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2011 DIGILAW 253 (ORI)

PITABASH MOHAPATRA v. UNION OF INDIA (UOI)

2011-04-22

L.MOHAPATRA, S.K.MISHRA

body2011
JUDGMENT : S.K. Mishra, J. - In this case, the Petitioner assails the order of the Learned Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 812 of 2002 wherein the Tribunal has refused to interfere with the order of punishment passed against the Petitioner in a Departmental Proceeding by the Union of India. 2. The undisputed facts are that the Petitioner was a member of the Orissa (State) Forest Service. He was charge-sheeted in a Departmental Proceeding during October, 1987. On 9.11.1987, he was promoted and became a member of Indian Forest Service (hereinafter referred as "I.F.S.") and remained in Orissa State cadre. While continuing as an I.F.S. Officer of Orissa Cadre, the applicant submitted a written statement of defence to the charge-sheet on 09.05.1988. The State of Orissa drew an additional charge-sheet against him on 12.06.1989. The Petitioner filed his written statement of defence on 28.09.1989. On 30.06.1991, the Petitioner retired from service on superannuation. After his retirement, the Petitioner faced the enquiry and finally found guilty and the competent authority, namely the Union of India inflicted punishment of reduction of his pension by 25% and for forfeiture of the entire gratuity, as per Order Dated 31.08.2004. Such order of punishment was challenged in the Original Application before the Learned Tribunal. 3. From the impugned order it transpires that the only point that was raised by the Learned Counsel for the Petitioner was since the applicant was a member of the All India Service, the State Government was incompetent to proceed against him departmentally and, as such, the final order of punishment, even if the same has been passed by the Government of India, is not sustainable, especially because the proceeding continued after his retirement from Government Service. Having considered the contention raised by the Petitioner, the Learned Tribunal after taking into consideration Rule 7 of the All India Service (Discipline and Appeal) Rules, 1969 (hereinafter referred as "AIS (DA) Rules, 1969") and the provisions of All India Services (Death-cum-Retirement Benefits) Rules, 1958 (hereinafter referred as "AIS (DCRB) Rules, 1958") held that the State Government has the authority to initiate a proceeding, though the punishment in such a case shall be inflicted only by the Central Government in consultation with the Union Public Service Commission (hereinafter referred as "U.P.S.C."). Learned Tribunal further held that Rule 6 of the AIS (DCRB) Rules, 1958 provides for withholding pension and gratuity and the order passed by the Disciplinary Authority is No. way irregular and illegal requiring any interference and accordingly, the Learned Tribunal dismissed the Original Application. 4. In assailing the orders passed by the Learned Tribunal, Learned Counsel for the Petitioner primarily raised two points: it is first contended that Rule 6 of the AIS (DCRB) Rules, 1958 does not authorize withholding of gratuity; secondly, it is submitted that the Hon'ble Supreme Court in SLP (C) No. 11426 of 1994 has ordered that the Petitioner be given the retiral benefits as a special case and hence, the Learned Tribunal could not have come to a conclusion contrary to the express directive of the Hon'ble Supreme Court. The Learned Standing Counsels for the Opp. Parties, on the other hand, supported the finding of the Learned Administrative Tribunal and prayed that the Writ Petition be dismissed. 5. At page 14 of the impugned order, the Learned Tribunal has quoted Rule 6 of the AIS (DCRB) Rules, 1958, which provides for recovery from pension. It is seen that in Sub-rule (1) it is provided that the Central Government reserves to itself the right of withholding a pension or gratuity, or both; either 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 Central or a State Government, if the pensioner is found in a departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Central or a State Government by misconduct or negligence during his service, including service rendered on re-employment after retirement. Thus, on the basis of such provision, Learned Tribunal came to the conclusion that the Rule 6 of the AIS (DCRB) Rules, 1958 confers power on the Central Government to withhold/forfeit the pension/ gratuity. It is not disputed in this case that the Petitioner faced the charge of grave misconduct and it is alleged that he had misappropriated public funds. The only question that remains to be seen here is, whether the Central Government has the authority to withhold any part of the gratuity and pension. It is not disputed in this case that the Petitioner faced the charge of grave misconduct and it is alleged that he had misappropriated public funds. The only question that remains to be seen here is, whether the Central Government has the authority to withhold any part of the gratuity and pension. Rule 6 of the AIS (DCRB) Rules, 1958 was amended by Ministry of H.A. Notification No. 29/7/63-AIS (II), dated 25.03.1964. The relevant portion of Sub- Rule (1) is quoted below: 6. Recovery from pension. (1) The Central Government reserves to itself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from pension of the whole or part of any pecuniary loss caused to the Central or a State Government, if the pensioner is found in a departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Central or a State Government by misconduct or negligence, during his service, including service rendered on re- employment after retirement: xxxx From this amended provision it is clear that the Rules do not provide for withholding of gratuity. Unless the rules provide for such punishment, it is not legal on the part of the Disciplinary Authority to Impose the penalty. It is well known that payment of gratuity is No. longer in the realm of the authority. It is a statutory right given to the employee. The mandate of statute is that the gratuity is paid to the employee on his retirement. It is not a bounty to the employee. Thus, unless the statute or rules thereunder provide for withholding of the gratuity, the Central Government do not have the authority to withhold the gratuity of any employee upon completion of a departmental enquiry. However, there is No. restriction of withholding of pension either in full or any part. Thus, the order passed by the Disciplinary Authority, as far it relates to the withholding of the entire gratuity, is contrary to the relevant provision Le. Rule 6 of the AIS (DCRB) Rules, 1958, and therefore, to that extent, the order is illegal. 6. The other contention raised by the Learned Counsel for the Petitioner is that the Petitioner faced the enquiry after three years six months approximately of his retirement. Rule 6 of the AIS (DCRB) Rules, 1958, and therefore, to that extent, the order is illegal. 6. The other contention raised by the Learned Counsel for the Petitioner is that the Petitioner faced the enquiry after three years six months approximately of his retirement. The reversion order was passed against him, which was challenged by him by filing Original Application No. 176 of 1991 before the Central Administrative Tribunal, in which an interim order was passed allowing the Petitioner to continue in the I.F.S. cadre. Against such interim order passed by the Tribunal, the State Government filed a SLP before the Hon'ble Supreme Court in SLP (C) No. 11426 of 1994, which was disposed of by the Hon'ble Supreme Court holding that the order impugned passed by the Tribunal is strictly not in conformity with the law on the facts and circumstances. However, the Hon'ble Supreme Court has directed the State Government to consider him to have retired from service w.e.f. 30.6.1991 and to give him retiree benefits and pension as a special case. Thereafter, the Petitioner filed a contempt application registered as Contempt Application No. 274 of 1997, which was disposed of on the ground that the State of Orissa are processing the pension papers said to have been filed by the Respondents, hence there is No. need to proceed with the contempt and accordingly, it was disposed of. Learned Counsel for the Petitioner has laid more emphasis on the observation made by the Hon'ble Supreme Court and submitted that in such view of the matter, the State Government could not have reduced the pension of the Petitioner by 25% upon completion of the Departmental enquiry. Though the contention raised by the Petitioner appears to be attractive, on 3 close scrutiny it appears to be erroneous in the sense that the Hon'ble Supreme Court has directed the State Government to consider him as having retired from service and to give him retiree benefits when the Departmental Proceedings were not completed. However, upon completion of departmental proceedings, when the Petitioner was found guilty, the matter was submitted to the Union of India. The Union of India after consulting the U.P.S.C. imposed the punishment as is evident from the order passed by the Joint Secretary to Government of India, Ministry of Forest and Environment Department for and on behalf of the President of India in Order No. 24033/AUU dated 31.08.2004. The Union of India after consulting the U.P.S.C. imposed the punishment as is evident from the order passed by the Joint Secretary to Government of India, Ministry of Forest and Environment Department for and on behalf of the President of India in Order No. 24033/AUU dated 31.08.2004. It is also not disputed that the U.P.S.C. was consulted in this aspect. So on the basis of the aforesaid reasoning, we come to the conclusion that the order of withholding 25% of the pension as punishment cannot be found to be irregular or illegal and it requires No. interference. 7. Accordingly, we allow the Writ Petition in part and modify the punishment passed by the Union of India in the aforesaid Order Dated 31.08.2004 to the extent that the Petitioner shall be entitled to receive the entire gratuity as admissible. To that extent the order impugned is modified. L. Mohapatra, J. I agree.