Delhi High Court
Dr. Lokesh Sharma vs Union Of India & Anr. on 17 February, 2022
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 17.02.2022
+ W.P.(C) 6928/2020 and CM No.23758/2020 (stay)
DR. LOKESH SHARMA ..... Petitioner
Through: Ms. Sangita Rai, Advocate.
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr. Siddharth Khatana, Senior
Panel Counsel for R-1.
Mr. Yashpal Singh, Advocate for
R-2.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT
1. Present writ petition has been preferred by the Petitioner seeking
quashing of Memorandum dated 28.10.2019 as well as order dated
19.12.2019, whereby sanction to initiate departmental proceedings
against the Petitioner was accorded by Chairman, Delhi Library Board
(hereinafter referred to as 'DLB'). Challenge is also laid to Charge
Memorandum dated 19.12.2019 and consequential orders and
proceedings including order dated 07.08.2020, whereby Inquiring
Authority was appointed by DLB, to inquire into the charges framed
against the Petitioner.
2. The grievance raised by the Petitioner is primarily structured on the
applicability of the CCS (CCA) Rules, 1965 (hereinafter, referred to as
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'CCA Rules') and the CCS (Conduct) Rules, 1964 (hereinafter referred to
as 'Conduct Rules') as well as the CCS (Pension) Rules, 1972
(hereinafter referred to as 'Pension Rules'), to a contractual appointment,
as in the present case.
3. Shorn of unnecessary details, facts relevant to the dispute between
the parties to the lis are that Delhi Public Library/Respondent No.2 herein
invited applications for the post of Director General in Pay Band-4 with
Grade Pay of Rs.10,000/-, on deputation (including short term contract)/
contract basis, through an advertisement published in the Employment
News dated 10-16th December, 2016. Petitioner applied for appointment
to the said post and was recommended by the Selection Committee.
Respondent No.2 sought his vigilance clearance from the University of
Delhi (hereinafter referred to as 'University'), which was received vide
letter dated 17.05.2017. Letter offering appointment was issued on
13.10.2017, which was accepted by the Petitioner on 16.10.2017 and he
joined Respondent No.2.
4. Relevant would be at this stage to note that Petitioner, prior to his
applying for the aforesaid post, was working as Deputy Librarian with the
University, wherefrom he superannuated on 31.08.2016.
5. As per the offer of appointment, appointment of the Petitioner with
Respondent No.2 was on contract, for a period of three years from the
date of assumption of charge of the post or until further orders, whichever
was earlier. Pay and allowances were to be fixed as per Rules and
Regulations of the Government of India. Petitioner's performance was
subject to review from time to time and the appointment was liable to be
terminated on one month's notice on either side, without assigning any
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reason. Respondent No.2, however, reserved the right to terminate the
services before expiration of the stipulated period of notice by making
payment of a sum equivalent to the contractual amount, in lieu of notice
period. It was specified in the offer of appointment that as a Director
General, Petitioner shall be the Chief Executive of the Delhi Public
Library System and the Member Secretary of DLB. The responsibilities
that the Petitioner was required to shoulder were stipulated in the offer
letter, which list was inclusive and not exhaustive.
6. Appointment of the Petitioner was with the approval of
Appointments Committee of the Cabinet (ACC). Petitioner was declared
as Head of the Department, the highest administrative position in
Respondent No.2 and by the order of appointment itself, he was delegated
various Financial and Administrative powers of the Head of Department
and Member Secretary, in accordance with the provisions of Delegation
of Financial Power Rules, General Financial Rules ('GFR') and CCA
Rules.
7. Petitioner submitted his resignation on 23.08.2019, which was
accepted by Respondent No.2 on 26.08.2019, with the condition that
since an inquiry was being conducted by the Respondents, Petitioner shall
be bound to appear in the inquiry, as and when required by the
Respondents.
8. On 28.10.2019, a Memorandum was issued by Respondent No.2
alleging financial and administrative irregularities and response was
sought from the Petitioner. Order dated 19.12.2019 was issued by
Respondent No.2, whereby the Chairman, DLB accorded sanction for
initiating the departmental proceedings against the Petitioner invoking
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Rule 9(2)(b)(i) of Pension Rules. It was alleged that the Petitioner, while
functioning as Director General from 16.10.2017 to 23.08.2019, indulged
in procedural lapses in regard to purchases and recruitment. It was further
directed that the departmental proceedings shall be conducted in
accordance with the procedure laid down in Rules 14 and 15 of the CCA
Rules, by the Inquiring Authority, to be nominated by the Chairman,
Delhi Public Library. Charge Memorandum was issued on 19.12.2019
enclosing Statement of Imputations and List of Documents and
Witnesses.
9. Petitioner replied to the Memorandum on 20.01.2020, objecting to
the applicability of Pension Rules on the ground that his appointment was
on contract basis and governed by the terms of the Contract Agreement
dated 13.10.2017. Memorandum dated 10.02.2020 was received by the
Petitioner, in response to his reply, wherein it was stated that Petitioner
was an ex-employee and pensioner of the University. Suitable action
against a contractual employee can be taken in case he has committed a
misconduct/irregularity/misappropriation of funds, etc. during his tenure
as a contractual employee. He can also be booked under the Pension
Rules. It was further stated that being the retired employee of any
University/autonomous body, Petitioner was required to display a
conduct which sets an example of a good citizen. Petitioner was called
upon to submit his reply in response to the charges, within 15 days of
issuance of the said Memorandum, failing which it was to be presumed
that he had nothing to say in the matter.
10. Petitioner replied to the Memorandum dated 10.02.2020 and
reiterated his objections to the applicability of the Conduct Rules and the
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Pension Rules. Vide Memorandum dated 18.03.2020, Respondent No.2
gave further opportunity to the Petitioner to reply to the charges within
seven days, failing which the proceedings were to be conducted ex- parte.
Petitioner responded to the Memorandum on 23.03.2020 and stated that
his earlier replies along with the judgments referred to therein, should be
considered as his reply to the Memorandum dated 18.03.2020. Finally, on
07.08.2020, Respondent No.2 appointed Dr. S.K. Pachauri, Retired
Secretary to the Government of India as Inquiring Authority, to inquire
into the charges framed against the Petitioner, as per the procedure laid
down in Rule 14(2) of the CCA Rules.
11. Finally, on receipt of letter dated 08.09.2020, requiring the
Petitioner to appear before the Inquiry Officer on 24.09.2020, present
petition was filed. Vide order dated 24.09.2020, Court passed an interim
order staying the disciplinary proceedings, pursuant to the Charge
Memorandum dated 19.12.2019.
CONTENTIONS ON BEHALF OF THE PETITIONER
12. Appointment of the Petitioner was on contract basis, which is
evident from the newspaper publication as well as the offer of
appointment. The employment was for a period of three years, terminable
by one month's notice on either side. Being a contractual appointment,
the same was regulated only by the terms and conditions of the Contract
Agreement. Neither in the advertisement nor in the offer of appointment,
was it stipulated that the Petitioner would be governed by the Pension
Rules and thus, the Order sanctioning the initiation of disciplinary
proceedings and the Charge Memorandum, both dated 19.12.2019, issued
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by Respondent No.2, exercising power under Rule 9(2)(b)(i) of the
Pension Rules, are without jurisdiction and deserve to be quashed.
13. Charge memorandum has been issued against the Petitioner for
alleged violation of the Conduct Rules, however, the said Rules are not
applicable to the Petitioner. Rule 2(b) of Conduct Rules defines
'Government servant' as any person appointed by the Government to any
civil service or post in connection with the affairs of the Union and
includes a civilian in a Defence Service. Petitioner does not fall into any
of these categories and thus, his actions/conduct are not regulated by the
Conduct Rules.
14. Respondent No.2 has initiated disciplinary proceedings against the
Petitioner invoking the provisions of the Pension Rules. However, Rule 2
thereof, which deals with the applicability of the said Rules, by its plain
reading leaves no doubt that the Rules apply to Government servants
appointed on or before 31st day of December, 2003. Even otherwise,
provisions of Rule 2(g) clearly exclude persons employed on contract
except where the contract provides otherwise. In the present case, the
Contract Agreement dated 13.10.2017 did not provide that Petitioner's
services will be governed by the Pension Rules. Since the Pension Rules
do not apply to the Petitioner, the disciplinary proceedings initiated,
under Rule 9 thereof, are void ab initio and deserve to be set aside.
15. Petitioner is a pensioner of the University and, therefore, only the
Competent Authority prescribed under the relevant University Statutes,
vested with the power to withhold or withdraw pension, can exercise such
power, if the pensioner is found guilty of a grave misconduct or
negligence, committed while in service of the University or during
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re-employment after retirement, from the University. No other Authority,
including the President of India under Rule 9 of the Pension Rules, can
exercise power to withhold or withdraw pension or gratuity, which it does
not grant.
CONTENTIONS ON BEHALF OF RESPONDENT NO.2
16. Petitioner was appointed as Director General of Respondent No.2,
after approval by the ACC and was delegated various Administrative and
Financial Powers of Respondent No.2. Nature of the appointment was
're-employment' on contract basis for a period of three years, subject to
termination by one month's notice on either side. Petitioner was the Head
of the Department, which is the highest administrative post in Respondent
No.2. During his tenure as Director General, he made various purchases
without completing codal formalities and also made recruitments, without
approval of the Competent Authority. There are serious allegations of
diversion of funds received from the Ministry of Culture, for payment to
the pensioners, which resulted in non-payment of pension arrears/
pension to the retirees, prompting them to litigate. On coming to know
that an inquiry was contemplated, Petitioner submitted his resignation.
Resignation tendered by the Petitioner was accepted but with a condition
that he would co-operate and participate in the inquiry, as and when
called. Respondent No.1 constituted a Committee to inquire into the
financial and administrative irregularities during the tenure of the
Petitioner and after sanction was granted, in exercise of powers conferred
under Rule 9(2)(b)(i) of the Pension Rules, disciplinary proceedings were
initiated against the Petitioner. It is settled law that the Courts should
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refrain from interfering in disciplinary matters, at the stage of issuance of
chargesheet and permit the employer to conduct an inquiry into the
alleged charges. The writ petition is thus premature and deserves to be
dismissed, on this short ground.
17. The principal contention raised by the Petitioner that Pension Rules
are not applicable to him, is completely misconceived. Heavy reliance is
placed by the Petitioner on Rule 2 of the Pension Rules to contend that by
virtue of sub-Rule (g), being employed on contract basis, Petitioner is
excluded from the applicability of the Pension Rules. However, the said
exception in sub-Rule (g) does not aid the Petitioner, inasmuch as, the
exception has to be read in the light of the substantive part of the Rule,
which provides a cut-off date. By virtue of Rule 2 of the Pension Rules,
the same are applicable to those appointed on or before 31.12.2003 and
both regular and contract appointments relate to the said date, i.e. the
exception to contractual appointment would apply only to those
appointed on contract basis, prior to 31.12.2003. Additionally, Petitioner
was employed with the University as a regular employee and after his
superannuation, was 're-employed' with Respondent No.2 and thus
cannot seek the benefit of exception provided in Rule 2(g).
18. Rule 9 of the Pension Rules empowers the President of India to
withhold or withdraw pension, in full or in part, if the pensioner is found
guilty of grave misconduct or negligence, in any departmental or judicial
proceedings, during the period of service, including service rendered
upon re-employment after retirement. Under the Government of India
(Allocation of Business) Rules, 1961, business of the Government of
India shall be transacted in Ministries, Departments, etc. Under the
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Pension Rules, 'Government' means the Central Government and,
therefore, the power to initiate disciplinary proceedings against a
pensioner vests with the Central Government, irrespective of the
department from where he retires or where he is re-employed. Delhi
Public Library functions under the aegis of the Ministry of
Culture/Government of India and Petitioner, being re-employed, is
subject to disciplinary action by Respondent No.2. Additionally, the
University is a Central University which is controlled by the University
Grants Commission (hereinafter referred to as 'UGC'). Pension of the
retirees of the University including the Petitioner is funded by the UGC,
which in turn receives grant from the Consolidated Fund of India. Thus,
the Pension Rules would clearly govern the present case and it is not open
to the Petitioner to even argue that the said Rules are inapplicable, more
so in view of the fact that his appointment was made with the approval of
the ACC.
19. It was further contended that the Appointing Authority of the
Petitioner was the Chairman of Respondent No.2, who in turn was
nominated by the Minister of Culture and thus, being the Chairman of the
Apex Body (DLB), he was competent to accord sanction for initiating
disciplinary proceedings. Petitioner was appointed on contractual basis,
after his superannuation from Ratan Tata Library, University of Delhi.
Vigilance clearance was obtained from the University and importantly,
pay of the Petitioner while working with Respondent No.2, was fixed as
per CCS (Fixation of Pay of Re-Employed Pensioners) Orders, 1986, on
the principle of 'pay minus pension'.
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20. Benefit of pension is given to an employee for rendering long,
faithful and unblemished service. However, if the pensioner is found
guilty of grave misconduct, the impact must fall on the retiral dues and
which is why Rule 8 of the Pension Rules provides that future good
conduct is an implied condition for grant of pension and its continuance
and Rule 9 is an enabling provision, empowering the President of India to
withhold or withdraw pension, in full or in part, in case of proven grave
misconduct. Reliance was placed on a judgement of the Division Bench
of this Court in Union of India v. S.K. Mathur, 2010 SCC OnLine Del
3673.
21. Appointment of the Petitioner was made in accordance with
Recruitment Rules for the post of Director General, notified in the
Gazette Notification [Part II - Section 3(i)] on 29.10.2016 (hereinafter
referred to as 'RRs'). The RRs provide for filling up the post by
deputation (including short term contract)/contract. It is specifically
stipulated in 'Note 3' under the Heading 'Contract', that in case of
appointment on contract basis, the terms and conditions of service of the
incumbent of the post shall be as applicable to a Group 'A' officer of the
Central Government holding analogous post. Group 'A' officers in the
Central Government are governed by the Central Civil Service Rules,
including the Conduct Rules and the Pension Rules and, therefore, by
virtue of the RRs under which the Petitioner was appointed, the said
Rules would apply and govern the service conditions of the Petitioner.
This is more so, on account of the fact that like the other Group 'A'
officers holding analogous posts, Petitioner was appointed with the
approval of the ACC and delegated various Financial and Administrative
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powers of the Head of Department and Member Secretary of the DLB,
under the provisions of CCA Rules, Delegation of Financial Power Rules
and GFR. Petitioner cannot, therefore, claim exemption from the
applicability of the Pension Rules and the disciplinary proceedings have
been rightly initiated invoking Rule 9 of the Pension Rules.
CONTENTION ON BEHALF OF THE PETITIONER IN
REJOINDER
22. Reliance of Respondent No.2 on the Gazette Notification dated
18.10.2016, i.e. the RRs, is misplaced inasmuch as the Petitioner was
appointed on contract basis, with the approval of ACC and with a clear
stipulation by Respondent No.1/Ministry of Culture in its letter dated
13.10.2017 that contractual appointment of the Petitioner is by 'keeping
the Recruitment Rules aside'. Attention of the Court was drawn to the
contents of the letter dated 13.10.2017, which is appended as Annexure
R-1 to the reply filed by the Petitioner to the additional submissions filed
by Respondent No.2, to emphasise the point that contractual appointment
of the Petitioner was from the open market and he is a pensioner under
the University, governed by separate Statutes, as regards pension and
stands on a different pedestal as compared to Group 'A' Officers, retired
from the departments of or under the Central Government, where Pension
Rules apply.
23. No counter affidavit was filed on behalf of Respondent
No.1/Ministry of Culture. Learned counsel appearing on behalf of
Respondent No.1 adopted the arguments made on behalf of Respondent
No.2.
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24. I have heard the learned counsels appearing for the respective
parties and examined their rival contentions.
ANALYSIS AND CONCLUSION
25. Challenge in the present petition is laid to the order according
sanction for initiating disciplinary proceedings against the Petitioner as
well as the Charge Memorandum and the order appointing an Inquiring
Authority for holding an inquiry in accordance with the procedure laid
down under Rules 14 and 15 of the CCA Rules. The vexed question that
arises for consideration before this Court is whether Respondent No.2
was entitled to invoke the provisions of Rule 9(2)(b)(i) of the Pension
Rules and initiate disciplinary proceedings, to be held in accordance with
the procedure prescribed under Rules 14 and 15 of the CCA Rules.
26. Pithily put, Petitioner has laid a challenge to the very applicability
of the Pension Rules and invocation of provisions of Rule 9 thereof, on
the grounds that: (a) nature of appointment of the Petitioner with
Respondent No.2 was purely contractual; and (b) Petitioner is a pensioner
under the University Statutes, issued under the Delhi University Act,
1922. Contrary to the stand of the Petitioner, sum and substance of the
stand of Respondent No.2 is that: (a) Petitioner was 're-employed' on
contract basis with Respondent No.2; (b) by virtue of the RRs of the post
in question, all terms and conditions of service of Group 'A' Officers of
the Central Government, holding analogous posts, shall be applicable to
the incumbent of the post; (c) sub-Rule (g) of Rule 2 of Pension Rules
would not come to the aid of the Petitioner as the exception will apply to
those appointed on contract but on or before 31.12.2003; (d) Pension
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Rules are applicable to persons drawing pension from Consolidated Fund
of India and pension of the Petitioner is disbursed by UGC, which in turn
is funded from the said Fund; and (e) there are serious allegations against
the Petitioner and the President of India under Rule 9 of the Pension
Rules has the power to withhold or withdraw, in whole or in part, the
pension and gratuity, if the pensioner is found guilty of grave misconduct/
negligence during the period of service or on re-employment after
retirement.
27. In order to decide the primordial question of applicability of the
Pension Rules, the foremost issue that becomes relevant and needs
consideration, is the nature of appointment of the Petitioner with
Respondent No.2. It is an undisputed position between the parties herein
that Petitioner superannuated from the University as a Deputy Librarian
on 31.08.2016 and is a pensioner of the University. Respondent No.2, an
autonomous body under the Ministry of Culture, issued an advertisement
in the Employment News on 10-16th December, 2016, inviting
applications for the post of Director General in Respondent No.2 in Pay
Band-4 with Grade Pay of Rs.10,000/-. The mode of appointment was
deputation (including short term contract)/contract basis. Relevant part of
the advertisement is as under:-
"Delhi Public Library
(An Autonomous Body under Ministry of Culture)
S.P. Mukherjee Marg
Delhi - 110006
Notice for Appointment to the Post of Director General,
DPL.
Applications are invited for the post of DIRECTOR
GENERAL, in DPL in the pay band PB-4, Rs.37400-67000 +
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Grade Pay Rs. 10000 on deputation (including short term
contract)/contract basis.
xxx xxx xxx xxx"
(emphasis supplied)
28. Petitioner was recommended for appointment by a Selection
Committee, whereafter Respondent No.1 requested Respondent No.2 to
verify from the University if any vigilance proceedings were pending or
contemplated against the Petitioner or any penalty was imposed. Relevant
part of the letter dated 21.04.2017, seeking verification, is extracted
hereunder:-
"Sub:- Proposal for appointment to the post of Director
General in Delhi Public Library on contract basis.
Madam,
xxx xxx xxx
2. Since, Dr. Sharma has retired only in 2016, it may
please be got certified whether any Vigilance Proceedings
are pending or contemplated against the officer and the
details of any penalty imposed on the officer may also be
obtained from the concerned Library/University and sent to
this Ministry at the earliest for consideration of the proposal
by ACC."
(emphasis supplied)
29. University informed Respondent No.2 that Petitioner was clear
from vigilance angle as per the record, up to the date of his
superannuation. Offer of appointment was given to the Petitioner on
13.10.2017, wherein it was clearly stipulated that the appointment was on
'contractual basis' for a period of three years from the date of assumption
of charge of the post or until further orders, whichever was earlier. It was
further provided that the pay and allowances will be fixed as per Rules
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and Regulations of the Government of India. Para 5 of the offer of
appointment provided the methodology of termination of the contractual
appointment by one month's notice on either side, without assigning any
reason, reserving right with the DLB to terminate the Petitioner's
services, before expiration of the notice period by paying the contractual
amount in lieu of the notice period. Relevant paras of the offer of
appointment are as follows:-
"DELHI PUBLIC LIBRARY
(Govt. of India Organisation, Ministry of Culture)
File No. A-12024/1/2013-Estt./2422 Dt. 13.10.2017
Dr. Lokesh Sharma
Flat No. 56, Pocket-2, Block-A, Sector-18, Rohini
Delhi - 110089
Sub: Appointment of Dr. Lokesh Sharma to the post of
Director General, Delhi Public Library (DPL) Delhi
on contractual basis.
Sir,
The undersigned hereby offers to Dr. Lokesh Sharma a
post of Director General in the pay scale of Rs. 37400-
67000/- with grade pay of Rs.10000 (pre-revised) on
contractual basis for a period of 3 years from the date of
assumption of charge of the post or until further orders,
whichever is earlier.
2. His pay and allowances will be fixed as per the rules
and regulations of Govt. of India.
3. xxx xxx xxx xxx
4. xxx xxx xxx xxx
5. The contractual appointment is liable to be
terminated on one month notice on either side, without
assigning any reasons. The Delhi Library Board, however,
reserves right to terminate the services before expiration of
the stipulated period of notice by making payment of a sum
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equivalent to the contractual amount in lieu of period of
notice."
(emphasis supplied)
30. Vide letter dated 16.10.2017, Petitioner accepted the offer of
appointment on the terms and conditions stipulated in the offer letter and
assumed charge in the forenoon of 16.10.2017. From a bare reading of
the advertisement, the letter dated 21.04.2017 seeking verification and the
letter dated 13.10.2017, offering appointment, it is explicit that
appointment of the Petitioner was contractual in nature. This is further
fortified by the subsequent correspondence/memorandum/orders, wherein
the appointment of the Petitioner is referred to as contractual and at no
place is there even a mention of 're-employment'. On 19.12.2019, order
was issued by Chairman, DLB, according sanction for initiation of
departmental proceedings against the Petitioner, invoking Rule 9(2)(b)(i)
of the Pension Rules, followed by a Charge Memorandum of the same
date and it is mentioned in the first paragraph of the Order that Petitioner
was functioning as Director General on contract from 16.10.2017 to
23.08.2019. Relevant part of the order is as under:-
"ORDER
WHEREAS it has been made to appear that Dr. Lokesh
Sharma while functioning as Director General (on contract)
from 16.10.2017 to 23.08.2019 in DPL who is a retired Dy.
Librarian, Ratan Tata Library, Delhi University had done
various procedural lapses in regard to purchases and
recruitment....................................................."
(emphasis supplied)
31. Petitioner responded to the said order vide his reply dated
20.01.2020, objecting to the applicability of the Pension Rules, on the
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ground that he was appointed under a contract and referred to Rule 2(g)
of the Pension Rules in this regard, which excludes applicability of
Pension Rules to contract employees, unless the contract provides
otherwise. Interestingly, Chairman DLB replied to the said letter and
reiterated that the appointment of the Petitioner was on contract basis
because of his experience with the University, from where he was
drawing pension and categorically stated that suitable action against a
contractual employee can be taken in case of misconduct, etc. by
invoking the Pension Rules. Relevant part of the letter is as under:-
"Memorandum
Sub:- Reply of Dr. Lokesh Sharma to the Memo issued by
the DPL on 19.12.2019- regd.
With reference to his letter dated 20.1.2020 pertaining
to subject mentioned above, Dr. Lokesh Sharma, Ex-Director
General of DPL is informed that his appointment as DG on
contract basis w.e.f 16.10.2017 in the DPL was only because
he had an experience of working in Delhi University/Ratan
Tata Library and was an ex-employee of the Delhi
University. He is a pensioner of Delhi University and
therefore, it was within the knowledge of the undersigned
that he had been drawing pension from Delhi University.
Suitable action against a contractual employee can be
taken, in case he had done misconduct/irregularities/
misappropriation of funds or any offence during his tenure
as a contractual employee. By doing such type of
misconduct, any retired Govt. servant/employee of
autonomous organisations/institutions can also be booked
under the CCS (Pension) Rules. He is further informed that
being the retired employee of any University/Autonomous
Bodies, he is required to display his conduct in such a way so
that it should be an example of good citizen and should not
do any misconduct which may cause unnecessary criticism in
the public."
(emphasis supplied)
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32. Petitioner reiterated his objections vide letter dated 25.02.2020 and
in response, a Memorandum was issued by Chairman, DLB on
18.03.2020, stating therein that Respondent No.2 was fully aware of the
Rules and Regulations under which action can be taken against a
contractual employee and Petitioner was called upon to reply to the
Articles of Charges. Relevant part of the letter dated 18.03.2020, is as
under:-
"Memorandum
Sub:- Charges framed against Dr. Lokesh Sharma Ex-
Director General, DPL and his reply dated 25.2.2020.
With reference to his reply dated 25.2.2020 pertaining
to the subject mentioned above, Dr. Lokesh Sharma is
informed that the DPL is fully aware about the rules and
regulations under which action can be taken against a
contractual employee and there is no need to repeat the
same thing again and again. It has been observed from his
various replies received in the office that he was asked to
give specific replies in regard to the various irregularities/
misappropriation of funds done by him during his tenure as
DG in DPL, but he is avoiding to give reply."
(emphasis supplied)
33. Finally, vide order dated 07.08.2020, Inquiring Authority was
appointed to inquire into the charges framed against the Petitioner,
despite the objection of the Petitioner to the applicability of the Pension
Rules. What emerges from a reading of the above documents is that
Respondent No.2 had taken a consistent position that the appointment of
the Petitioner was on contract basis and it was never its case that
Petitioner was 're-employed' with Respondent No.2. In view of the
plethora of documents, as aforementioned, the inevitable conclusion is
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that the appointment of the Petitioner was on contract basis. While the
nature of an appointment can be best inferred from the advertisement and
the offer of appointment, which in the present case clearly reflect that
appointment of the Petitioner was purely contractual, additionally,
contrary to the stand of Respondent No.2, even various other documents,
as aforementioned, issued from the office of Respondent No.2, fortify the
stand of the Petitioner, in this regard.
34. Despite the above position, Respondent No.2, in complete contrast
to the above stand, for the first time in the counter affidavit, averred that
the Petitioner was re-employed on contract basis, which in my view, was
a desperate attempt to escape the rigours of Rule 2(g) of the Pension
Rules and to bring the case within the four corners of Rule 9 thereof. This
stand of Respondent No.2 cannot be countenanced for more than one
reason. Firstly, at the cost of repetition, neither the advertisement or the
offer of appointment nor the subsequent letters/orders even remotely
indicate or suggest that Respondent No.2 ever took a position that the
appointment was on re-employment basis. In this view of the matter,
Respondent No.2 cannot be permitted to take a new stand for the first
time in the counter affidavit, at complete variance with the initial stand. It
has been held by the Supreme Court in Mohinder Singh Gill and
Another vs. The Chief Election Commissioner, New Delhi and Others,
(1978) 1 SCC 405, that where a statutory functionary makes an order
based on certain grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh reasons in the shape of
affidavit or otherwise. Otherwise, an order bad in the beginning may, by
the time it comes to Court, on account of a challenge, get validated by
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additional grounds, later brought out. This is precisely what Respondent
No.2 is attempting to do, i.e. a clear case of contractual appointment is
being camouflaged as a case of re-employment.
35. Secondly, it is evident from the letter dated 13.10.2017, filed by the
Petitioner, the authenticity of which was not disputed by learned counsel
for Respondent No.2, that the ACC had approved the proposal/
recommendation for 'appointment' of the Petitioner on 'contract basis'. It
needs no emphasis that it is this approval which translated into an offer of
appointment of the Petitioner on contract basis. While this Court does not
have the benefit of the exact proposal placed before the ACC, however,
the only logical inference that can be drawn from the letter dated
13.10.2017 read with the letter offering appointment to the Petitioner, is
that the proposal was not for re-employment. Additionally and
importantly, the modes of appointment provided in the RRs for the post
in question are deputation (on short term contract) or contract and not
re-employment. As held by a Co-ordinate Bench of this Court in
E. Sreedharan v. Union of India, 2008 SCC OnLine Del 1309, the ACC
being the Apex body for approval of appointments would not use the
word 'appointment' if it was approving 're-employment'. Letter dated
13.10.2017 is extracted hereunder for ready reference:-
"F.No. 32-2/2017-Lib
Government of India
Ministry of Culture
Library Section
CSL Building, Shastri Bhavan, New Delhi
Dated the 13th October, 2017
To
The Deputy Director,
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Delhi Public Library,
S.P. Mukherjee Marg,
Opposite Old Delhi Railway Station,
Delhi-110006
Subject:- Appointment of Dr. Lokesh Sharma to the post of
Director General, Delhi Public Library (DPL),
Delhi on contractual basis
Madam,
I am directed to refer to your letter No. A-
12024/1/2013-Estt/2422 dated 05.09.2017 on the subject
mentioned above and to convey the approval of the
Appointments Committee of the Cabinet for appointment of
Dr. Lokesh Sharma to the post of Director General in the
Delhi Public Library (DPL), Delhi in the scale of pay of
Rs.37,400-67,000/- with Grade Pay of Rs.10,000 (pre-
revised), on contract basis, for a period of three years from
the date of his assumption of charge of the post, or until
further orders, whichever is earlier, by keeping the RRs
aside.
Yours faithfully,
Sd/-
(N.K. Sinha)
Under Secretary to the Govt. of India
Tel 23382539"
(emphasis supplied)
36. It is amply clear from the documents referred to above, that
Petitioner's appointment as Director General of Respondent No.2 was not
're-employment' in a Civil Service or a civil post in connection with the
affairs of the Union Government and, therefore, the Central Civil
Services (Fixation of Pay of Re-employed Pensioners) Orders, 1986, shall
not be applicable to the present case and thus, this contention of
Respondent No.2 also merits rejection.
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37. For all the foregoing reasons, this Court comes to a conclusion that
Petitioner was 'appointed' on 'contract basis' and was not 're-employed'.
The service conditions of the Petitioner would thus be governed by the
terms of the contract, wherein there is no clause applying the Pension
Rules and the reason for absence of such a provision is simple. In a
contractual appointment for 3 years, Petitioner was not entitled to Pension
from Respondent No.2 and there was thus no requirement of applying
Pension Rules, enabling Respondent No.2 to withhold or withdraw the
same. Contention of the Respondents that Pension Rules apply to the
present case thus deserves to be rejected.
38. Examined separately under the provisions of the Pension Rules
also, the contention merits rejection. Rule 2 of the Pension Rules deals
with the applicability of the said Rules and provides that the Rules shall
apply to 'Government servants', appointed on or before 31.12.2003,
including 'civilian Government servants in the Defence Services',
appointed substantively to civil services and posts in connection with the
affairs of the Union, which are borne on Pension Establishments.
Petitioner neither falls into any of the above categories nor was appointed
with Respondent No.2 before the cut-off date, i.e. 31.12.2003.
Consequently, on both the parameters, the Pension Rules are wholly
inapplicable and the initiation of disciplinary proceedings invoking
Rule 9 is without jurisdiction.
39. In the wake of the argument of the Petitioner that persons
employed on contract are exempted from the applicability of the Pension
Rules, by virtue of Rule 2(g) of the said Rules, learned counsel for
Respondent No.2 canvassed an argument that since the first part of Rule 2
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provides that the Pension Rules shall apply to Government servants
appointed on or before 31.12.2003, the exception in Sub-Rule (g) will
apply to appointees on contract basis prior to the said cut-off date and not
thereafter. To this extent, learned counsel for Respondent No.2 is right,
however, ironically, the argument goes against Respondent No.2. Since
the Petitioner was not appointed before the said cut-off date and Pension
Rules per se do not apply to him, Petitioner need not even labour to bring
his case in the exception in Rule 2(g) of the Pension Rules. It is obvious
that Respondent No.2 had invoked Rule 9 of the Pension Rules and in
these circumstances, Petitioner had sought to take support of the
exception carved out in sub-Rule (g) of Rule 2.
40. Be that as it may, though it is irrelevant to consider Rule 2(g) on
account of the above conclusion, however, its plain reading only fortifies
the stand of the Petitioner that the intent of the framers of sub-Rule (g) of
Rule 2 of the Pension Rules was to exclude persons employed on contract
from the purview of provisions of the Pension Rules except where the
contract provides otherwise. In the present case, the offer of appointment
does not provide that the Pension Rules would apply to the Petitioner,
although Respondent No.2 took the trouble of categorically mentioning
that his pay and allowances will be fixed as per the Rules and Regulations
of the Government of India. Absence of the said stipulation only shows
that Respondent No.2 was conscious of the fact and rightly so that
Pension Rules were inapplicable, where the service was contractual and
non-pensionable.
41. Contention of the Petitioner that Respondent No.2 cannot resort to
proceedings which may ultimately result in taking away pension granted
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by another Authority under a different Statute regulating pension also has
merit. While framing the Pension Rules, the framers were conscious of
this distinction and clearly Rule 2(h) of the Pension Rules excludes from
applicability of the said Rules persons whose terms and conditions of
service are regulated by 'any other law for the time being in force'. In the
present case, it is an undisputed position between the parties that
Petitioner was an employee of the University and superannuated from the
post of Deputy Librarian, Ratan Tata Library on 31.08.2016. It is equally
undisputed that the Petitioner is in receipt of pensionary benefits under
Statute 28-A of the Statutes of the University. University is constituted
under the University of Delhi Act, 1922, as amended from time to time.
Section 28 of the said Act provides for Statutes, Ordinances and
Regulations for the matters enumerated therein. Statute 28-A provides for
GPF-cum-pension-cum-gratuity scheme under Appendix-A. Section 46
of the Act mandates that the University shall constitute for the benefit of
its Officers, etc. in such manner and subject to such conditions, as may be
prescribed by the Statutes, such pension, insurance and provident funds,
as it may deem fit. Therefore, the University of Delhi Act and the
Statutes thereunder specifically provide for and deal with pensionary
benefits of the retiring employees of the University, both teaching and
non-teaching.
42. It is further significant to note that a complete mechanism is
provided in Clause 14 of Appendix-A to Statute 28-A, aforementioned,
for withholding or withdrawing pension, in whole or in part, of a
pensioner, if found guilty of grave misconduct or negligence, during the
period of his service including service rendered upon re-employment
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after retirement. The power enabling withholding or withdrawing pension
as also recovering from pension the pecuniary loss caused to the
University vests in the Vice-Chancellor of the University. Relevant paras
of Clause 14 read as follows:-
"14. Pension:
In addition to the General Provident Fund as
provided in the foregoing provision of this Statute, every
person governed by the provisions of this Section of
Appendix 'A' shall be entitled to a pension according to the
rules provided hereinafter.
Subject to such rules as may be applicable to the
categories of pension set out below, no person shall be
eligible for pension unless he has put in a minimum of ten
years of qualifying service in the University; provided that
minimum age after which service counts for pension shall
be eighteen (18) years. In case the qualifying service falls
below ten years, a gratuity as in Schedule 'C' shall be
admissible.
(1) The Vice-Chancellor reserves to himself the right of
withholding for specified period, and of ordering
recovery from a pension of the whole or part of any
pecuniary loss caused to the University, if, in any
departmental or judicial proceedings, the pensioner is
found guilty of grave misconduct or negligence
during the period of his service, including service
rendered upon re-employment after retirement.
Provided that where a part of pension is withheld or
withdrawn, the amount of such pension shall not be
reduced below the limit specified in the proviso under
Clause 16.
(2)(a) The departmental proceedings referred to in Sub-
Clause (1), if instituted while the University employee
was in service whether before his retirement or
during his re-employment, shall, after the final
retirement of the University employee, be deemed to
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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 University
employee had continued in service.
Provided that where the departmental proceedings
are instituted by an authority subordinate to the Vice-
Chancellor, that authority shall submit a report
recording its findings to the Vice-Chancellor.
(b) The departmental proceedings, if not instituted while
the University employee was in service, whether
before his retirement or during his re-employment:
(i) shall not be instituted save with the sanction of the
Vice- Chancellor;
(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
place as the Vice-Chancellor 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 University employee during his service.
(3) No judicial proceedings, if not instituted while the
University employee was in service, whether before his
retirement or during his re-employment shall be
instituted in respect of a cause of action which arose,
or of an event which took place, more than four years
before such institution.
(4) In the case of a University employee 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- Clause (2)
above, a provisional pension not exceeding the pension
which would have been admissible on the basis of the
qualifying service up to the date of retirement of the
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University employee, 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, shall be sanctioned.
(5) Where the Vice-Chancellor 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 University
employee.
(6) For the purpose of this Clause:
(a) Departmental proceedings shall be deemed to be
instituted on the date on which the statement of
charges is issued to the University employee or
pensioner, or if the University employee has been
placed under suspension from an earlier date, on
such date; and
(b) Judicial proceedings shall be deemed to be
instituted;
(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 of the
complaint is presented in the court.
With effect from 01.01.1986, the service gratuity for
qualifying service of less than ten years shall be calculated at
uniform rates of half month's emoluments for every
completed 6 monthly period of service instead of at the rates
specified in Schedule 'C'."
43. Thus, Statute 28-A governs the field relating to grant of pension to
the Petitioner, including the mechanism to withhold or withdraw the same
and applying the underlying principle and rationale of Rule 2(h) of the
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Pension Rules, once the field is covered by the said Statute, Pension
Rules in any case would have no applicability. It needs no gainsaying that
if the Pension Rules are inapplicable, Respondent No.2 is not entitled to
invoke Rule 9 for taking disciplinary action against the Petitioner.
44. In view of the aforesaid conclusions, it is not necessary to
separately delve into the applicability of Rule 9 of the Pension Rules,
albeit when independently examined, in my view, even on this score, the
arguments of Respondent No.2 cannot be accepted.
45. Rule 9(1) of the Pension Rules is an enabling provision which
empowers the President of India to withhold or withdraw pension and/or
gratuity, either in full or in part, 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. Sub-Rule (2)(a) provides that if the
departmental proceedings referred in Sub-Rule (1) are instituted during
the service or re-employment of the Government Servant, they shall be
deemed to be proceedings under Rule 9, after retirement of the
Government Servant and shall be continued and concluded as if the
Government Servant had continued in service. Sub-Rule (2)(b) goes a
step forward and provides for instituting the departmental proceedings,
even after the retirement of the Government Servant, if not instituted
while he was in service, whether before retirement or during his
re-employment, with a rider that such proceedings shall only be instituted
with the sanction of the President and shall not be in respect of any event
which took place more than 4 years before such institution.
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46. It is clear that Rule 9 operates in different fields but the common
thread in all the provisions is that if a Government Servant is found guilty
of a grave misconduct/negligence, the mere supervening event of
retirement should not prevent the Government from taking action. What
emerges is that in order to invoke Rule 9, certain conditions must exist
viz.: (a) Retired employee sought to be proceeded against was a
Government servant; (b) alleged act of grave misconduct or negligence
was committed during the period of service or during re-employment,
after retirement, in a department of or under the Central Government; and
(c) pension is paid from the Government Fund. Only when these
conditions co-exist, President of India can exercise the power under
Rule 9 of the Pension Rules and not where pension is granted to a retiree
by an Organisation, which is different and distinct from the Central
Government and where such an Organisation has a separate statutory
regime of pension that lays down a mechanism for granting as well as
withdrawing or withholding pension.
47. From a plain reading of Statute 28-A, more particularly Clause 14
in Appendix-A thereto, it is clear that for a proven act of grave
misconduct or negligence by a pensioner of the University, it is only the
Competent Authority of the University, i.e. the Vice-Chancellor, who has
the power to withhold or withdraw pension, in whole or in part. The
misconduct or negligence could be while the employee of the
University was in service or during his re-employment after retirement.
'Re-employment' has been categorically defined in Rule 6 of University
Non-Teaching Employees (Terms and Conditions of Service) Rules, 2013
and can only be with the University. Therefore, what emerges is that
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pension received by a pensioner of the University can be withheld or
withdrawn: (a) by the Vice-Chancellor of the University; (b) for grave
misconduct or negligence; and (c) during service of the University or
upon re-employment with the University, after retirement. It needs no
gainsaying that pension is not a bounty of the State and is granted to an
employee who retires after a dedicated and unblemished service,
completing the qualifying service required for grant of pension. As a
corollary, only the Authority which grants pension can exercise the power
to withhold or withdraw the same, if and when the pensioner is found
guilty of grave misconduct or negligence.
48. In the present case, Petitioner is drawing pension sanctioned by the
Competent Authority in the University and it hardly needs a mention that
it is on account of his unblemished service with the University. It bears
repetition to state that before the Petitioner was appointed with
Respondent No.2, his credentials were duly verified by Respondent No.2
and the concerned Authority in the University had informed that there
was no pending or contemplated vigilance case against the Petitioner.
Therefore, Rule 9 of the Pension Rules cannot be invoked by Respondent
No.2 to initiate disciplinary proceedings against the Petitioner. This
conclusion is strengthened by the use of the words 'withholding' and
'withdrawing' in Rule 9(1) of the Pension Rules. P. Ramanatha Aiyar
Advanced Law Lexicon defines the word 'withholding' as 'to hold back;
to keep back; to restraint or to decline to grant'. The Supreme Court in
the case of Lalita Jalan v. Bombay Gas Co. Ltd., (2003) 6 SCC 107
albeit in the context of Section 630 of the Companies Act, 1956, held that
holding back or keeping back is not an isolated act but is a continuous
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process by which the property is not returned or restored to the Company
and the Company is deprived of its possession. Therefore, the word
'withhold' clearly connotes that the Authority concerned is holding back
something which it possesses. Similarly, dictionary meaning of the word
'withdraw' as defined in Advanced Law Lexicon (3 rd Edition, 2005) is to
take back or away something that has been given or allowed.
P. Ramanatha Aiyar Advanced Law Lexicon defines 'withdraw' as 'to
take back or a way something that has been given, allowed, possessed,
experienced or enjoyed; to draw away'. The act of withdrawal thus
pre-supposes a grant by the Authority which seeks to withdraw the
benefit. A perusal of these definitions leads to the inevitable conclusion
that no authority is legally entitled to withhold or withdraw something
that has either not been given by it or, in a particular case, has been given
by a third party. The nature of employment of the Petitioner with
Respondent No.2 was purely contractual for a period of 3 years and was
not pensionable. The appointment was not re-employment in the same
Department or different Departments under the Central Government. In
this view, disciplinary proceedings initiated under Rule 9 of Pension
Rules cannot be permitted to proceed as this may end in withholding or
withdrawing pension granted by the University, which is a power not
vested in Respondent No.2, in the present case.
49. The next plank of the argument was that by virtue of Note 3
incorporated in the RRs with regard to appointment on contract, the terms
and conditions of the incumbent of the post shall be as applicable to
Group 'A' Officers of the Central Government holding analogous post.
The contention, in my view, is wholly misconceived and deserves to be
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rejected. The only possible interpretation of the said Note can be with
regard to applicability of other conditions of service, such as fixation of
pay and allowances, etc. but the Note cannot by any stretch of
imagination be interpreted to mean that the Pension Rules shall apply,
especially in light of the Rule 2 thereof, which determines the
applicability of the said Rules. Once the Pension Rules have carved out
exceptions in Rule 2 and excluded certain categories from the
applicability of the Pension Rules, such as a person appointed on
contract, unless the contract provides otherwise, as also a person
governed by any other law for the time being in force, the Pension Rules
cannot be made applicable to a person who falls in the excluded
category(s). In any case, the Note cannot override the substantive
provision of Rule 2 which makes the Pension Rules applicable to those
appointed on or before 31.12.2003.
50. Respondent No.2 also contended that Petitioner was an employee
of the University, a Central University, receiving grant and controlled by
UGC, funded by the Central Government from the Consolidated Fund of
India and is thus governed by the Pension Rules. In this context, it would
be relevant to examine the source of pension of the Petitioner and the
nature of fund of UGC. The University Grants Commission Act, 1956,
was enacted to make provision for coordination and determination of
standards in Universities. Section 16 of the said Act provides that the
Commission shall have its own fund and all sums which 'may', from time
to time, be paid to it by the Central Government shall be carried to the
Fund and all payments by the Commission shall be made therefrom.
Section 12 of the Act deals with functions of the Commission and
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Sub-Section (e) provides that the Commission shall advise the Central
Government or any State Government of the allocation of any grants to
the Universities for any general or specified purpose out of the
Consolidated Fund of India or of the State, as the case may be. A Full
Bench of this Court in Mohd. Khan Durrany (Dr.) v. Principal (Tulsi
Ram) Shivaji College, 1970 SCC OnLine Del 235, held that UGC is a
Statutory body created under the UGC Act and distinct from the
Government of India. Under Section 16 of the said Act, the Fund of the
Commission is separate from the Consolidated Fund of India. Relevant
para is as follows:-
"On the petitioner's own admission however Shivaji College
is maintained to the extent of 95 per cent of its expenses on
grants made by the University Grants Commission and only
to the extent of 5 per cent of its expenses by the Delhi
Administration. Learned counsel for the petitioner urged
that this amounted to the maintenance of the College by the
Government of India. But the University Grants
Commission is a statutory body created by the University
Grants Commission Act, 1956. It is therefore distinct from
the Government of India. Under section 16 of the University
Grants Commission Act, 1956, the fund of the Commission
is separate from the Consolidated Fund of India which
contains the Government funds proper under Article 266 of
the Constitution. The expenditure incurred by the University
Grants Commission in payment of grants to different
institutions is an expenditure, out of the Fund of the
Commission and not out of the Consolidated Fund of India.
It is true that under section 15 of the University Grants
Commission Act it is the Central Government which
finances the Commission after due appropriation is made by
the Parliament. It is also true that under section 17 of the
said Act, the budget prepared by the Commission is sent to
the Central Government so that the Central Government
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may obtain vote of the Parliament for that expenditure.
Nevertheless, in the eye of law the University Grants
Commission is different from the Central Government. It is
only a College maintained by the Government funds coming
out of the Consolidated Fund of India that could be
considered to be a Government maintained College.
According to the petitioner, there is no such College in
Delhi which is so maintained. This may be the reason why
Ordinance XIX which formerly dealt with Government
maintained Colleges was found to be of no use as there was
no Government maintained College in Delhi. This was
perhaps why Ordinance XIX was repealed in 1951."
51. In view of the provisions of the UGC Act and the observations of
the Full Bench, as aforesaid, it cannot be argued on behalf of Respondent
No.2 that the Petitioner is drawing pension from the Consolidated Fund
of India and is governed by the Pension Rules.
52. Insofar as the judgment of Union of India v. S.K. Mathur (supra)
relied upon by learned counsel for Respondent No.2 is concerned, in my
view, the same does not apply to the controversy involved in the present
case. In the said case, the issue before the Division Bench of this Court
was with regard to a challenge to the sanction granted by the President of
India for initiation of departmental proceedings against the Respondent
therein on the ground that it pertained to events which took place more
than 4 years before the institution of departmental proceedings, which
was in violation of Rule 9(2)(b)(ii) of the Pension Rules. The judgment,
therefore, does not come to the aid of Respondent No.2.
53. For all the aforesaid reasons, having examined the matter from
different angles, it is held that Respondent No.2 was not entitled to
invoke Rule 9 of the Pension Rules to initiate departmental proceedings
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against the Petitioner. Accordingly, order dated 19.12.2019 according
sanction for disciplinary proceedings, Charge Memorandum dated
19.12.2019 and order dated 07.08.2020 appointing the Inquiring
Authority are quashed and set aside.
54. However, keeping in view the allegations levelled against the
Petitioner, liberty is granted to the Respondents to resort to such other
remedies that may be available in law to proceed against the Petitioner, if
so advised. In view thereof, Memorandum dated 28.10.2019, which refers
to prima facie allegations against the Petitioner based on the findings of a
Committee constituted for investigation, is not interfered with.
55. It is made clear that this Court has not gone into the merits of the
allegations levelled against the Petitioner.
56. Writ petition is partially allowed in the above terms. Pending
application is disposed of accordingly. No orders as to costs.
JYOTI SINGH, J.
FEBRUARY 17th, 2022
yg/nn/st
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