HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Writ Petition No. 12437 / 2012
H.R. Choudhary S/o Late Shri Kana Ram Choudhary, aged about
69 Years, D-40, Chomu House, Sardar Patel Marg, Jaipur (retired
on 31.12.2004
----Petitioner
Versus
1. Central Administrative Tribunal, Jaipur Bench Jaipur.
2. Bharat Sanchar Nigam Limited, Corporate Office, Personnel
Branch-II, B-102, Statesman House, 148, Barakhamba Road, New
Delhi Through Its Chairman-cum-managing Director.
3. The Principal General Manager, Telecom District, Jaipur-10,
Bharat Sanchar Nigam Limited, Jaipur.
4. The Member(services), Telecom Commission, Government of
India, Ministry of Telecom & Information Technology, Department
of Telecommunication, Vigilance Second Section, New Delhi-
110001.
----Respondents
_____________________________________________________
For Petitioner : Mr.Mahendra Shah with Mr.Kamlesh Sharma
For Respondents : Mr.Sanjay Verma
_____________________________________________________
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE VIJAY KUMAR VYAS
Judgment on Board
Per : Hon’ble the Chief Justice
27/01/2017
The present writ petition assails order dated
26/07/2012 of the Central Administrative Tribunal, Jaipur Bench
dismissing OA No.102/2011 declining relief for payment of pension
and gratuity.
Learned Counsel for the Petitioner submits that he was
suspended on 13/12/2004 under Rule 10(1) of the Central Civil
Services (Classification, Control and Appeal) Rules, 1965
(2 of 7)
[CW-12437/2012]
(hereinafter referred as the “CCS Rules”) in contemplation of a
departmental proceeding. He superannuated on 31/12/2004. Till
that date, no charge-sheet was issued or served upon him. On
18/01/2005 orders were issued that in view of the pendency of a
vigilance case, provisional pension was sanctioned withholding
Death-cum-Retirement Gratuity/CVP till conclusion of the vigilance
case. This order was totally unjustified and based on a non-est
ground as no departmental proceeding had been initiated till
superannuation. The petitioner was therefore entitled to full
pension and gratuity with interest.
It was next submitted that he was convicted on a
criminal charge for the death of his daughter-in-law under Section
306 IPC on 16/12/2004. It had nothing to do with discharge of his
official duties. On 29/11/2004, referring to the conviction show
cause notice was issued under Rule 19 of the CCS Rules and which
was duly replied. It was specifically contended that pension and
other retiral benefits could not be withheld for that reason under
Rule 69 of the Central Civil Services (Pension) Rules, 1972
(hereinafter referred as the “Pension Rules”). The department had
also issued clarification on 24/03/2003 that "judicial proceedings"
referred to in Rule 69 did not include a conviction or a proceeding
unrelated to service. The Tribunal gravely erred in denying relief to
the petitioner.
Learned Counsel for the Respondents submitted that
pursuant to conviction under Section 306 IPC on 16/12/2004,
show cause notice was issued to the petitioner on 29/11/2004
(3 of 7)
[CW-12437/2012]
whereafter provisional pension was sanctioned on 18/01/2005.
The criminal appeal against conviction is still pending.
We have heard learned Counsel for the parties and
perused the materials on record.
The Petitioner was suspended while in service under
Rule 10(1)(a) of the CCS Rules in contemplation of a departmental
proceeding. He superannuated on 31/12/2004. Till that date no
charge-sheet was issued or served upon him. A departmental
proceeding commences only after issuance of charge-sheet. That
suspension was on account of a contemplated departmental
proceeding for conduct while in service is apparent from letter
dated 18/01/2005 sanctioning provisional pension and withholding
gratuity etc. due to pendency of a vigilance case. The ground is
factually non-est. There are no proceedings initiated under the
Pension Rules.
The petitioner already stood convicted in the criminal
case before 18/01/2005. The Respondents made no reference to
the same as they never intended to withhold full pension or
gratuity for that reason. If no charge-sheet was issued or served
before superannuation and there were no proceedings under the
Pension Rules, withholding of full pension and gratuity was not
only arbitrary but also illegal and unsustainable in law.
The show cause notice issued to him on 29/11/2004
under Rule 19 of the CCS Rules was completely misconceived.
Rule 19 reads as follows:-
(4 of 7)
[CW-12437/2012]
“19. Special procedure in certain cases
Notwithstanding anything contained in Rule 14 to
Rule 18-
(i) where any penalty is imposed on a Government
servant on the ground of conduct which has led to his
conviction on a criminal charge, or
(ii) where the Disciplinary Authority is satisfied for
reasons to be recorded by it in writing that it is not
reasonably practicable to hold an inquiry in the
manner provided in these rules, or
(iii) where the President is satisfied that in the
interest of the security of the State, it is not
expedient to hold any inquiry in the manner provided
in these rules.
the Disciplinary Authority may consider the
circumstances of the case and make such orders
thereon as it deems fit:
[Provided that the Government servant may be
given an opportunity of making representation on the
penalty proposed to be imposed before any order is
made in a case under Clause (i) :
Provided further that the Commission shall be
consulted, where such consultation is necessary,
before any orders are made in any case under this
rule.]”
Rule 14 provides the procedure for imposing major
penalties related to imputation of misconduct or misbehavior
including sexual harassment. It provides for holding a regular
departmental proceeding. There is no provision for holding a
departmental proceeding for imposing a major penalty on grounds
of conviction in a criminal case unrelated to discharge of duties as
a government servant. Rule 15 provides procedure to be followed
after submission of the enquiry report. Rule 16 deals with
imposition of minor penalties with regard to imputation of
misconduct or misbehaviour. Rule 17 concerns communication of
orders and Rule 18 provides for proceedings on more than one
(5 of 7)
[CW-12437/2012]
government servant on a common charge. It is therefore apparent
that penalty leading to conviction on a criminal charge under Rule
19(i) has to be with regard to a conduct associated with discharge
of government duties. The show cause notice under Rule 19 of the
CCS Rules was therefore completely misconceived.
Rule 69 of the Pension Rules provides for grant of
provisional pension where departmental or judicial proceedings
are pending. Even if the appeal against conviction preferred by the
Petitioner be treated as a continuation of the criminal case, the
words “judicial proceedings” will naturally have to be read in the
context of the rules as being confined to a proceeding related to
conduct in service which led to conviction on a criminal charge. To
read into it the pendency of an appeal preferred by the petitioner
against his conviction under Section 306 IPC to withhold full
pension would be doing complete violence to Rule 69 and shall be
completely beyond its jurisdiction and scope. In (2009) 3 SCC 709
(Paul Enterprises v. Rajib Chatterjee & Co.) it was observed as
follows :-
“24. In a situation of this nature, the interpretation
clause should be given a contextual meaning. It is not
exhaustive. It is trite that when a statutory enactment
defines its terms, the same should govern what is
proved, authorised or done under or by reference to
that enactment.......”
The counter affidavit filed by the Respondents before
the Tribunal is a bundle of contradictions reflecting a state of
complete apathy unconcerned with the duty to assist the Tribunal
in dispensation of justice. The Respondent acts through its officers
who are reposed power in trust to be used in good faith to protect
(6 of 7)
[CW-12437/2012]
the interest of the Respondents and not to involve it in
unnecessary litigation frittering away time and money. We are
constrained to observe that the trust has been completely belied
by action reflecting complete non application of mind if not in
abuse of the trust placed. The shifting stands taken in official
orders and that before the Tribunal has resulted in illegal denial of
full pension and gratuity to the petitioner since his superannuation
in the year 2004. Regrettably, the Tribunal failed to grasp issues
for consideration properly.
A superannuated employee has no other source of
income. Any deprivation of superannuation benefits therefore has
serious consequences for the retired employee and his family. He
may have to garner resources at this stage at considerable cost to
maintain his standard of living or alternately be forced to reduce
his standard of living for no fault of his. Pension and gratuity are
not bounty but constitute a right to property under Article 300A of
the Constitution which cannot be deprived except in accordance
with law.
The withholding of full pension and gratuity is therefore
held to be arbitrary and illegal. The Petitioner is held entitled to
full pension from date of superannuation alongwith gratuity and
other superannuation benefits, if any. The Respondents shall pay
interest on Gratuity as provided for in Rule 68 of the Pension Rules
or any statutory interest as the case may be. Relying on (1994) 2
SCC 406 (R.R.Bhanot v. Union of India) the Petitioner is held
entitled to interest on the arrears of pension @12% p.a. from the
date of superannuation till the actual date of payment.
(7 of 7)
[CW-12437/2012]
The order to be complied with within a maximum period
of two months from the date of receipt and/or production of a
copy of this order failing which the Petitioner shall be entitled to
18% interest. The Respondents in that event shall be at liberty to
fix responsibility and recover the 6% interest from the erring
official. The order of the Tribunal is set-aside.
The writ petition is allowed.
(VIJAY KUMAR VYAS)J. (NAVIN SINHA)C.J.
Anil Goyal PS/48
AFR
JAIPUR
D.B. Civil Writ Petition No. 12437 / 2012
H.R. Choudhary S/o Late Shri Kana Ram Choudhary, aged about
69 Years, D-40, Chomu House, Sardar Patel Marg, Jaipur (retired
on 31.12.2004
----Petitioner
Versus
1. Central Administrative Tribunal, Jaipur Bench Jaipur.
2. Bharat Sanchar Nigam Limited, Corporate Office, Personnel
Branch-II, B-102, Statesman House, 148, Barakhamba Road, New
Delhi Through Its Chairman-cum-managing Director.
3. The Principal General Manager, Telecom District, Jaipur-10,
Bharat Sanchar Nigam Limited, Jaipur.
4. The Member(services), Telecom Commission, Government of
India, Ministry of Telecom & Information Technology, Department
of Telecommunication, Vigilance Second Section, New Delhi-
110001.
----Respondents
_____________________________________________________
For Petitioner : Mr.Mahendra Shah with Mr.Kamlesh Sharma
For Respondents : Mr.Sanjay Verma
_____________________________________________________
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE VIJAY KUMAR VYAS
Judgment on Board
Per : Hon’ble the Chief Justice
27/01/2017
The present writ petition assails order dated
26/07/2012 of the Central Administrative Tribunal, Jaipur Bench
dismissing OA No.102/2011 declining relief for payment of pension
and gratuity.
Learned Counsel for the Petitioner submits that he was
suspended on 13/12/2004 under Rule 10(1) of the Central Civil
Services (Classification, Control and Appeal) Rules, 1965
(2 of 7)
[CW-12437/2012]
(hereinafter referred as the “CCS Rules”) in contemplation of a
departmental proceeding. He superannuated on 31/12/2004. Till
that date, no charge-sheet was issued or served upon him. On
18/01/2005 orders were issued that in view of the pendency of a
vigilance case, provisional pension was sanctioned withholding
Death-cum-Retirement Gratuity/CVP till conclusion of the vigilance
case. This order was totally unjustified and based on a non-est
ground as no departmental proceeding had been initiated till
superannuation. The petitioner was therefore entitled to full
pension and gratuity with interest.
It was next submitted that he was convicted on a
criminal charge for the death of his daughter-in-law under Section
306 IPC on 16/12/2004. It had nothing to do with discharge of his
official duties. On 29/11/2004, referring to the conviction show
cause notice was issued under Rule 19 of the CCS Rules and which
was duly replied. It was specifically contended that pension and
other retiral benefits could not be withheld for that reason under
Rule 69 of the Central Civil Services (Pension) Rules, 1972
(hereinafter referred as the “Pension Rules”). The department had
also issued clarification on 24/03/2003 that "judicial proceedings"
referred to in Rule 69 did not include a conviction or a proceeding
unrelated to service. The Tribunal gravely erred in denying relief to
the petitioner.
Learned Counsel for the Respondents submitted that
pursuant to conviction under Section 306 IPC on 16/12/2004,
show cause notice was issued to the petitioner on 29/11/2004
(3 of 7)
[CW-12437/2012]
whereafter provisional pension was sanctioned on 18/01/2005.
The criminal appeal against conviction is still pending.
We have heard learned Counsel for the parties and
perused the materials on record.
The Petitioner was suspended while in service under
Rule 10(1)(a) of the CCS Rules in contemplation of a departmental
proceeding. He superannuated on 31/12/2004. Till that date no
charge-sheet was issued or served upon him. A departmental
proceeding commences only after issuance of charge-sheet. That
suspension was on account of a contemplated departmental
proceeding for conduct while in service is apparent from letter
dated 18/01/2005 sanctioning provisional pension and withholding
gratuity etc. due to pendency of a vigilance case. The ground is
factually non-est. There are no proceedings initiated under the
Pension Rules.
The petitioner already stood convicted in the criminal
case before 18/01/2005. The Respondents made no reference to
the same as they never intended to withhold full pension or
gratuity for that reason. If no charge-sheet was issued or served
before superannuation and there were no proceedings under the
Pension Rules, withholding of full pension and gratuity was not
only arbitrary but also illegal and unsustainable in law.
The show cause notice issued to him on 29/11/2004
under Rule 19 of the CCS Rules was completely misconceived.
Rule 19 reads as follows:-
(4 of 7)
[CW-12437/2012]
“19. Special procedure in certain cases
Notwithstanding anything contained in Rule 14 to
Rule 18-
(i) where any penalty is imposed on a Government
servant on the ground of conduct which has led to his
conviction on a criminal charge, or
(ii) where the Disciplinary Authority is satisfied for
reasons to be recorded by it in writing that it is not
reasonably practicable to hold an inquiry in the
manner provided in these rules, or
(iii) where the President is satisfied that in the
interest of the security of the State, it is not
expedient to hold any inquiry in the manner provided
in these rules.
the Disciplinary Authority may consider the
circumstances of the case and make such orders
thereon as it deems fit:
[Provided that the Government servant may be
given an opportunity of making representation on the
penalty proposed to be imposed before any order is
made in a case under Clause (i) :
Provided further that the Commission shall be
consulted, where such consultation is necessary,
before any orders are made in any case under this
rule.]”
Rule 14 provides the procedure for imposing major
penalties related to imputation of misconduct or misbehavior
including sexual harassment. It provides for holding a regular
departmental proceeding. There is no provision for holding a
departmental proceeding for imposing a major penalty on grounds
of conviction in a criminal case unrelated to discharge of duties as
a government servant. Rule 15 provides procedure to be followed
after submission of the enquiry report. Rule 16 deals with
imposition of minor penalties with regard to imputation of
misconduct or misbehaviour. Rule 17 concerns communication of
orders and Rule 18 provides for proceedings on more than one
(5 of 7)
[CW-12437/2012]
government servant on a common charge. It is therefore apparent
that penalty leading to conviction on a criminal charge under Rule
19(i) has to be with regard to a conduct associated with discharge
of government duties. The show cause notice under Rule 19 of the
CCS Rules was therefore completely misconceived.
Rule 69 of the Pension Rules provides for grant of
provisional pension where departmental or judicial proceedings
are pending. Even if the appeal against conviction preferred by the
Petitioner be treated as a continuation of the criminal case, the
words “judicial proceedings” will naturally have to be read in the
context of the rules as being confined to a proceeding related to
conduct in service which led to conviction on a criminal charge. To
read into it the pendency of an appeal preferred by the petitioner
against his conviction under Section 306 IPC to withhold full
pension would be doing complete violence to Rule 69 and shall be
completely beyond its jurisdiction and scope. In (2009) 3 SCC 709
(Paul Enterprises v. Rajib Chatterjee & Co.) it was observed as
follows :-
“24. In a situation of this nature, the interpretation
clause should be given a contextual meaning. It is not
exhaustive. It is trite that when a statutory enactment
defines its terms, the same should govern what is
proved, authorised or done under or by reference to
that enactment.......”
The counter affidavit filed by the Respondents before
the Tribunal is a bundle of contradictions reflecting a state of
complete apathy unconcerned with the duty to assist the Tribunal
in dispensation of justice. The Respondent acts through its officers
who are reposed power in trust to be used in good faith to protect
(6 of 7)
[CW-12437/2012]
the interest of the Respondents and not to involve it in
unnecessary litigation frittering away time and money. We are
constrained to observe that the trust has been completely belied
by action reflecting complete non application of mind if not in
abuse of the trust placed. The shifting stands taken in official
orders and that before the Tribunal has resulted in illegal denial of
full pension and gratuity to the petitioner since his superannuation
in the year 2004. Regrettably, the Tribunal failed to grasp issues
for consideration properly.
A superannuated employee has no other source of
income. Any deprivation of superannuation benefits therefore has
serious consequences for the retired employee and his family. He
may have to garner resources at this stage at considerable cost to
maintain his standard of living or alternately be forced to reduce
his standard of living for no fault of his. Pension and gratuity are
not bounty but constitute a right to property under Article 300A of
the Constitution which cannot be deprived except in accordance
with law.
The withholding of full pension and gratuity is therefore
held to be arbitrary and illegal. The Petitioner is held entitled to
full pension from date of superannuation alongwith gratuity and
other superannuation benefits, if any. The Respondents shall pay
interest on Gratuity as provided for in Rule 68 of the Pension Rules
or any statutory interest as the case may be. Relying on (1994) 2
SCC 406 (R.R.Bhanot v. Union of India) the Petitioner is held
entitled to interest on the arrears of pension @12% p.a. from the
date of superannuation till the actual date of payment.
(7 of 7)
[CW-12437/2012]
The order to be complied with within a maximum period
of two months from the date of receipt and/or production of a
copy of this order failing which the Petitioner shall be entitled to
18% interest. The Respondents in that event shall be at liberty to
fix responsibility and recover the 6% interest from the erring
official. The order of the Tribunal is set-aside.
The writ petition is allowed.
(VIJAY KUMAR VYAS)J. (NAVIN SINHA)C.J.
Anil Goyal PS/48
AFR
