 17/07/2015 of
Sh. P. C. Misra, the UPSCs advice dated 06.01.2012 and other
relevant material on records have been considered by the
disciplinary authority. It has been observed that the contentions
of the CO cannot be accepted as the Hon‟ble Court in its
judgment dated 24.05.2010 have adequately rebutted these
conditions on the basis of deposition of witnesses, relevant
documents and various judicial pronouncements and the
Hon‟ble Court had convicted the C.O. Further, the UPSC had
advised that the pendency of the appeal in higher court is not a
bar against taking departmental action under Rule 19 of CCS
(CCA) Rules, 1965. UPSC has observed that in terms of
DOP&T OM No.371/23/92-AVD-III dated 04.03.1994, with the
institution/ completion of disciplinary proceedings including
imposition of penalty as prescribed in the relevant disciplinary
rules, on the basis of conviction imposed on a public servant
concerned, may order suspension of the "sentence" passed by
the trial court till the final disposal of the appeal. Thus, there is
no bar on the penalty of cut in pension admissible to the CO as
he has been held guilty by the trial court for a grave misconduct
on his part. The UPSC has noted that the offences for which the
CO has been convicted by the trial court, constitute grave
misconduct on his part and considered that the end of justice
would be met if the penalty of „withholding 100% monthly
pension otherwise admissible as well as forfeiture of full gratuity
on a permanent basis‟, is imposed on the CO.
9. NOW, THEREFORE, in exercise of the powers vested
under Rule 9 of CCS (Pension) Rules, 1972, the President, after
considering the facts and circumstances of the case, has decided
to impose the penalty of „withholding 100% (hundred percent)
monthly pension otherwise admissible as well as forfeiture of full
gratuity, on a permanent basis‟, is imposed on Sh. P.C. Misra,
Selection Grade Officer of DANICS (Retired). It is, therefore,
ordered accordingly in supersession of the order of even number
dated 02/02/2012". (Emphasis Supplied)
14. The above extract would show that a reference was made to Rule 19 of
the CCS (CCA) Rules only with a view to emphasise that pendency of the
appeal against conviction by the trial Court - which conduct also tantamounts
to grave misconduct or negligence during the period of service, is not a bar to
taking departmental action for punishing the government servant. A perusal of
para 9 of the impugned order dated 19.01.2016, as quoted above, shows that the
same has been passed by reference to Rule 9 of the Pension Rules, and not by
resort to Rule 19 of the CCS (CCA) Rules, as contended by the petitioner.
15. In any event, the settled position in law is that mere reference to an
incorrect provision - as being the source of power, is not fatal to the validity of
the order if the statutory power, otherwise, resides in the authority passing the
order [See, P.K. Palanisamy v. N. Arumugham, (2009) 9 SCC 173]. The
observations made by the tribunal in para 9 of the impugned order have to be
read in the aforesaid context. In any event, the mere reference to Rule 19 of the
CCS (CCA) Rules by the tribunal in the impugned order is no ground to
interfere with the same.
16. Rule 9 of the Pension Rules and Rule 19 of the CCS (CCA) Rules both
provide for imposition of punishment on government servants. Whereas Rule 9
of Pension Rules seeks to empower the government to punish those
government servants who have retired from service in respect of their
misconduct committed while in service, Rule 19 relates to the power of the
government to punish the serving government servant. In the present case, the
petitioner was convicted by the trial court on 24.05.2010. He was sentenced, as
aforesaid, on 26.05.2010. He superannuated shortly thereafter on 30.06.2010.
To deal with such like situations, Rule 69 of the Pension Rules provides for
payment of provisional pension to the retired government servant. Between the
date of the petitioner‟s conviction and sentencing on the one hand, and the date
of his superannuation on the other hand, there was hardly any time for the
government to act and take a consideration decision on the aspect whether
action was called for under Rule 9 of the Pension Rules and, if so, the nature of
such action that was called for. To study the judgment of conviction and take a
considered decision thereafter required some time. It is obvious that it was in
the aforesaid background that the provisional pension was sanctioned to the
petitioner under Rule 69 of the Pension Rules on 14.12.2010.
17. The bare fact that what was sanctioned was only "provisional" pension
demonstrates that the government did not intend to condone the grave
misconduct of the petitioner, in respect of which the petitioner‟s stood
convicted and sentenced by the trial court. Thus, there was no question of any
estoppel applying against the government. Even otherwise, there is nothing to
show that the petitioner was held out any representation, at any stage, that the
government would not take any action against him - either under Rule 19 of the
CCS (CCA) Rules, or after his retirement under Rule 9 of the Pension Rules
premised on the grave misconduct established before the trial court and,
therefore, the question of the petitioner altering his position to his detriment on
the basis of any such representation never arose.
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)
Rules 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. That 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 seek 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.
39. The submission of Mr. Mishra that the withholding of 100% monthly
pension and forfeiture of gratuity is unconstitutional has no merit. There is no
absolute right in a government servant to receive either pension or gratuity.
Under a duly framed law, the same can be withheld and withdrawn. Rule 9 of
the Pension Rules, having been framed by the President in exercise of his
constitutional power contained in proviso to Article 309 of the Constitution, the
same has statutory force in terms of the said Article of the Constitution.
40. For the aforesaid reasons, we find no merit in this petition and dismiss
the same leaving the parties to bear their respective costs. We may, however,
add that in the eventuality of the petitioner‟s criminal appeal succeeding, his
claim for pension and other retiral dues, which have been denied to him by
virtue of the order dated 19.01.2016, would need reconsideration in the
aforesaid light.
VIPIN SANGHI, J
A. K. CHAWLA, J
NOVEMBER 26, 2018
