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2008 DIGILAW 1078 (ORI)

UNION OF INDIA (UOI) v. SHYAM SUNDAR MOHANTY

2008-12-02

I.MAHANTY, L.MOHAPATRA

body2008
JUDGMENT : Indrajit Mahanty, J 1. The Union of India, Petitioner in this writ application seek to challenge the order dated 8.1.2001 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 227 of 1998, whereby, the Tribunal has been pleased to allow the Original Application filed by the opposite party by quashing the order of punishment imposed on the opposite party by order dated 20.2.1998 directing withholding of 15% of opposite party's pension for a period of two years pursuant to a disciplinary proceeding. 2. Sri P.N. Mohapatra, learned Counsel appearing for the Union of India, inter alia, submitted that since the opposite party was found to have violated the order of the General Manager, Telecom (Planning), Orissa Circle, Bhubaneswar and had sold unserviceable telecom store material to a contractor without inviting sealed tenders or holding public auction, the Tribunal ought not to have quashed the order of punishment directing withholding 15% of pension for a period of two years. He submitted that the opposite party Shri Shyam Sundar Mohanty was working as a Telecom District Engineer (TDE), Dhenkanal during the year 1990. The General Manager, Telecom (Planning) had issued a letter dated 25.5.1990 to all Telecom District Engineers directing disposal of unserviceable telecom stores either by inviting sealed tenders or holding public auction, within a period of two months. It is submitted that the opposite party joined as the TDE, Dhenkanal on 30.7.1990 and thereby, two months period had already expired. Inspite of such direction the opposite party did not seek any extension from the General Manager and directed sale of the unserviceable materials to a contractor at a rate which has been approved by the TDE, Tirupati Division and adopted by the TDE, Kurnool Division on 17.7.1989. Learned Counsel submitted that the rate at which unserviceable materials were sold by the opposite party was not operative on the date when the materials were sold on 30.8.1990. In view of such circumstances, learned Counsel for the Petitioners submitted that the Tribunal ought not to have interfered with the order of punishment since part of the charges levelled against the opposite party was duly established in course of enquiry. 3. Mr. Kanungo, learned Counsel for the opposite party, on the other hand, submitted that the charge memo had been issued to the opposite party under Rule-14 of the C.C.S. (CCA.) Rules, 1965 on 21.4.1994. 3. Mr. Kanungo, learned Counsel for the opposite party, on the other hand, submitted that the charge memo had been issued to the opposite party under Rule-14 of the C.C.S. (CCA.) Rules, 1965 on 21.4.1994. The opposite party retired from service nine days thereafter, i.e. on 30.4.1994 and the Disciplinary Proceeding continued under Rule-9 of the C.C.S. (Pension) Rules, 1972. Mr. Kanungo submitted that on perusal of the inquiry report, it would be seen that the charge of causing any pecuniary loss to the Department was not proved against the charged officer and hence, once no pecuniary loss is occasioned, there is no justification whatsoever for imposing punishment by way of withholding 15% of the pension. Mr. Kanungo further submitted that the admitted facts of the case would indicate that the opposite party joined his post on 30.7.1990 by which time direction of the General Manager (Planning) contained in his letter dated 25.5.1990 directing disposal of unserviceable store materials either by public auction or by inviting sealed tenders within a period of two months has already expired. It is further submitted that the opposite party having joined the post after expiry of two months as directed by General Manager, could not be found to be guilty of the violation of the same since the said direction was no longer in force on the date on which the opposite party joined his post. Apart from this, learned Counsel submitted that the opposite party had sought the advise of the Internal Financial Advisor who had suggested for sale of the unserviceable store materials, at the rates approved by the TDE, Tirupati and which was adopted by the TDE, Kurnool. Mr. Kanungo submitted that those self-same rates were relied upon by the TDE, Bhubaneswar as well as the TDE, Sambalpur for sale of unserviceable stores and no objection has been raised by the Department against such sales and it is only the opposite party's action which was found to be objectionable. He submitted that the present case is a case where action has been taken against the opposite party not for any bona fide purpose and on the contrary, the opposite party had acted in the best interest of the institution by disposing of unserviceable store materials since, at the relevant time, space was urgently required for storage of materials for the work which was in progress at the relevant time. Mr. Mr. Kanungo submitted that no objection or proceeding was ever initiated against the TDE, Bhubaneswar or against the TDE, Sambalpur for having sold unserviceable store materials by negotiation based on the rates approved by the TDE, Tirupati and adopted by the TDE, Kurnool. He further submitted that in terms of Rule-9 of the C.C.S. (Pension) Rules, 1972, a proceeding and penalty thereunder can only be imposed if the pensioner is found guilty of grave misconduct or negligence resulting in pecuniary loss to the Government, which was not so in the present case. 4. Mr. Mohapatra, learned Counsel for the Union of India, on the other hand, contended that the right to impose penalty under Rule-9 is not limited nor dependent upon any pecuniary loss alone. Learned Counsel submitted that even if there is no pecuniary loss, an order under Rule-9 can be passed, if in any disciplinary proceeding, the pensioner is found guilty of misconduct or negligence. In this respect, Mr. Mohapatra placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Union of India and Others Vs. Shri B. Dev, and in particular, the finding of the Supreme Court in paragraph-12 thereof which is quoted hereinbelow: 12. Rule 9 gives to the President the right of (1) withholding or withdrawing a pension or part thereof (2) either permanently or for a specified period and (3) ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government. This power can be exercised if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service. The power, therefore, can be exercised in all cases where the pensioner is found guilty of grave misconduct or negligence during the period of his service. One of the powers of the President is to recover from pension, in a case where any pecuniary loss is caused to the Government, that loss. This is an independent power in addition to the power of withdrawing or withholding pension. The contention of the Respondent, therefore, that Rule 9 cannot be invoked even in cases of grave misconduct unless pecuniary loss is caused to the Government, is unsustainable. 5. In view of the judgment of the Supreme Court in the case of B. Dev (supra), we are of the considered opinion that the contention of Mr. The contention of the Respondent, therefore, that Rule 9 cannot be invoked even in cases of grave misconduct unless pecuniary loss is caused to the Government, is unsustainable. 5. In view of the judgment of the Supreme Court in the case of B. Dev (supra), we are of the considered opinion that the contention of Mr. Kanungo that Rule- 9 could not be resorted to since no pecuniary loss is caused to the Union of India, cannot be accepted in law. It is clear from the judgment of the Supreme Court that one of the powers of the President to recover from pension in a case where any pecuniary loss is caused to the Government but this power is in addition to the power of withdrawing or withholding the pension. therefore, the, contention of the learned Counsel for the opposite party that Rule- 9 cannot be invoked in case of grave misconduct unless pecuniary loss is caused to the Government, is held to be unsustainable. 6. In so far as the uncontroverted facts of the case are concerned, we find from Annexure-2 to the writ application that the U.P.S.C. upon perusing the records of the disciplinary proceedings has come to the conclusion as follows: In view of the above, the Commission conclude that though there is no loss caused to the Government by the said action of the Charged Officer and no mala fide has been attributed to the Charged Officer but they hold that the Charged Officer failed in obtaining the orders of the higher ups to dispose of the unserviceable materials by procedure other than the on instructed by GM(Plg.). 7. It is further a matter of record that this advice/recommendation of the UPSC was accepted and acted upon and consequently the order the punishment was passed. From the findings arrived at by the Commission, we find that while the Commission concluded that there was no loss caused to the Government by the said action of the Charged Officer, there is a further finding that no mala fide has been attributed to the Charged Officer and the only default found against the charged Officer is failure in obtaining orders of the higher ups prior to disposal of the unserviceable materials. 8. 8. In the case at hand, taking the above finding of the UPSC into consideration, the Tribunal in the impugned judgment has recorded that before passing the order for disposal of unserviceable materials, the Opp. Party had obtained advice of the Internal Financial Advisor and this lapse on the part of the Opp. Party, under the circumstances of the case, was held by the Tribunal not amount to 'grave misconduct' within the meaning of Sub-Rule-(1) of Rule-9 of the C.C.S. (Pension) Rules, 1972. In view of such finding, the Tribunal allowed the Original Application of the Opp. Party and quashed the order of punishment dated 20.2.1998. 9. We are in respectful agreement with the conclusion arrived at by the Tribunal and find no justifiable reasons to interfere with the same. Accordingly, we dismiss the writ application and affirm the order passed by the Tribunal. 10. Before parting, it is necessary to note a further submission made by the learned Counsel for the Opp. Party that, due to the pendency of the writ application, the Opp. Party, who has retired from service since 30.4.1994, has not been paid his retirement dues nor the pensionary benefits, i.e. for over 14 years. Accordingly, while affirming the order of the Tribunal dated 8.1.2001 passed in O.A. No. 227 of 1998, we further direct that all retirement benefits of the Opp. Party be released in his favour at the earliest, positively within a period of three months from today. L. Mohapatra, J. 11. I agree. Final Result : Dismissed