Delhi High Court
T.C. Sivakumar vs Union Of India & Ors. on 15 November, 2021
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: November 15, 2021
+ W.P.(C) 6318/2020 & CM Nos. 22425/2020, 22426/2020
T.C. SIVAKUMAR
..... Petitioner
Through: Mr.Tushar Ranjan Mohanty,
Advocate
versus
UNION OF INDIA & ORS.
..... Respondents
Through: Mr. Vijay Joshi, Adv. with
Mr. Himanshu Pathak,
Advocates for respondents
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J (ORAL)
1. This petition has been filed by the petitioner with the
following prayers: -
"In view of the facts and circumstances mentioned herein
above and the submissions made, the Petitioner prays
that the Hon'ble High Court may be graciously pleased
to :
(i) issue rule nisi to the Respondents;
(ii) quash and set aside the Office Order dated
29.05.2020 [Annexure : P-1] and Office Order dated
01.06.2020 [Annexure : P-2] as being without
jurisdiction, and also bad and non-est in law;
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(iii) consequently, direct Respondent No.4 to release
all retiral dues to the Petitioner, including Gratuity,
Leave Salary, Commutation of Pension and Pension,
forthwith;
(iv) direct that the entire Period of Suspension of the
Petitioner [20.11.2014 to 30.05.2016] is to be treated as
on duty for all purposes and that the Petitioner would be
entitled to full salary and all allowances for the said
period;
(v) direct Respondent No.4 to release full salary
and all allowances the Petitioner for the period of
suspension of the Petitioner [20.11.2014 to 30.05.2016];
(vi) quash and set aside the Penalty Order dated
___.04.2019 [Annexure : P-4] as being without
jurisdiction, and also bad and non-est in law;
(vii) direct refund of the monies recovered from the
salary of the Petitioner due to imposition of the Penalty
vide Penalty Order dated __.04.2019 [Annexure : P-4];
(viii) direct Respondent No.4 to grant Increment to
the Petitioner on 01.07.2019;
(ix) consequently refix the Pension of the Petitioner;
(x) quash and set aside Disagreement Note dated
__.11.2018 [Annexure : P-5] as being bad and non-est in
law;
(xi) direct that the Major Penalty Charge Sheet
dated 22.12.2015 [Annexure : P-6] has lapsed;
(xii) direct Respondent to pay compound interest @
18% per annum, compounded monthly, on all monies that
is payable to the Petitioner;
(xiii) allow exemplary costs of the present Writ
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Petition to the Petitioner against the Respondents; and
(xiv) pass such other and further order/(s) as may be
deemed just and appropriate in the facts, circumstances
and premises of the present case."
2. The petitioner was appointed as a Lecturer in the
respondent No.4 Institute namely the National Institute for the
Empowerment of Persons with Intellectual Disabilities ('NIEPD',
for short) on January 08, 1990. On November 20, 2014, he was
suspended. On February 10, 2015, his suspension was extended.
The suspension was again extended on August 06, 2015,
November 09, 2015 respectively. While under suspension, a
charge sheet was issued to the petitioner on December 22, 2015.
The suspension was finally revoked on May 30, 2016.
3. Pursuant to the charge sheet, as referred to above, the
inquiry report was submitted by the Inquiry Officer, wherein the
petitioner was not found guilty. The Disciplinary Authority
('DA', for short) after considering the inquiry report, gave a
disagreement note on the inquiry report to the petitioner in
November 2018. The petitioner submitted his response to the
disagreement note. In April 2019, a penalty order was passed by
the Authority under the signatures of the Joint Secretary to the
Government of India ('GOI', for short), whereby the pay of the
petitioner was reduced from ₹1,51,400/- to ₹1,47,000/- for a
period of one year with immediate effect, with a further direction
that he will not earn increments of pay during the period of such
reduction and on the expiry of such period the reduction will have
the effect of postponing his future increments of pay.
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4. The submission of Mr. Tushar Ranjan Mohanty is that the
order of revocation of suspension dated May 30, 2016, does not
specify as to how the period of suspension i.e., November 20,
2014, to May 30, 2016, has to be treated. According to him, the
law is well settled that the order regarding the treatment of period
of suspension has to be passed simultaneously with the order of
revocation of suspension, and in any case, there should not be a
gap of more than six months between the two incidents. In case,
the order of treatment of period of suspension is not passed
within six months from passing of the order of revocation of
suspension then the Competent Authority is denuded from
passing any other order and the entire period of suspension of the
government servant has to be treated, 'as on duty', even if the
government servant has been imposed penalty in the disciplinary
proceedings.
5. That apart, the submission of Mr. Mohanty on the penalty
order is that the same has not been passed by a Competent
Authority, inasmuch as the charge sheet dated December 22,
2015, has been issued to the petitioner by the Secretary, GOI, and
therefore, no penalty could have been imposed on the petitioner
by the lower authority i.e., Joint Secretary, GOI.
6. That apart, his submission is that the disagreement note of
November 2018 is bad on the ground that it is not a tentative
disagreement but a final disagreement and secondly, it has been
issued by a lower authority namely the Under Secretary, therefore
the disagreement note is unsustainable. He finally challenges the
major penalty charge sheet dated December 22, 2015, on the
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ground that it is deemed to have lapsed in view of the extant law,
as the disciplinary proceedings were not concluded within one
year. Finally, he stated that in terms of the impugned orders
dated May 20, 2020, and June 01, 2020, the petitioner on
attaining the age of superannuation has been granted provisional
pension and not the complete retiral benefits as he is entitled to
get, as there is no charge sheet nor any judicial proceedings
pending against the petitioner on the date of retirement i.e., May
31, 2020. Mr. Mohanty has relied on some of the following
judgments in support of his submissions: -
i. Shri Girdhari Lal vs. Delhi Administration, Delhi And
Ors., O.A. No. 1508/1991;
ii. Basant Ram Jaiswal vs. Area Manager (North)
Mahanagar Telephone Nigam Ltd., Bombay Telephones
and Anr., O.A. No. 704/1987;
iii. Hira Lal vs. D.D.A. and Ors., (1995) 34 DRJ 30;
iv. Vijay Kumar Aggarwal vs. Union of India and Anr., W.P.
(C) 916/2007;
v. Vijay Kumar Agarwal vs. Union of India and Anr., SLP
No. 6393/2012;
vi. Union of India vs. M.R. Diwan and Ors., W.P. (C)
5653/2018;
vii. The Municipality of Bhiwandi and Nizampur vs. Kailash
Sizing Works, AIR 1975 SC 529;
viii. Ajay Kumar Choudhary vs. Union of India Through its
Secretary and Anr., (2015) 7 SCC 291
ix. Prem Nath Bali vs. Registrar, High Court of Delhi and
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Anr., (2015) 16 SCC 415
x. In Re: Cognizance for Extension of Limitation, W.P. (C)
No.3 of 2020
7. On the other hand, Mr. Vijay Joshi, learned counsel for
the respondents would submit that the present petition is not
maintainable on the ground of delay and laches, inasmuch as the
penalty order was passed in April 2019 whereas the petition has
been filed after a period of 17 months under the garb of orders
dated May 29, 2020, and June 01, 2020, depicting grant of
provisional pension. He justifies the impugned orders dated May
29, 2020, and June 01, 2020, on the ground that the Ministry's
letter dated May 28, 2020, clarified that the petitioner is not
cleared from the Vigilance angle as a Vigilance case is pending
against him and is allowed provisional pension as per Rules 9 and
69 of the CCS (Pension) Rules, 1972. That apart, he stated that
the petition is liable to be rejected on the ground that the
department proceedings under Rule 14 of CCS (CCA) Rules,
1965 were contemplated against the petitioner for alleged
irregularities in implementation of Assistance to Disabled
Persons for purchasing / fitting of Aids / Appliances Scheme and
the 1st stage advice of Central Vigilance Commission ('CVC', for
short) was obtained and after that charges were framed under
Rule 14 of CCS (CCA) Rules, 1965. Since the major penalty
charges are contemplated against him, the petitioner was not
cleared from the vigilance angle and the provisional pension was
released to him.
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8. Insofar as the submission of Mr. Mohanty that the
suspension period should be treated 'as on duty' and the
petitioner is entitled to full salary for that period is concerned,
Mr. Joshi stated that as the disciplinary proceedings ended with a
major penalty, the treatment of the period of suspension 'as on
duty' does not arise unless otherwise specified by the DA.
9. On the plea that the penalty order was not issued by a
Competent Authority is concerned, the same was issued by the
Joint Secretary with the approval of the DA, and on behalf of the
DA and as such, there is no infirmity in the order of penalty.
10. Insofar as the plea that the disagreement note was final
and not tentative and the subsequent orders are bad is concerned,
he disputed the same by drawing my attention to the
disagreement note to say that it was clearly stated that the same is
tentative. He seeks the dismissal of the writ petition.
11. Having heard the learned counsel for the parties, the issue
which falls for consideration is whether the respondents are
justified in issuing office orders dated May 29, 2020, and June
01, 2020, granting provisional pension to the petitioner. That
apart, the issue which also arises for consideration is whether the
disagreement note and the penalty order issued are just and
proper and the period of suspension of the petitioner between the
period November 20, 2014, to May 30, 2016, need to be
considered as a 'period on duty' and the petitioner is entitled to
full salary during that period.
12. Insofar as the first issue is concerned, it is the case of the
respondents that the petitioner is not clear from vigilance angle,
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and as such, the provisional pension has been sanctioned under
Rules 9 and 69 of the CCS Pension Rules, 1972. In this regard, I
reproduce the contents of the office order dated May 29, 2020, as
under: -
"May 29, 2020
OFFICE ORDER
Sub: Grant of provisional pension to Shri T.C. Sivakumar,
Ex.Director, NIEPID (presently posted in the Ministry) on his
retirement on attaining the age of superannuation reg.
In accordance with the provisions contained in Rule 9 and Rule
69 of CCS (Pension) Rules, 1972 provisional pension is being
allowed to Shri T.C. Sivakumar, Ex.Director, NIEPID (presently
posted in the Ministry) on his retirement on 31.05.2020 on
attaining the age of superannuation due to pending vigilance
clearance from the Ministry."
13. From the perusal of the order, it is noted that the
respondents have sanctioned the provisional pension to the
petitioner in terms of Rule 9 and 69 of the CCS (Pension)
Rules, 1972, which I reproduce as under: -
"9. Right of President to withhold or withdraw
pension
1[(1) The President reserves to himself the right of
withholding a pension or gratuity, or both, either in full
or in part, or withdrawing a pension in full or in part,
whether permanently or for a specified period, and of
ordering recovery from a pension or gratuity of the whole
or part of any pecuniary loss caused to the Government,
if, in any departmental or judicial proceedings, the
pensioner is found guilty of grave misconduct or
negligence during the period of service, including service
rendered upon re-employment after retirement :
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Footnote : 1. Substituted by G.I., Dept. of P. & P.W.,
Notification No. 7/14/90-P. & P.W. (F), dated the 23rd
August, 1991, published as S.O. No. 2287 in the Gazette
of India, dated the 7th September, 1991.
Provided that the Union Public Service Commission
shall be consulted before any final orders are passed :
Provided further that where a part of pension is
withheld or withdrawn the amount of such pensions shall
not be reduced below the amount of rupees three hundred
and seventy-five per mensem.]
2(a) The departmental proceedings referred to in sub-
rule (1), if instituted while the Government servant was in
service whether before his retirement or during his re-
employment, shall, after the final retirement of the
Government servant, be deemed to be proceedings under
this rule and shall be continued and concluded by the
authority by which they were commenced in the same
manner as if the Government servant had continued in
service :
Provided that where the departmental proceedings are
instituted by an authority subordinate to the President,
that authority shall submit a report recording its findings
to the President.
(b) The departmental proceedings, if not instituted while
the Government servant was in service, whether before
his retirement, or during his re-employment, -
(i) shall not be instituted save with the sanction of the
President,
(ii) shall not be in respect of any event which took
place more than four years before such institution, and
(iii) shall be conducted by such authority and in such
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place as the President may direct and in accordance with
the procedure applicable to departmental proceedings in
which an order of dismissal from service could be made
in relation to the Government servant during his service.
(3) 1 omitted
Footnote : 1. Deleted by G.I., Dept. of P. & P.W.,
Notification No. 38/189/88-P. & P.W. (F), dated the 4th
February, 1992, published as G.S.R. 55 in the Gazette of
India, dated the 15th February, 1992.
(4) In the case of Government servant who has retired
on attaining the age of superannuation or otherwise and
against whom any departmental or judicial proceedings
are instituted or where departmental proceedings are
continued under sub-rule (2), a provisional pension as
provided in 2[Rule 69] shall be sanctioned.
Footnote : 2. Substituted by G.I., Dept. of Per. & A.R.,
Notification No. 6(1), Pen. (A)/79, dated the 19th May,
1980.
(5) Where the President decides not to withhold or
withdraw pension but orders recovery of pecuniary loss
from pension, the recovery shall not ordinarily be made
at a rate exceeding one-third of the pension admissible on
the date of retirement of a Government servant.
(6) For the purpose of this rule, -
(a) departmental proceedings shall be deemed to be
instituted on the date on which the statement of charges is
issued to the Government servant or pensioner, or if the
Government servant has been placed under suspension
from an earlier date, on such date ; and
(b) judicial proceedings shall be deemed to be
instituted -
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(i) in the case of criminal proceedings, on the date on
which the complaint or report of a police officer, of which
the Magistrate takes cognizance, is made, and
(ii) in the case of civil proceedings, on the date the plaint
is presented in the court.
xxxx xxxx xxxx
69. Provisional pension where departmental or judicial
proceedings may be pending
(1) (a) In respect of a Government servant referred to
in sub-rule (4) of Rule 9, the Accounts Officer shall
authorize the provisional pension equal to the maximum
pension which would have been admissible on the basis
of qualifying service up to the date of retirement of the
Government servant, or if he was under suspension on the
date of retirement up to the date immediately preceding
the date on which he was placed under suspension.
(b) The provisional pension shall be authorized by
the Accounts Officer during the period commencing from
the date of retirement up to and including the date on
which, after the conclusion of departmental or judicial
proceedings, final orders are passed by the competent
authority.
(c) No gratuity shall be paid to the Government
servant until the conclusion of the departmental or
judicial proceedings and issue of final orders thereon :
Provided that where departmental proceedings have
been instituted under Rule 16 of the Central Civil
Services (Classification, Control and Appeal) Rules,
1965, for imposing any of the penalties specified in
Clauses (i), (ii) and (iv) of Rule 11 of the said rules, the
payment of gratuity shall be authorized to be paid to the
Government servant.
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(2) Payment of provisional pension made under sub-
rule (1) shall be adjusted against final retirement benefits
sanctioned to such Government servant upon conclusion
of such proceedings but no recovery shall be made where
the pension finally sanctioned is less than the provisional
pension or the pension is reduced or withheld either
permanently or for a specified period.
Footnote : 1. Inserted by G.I., Dept. of Per. & A.R.,
Notification No. 30/2/80-Pension Unit, dated the 13th
February, 1981."
14. A perusal of sub-rule (4) of Rule 9 of the CCS (Pension)
Rule, 1972, it is clear that the provisional pension shall be
sanctioned if a government servant has retired or attained the age
of superannuation and against whom any departmental or judicial
proceedings are instituted or where departmental proceedings are
continued under sub-rule (2). It is not the case of the respondents
that departmental or judicial proceedings were pending /
instituted, before or on the date of superannuation, against the
petitioner. Even it is not the case of the respondents that the
petitioner was under suspension from an earlier date [reference
Rule 9(6)(a)]. In that sense, the requirement under Rule 9(4) has
not been satisfied for sanctioning provisional pension to the
petitioner.
15. On similar lines, is also Rule 69 of the CCS (Pension)
Rules, 1972, which also contemplates that the authority shall
authorize the provisional pension equal to the maximum pension
which would have been admissible on the basis of qualifying
service up to the date of retirement of the Government servant, or
if he was under suspension on the date of retirement up to the
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date immediately preceding the date on which he was placed
under suspension. Since the requirement of the substantive
provision of Rule 9(4) is not satisfied, the impugned orders
sanctioning provisional pension shall be unsustainable. Merely,
because the petitioner was not cleared from vigilance angle
would not suffice the requirement of the rule. To that extent, the
impugned orders dated May 29, 2020, and June 01, 2020, are bad
/ unsustainable.
16. Insofar as the plea of the petitioner that the disagreement
note is not tentative but final is unmerited. A perusal of the said
order, more specifically the last paragraph, which reads as under,
it is clear that the views of the DA were tentative and on that
ground, the order cannot be interfered with.
"xxxx xxxx xxxx
NOW therefore a copy of Inquiry Report, copy of 2nd
stage advice letter dated 24.09.2018 of CVC and the
tentative views / disagreement of the Disciplinary
Authority as mentioned in the above paras is being sent to
Shri T.C. Siva Kumar with the directions to send his
representation on the report of the Inquiring Authority
within 15 days of the receipt of this notice, failing which
it will be presumed that he has no representation to make
and the case will be processed further as per the
provisions of CCS(CCA) Rules, 1965."
17. Mr. Mohanty is not correct in picking up a certain part of
the order to state, that the view of the DA in the disagreement
note is final. The following observation of the DA, on which
reliance was placed by Mr. Mohanty to state, that the view of the
DA was a final view, is unmerited as the view of the DA has to
be read in conjunction with the paragraph already reproduced
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above.
"xxxx xxxx xxxx
WHEREAS the Disciplinary Authority does not agree with
the findings of the Inquiring Authority and holds that the
Articles of charge no. I, V, VI & VII as proved and is of
the view of imposing major penalty upon Shri T.C. Siva
Kumar."
On such reading, it is clear that the DA has expressed his
tentative views while disagreeing with the conclusion of the
Inquiry Officer in the report. In fact, I find no such objection has
been taken by the petitioner in his reply to the disagreement note.
The plea is clearly an afterthought and the reliance placed by
Mr. Mohanty on the judgment of Yoginath D. Bagde vs. State of
Maharashtra and Anr., AIR 1999 SC 3734, is concerned, the
same has been complied with in the case in hand.
18. The plea that the penalty order has not been issued by a
Competent Authority is concerned, I am not in agreement with
the plea of Mr. Mohanty for the simple reason, the order more
specifically paragraph 12, which I reproduce as under, is clear
that the decision is of the DA but conveyed to the petitioner by
the Joint Secretary, GOI. So, in effect, the impugned decision is
of the DA.
"NOW therefore the disciplinary authority has ordered
that the pay of Shri T.C. Siva Kumar be reduced by one
stage from ₹1,51,400/- to ₹1,47,000/- for a period of one
year with immediate effect with the further directions that
he will not earn increments of pay during the period of
reduction and that on the expiry of this period the
reduction will have the effect of postponing his future
increments of pay."
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I do not see any infirmity in the same, hence this plea of Mr.
Mohanty is rejected.
19. Insofar as the plea of Mr. Mohanty that the period of
suspension needs to be treated as on duty and the petitioner is
entitled to the full salary for the period November 20, 2014, till
May 30, 2016, is concerned, Mr. Mohanty is justified in
advancing the plea that the Authority, while revoking the
suspension order, did not decide, in what manner the suspension
period shall be treated. Even assuming that on the date when the
suspension was revoked, the disciplinary proceedings were not
complete, even then I find that the DA while passing the final
order, has also not decided, in what manner the suspension period
shall be treated. In fact, till date, there is no order in that regard.
The Division Bench of this Court in the case of Vijay Kumar
Aggarwal (supra) has by referring to FR 54-B has held that the
law is that if while revoking the suspension or within a
reasonable time thereof, no order is passed pertaining to pay and
allowances for the period of suspension, the Authority is denuded
from passing such order and the inevitable result would be, a
government servant would be entitled to full salary for the period
he remained under suspension. The relevant paragraph is
reproduced as under: -
"25. We note that Rule 5 B of the All India Services
(Discipline & Appeal) Rules 1969 is pari materia with FR
54 B and in the decisions reported as 1993(25) ATC 321
Girdhari Lal vs. Delhi Administration & Ors, 1993 (24)
ATC 641 Basant Ram Jaiswal vs. Area Manager (North)
MTNL Bombay, 1996 (3) (Supp.) LLJ 855 Hira Lal vs. DDA
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& Ors. and AIR 1987 SC 2257 O.P.Gupta vs. UOI & Ors. it
has been held that while revoking the suspension it is the
duty of the competent authority to pass an order regarding
pay and allowances for the period a government servant
remained under suspension and that the composite order
has to be a part of the same transaction having two parts
and that the power to revoke the suspension cannot be
exercised in isolation of the power to pass an order
regarding pay and allowances. But, the said decisions do
not hold that if no order pertaining to pay and allowances is
passed, an order revoking suspension is void and non-est.
As clarified by the Tribunal in Basant Ram Jaiswal's case
(supra), in such situation the competent authority cannot
exercise the power under FR 54 B. Thus, the law is that if
while revoking the suspension or within a reasonable time
thereof, no order is passed pertaining to pay and allowances
for the period of suspension, the authority is denuded from
passing such order and the inevitable result would be the
Government servant being entitled to the fully salary for the
period he remained under suspension."
20. The aforesaid conclusion of the Division Bench of this
Court has been upheld by the Supreme Court in SLP No.
6393/2012 titled Vijay Kumar Agarwal (supra) by stating in
paragraph 22 as under:-
"22) According to us, the aforesaid approach of the High
Court, under the given circumstances, is without blemish.
The High Court has relied upon certain judgments of this
Court including the decision in the case of Basant Ram
Jaiswal v. Area Manager (North) MTNL Bombay, 1996 (3)
Supp. LLJ 855, which held that in such a situation, the
competent authority cannot exercise the power under FR
54B."
21. In view of the above, the plea of Mr. Joshi that as the
disciplinary proceedings have ended with a major penalty, the
treatment of period of suspension as on duty does not arise unless
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otherwise specified by the DA, is unmerited being contrary to law
as noted above.
22. Insofar as the plea of Mr. Mohanty that the charge sheet
dated December 22, 2015, need to be set aside on the ground that
the inquiry has not been completed within one year by relying
upon the judgment of the Supreme Court in the case of Prem
Nath Bali (supra) is concerned, the same is not appealing. This I
say so for the reason that the petitioner has challenged the charge
sheet much after the penalty was imposed and acted upon by the
respondent, inasmuch as the order of penalty is of the month of
April 2019 and according to Mr. Mohanty, the effect thereof has
come to an end on April 30, 2020, whereas the present petition
has been filed by the petitioner on July 10, 2020, much after the
said order has been given effect to. In other words, the date on
which the petitioner has filed the writ petition, the penalty order
has been implemented, without there being any challenge and it is
also a fact that the petitioner had also participated in the
proceedings before the Inquiry Officer without demur. If that be
so, the petitioner having participated in the proceedings and not
contested the penalty order passed thereof, cannot now, at a much
later point of time, challenge the charge sheet which resulted in
the penalty.
23. In view of my above conclusion, the reliance placed by
Mr. Mohanty on the judgments of the Supreme Court in Prem
Nath Bali (supra) and of this Court in M.R. Diwan (supra) is
misplaced and they shall not have applicability in the facts of this
case.
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24. The writ petition is required to be allowed partially. The
orders dated May 29, 2020, and June 01, 2020, are quashed. The
petitioner shall be entitled to the retiral benefits including pension
etc. The petitioner shall also be entitled to full salary for the
period of suspension between the periods November 20, 2014, to
May 13, 2016. The other prayers of the petitioner are rejected.
The benefits in terms of this order shall be released to the
petitioner within a period of three months from today with
interest computed @ 6% per annum.
25. It must be stated, this Court has only considered the
issues which fell for consideration in this petition. That apart
Mr. Mohanty has referred and relied upon some other judgments
in his pleadings suffice to state that the same have not been
referred to in view of limited submissions made by him as noted
above. No costs.
CM Nos. 22425/2020 & 22426/2020
As I have already heard and decided the present writ
petition, the applications have become infructuous and are
dismissed as such.
V. KAMESWAR RAO, J
NOVEMBER 15, 2021/ak
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:15.11.2021
14:24:45
