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2016 DIGILAW 957 (GAU)

UNION OF INDIA v. P. K. CHOUDHURY

2016-10-31

HRISHIKESH ROY, L.S.JAMIR

body2016
JUDGMENT : Hrishikesh Roy, J. Heard Mr. Y. Doloi, learned Central Government Counsel, appearing for the petitioners. The respondent/applicant is represented by Mr. S. Dutta, Advocate. 2. The challenge here is to the order dated 23.4.2012 (Annexure-III to the O.A. No. 44/2011) whereby the learned Central Administrative Tribunal (hereinafter referred to as the 'CAT') granted relief to the retired applicant and quashed the penalty order dated 20.12.2010 whereby the punishment of withholding of 20% of the monthly pension for a period of 5 years, was inflicted on the delinquent by invocation of the powers conferred under Rule 9(1) of the Central Civil Services Pension Rules (hereinafter referred to as 'the Pension Rules'). At the relevant time, the applicant was functioning as the Joint Area Organiser in the SSB at Palia (UP) and the disciplinary proceeding was drawn up against him on the following three charges : "Article-I. That the said Shri P.K. Choudhury, while functioning in the Area Office, Palia in the capacity of Head of Office and Drawing and Disbursing Officer with effect from 28.02.2002 preferred the claim on account of arrears of ration money allowance for Rs. 8,32,375/- (Rupees eight lac, thirty two thousand, three hundred seventy six only) on 05.02.2003 without any authorisation and specific order of the competent authority. Thus the said Shri P.K. Choudhury has thereby committed a misconduct and an act most unbecoming of a Government servant of his rank and status thereby violating clause II and III of Sub-Rule 1 of Rule 3 of the CCS(Conduct) Rules, 1964. Article-II. That during the aforesaid period and while functioning in the aforesaid office, the said Shri P.K. Choudhury, was directed to prefer the claims of Ration Money Allowance of only those non-executive staff who are applicants in the court case filed in the Jammu High Court and Guwahati High Court, but the said Shri P.K. Choudhury ignored the direction of the higher authority and preferred the claim of arrears of ration money allowance to the other personnel also thus disobeying the orders of the Competent Authority thereby committing an act unbecoming of a Government servant of his rank and status violating clause III of Sub Rule 1 of the CCS (Conduct) Rules, 1964. Article-III. Article-III. That during the aforesaid period 24 Non Executive Staff of Palia Area filed an OA No. 414 of 2004 in the Hon'ble CAT Lukhnow Bench for allowing them arrear of Ration Allowance for the period they remained posted in B&C Stations of erstwhile HP Division. The said Shri Choudhury failed to inform the Hqrs. the fact that the applicants had already claimed and received the Ration Allowance arrear in the year 2003 and also failed to project the fact regarding furnishing the false affidavits by the applicants. Thereby the said Shri Choudhury has failed in his capacity as a Supervisory Officer and has negligently and casually dealt the whole issue committing a misconduct most unbecoming of a Government servant of his rank and status violating clause II & III of Sub Rule (1) of Rule 3 of CCS (Conduct) Rules, 1964." 3. The charges were enquired and in the inquiry report it was declared that charge-1 is fully proved, charge-2 is partially proved and charge 3 is not proved. Since the charged officer was holding a senior position, it was held that he was expected to exercise financial propriety of a very high degree. Thus it was proposed to deduct from the payable pension of the retired employee. Consequently, the impugned penalty order was passed in the name of the President, for withholding of 20% of the monthly pension for a period of 5 years, for the charged officer. 4. Aggrieved by the deduction of pension by the order of the President, the retired officer filed the O.A. No. 44/2011 before the CAT where it was argued that curtailment of pension under Rule 9 (1) of the CCS Rules was unjustified inasmuch as, the penalty order was passed mechanically without recording any finding that this was a case of grave misconduct as defined, under Rule 8(5) explanation (b) of the Pensions Rules. It was also argued that the views of the UPSC on the proposed penalty was not intimated to the charged officer before he was penalised. On the merit of the charge, the applicant contended that he committed no wrong in allowing drawal of ration money by the staff of the SSB since disbursal of such money was authorised by the Central Government, through the order dated 30.1.2001 and the follow up memorandum dated 8.2.2001 (pages 151 & 152). 5. On the merit of the charge, the applicant contended that he committed no wrong in allowing drawal of ration money by the staff of the SSB since disbursal of such money was authorised by the Central Government, through the order dated 30.1.2001 and the follow up memorandum dated 8.2.2001 (pages 151 & 152). 5. The case was contested before the Tribunal by the employer where they filed the written statement where it was averred that prior to the penalty order dated 20.12.2010,the advice received from the UPSC was duly communicated to the applicant, through the letter dated 18.12.2010. 6. However, the learned CAT noted that withholding of pension is permitted by law only when the pensioner is found guilty of grave misconduct (as defined under Rule 8(5) explanation (b) of the Pensions Rules) and here no such finding was recorded by the President to penalise the officer under Rule 9(1) of Pension Rules. The Tribunal noted that the penalty order was issued at New Delhi on 20.12.2010 whereas the advice of the UPSC was made available only two days before i.e. 18.12.2010. Thus the possibility of the advice of the UPSC not being furnished to the retired officer, was taken into account by the CAT. 7. Noticing the above infirmities, deduction of pension under Rule 9(1) of the Pension Rules was held to be unjustified and accordingly relief was granted to the applicant, by the impugned verdict dated 23.4.2012 (Annexure-III) by the CAT. 8. Assailing the legality of the Tribunal's order, Mr. Y. Doloi, learned Central Govt. Counsel, refers to the communication dated 19.12.2002 (Annexure-IV) to project that ration money allowance was permitted to be paid only to those, who have secured relief from the Tribunal (as mentioned in the Ministry's communication) and accordingly he argues that the applicant failed to prevent the ration money allowance from being paid to those, who are not covered by the communication dated 19.12.2002. 9. The petitioners contend that the applicant was a senior officer of the SSB Organisation and was responsible for maintaining fiscal discipline and therefore the proven misconduct is projected to be sufficient for deduction of pension, of the retired officer. 10. The right of an employee to receive pension is a valuable right earned by dint of loyal service rendered to the employer. 10. The right of an employee to receive pension is a valuable right earned by dint of loyal service rendered to the employer. Pension is also declared to be not a bounty of the State but is a measure of economic security for the retired employee, as a social welfare measure. Therefore, deprivation of such right must not be arbitrary but should be in accordance with law. 11. Deduction of pension is not contemplated for all acts of misconduct but only those grave misconduct covered under Rule 8(5) explanation (b) of the Pension Rules, can be a ground for penalising retired persons, under Rule 9(1) of Pension Rules. The definition of grave misconduct under Rule 8(5) explanation (b) of the Pensions Rules is quoted below: "8.(5) (b) the expression 'grave misconduct' includes the communication or disclosure of any secret official code or password or any sketch, plan, model, article, note, document or information, such as is mentioned in Section 5 of the Official Secrets Act, 1923 (19 of 1923), (which was obtained while holding office under the Government) so as to pre-judicially affect the interests of the general public or the security of the State." 12. As it can be seen from above, only those misconduct which affects the interest of the general public or security of the State pertaining to disclosure of secret information, can be ground for invocation of power to deduct pension under Rule 9(1) of Pension Rules. Thus even a cursory reading of the charges proved against the applicant reflects that those charges cannot be covered within the definition of grave misconduct, under Rule 8(5) explanation (b) of the Pensions Rules, for which action is contemplated under Rule 9(1) of Pension Rules. 13. Here the penalty order of 20.12.2010 was preceded by the recommendation of the UPSC which was furnished on 18.12.2010. It is held in the case of Oriental Bank of Commerce and others v. S.S. Sheokand and another, reported in (2014) 5 SCC 172 that the report of the UPSC which was the basis for the penalty imposed by the President, is required to be communicated to the charged officer. But we find here that the delinquent after his retirement was staying at Rangia whereas the communication between the UPSC and the disciplinary authority was at Delhi. But we find here that the delinquent after his retirement was staying at Rangia whereas the communication between the UPSC and the disciplinary authority was at Delhi. Considering that the communication of the UPSC is on 18.12.2010 and the penalty order was passed on 20.12.2010, the non furnishing the UPSC communication to the delinquent residing in Assam cannot be ruled out and therefore we find that the action of the deduction of pension by the penalty ordered under Rule 9(1) of Pension Rules, is vitiated in the present case. 14. That apart, disbursement of ration money to the staff of the SSB was permitted through the Central Government circulars issued on 30.1.2001 and 8.2.2001 and therefore the finding of misconduct on the basis of charge levelled against the retired officer, may not also be justified, in the instant case. 15. The learned CAT while allowing the challenge of the retired officer took into account the ratio in the case of D.V. Kapoor v. Union of India and others, reported in (1990) 4 SCC 314 where the Apex Court considered the scope of presidential power under Rule 9(1) read with Rule 8(5) explanation (b) of the Pensions Rules and observed that withholding of pension as a measure of punishment can only be in those situations where, it is a case of grave misconduct as defined under Rule 8(5) explanation (b) of the Pensions Rules. But in the case before us, no such finding was recorded by the President and on that basis relief was granted to the applicant by the learned CAT. 16. We have examined for ourselves the circumstances under which a retired person can be penalised by deduction of pension and it is clear to us that the condition precedent for penalising the respondent-applicant under Rule 9(1) of Pension Rules was absent, in the present case. Therefore, we see no infirmity with the verdict given by the CAT, in favour of the applicant. 17. In view of the above, this petition is found devoid of merit and the same is accordingly dismissed. No cost.