Jharkhand High Court
Director vs Shankar Prasad on 6 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 6964 of 2019
Director, CSIR-CIMFR [Central Institute of Mining and Fuel
Research], a unit of Council of Scientific Industrial Research
(C.S.I.R), District-Dhanbad, Jharkhand --- Petitioner
Versus
Shankar Prasad, District-Deoghar .... Respondent
---
CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mrs. Justice Anubha Rawat Choudhary
Through Video Conferencing
---
For the Petitioner : Mr. Abhay Prakash, Advocate
For the Respondent : Mr. Sudarshan Shrivastava, Advocate
---
11/06.01.2021 Heard learned counsel for the petitioner, Mr. Abhay Prakash and Mr.
Sudarshan Srivastava, learned counsel for the applicant/respondent herein.
2. Being aggrieved by the order dated 21.08.2019 passed in O.A. No.
051/00497/2019 by learned Central Administrative Tribunal, Patna Bench, Patna
[Circuit Bench at Ranchi] (Annexure-6), the respondent/petitioner-CSIR-CIMFR
has preferred this writ petition. Learned C.A.T by the impugned order dated
21.08.2019 has set aside the order of withholding of full gratuity and pension
dated 8th April, 2019 passed in the name of Vice President, Council of Scientific &
Industrial Research (CSIR) on the ground that it was issued in contravention of
Rule 9 of CCS[Pension]Rules, 1972.
3. The relevant material facts for deciding the issue in controversy are
being briefly referred to hereinafter.
Applicant/Respondent superannuated on 31st January, 2014 from the
post of Sr. Principal Scientist from Central Institute of Mining & Fuel Research,
Dhanbad (CIMFR), a Unit of CSIR. He was receiving provisional pension after his
retirement. Prior to superannuation, an F.I.R was instituted by the CBI pursuant to
a raid conducted on 15th December, 2009 in the office of the applicant, for seeking
and accepting bribery from a party namely ARC Insulation and Insulators Pvt.
Ltd., Kolkata. In the criminal proceeding that pursued against the applicant and
one other person, applicant was convicted for the offence punishable under
Section 7 of the Prevention of Corruption Act read with Section 120[B] of the
Indian Penal Code and sentenced to undergo R.I. for three years with a fine of Rs.
3,00,000/- and in default thereof, punishment of six months of S.I. and further
convicted under Section 13[2] read with Section 13[1][d] of Prevention of
Corruption Act and sentenced to undergo R.I. for 3 years with a fine of Rs.
50,000/- and in default thereof, punishment of 3 months of S.I by the learned CBI
Court, Dhanbad on 20th July, 2015. Upon his conviction, he was served with a
Memorandum dated 09/14.10.2015 under Rule 9 of CCS [Pension] Rules, 1972
asking him to submit a representation as to why penalty contemplated under Rule
9 be not imposed upon him withholding full gratuity and also withdrawal of his
pension in full permanently. Upon consideration of his reply dated 20th October,
2015, in which the applicant took the plea that he has moved before the High
Court in appeal and has been granted bail by the order dated 8th April, 2019
(Annexure-4), the order dated 8th April, 2019 was passed.
4. Applicant being aggrieved approached the learned CAT for quashing of
the order of penalty dated 8th April, 2019. Before learned CAT applicant took the
following plea to assail the order of penalty:
(i) That the bribery was not proved by the prosecution
before the learned CBI Court and the matter was
sub-judice in appeal before the High Court.
Therefore, he had requested to wait for the
judgment of the High Court;
(ii) Applicant could not be deprived of pension without
the authority of law when his conviction is sub-
judice before the High Court in Criminal Appeal
(SJ) No. 562 of 2015, where he has been granted
bail.
(iii) Respondent could not exercise the power
exclusively conferred on His Excellency the
President of India under Rule 9(1) of CCS
(Pension) Rules, 1972.
(iv) In terms of Rule 9(2)(b), if the departmental
proceeding has not been instituted against the
government servant while in service whether before
his retirement or during his re-employment, it shall
not be instituted save with the sanction of President;
and shall not be in respect of any event which took
place more than four years before such institution
and shall be conducted by such authority and in
such place as the president may direct and in
accordance with the procedure applicable to
departmental proceeding
(v) Respondent have failed to comply with the
conditions imposed under Rule 9(1) and no
consultation has been made with UPSC nor could
pension be reduced below Rs. 375/- in terms of the
second proviso. Further, no penalty can be imposed
under the instant Rule 9(b) since the alleged event
of institution of F.I.R took place on 15th December,
2009 i.e., more than 4 years before initiation of the
proceeding for imposing such a penalty.
Respondent-CIMFR besides addressing on the merits of the
accusation against the applicant on the basis of which, he was convicted by
learned CBI Court, contended that the gravity of misconduct committed by
the applicant was such as to invoke Rule 9 of CCS (Pension) Rules, 1972 for
withholding of his gratuity and pension permanently. According to them, the
procedure prescribed under Rule 9 was followed. The Vice President, CSIR
has been authorized to exercise the power under Rule 9 on behalf of the
president of CSIR. The memorandum dated 9/14th October, 2015 was issued
only three months after his conviction and as such, it was not barred under
Rule 9(2)(b)(ii). Under Rule 9[1] of CCS (Pension) Rules, 1972, the
competent authority reserves to himself the right of withholding 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, if in any departmental
or judicial proceedings, the pensioner is found guilty of grave misconduct
during the period of service.
5. Respondent/petitioner herein relied upon the notification dated
19th September, 2006, whereunder the Vice President, CSIR has been
authorized to exercise the powers under Rule 9 of CCS (Pension) Rules,
1972 on behalf of the President, CSIR. Further reliance was placed upon
Rule 19 of CCS (CCA) Rules, 1965 in support of the contention that in a case
where the government servant has been convicted by a court of law, the
authority may issue an order imposing penalty without waiting for a period of
filing an appeal or without waiting for a decision in the first court of appeal.
6. Learned CAT upon consideration of the rival pleadings of the
parties, came to a categorical finding that no departmental proceeding was
instituted against the applicant while in service and there was no sanction of
the President of India for proceeding against him. The cognizance was taken
by learned Special Court, CBI i.e. more than 4 years from initiation of
proceeding under Rule 9 of CCS (Pension) Rules, 1972 i.e., on 9/14th
October, 2015. Reliance was placed upon the decision of the Apex Court in
the case of Brajendra Singh Yambem Vs. Union of India and another
reported in (2016) 9 SCC 20 in relation to exercise of power under Rule
9(2)(b)(ii) of CCS (Pension) Rules, 1972 to the effect that disciplinary
proceedings cannot be instituted against government servant not in service
except with previous sanction of President of India and in respect of event
which took place not more than four years before institution of disciplinary
proceedings. Learned Tribunal opined that the power vested in the President
of the Society i.e., CSIR are different from the right with the President of
India exclusively reserved to himself in the matter of withholding pension or
gratuity under Rule 9(i) of CCS (Pension) Rules. Such a power could not
have been exercised by the Vice president of CSIR. In this regard learned
CAT relied upon a decision of Ernakulum Bench of CAT in the case of Dr.
M. K. Nair vs. the President, Indian Council of Agricultural Research
[ICAR] decided on 6th February, 2002, reported in 2003 [2] SLJ 401 CAT.
Based on these findings, the order of penalty was set aside and the
respondent CIMFR was directed to release withholding amount of gratuity
and pay arrears of pension within the stipulated period.
7. Before us, learned counsel for the petitioner-CIMFR has
submitted that the finding of learned CAT that powers under Rule 9 of CCS
(Pension) Rules, 1972 cannot be exercised by the Vice President of CSIR is
erroneous. He has, in a particular, relied upon the decision of Apex Court in
the case of Prahlad Sharma Vs. State of U.P. and others reported in (2004)
4 SCC 113, Para- 7 & 8. He submits that as per this decision, an
organization may adopt the rules on any subject, as may be applicable in the
State Government or any other organization, But by doing so only the rules
are adopted not the authorities unless specifically provided for. Otherwise, it
would result in a queer situation where the authorities of the organization
whose Rules on a particular subject have been adopted by another
organization would start exercising those powers in relation to the matters of
the organization adopting the Rules, which would obviously not be
permissible. By placing reliance upon a decision of the Hyderabad Bench of
learned CAT in a similar situation in the case of K. Venkatesham and
others and CSIR dated 17th February, 2009 rendered in O.A. No. 49 of 2006
(Annexure SA/4), learned counsel for the petitioner submits that under Rules,
Regulations and Bye-laws of CSIR specifically para 2(ix), President has been
defined to mean the President, Council of Scientific and Industrial Research.
Under Rule 3 thereof, the Prime Minister of India is the ex-officio President
of the Society (CSIR) and the Minister-in-Charge of the Ministry or
Department dealing with the CSIR is the ex-officio Vice-President of the
Society. President of CSIR has delegated his powers to the Vice President. In
this regard, reference is made to the authorization of the President, CSIR, Sri
Jawahar Lal Nehru dated 22nd March, 1958 under Rule 56 of the Rules and
Regulations and Bye-laws of CSIR authorizing the Vice President of the
Council to exercise all or any of the powers as the president thereof. He has
referred to the notification dated 19 th September, 2006 also taken note of in
para-17 of the impugned order of learned CAT, whereunder Vice President,
CSIR has been authorized to exercise the powers under Rule 9 of CCS
(Pension) Rules, 1972 on behalf of the President, CSIR. Rules and
Regulations and Bye-laws of the CSIR have been enclosed as Annexure-
SA/2 and Handbook on Delegation of powers in CSIR has been enclosed as
Annexure-SA/3. It is further submitted by placing reliance upon the decision
of learned CAT in the case of K. Venkatesham(supra) that since the
applicant was not a government employee, there is no need for consultation
with UPSC as required under Article 320 of the Constitution of India and
Rule 9(1) 1st proviso of the 1972 Rules. Learned counsel for the petitioner
has distinguished the decision of learned CAT, Ernakulam Bench in the case
of Dr. M. K. Nair (supra) on the ground that the same related to the case of
Indian Council for Agriculture Research. He submits that no such plea was
raised regarding applicability of CCS (Pension) Rules, 1972 to the CSIR by
the applicant before learned CAT. In this regard, learned counsel for the
petitioner has fairly placed the Rules, Regulations and Bye-laws of the
Society (Annexure-SA/2), particularly Rule 12 containing the conditions of
service of officers and staffs of the society. It prescribes that Central Civil Services
(Classification, Control & Appeal) Rules, and the Central Civil Services (Conduct)
Rules, for the time being in force, shall apply to the officers and establishments in
the service of the society, subject to the modification that reference to the President
& Government Servant in those rules shall be construed as reference to the
'president of the society and officers & establishment in the service of the society
respectively. Rule 13 further prescribes that orders made in the name of the
President, Vice-President, Director-General and other officers of the Society
under the Central Civil Services (Classification, Control & Appeal)
Rules shall be authenticated by the signature of the officer designated for the
purpose by the Director-General. Learned counsel for the petitioner has also
referred to the Orders, Circulars and Instructions on pension scheme for
CSIR employees contained in the Compendium of CSIR. He submits by
relying upon the CSIR letter dated 24th March, 1961 bearing no. 5/96/60-PC,
part of the Compendium, under Item no. 4 that the Governing Body of the
CSIR, has been pleased to decide that the Government of India Pension
Rules, as liberalized and amended or clarified to time to time, shall apply. He
has also made specific reference to other items in the Compendium such as
CSIR letter dated 7th May, 1980 in respect of Central Civil Services
(Pension) Amendment Rules, 1980 under item 21; CSIR letter dated 19th
April, 1994 under item no. 34 on the subject 'addition to service qualifying
for superannuation pension in respect of Scientists/Technologists appointed
by CSIR' and reiterated his submission that there is no dispute that CCS
(Pension) Rules, 1972 have been validly adopted in the CSIR and its unit like
CIMFR and governs the pensionery benefits of its employees. He submits
that amendment in the CCS (Pension) Rules, 1972 as are relevant to the
CSIR, have time to time been also adopted as would be evident from the
decisions of the CSIR contained in the Compendium. He submits that the
applicant has also never raised plea that CCS (Pension) Rules, 1972 do not
apply to this case or have never been formally adopted. Therefore, any
argument on that score is fit to be rejected out rightly. Based on these
submission, learned counsel for the petitioner has pleaded that the order of
learned CAT is fit to be set aside. It is submitted that the power has been
validly exercised in the name of Vice President of CSIR after due notice to
show cause to the applicant and upon his conviction.
8. Learned counsel for the applicant/respondent, Mr. Sudarshan
Shrivastava has supported the grounds taken before learned CAT and the
findings of learned Tribunal on that count. He has taken further ground that
there has been no valid adoption of CCS (Pension) Rules, 1972 to impose
such a penalty upon the applicant. Learned counsel for the respondent herein
has referred to the decision of learned CAT, Ernakulam Bench in the cases of
M. K. Nair (supra) and also K.S.Malik-Vs. Union of India and others
rendered by learned Principal Bench, New Delhi in O.A. No. 886 of 2007
dated 23rd October, 2007. The decision in the case of Dr. M. K. Nair was
also relied upon by learned Principal Bench. He submits that in both the
decisions which are on similar issues concerning the ICAR and Kendriya
Vidyalaya Sangathan, the learned CAT came to a finding that these
organizations have not framed their own Pension Rules and no resolution has
been passed for adopting the CCS (Pension) Rules with or without
modifications and alterations. The decisions of the Apex Court have also
been relied upon by learned Tribunal in these cases to hold that for
applicability of a Rule, there has to be a valid adoption. CSIR like ICAR and
Kendriya Vidyalaya Sangathan (KVS) are not the Central Government in the
real sense. The presidential powers vested under Rule 9 of CCS (Pension)
Rules, 1972 cannot be exercised by the President or Vice President of CSIR.
The President of India cannot be called upon to exercise his powers or rights
in relation to the service matters of CSIR employees without there being a
specific provision in the Rules governing the CSIR to that effect. Presidential
powers and privileges mentioned in the CCS (CCA) Rules, 1972 cannot be
equated with the rights of the President referred to in Rule 9 of CCS
(Pension) Rules, 1972. Such right cannot be assumed to have been delegated
to the Vice President of the CSIR. Besides these additional plea raised before
this Court for the first time, learned counsel for the respondent has reiterated
that there has been no consultation with the UPSC as per Explanation-I of
Rule 9 of Pension Rules and moreover, no such pension can be withdrawn
below Rs. 375/- as per Explanation-II thereof. He submits that the
proceedings which have been initiated as per Annexure-1 memorandum
dated 20th October, 2015 also relate to an event beyond 4 years which is
impermissible under Rule 9 (2)(b)(ii). He submits that the powers of the
President of India therefore could not have been exercised by the Vice
President, CSIR to impose such a penalty. Therefore, learned Tribunal was
right in setting aside the impugned penalty withdrawing the gratuity and
pension in full permanently. Moreover, the appeal preferred by the applicant
against his conviction is still pending before this Court. He further submits
that there is a difference between adoption of a procedure and exercise of a
power reserved to the President of India under Rule 9 of CCS (Pension)
Rules, 1972. If there is no valid adoption in the eye of law, there cannot be
any penalty imposable in exercise of such a rule. The impugned order is
proper and legal and does not require any interference by this Court under
Article 226 of the Constitution of India.
9. We have considered the submission of learned counsel for the
parties and taken note of the factual canvas of the case of the applicant and
the legal provisions relied upon by them. We have also taken
into account the decisions cited by the parties in support of their contention.
We may, at the outset, point out that the question of adoption of CCS
(Pension) Rules, 1972 was never raised by the applicant in his challenge to
the impugned penalty before learned CAT. Applicant had pleaded that Vice
President of CSIR is not the authority contemplated under Rule 9 for
imposing penalty of such nature since such power is reserved to the President
of India. Applicant also pleaded that initiation of these proceedings on
issuance of the memorandum dated 20th October, 2015 was impermissible
being beyond the period of 4 years from the date of incidence i.e., 15 th
December, 2009 when the CBI instituted an F.I.R against the applicant and
other person on allegations of seeking and accepting bribery. For proper
appreciation of the issue in controversy, it is apposite to quote Rule 9 of CCS
(Pension) Rules, 1972 hereunder:
9. Right of President to withhold or withdraw pension-[(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 :
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, is 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 place as the
President may direct and in accordance with the procedure applicable to
departmental proceedings in relation to the Government servant during
his service
(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 [Rule 59] shall be sanctioned.
(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 -
(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
10. Applicant has neither raised this plea earlier that the CCS (Pension)
Rules, 1972 have not been adopted by the CSIR nor has made any reference to
any other pension rules which govern the case of CSIR employees. On the
other hand, learned counsel for the petitioner in reply has copiously placed
reliance upon the Orders/Circulars/Instructions on pension scheme for CSIR
employees contained in the Compendium of CSIR which we have referred to
hereinabove. Applicant had only pleaded that it is only the President of India
who could exercise the right to withhold or withdraw pension. Therefore, the
order of withholding of pension/gratuity passed by the Vice President of CSIR
is not tenable in law. In this regard we may usefully rely upon the decision of
the Apex Court in the case of Prahlad Sharma Vs. State of U.P. and others
reported in (2004) 4 SCC 113, para 7 & 8 thereof.
7. Rule 13 of the U.P. Rules of 1999 provides as under:
"13. Revision.--Notwithstanding anything contained in
these Rules, the Government may of its own motion or on
the representation of government servant concerned call
for the record of any case decided by an authority
subordinate to it in the exercise of any power conferred on
such authority by these rules; and
(a) confirm, modify or reverse the order passed by such
authority; or
(b) direct that further inquiry be held in the case; or
(c) reduce or enhance the penalty imposed by the order; or
(d) make such other order in the case as it may deem fit."
The U.P. Rules of 1999 relate to the employees of the
State Government. The revisional power has thus been
vested in the State Government to exercise the same on its
own motion or on the representation of the government
servant concerned. In exercise of this power the State
Government could call for the record of any case decided
by an authority subordinate to it and pass appropriate
order confirming or modifying or reversing the order
under revisional scrutiny besides other powers as provided
for under the Rules. The question for consideration is as to
whether or not this revisional power is available to the
State Government in relation to the employees of the
Corporation. In this connection it may be observed that a
corporation or any other organization may adopt the rules
on any subject, as may be applicable in the State
Government or any other organization. But by doing so
only the rules are adopted not the authorities unless
specifically provided for. Otherwise, it would result in a
queer situation where the authorities of the organization
whose rules on a particular subject have been adopted by
another organization would start exercising those powers
in relation to the matters of the organization adopting the
rules, which would obviously not be permissible. If the
organization adopts the rules pertaining to disciplinary
matters as prevalent in the government or other
organization, it would only mean that same procedure
would be applicable in respect of the employees of the
organization adopting the rules, namely, the manner of
holding an enquiry into the charges, opportunity of
hearing, provision for appeal or revision would be
applicable in respect of the employees of the organization
adopting the rules but such powers would be exercisable
by the corresponding authorities in the organization
adopting the rules. If some power is vested in a particular
authority, for example, in this case in the State
Government or for that matter it could be with any other
officer or functionary of the State Government, that would
not subject the employees of a corporation or organization
to the control of those authorities of the organization
whose rules have been adopted. If an appeal is provided to
be preferred against an order of punishment, to an
authority who is higher than the punishing authority, that
remedy may be available to the employees of the
organization adopting the rules for preferring the appeal to
the higher authority of his own organization but not that
the Appellate Authority would also be the same belonging
to the organization whose rules are adopted. Similarly, if
any authority corresponding or parallel to the State
Government is available in the corporation, such authority
may exercise revisional powers as conferred upon the
State Government in the U.P. Rules of 1999. The
authorities of a foreign organization cannot be vested with
such powers merely because of adoption of the rules on a
particular subject as applicable to other organizations. The
same procedure or protection will be applicable and
available to the employees of the Corporation as may be
provided under the U.P. Rules of 1999 but the
corresponding authorities would obviously be different.
Otherwise authorities of the other department whose rules
are adopted may get wide powers like looking into any
records of the organization, adopting the rules and
exercising powers like in this case vested under Rule 13,
upsetting, modifying, reversing orders passed by the
authorities of the adopting organization.
8. The learned counsel for the appellant also draws our
attention to Rule 13 to indicate that if the rule is to be
applicable, as it is, then the Government will have power
to revise the order only in case it has been passed by an
authority subordinate to it. The Managing Director or the
Chairman are the authorities and functionaries of the
corporation. Incumbent of such offices may even though
sometimes be government servants on deputation but
while working as Chairman or the Managing Director or
any authority in the organization or the corporation, they
would not be subordinate to the Government. It is again to
be noticed that then perhaps the right to invoke the
revisional powers may be available only to the
"government servant concerned" as provided under Rule
13 and may not be available to the employee of the
corporation. Therefore, it is submitted and in our view,
rightly, that adoption of rules is implemented in a manner
as they fit in the structure of the adopting organization and
not as a straitjacket application to the adopting
organization. It has also been pointed out that according to
the provisions of Rule 13, as it is, an order can be
subjected to the revisional power of the State only if the
order has been passed in exercise of any power conferred
under the Rules of 1999. It is submitted that the orders
passed by the Managing Director or the Chairman cannot
be said to be orders passed under the U.P. Rules of 1999
and not under the Rules as adopted by the Corporation."
It has been held therein that a corporation or any other organization
may adopt the rules on any subject, as may be applicable in the State
Government or any other organization. But by doing so only the rules are
adopted not the authorities unless specifically provided for. Otherwise, it
would result in a queer situation where the authorities of the organization
whose rules on a particular subject have been adopted by another
organization would start exercising those powers in relation to the matters of
the organization adopting the rules, which would obviously not be
permissible. If the organization adopts the rules pertaining to disciplinary
matters as prevalent in the government or other organization, it would only
mean that same procedure would be applicable in respect of the employees of
the organization adopting the rules, namely, the manner of holding an
enquiry into the charges, opportunity of hearing , provision of appeal or
revision would be applicable in respect of the employees of the organization
adopting the rues but such powers would be exercisable by the corresponding
authorities in the organization adopting the rules. If some power is vested in a
particular authority, for example, in this case in the State Government or for
that matter, it could be with any other officer of functionary of the State
Government, that would not subject the employees of a corporation or
organization to the control of those authorities of the organization whose
rules have been adopted.
11. Rules and Regulations and Bye-laws of CSIR enclosed to the
supplementary affidavit (Annexure SA/2) are relevant for appreciation of the
issue in controversy. Rule 2(ix) contains the definition of the President of
CSIR. Rule 3 (a) (b) define as to who shall be ex-officio President of the
Society and the Vice President of the Society. They are quoted hereunder:
Rule 2(ix) "President" shall mean President, Council of
Scientific and Industrial Research.
Rule 3. The Society shall consist of the following members:
(a) The Prime Minister of India shall be the ex-officio President
of the Society.
(b) The Minister-in-Charge of the Ministry or Department
dealing with the Council of Scientific & Industrial Research
shall be the ex-officio Vice-President of the Society.
Petitioner has also enclosed the authorization of the President
CSIR dated 22nd March, 1958 issued by the then Prime Minister of India, Sri
Jawahar Lal Nehru authorizing the Vice President of the Council to exercise
all powers as the President thereof under Rule 56 of the Rules and
Regulations. Before learned CAT, CIMFR has also placed the notification
dated 19th September, 2006, whereby the Vice President, CSIR has been
authorized to exercise the powers under Rule 9 of CCS (Pension) Rules,
1972 on behalf of the President CSIR.
12. The applicant/respondent herein has placed reliance upon the
case of Dr. M. K. Nair (Supra) decided by Ernakulum Bench, CAT in a
case relating to Indian Council for Agricultural Research and that of K.S.
Malik (Supra) decided by the learned Principal Bench, CAT in the case of
Kendriya Vidyalaya Sangathan. On behalf of the petitioner-CSIR, reliance
has been placed upon the decision of Hyderabad Bench of learned CAT,
which specifically relates to the case of an employee under CSIR (Annexure
SA/4). Learned CAT, Hyderabad Bench took into account the Rules,
Regulation and Bye-laws of CSIR defining the expression 'President, CSIR'
in the context of the order of penalty passed under Rule 9 of CCS (Pension)
Rules, 1972 on the applicant therein who was serving as a Deputy Store and
Purchase Officer. The issue relating to consultation with the UPSC for
exercise of such power was also answered against the applicant. It is true that
employees of the CSIR (CIMFR) like the applicant are not government
employees having the protection in terms of Article 311 of the Constitution
of India. Therefore, such a consultation with UPSC cannot be in the scheme
of the Rules when applied to the case of employee of CSIR. The powers
exercisable by the President of India under Rule 9 would be exercisable by
the President of the Society and upon delegation by the Vice President of the
Society, who is Minister In-charge of the department dealing with the CSIR.
Before the learned C.A.T, it has not been disputed by the applicant that CCS
(Pension) Rules governed the case of the employees of CSIR/CIMFR and its
Unit but it was pleaded that the authority prescribed under CCS (Pension)
Rules, 1972 cannot ipso facto be the authority to exercise such a power in the
case of organization like CSIR. In view of the decisions rendered by Apex
Court in the case of Prahlad Sharma (supra), such a plea is not tenable in
law. It appears that the entire dispute relating to exercise of such a power
stem out from the memorandum dated 9/14th October, 2015 (Annexure-1)
issued by the Director, CSIR/CIMFR asking the applicant to show cause as
to why a penalty be not imposed under Rule 9 of CCS (Pension) Rules, 1972.
It was stated that the 'undersigned proposes to recommend to President of
India to impose such a penalty upon his conviction in the criminal case.'
However, the expression 'President of India' appears to be an inadvertent
typing error which cannot mean that in case of CSIR also, the powers
conferred under Rule 9 are to be exercisable by the President of India and not
the authority prescribed under the Rules, Regulations and Bye-laws of the
CSIR i.e. President of the CSIR or his delegatee Vice-President of the CSIR.
Such a plea therefore is not worthy of acceptance. On behalf of the
applicant/respondent, it has been also pleaded that the proceedings were
initiated beyond 4 years of the incidence and were impermissible in the light
of Rule 9(2)(b)(ii) of Pension Rule, 1972. As per Rule 9(1), power to
withhold pension in part or in full whether permanently or for a specified
period can be exercised in case of a pensioner, who is found guilty of grave
misconduct or negligence during the period of service in any departmental or
judicial proceeding including service rendered upon reemployment after
retirement. In the instant case, the power has been exercised upon conviction
of the applicant in a judicial proceeding based upon institution of an FIR by
the CBI on allegations of seeking and accepting bribe i.e. on 15th December,
2009. The judgment of conviction was rendered on 20th July, 2015.
Therefore, such a power does not appear to be relatable to Rule 9 (2) (b)
applicable in the case of a departmental proceeding. Even otherwise, if the
judicial proceedings were initiated for such a grave misconduct on 15th
December, 2009 itself, the memorandum dated 09/14/10/2015 upon his
conviction on 20th July, 2015, cannot be said to be in respect of an event,
which took place more than 4 years before such institution. It is not the case
of the applicant that the judicial proceedings were not initiated within 4 years
of the incidence.
12. Considered on all the above counts, we are of the view that
learned CAT committed serious error in law holding that the order of
withdrawal of pension and withholding of gratuity in full and permanently
was not passed by the competent authority i.e. President of India. As has
been held hereinabove it is the President of CSIR or his delegatee i.e. Vice
President, CSIR, who is conferred with such power under Rule 9 to impose
such a penalty as CSIR is not Central Government and the applicant is not a
central government employee.
13. In the light of the discussions made hereinabove and for the reasons
recorded, we are unable to uphold the order passed by learned CAT.
Accordingly, it is set aside. The writ petition is allowed.
(Aparesh Kumar Singh, J.)
(Anubha Rawat Choudhary, J.)
Jk
