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2019 DIGILAW 554 (CAL)

Dilip Kumar Verma v. Union of India

2019-05-01

AMRITA SINHA

body2019
JUDGMENT : 1. The petitioner was serving as Inspector, CIB, Jamalpur. A charge sheet was issued against him on 16th July, 2010. The said charge sheet was withdrawn without giving any reason for withdrawal. A fresh charge sheet was issued against him under Rule 153 of the Railway Protection Force Rules, 1987 (RPF Rules 1987 in short) on 20th December, 2010. A disciplinary proceeding was initiated placing him under suspension. The petitioner was directed to submit his representation within 15 days from the date of receipt of the said charge sheet. The petitioner duly replied to the same. 2. Challenging the issuance of the second charge sheet on the self-same charges after withdrawal of the first charge sheet the petitioner filed a writ petition before this court being W.P No. 4633 (W) of 2011. The said writ petition was taken up for consideration by the court on 13th April, 2011 whereby the court directed the respondents to file affidavit in opposition and directed the matter to appear in the list. However the learned court had been pleased to pass interim order of stay of the impugned order of suspension dated 17th June, 2010 until further order. The court was however pleased to grant liberty to the respondents to proceed on the basis of the charge sheet dated 20th December, 2010. It was directed that no final order shall be passed without the leave of the court. 3. The respondents challenged the order of the learned single judge by preferring appeal and the Hon'ble Appeal Court in MAT No. 693 of 2011 passed order on 16th June, 2011 wherein the Hon'ble Division Bench was not inclined to interfere with the interim order of stay and only requested the learned Single Judge to decide the matter on merits at an early date. 4. As per the liberty granted by the Hon'ble Court the respondent authority continued with the disciplinary proceeding and an inquiry report finding of the major penalty charge sheet was forwarded to the petitioner vide a letter dated 26th December, 2011. The petitioner was given fifteen days' time to submit representation against the major penalty charge sheet. The petitioner duly submitted his representation on 16th January, 2012. The petitioner was allowed to retire from service on attaining his normal age of superannuation on 28th February, 2012. 5. The petitioner was given fifteen days' time to submit representation against the major penalty charge sheet. The petitioner duly submitted his representation on 16th January, 2012. The petitioner was allowed to retire from service on attaining his normal age of superannuation on 28th February, 2012. 5. The petitioner filed an interlocutory application in the pending writ petition praying for a direction upon the respondents authorities to drop the departmental proceedings initiated against him on the ground that he had retired from service in the meantime. W.P No. 4633 (W) of 2011 was finally heard and disposed of by the court on 2nd August, 2013 directing the disciplinary authority to proceed with the adjudication but such adjudication must be done strictly bearing in mind the ratio of the judgment delivered in the case of D.V. Kapoor vs. Union of India & Ors. reported in 1990 (3) SLR 5 . The court observed that Rule 9 of the Central Civil Servants (Pension) Rule, 1972 recognizes continuance of disciplinary proceeding after retirement and deductions from gratuity or pension or both, if the punishment so warrants. 6. Challenging the order dated 2nd August, 2013 passed by the learned Single Judge in W.P No. 2633 (W) of 2011 the petitioner preferred an appeal before the Hon'ble Division Bench. In the absence of an order of stay of the order passed by the Ld. Single Judge the disciplinary authority concluded the proceeding and vide order dated 11th February, 2016 imposed the penalty of withholding 20% of the monthly pension of the petitioner for a period of three years. 7. The appeal was disposed of by an order dated 31st January, 2017 wherein the Court held that in view of the final order passed by the disciplinary authority the appeal has become in fructuous and accordingly the same is dismissed. The court however observed that the petitioner would be at liberty to challenge the order of penalty and to agitate the grounds as taken in the appeal at the time of challenging the order of penalty. 8. The petitioner challenges the major penalty order dated 11th February, 2016 in the instant writ petition primarily on the ground that the disciplinary proceeding could not have continued after the petitioner was allowed to retire without any objection. 8. The petitioner challenges the major penalty order dated 11th February, 2016 in the instant writ petition primarily on the ground that the disciplinary proceeding could not have continued after the petitioner was allowed to retire without any objection. He submits that the moment the petitioner retired from service the relationship between the employer and employee ceased to exist and the petitioner could not have been punished in furtherance of the charge sheet issued under Rule 153 of the RPF Rules, 1987 as the said rule was applicable only in respect of existing members of the force and not against a retired member. 9. It has been contended that though the charge sheet was issued under Rule 153 of the RPF Rules 1987 penalty was issued under Rule 9 of The Railway Services (Pension) Rules, 1993 (Pension Rules 1993 in short). The same is not permissible. 10. He submits that issuance of the second charge sheet on the self-same allegation after withdrawal of the first is not permissible. In the penalty order it has been mentioned that the petitioner was guilty of 'grave misconduct'. The charge of grave misconduct was not in the charge sheet pursuant to which the penalty order was passed. 11. The petitioner relies upon the decision of the Hon'ble Supreme Court of India in the case of D.V. Kapoor (supra) (para 10) wherein the Hon'ble Supreme Court has been pleased to hold that Rule 9 of the Pension Rules empowers the President to withhold or withdraw pension permanently or for a specified period, in whole or in part, or to order recovery of pecuniary loss caused to the State in whole or in part subject to minimum. The employees' right to pension is a statutory right. The measure of deprivation therefore must be correlative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to assistance at the evening of his life as assured under Article 41of the Constitution. 12. In the instant case the charge sheet that was issued against the petitioner did not disclose about any pecuniary loss that was suffered by the Government. In the absence of any allegation and/or charge of pecuniary loss the authority is not entitled to invoke the provision of Rule 9 of the Pension Rules 1993 to withhold the monthly pension of the petitioner. 13. In the absence of any allegation and/or charge of pecuniary loss the authority is not entitled to invoke the provision of Rule 9 of the Pension Rules 1993 to withhold the monthly pension of the petitioner. 13. The learned counsel relies upon the decision delivered in the case of Chandra Singh & Ors. vs. State of Rajasthan & Ors. reported in (2003)6 SCC 545 (para 38) wherein a three Judge Bench of the Hon'ble Supreme Court held that a departmental proceeding can continue so long as the employee is in service. In the event a disciplinary proceeding is kept pending by the employer the employee cannot be made to retire. 14. He relies upon a judgment delivered by the Hon'ble Supreme Court in the case of Bhagirathi Jena vs. Board of Directors, OFFC & Ors. reported in 1999 SC 1841 (para 6) wherein the court held that in the absence of any provision it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellants. 15. He relies upon an unreported judgment delivered by a learned Single Judge of this court on 13th May, 2015 in W.P No. 3064 (W) of 2009 wherein the court held that where a disciplinary proceeding is pending when the employee attain the age of superannuation the disciplinary proceeding will automatically come to an end. It is trite that a disciplinary proceeding cannot be led to continue after the employee retires. However, in the event of pecuniary loss and/or grave misconduct the authorities enjoyed the rider to continue with such proceeding initiated prior to superannuation of the employee concerned. 16. He further submits that the appeal preferred against the aforesaid order passed by the learned Single Judge stood dismissed by the appeal court vide order dated 6th May, 2016 passed in MAT No. 1078 of 2015. He submits that the fact of the aforesaid case is similar to the facts of the case in hand and the same ratio ought to apply. 17. The learned counsel relies upon another unreported order dated 16th June, 2004 delivered by a learned Single Judge of this court in W.P No. 8093 (W) of 2003 in the matter of Jnanadhir Mohan Sen Sharma -vs- Union of India & Ors. wherein the learned single judge specifically held that the position is clear. 17. The learned counsel relies upon another unreported order dated 16th June, 2004 delivered by a learned Single Judge of this court in W.P No. 8093 (W) of 2003 in the matter of Jnanadhir Mohan Sen Sharma -vs- Union of India & Ors. wherein the learned single judge specifically held that the position is clear. Once the employer chose to permit the employee to retire from service unconditionally, relationship of master and servant ceased at once and the relationship between the two exists only for the limited purpose of liability and payment of terminal benefits. On the basis of the provision of Rule 9 of the Pension Rules 1993 the authority did not have the requisite power either to continue the disciplinary proceeding after the employee was permitted to retire from service or to withhold his terminal benefits on the ground of pendency of the departmental proceeding against him. In case the employee is permitted to retire from service unconditionally the departmental proceeding dies a natural death and the respondents lose the power and authority to continue it against the superannuated petitioner. The learned judge directed the respondents to drop the departmental proceeding and to release the terminal benefits forthwith. 18. The learned counsel prays for setting aside the order of penalty with a further direction upon the respondents to release his terminal benefits. 19. The learned counsel appearing on behalf of the respondents submits that the petitioner was involved in several illegal activities which will appear from the charge sheet issued against the petitioner. He submits that the petitioner has unsuccessfully challenged the issuance of second charge sheet. The Hon'ble Court was pleased to permit the authorities to continue with the departmental proceeding. The petitioner preferred appeal against the said order but the same was dismissed. The disciplinary proceeding was completed during the service tenure of the petitioner but final order could not be passed as there was a direction not to pass final order without the leave of the court. 20. He submits that major penalty charge sheet was issued in favour of the petitioner while he was in service and the petitioner filed his representation against the same but the final order could not be passed in view of the restraint order of this court. He submits that penalty has been imposed in accordance with the Pension Rules 1993 which permitted the President to withhold pension. He submits that penalty has been imposed in accordance with the Pension Rules 1993 which permitted the President to withhold pension. He submits that the proceeding could not be finalised as the petitioner moved one after another writ petitions followed by appeal petitions before this Hon'ble Court. The continuance of the disciplinary proceeding cannot be challenged any further as the Ld. Court had permitted the authority to conclude the proceeding by passing final order. He submits that the penalty order has been rightly passed and prays that the writ petition be dismissed. 21. The learned counsel relies upon the decision delivered by the Hon'ble Supreme Court in the case of Secretary, Forest Department & Ors. vs. Abdur Rasul Chowdhury reported in (2009)7 SCC 305 (paragraphs 13, 15 and 16) wherein the court held that the delay in concluding the domestic enquiry proceeding is not fatal. It depends on the facts and circumstances of each case. The unexplained protracted delay on the part of employer may be one of the circumstances in not permitting the employer to continue with the disciplinary enquiry proceedings. If the delay is explained satisfactorily then the proceedings should be permitted to continue. 22. In the instant case the disciplinary proceeding was over during the service period of the petitioner. But the final order could not be passed in view of the restraint order passed by the Hon'ble Court. He submits that there was no delay and/or latches on the part of the respondents in finalising the disciplinary proceedings. 23. The learned counsel relies upon the judgment delivered by the Hon'ble Supreme Court in the case of State of West Bengal vs. Pranab Chakraborty reported in AIR 2015 SC 1278 (para 3, 4 and 5) wherein the court held that it is not only for pecuniary loss caused to the Government that proceeding can continue after the date of superannuation. An employee can be proceeded against after the date of his retirement on account of grave misconduct or negligence. If such misconduct or negligence results in pecuniary loss to the Government the loss can also be ordered to be recovered from the concerned employee. 24. He refers to an unreported order passed by the Hon'ble Supreme Court of India on 17th October, 2012 in Special Leave Petition (C) 19519 of 2012 in the matter of Union of India & Ors. 24. He refers to an unreported order passed by the Hon'ble Supreme Court of India on 17th October, 2012 in Special Leave Petition (C) 19519 of 2012 in the matter of Union of India & Ors. vs. Om Prakash Yadav wherein the Hon'ble Court set aside the portion of the order passed by the Division Bench of the High Court indicating that "any order passed by the disciplinary authority should be affect the pensionary benefit of the respondent". 25. I have heard the submissions made on behalf of both the parties. The moot question that arises for consideration in the instant writ petition is whether the Railway Board can withhold the admissible monthly pension of the superannuated petitioner as punishment in a disciplinary proceeding which was initiated under Rule 153 of RPF Rules 1987 when the employee was in service. 26. It appears that the charge sheet was issued on 20th December, 2010. The period of misconduct that was taken into consideration for the issuance of the said charge sheet was 2006-07. The investigating officer submitted his report on 29th September, 2011. In the meantime the petitioner approached this Court by filing writ petition challenging the order of suspension and the charge sheet. The Ld. Trial Judge though stayed the order of suspension until further order but granted liberty to the respondent authority to proceed on the basis of the charge sheet and not to pass final order without the leave of the Court. The respondent authorities were given liberty to file application for vacation, variation, modification of the interim order upon notice to the petitioner. 27. Being aggrieved by the interim order passed by the Hon'ble Court the respondent authorities preferred an appeal challenging the same. The Hon'ble appeal court was pleased not to interfere with the interim order under appeal and had been further pleased to request the learned Single Judge to decide the writ petition on merits at an early date. 28. The petitioner was allowed to retire unconditionally on attaining his normal date of superannuation on 28th February, 2012. 29. In September, 2012 the petitioner approached this Court by filing an application in connection with the pending writ petition with a prayer for directing the respondent authorities to drop the departmental proceedings initiated against him and for a further direction upon the respondents to release his gratuity amount and his retirement benefits along with 12% interest. 29. In September, 2012 the petitioner approached this Court by filing an application in connection with the pending writ petition with a prayer for directing the respondent authorities to drop the departmental proceedings initiated against him and for a further direction upon the respondents to release his gratuity amount and his retirement benefits along with 12% interest. The main writ petition being W.P No. 4633 (W) of 2011 was finally heard and disposed of by the Court directing that the disciplinary authority was free to proceed with the adjudication with the disciplinary proceeding but such adjudication must be done strictly bearing in mind the ratio of the judgment of the Hon'ble Supreme Court in the case of D.V. Kapoor -vs- Union of India & Ors. reported in 1990 (3) SLR 5 (paras 5 and 10). 30. It appears from records that the proceeding was initiated against the petitioner in the year 2010 and though there was no order staying the disciplinary proceeding the authorities failed to pass final order in the said proceeding during the service period of the petitioner. Though by an order dated 13th April, 2011 the Court directed the respondent authority not to pass any final order without the leave of the Court but at the same time the Court was pleased to grant liberty to the respondent authorities to file application for vacating, variation and/or modification of the interim order. The respondent authorities did not feel it necessary to exercise the liberty granted by the Court by filing any application but simply sat tight over the matter. 31. The Divisional Security Commissioner by the Regional Order No. 163 of 2011 dated 9th June, 2011 intimated the concerned authorities that the petitioner would retire on 28th February, 2012 on attaining his normal age of superannuation. 32. The respondent authorities being aware that the disciplinary proceeding involving major penalty was pending against the petitioner, allowed the petitioner to retire unconditionally on attaining his normal date of superannuation. The authority did not feel it expedient to invoke the provision under Rule 144.2 of the RPF Rules 1987 which mentions that a member of the force under suspension may not be retired on attainment of the age of superannuation. The appointing authority was to decide such cases in accordance with the provisions of the extant Railway Rules. The authority did not feel it expedient to invoke the provision under Rule 144.2 of the RPF Rules 1987 which mentions that a member of the force under suspension may not be retired on attainment of the age of superannuation. The appointing authority was to decide such cases in accordance with the provisions of the extant Railway Rules. The respondent authority neither decided the case in accordance with the provisions of the extant Railway Rules nor approached this Court for necessary orders regarding continuation of the disciplinary proceeding after retirement of the petitioner. 33. It is settled law that on retirement the relationship between the employer and the employee ceases and the relationship exists only for the limited purpose of disbursal of terminal benefits in favour of the retired employee. 34. In the instant case even after retirement of the petitioner no step was taken for conclusion of the disciplinary proceeding. The petitioner approached the authority for payment of his retirement dues in April, 2012 but as there was no response from the authority the petitioner approached the Court for necessary orders regarding payment of his retirement dues along with interest. The Court vide order dated 2nd August, 2013 passed necessary direction for adjudication of the pending proceeding with a rider that the same must be done adhering to the ratio laid down in the case of D.V. Kapoor (supra). 35. In spite of being aware of the aforesaid order dated 2nd August, 2013 the authorities did not take appropriate steps in the matter till 27th August, 2015 when the authority referred the case records of the petitioner to the Union Public Service Commission for consultation and advice. The Union Public Service Commission vide their letter dated 27th November, 2015 advised imposition of penalty upon the petitioner. 36. Accordingly from the above it is clear that from early August, 2013 till end of August, 2015 the authorities did not take any steps in the matter. No reason whatsoever is mentioned in the affidavit in opposition filed by the respondents explaining the delay in referring the case records to the office of the Union Public Service Commission. The lackadaisical attitude of the respondent authorities in a steady manner right from initiation of the proceeding till its conclusion gives a vivid picture that the authorities were not at all serious in proceeding the case against the petitioner. The lackadaisical attitude of the respondent authorities in a steady manner right from initiation of the proceeding till its conclusion gives a vivid picture that the authorities were not at all serious in proceeding the case against the petitioner. Delay writ large in each and every step taken by the authority. It gives an indication that the authority was just not interested to proceed with the matter and the entire disciplinary proceeding was merely an empty formality. Had the respondents been really interested to prosecute the petitioner then he ought not to have been allowed to retire on his usual date of superannuation. 37. The respondents fall back upon Rule 9 of the Pension Rules 1993 wherein as per Rule 9 the President reserved the right to withhold or withdraw pension of an employee. According to the said rule pension can be withheld if in any departmental or judicial proceeding the pensioner is found guilty of grave misconduct or negligence during the period of his service. Causing pecuniary loss to the government is also one of the reasons for withholding pension. 38. According to Rule 148.2 of the RPF Rules 1987 major punishments that can be imposed upon an employee are (a) dismissal from service (which shall ordinarily be a disqualification for future employment under the Government) (b) removal from service (which shall not be a disqualification for future employment under the Government) (c) compulsory retirement from service and (d) reduction in rank or grade. 39. Had the petitioner been in service and the charge against him was proved then any one of the aforesaid penalties could have been imposed upon him. He would not have to suffer on account of withholding the pension. As the petitioner retired prior to finalisation of the said proceeding accordingly the authorities were required to take necessary steps in accordance with the RPF Rules 1987. As the authority chose not to take recourse to law and allowed the petitioner to retire in usual course accordingly the authorities cannot invoke the provision of Rule 9 of the Pension Rules 1993 and impose penalty of withholding the pension of the petitioner. More so, when the conditions laid down in Rule 9 of the Pension Rules 1993 is not attracted in the instant case. There is no charge of any pecuniary loss and/or grave misconduct upon the petitioner. More so, when the conditions laid down in Rule 9 of the Pension Rules 1993 is not attracted in the instant case. There is no charge of any pecuniary loss and/or grave misconduct upon the petitioner. The proceedings initiated against the petitioner under the RPF Rules 1987 died its normal death the moment the petitioner was allowed to retire unconditionally on his usual date of superannuation. 40. The unreported decision relied upon by the petitioner in the case of Swapan Kumar Dasgupta (supra) and Jnanadhir Mohan Sensharma (supra) squarely supports the case of the petitioner. It further appears that the Court while disposing of the writ petition being WP No. 4633 (W) of 2011 specifically directed the authority to bear in mind the provision laid down in the case of D.V. Kapoor (supra) wherein it was specifically held that the right to pension is a statutory right and the measure of deprivation there for, must be correlative to or necessary with the gravity of the misconduct or irregularity as it offends the right to assistance at the evening of life as assured under Article 41 of the Constitution. 41. From the records of the case it does not appear that the petitioner was charged with causing pecuniary loss to the government. No allegation of committing grave misconduct was included in the charge sheet which culminated in passing the impugned order of penalty. The authority only held that negligence was proved. 42. In Abdur Rasul Chowdhuri (supra) the Hon'ble Supreme Court held that unexplained protracted delay on the part of the employer may be one of the circumstances in not permitting the employer to continue with the disciplinary enquiry proceedings. In the instant case there are serious lapses on the part of the respondent authorities in proceeding with the disciplinary proceeding in its right earnest. No explanation for the delay has been forwarded. Accordingly taking into consideration the entire facts of the case the impugned order of penalty by withholding a portion of the pension cannot be allowed to stand. 43. The order dated 11th February, 2016 imposing penalty upon the petitioner is hereby set aside. The respondents are directed to release the consequential benefits in favour of the petitioner within a period of eight weeks from the date of communication of a copy of this order. W.P No. 25931 (W) of 2017 is disposed of. No order as to costs. The order dated 11th February, 2016 imposing penalty upon the petitioner is hereby set aside. The respondents are directed to release the consequential benefits in favour of the petitioner within a period of eight weeks from the date of communication of a copy of this order. W.P No. 25931 (W) of 2017 is disposed of. No order as to costs. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties or their advocates on record expeditiously on compliance of usual legal formalities.