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2020 DIGILAW 722 (GAU)

Rongura v. State Of Mizoram

2020-10-16

MICHAEL ZOTHANKHUMA

body2020
JUDGMENT Michael Zothankhuma, J. - Heard Mr. A.R Malhotra, learned counsel for the petitioner and Mr. C. Zoramchhana, learned Addl. Advocate General for the State respondents. 1. The petitioner's prayer in the present writ petition is to set aside and quash the impugned Order dated 23.09.2019 by which he was imposed with the penalty of "compulsory retirement", to the extent that it denies payment of gratuity to the petitioner. 2. The petitioner's case in brief is that a departmental proceeding was drawn up against the petitioner, who was a Deputy Commissioner in the Excise and Narcotics Department, Govt. of Mizoram, on the charge of misappropriation of Government money amounting to approximately Rs. 1.76 crores, while functioning as Superintendant of Excise & Narcotics, Serchhip District, during August 2010 to January 2017. 3. The Enquiry Officer in his Enquiry Report found that the charge of misappropriation of Rs. 1.76 crores was proved against the petitioner in the Disciplinary Proceedings. The petitioner was given an opportunity of submitting a representation against the Enquiry Report, which the petitioner submitted. 4. The Disciplinary Authority, thereafter, came to the conclusion that since the offence committed was grave, the same warranted imposition of a major penalty and accordingly, in consultation of the Vigilance Department and the Mizoram Public Service Commission (MPSC in short), it was decided to impose upon the petitioner a major penalty of compulsory retirement from service, as admissible under Rule 11(vii) of the CCS (CCA) Rules, 1965. The State Government, after consulting the MPSC on the proposed manner of recovery of the loss caused to the Government, directed recovery of the misappropriated amount of Rs. 1.76 crores from the pension and gratuity payable to the petitioner under Rule 40(2) of the CCS (Pension) Rules, 1972. The Disciplinary Authority subsequently issued the impugned Order dated 23.09.2019, imposing upon the petitioner the major penalty of "compulsory retirement" from service under Rule 11 (vii) of the CCS (CCA) Rules, 1965. 1.76 crores from the pension and gratuity payable to the petitioner under Rule 40(2) of the CCS (Pension) Rules, 1972. The Disciplinary Authority subsequently issued the impugned Order dated 23.09.2019, imposing upon the petitioner the major penalty of "compulsory retirement" from service under Rule 11 (vii) of the CCS (CCA) Rules, 1965. The impugned Order dated 23.09.2019 also stated that the period of absence during the suspension period would not be treated as period spent on duty for any purpose and that the petitioner shall not be paid pay and allowances during the period of his suspension, except the subsistence allowance already paid to him and that the petitioner shall be allowed to draw pension at the rate of two-third of his pension only, without gratuity, as admissible under Rule 40 of CCS (Pension) Rules, 1972. 5. The learned counsel for the petitioner submits that the petitioner is not aggrieved with the penalty of Compulsory Retirement but with the withholding of gratuity, which the petitioner is entitled to. He submits that although the authority concerned has the power to withhold gratuity in terms of the Rule 40 of the CCS (Pension) Rules, 1972, but the same has to be preceded by following the principles of natural justice and also by a sound reasoning given by the competent authority which otherwise was not done in respect of the petitioner. In support of his submission, the learned counsel has placed reliance upon the decision rendered by this Court in Bhuban Chandra Gogoi Vs. Assam Power Distribution Company Ltd. & Ors, (2016) 2 GauLT 249 . 6. The petitioner's counsel submits that pension includes gratuity and as the petitioner is allowed to draw pension at the rate of two-third of his pension, the petitioner cannot be denied the payment of gratuity. The non-payment of gratuity, having been done by the State Government after consulting the MPSC, it was incumbent upon the State respondents to give notice to the petitioner against the proposed non-payment of gratuity. However, the petitioner was not given any chance to submit any representation against the proposed non- payment of gratuity. In support of his submission that the petitioner should have been given notice alongwith the views of the MPSC on the proposed withholding of gratuity, the learned counsel for the petitioner has relied upon the judgment of the Apex Court in the case of Union of India & Ors. In support of his submission that the petitioner should have been given notice alongwith the views of the MPSC on the proposed withholding of gratuity, the learned counsel for the petitioner has relied upon the judgment of the Apex Court in the case of Union of India & Ors. Vs. R.P Singh, (2014) 7 SCC 340 . The petitioner's counsel thus prays for setting aside the impugned Order dated 23.09.2019 only to the extent that it denies payment of gratuity to the petitioner. 7. Mr. C. Zoramchhana, learned Addl. Advocate General submits that the charge of misappropriation of Rs. 1.76 crores of Government money by the petitioner had been proved during the disciplinary proceeding and that the imposition of the penalty of compulsory retirement has not been challenged by the petitioner. The challenge made by the petitioner is only to the decision of the Government to recover the misappropriated amount from the petitioner by not paying him gratuity. He submits that while the gratuity amount is meager, the State respondents can deny payment of gratuity to the petitioner to make up the loss caused to the Government, under Section 4(6) of The Payment of Gratuity Act, 1972. The decision of the MPSC agreeing to the recovery of misappropriated money from the petitioner, by not paying him his gratuity, is not violative of the principles of natural justice. 8. I have heard the learned counsels for the parties. 9. The admitted fact is that the petitioner has been found guilty of misappropriation of approximately 1.76 crores of Government money in a departmental proceeding and that he has been imposed with the penalty of "compulsory retirement" under Rule 11(vii) of the CCS (CCA) Rules, 1965, after consultation with the Vigilance Department and the MPSC. The imposition of the major penalty of "compulsory retirement" from service has not been challenged by the petitioner. The petitioner has only made a challenge to the withholding of gratuity made in the impugned Order dated 23.09.2019. The question to be decided is whether the State respondents could have and were justified in withholding the payment of gratuity to the petitioner. The petitioner has only made a challenge to the withholding of gratuity made in the impugned Order dated 23.09.2019. The question to be decided is whether the State respondents could have and were justified in withholding the payment of gratuity to the petitioner. The second question that would also have to be decided is as to whether the petitioner should have been given a notice regarding the view taken by the MPSC and the State Government, in deciding that recovery of the misappropriated money should be made from a part of the pension and gratuity payable to the petitioner, prior to taking a decision on the same. 10. To answer the above question, the impugned Order dated 23.09.2019 issued by the respondent No. 2 is reproduced below:- "WHEREAS, disciplinary proceeding under Rule 14 of the CCS (CA) Rules, 1965 was drawn again Pu Rongura, Assistant Commissioner of Excise & Narcotics (now designated as Deputy Commissioner of Excise & Narcotics) vide this Department's Office Memorandum of even No. dt. 12.10.2017. 2. AND WHEREAS, disciplinary proceeding and AntiCorruption Bureau case has been initiated against Pu Rongura on the charge of misappropriation of Government money amounting to Rs. 1.76 crore approximately while functioning as Superintendent of Excise & Narcotics Department, Serchhip District during August, 2010 to January, 2017. 3. AND WHEREAS, the fifth Suspension Review Committee is of the opinion that further extension of his extension period will not be necessary and his suspension order was revoked by this Department's letter of even No. dt.09.09.2019. 4. AND WHEREAS, the charged framed against the said Pu Rongura, had been proved by the Inquiry Officer and a copy of the inquiry report was furnished to the said Pu Rongura, Deputy Commissioner of Excise & Narcotics vide this Department's letter of even No. dt. 28.05.2019. He was given an opportunity of submitting a representation against the inquiry report within 15 (fifteen) days from the date of issue of the letter and his acknowledgment of the said letter was received on 31.07.2019. 5. AND WHEREAS, the said Pu Rongura submitted a representation within the stipulated period. 28.05.2019. He was given an opportunity of submitting a representation against the inquiry report within 15 (fifteen) days from the date of issue of the letter and his acknowledgment of the said letter was received on 31.07.2019. 5. AND WHEREAS, the said Pu Rongura submitted a representation within the stipulated period. After careful examination and evaluation of the inquiry report and the facts and circumstances of the case, the undersigned has come to the conclusion that since the gravity of the offence committed is grave enough so as to warrant an imposition of a major penalty and accordingly in consultation with Vigilance Department and Mizoram Public Service Commission, decided to impose on him a major penalty of "Compulsory Retirement' from service as admissible under Rule 11 (vii) of the CCS(CCA) Rules, 1965. 6. AND WHEREAS, the Mizoram Public Service Commission consulted on the proposed recovery from the pension and gratuity as admissible under Rule 40(2) of the CCS(Pension) Rules, 1972 vide this Department's letter of even No. dt. 12.09.2019 and the proposed recovery is commensurate with the views of the Mizoram Public Service Commission. 7. NOW, THEREFORE, the undersigned in exercise of the power conferred by Sub-Rule 2 of Rule 12 of the CCA(CCS) Rules, 1965 hereby imposed a major penalty of "Compulsory Retirement' from service on Pu Rongura, Deputy Commissioner of Excise & Narcotics as admissible under Rule 11(vii) of the CCS(CCA) Rules, 1965 with immediate effect. It is further order that the period of absence during the suspension period shall not be treated as a period spent on duty for any purpose and that he shall not be paid pay and allowances during the period of his suspension except the subsistence allowance already paid to him and that he shall be allowed to draw pension at the rate of two-thirds of his pension only without gratuity as admissible under Rule 40 of CCS(Pension) Rules, 1972." 11. A perusal of para 5 of the impugned Order dated 23.09.2019, which is not under challenge, shows that the major penalty of "compulsory retirement" had been imposed upon the petitioner. The above para 5 of the impugned Order dated 23.09.2019 is the same as the first sub para of para 7 of the impugned order. 12. The 2 (two) issues that are to be decided relates to para 6 and the second sub-para of para 7. The above para 5 of the impugned Order dated 23.09.2019 is the same as the first sub para of para 7 of the impugned order. 12. The 2 (two) issues that are to be decided relates to para 6 and the second sub-para of para 7. A perusal of para 6 and sub para of para 7 of the impugned Order dated 23.09.2019 clearly shows that the decision to recover the misappropriated amount of Rs. 1.76 crores from the gratuity and one-third of the pension payable to the petitioner is not a penalty but is only the source for recovery, for making good the loss caused to the Government by the petitioner. 13. In the case of Bhuban Chandra Gogoi Vs. Assam Power Distribution Company Ltd. & Ors (supra), this Court held that good, sufficient and compelling reasons would be required to deny gratuity to an employee. This Court accordingly directed the authorities to give an opportunity of hearing to the petitioner on their proposal not to pay gratuity, prior to any decision being taken. In the above case, the petitioner therein had been found to be guilty of the charge of sexual harassment in the departmental proceedings. The disciplinary proceedings against the petitioner therein ended with the imposition of the penalty of dismissal from service. On appeal, the appellant authority reduced the penalty to that of "compulsory retirement with pension benefits." The Communication dated 02.03.2009 reducing the penalty of dismissal from service had only mentioned "compulsory retirement with retirement benefits." The Communication dated 02.03.2009 did not state that retirement gratuity was not admissible to the petitioner therein. It was only by a subsequent Order dated 08.07.2011 that the authorities mentioned that the retirement gratuity was not admissible to the petitioner therein. It was in that context that this Court in the case of Bhuban Chandra Gogoi Vs. Assam Power Distribution Company Ltd. & Ors (supra) held that as pension included gratuity, the petitioner therein could not have been denied payment of gratuity without giving him notice/opportunity of hearing, as the same would be violative of the principles of natural justice and fairness. 14. In the present case, the charge of misappropriation of Rs. 1.76 crores had been proved against the petitioner, as stated in the foregoing paragraph. The charge against the petitioner in the case of Bhuban Chandra Gogoi Vs. 14. In the present case, the charge of misappropriation of Rs. 1.76 crores had been proved against the petitioner, as stated in the foregoing paragraph. The charge against the petitioner in the case of Bhuban Chandra Gogoi Vs. Assam Power Distribution Company Ltd. & Ors/ (supra) was sexual harassment. In the present case, the impugned Order dated 23.09.2019 has imposed upon the petitioner a major penalty of "compulsory retirement" only. The non-payment of one-third of the pension to the petitioner and non-payment of subsistence allowance is only for the purpose of recovery of the misappropriated amount. This recovery of money is not a penalty. At the cost of repetition, it may be again reiterated that in the case of Bhuban Chandra Gogoi Vs. Assam Power Distribution Company Ltd. & Ors (supra), the penalty of dismissal from service has been reduced to "compulsory retirement with pension benefits", while the penalty imposed herein is that of "compulsory retirement" only. 15. In the present case, as the impugned Order dated 23.09.2019 has very clearly given the justification and the basis for non-payment of gratuity, this Court does not find any infirmity with non-payment of gratuity to the petitioner. Further, section 4(6)(a) of The Payment of Gratuity Act, 1972 allows for forfeiture of gratuity to make good the loss suffered by the Government. Section 4(6)(a) of The Payment of Gratuity Act, 1972 is reproduced below:- "4(6) Notwithstanding anything contained in sub-section (1),--- (a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer shall be forfeited to the extent of the damage or loss so caused;" 16. In the case of Deepak Bajaj vs. State of Maharashtra & Ors., (2008) 16 SCC 14 , the Apex Court has held that the judgment of a Court is not to be a read mechanically as a Euclid's Theorem nor as if it was a statute. The ratio of any decision must be understood in the background of the facts of that case, as it is only an authority for what it actually decides and not what logically follows from it. The ratio of any decision must be understood in the background of the facts of that case, as it is only an authority for what it actually decides and not what logically follows from it. In the case of Bhavnagar University vs. Palitana Sugar Mill Pvt. Ltd. & Ors., (2003) 2 SCC 111 , the Apex Court has held that a little difference in facts or additional facts may make a lot of difference in a precedential value of a decision. Keeping in view the fact that the judgment of this Court in Bhuban Chandra Gogoi Vs. Assam Power Distribution Company Ltd. & Ors (supra) is different vis- -vis the facts of this case, this Court is of the view that the judgment in Bhuban Chandra Gogoi Vs. Assam Power Distribution Company Ltd. & Ors (supra) is not applicable to the facts in this case. 17. The second question that would also have to be decided is as to whether the petitioner should have been given notice regarding the views of the MPSC and the State Government, in deciding that recovery of the misappropriated money should be made from the pension and gratuity payable to the petitioner, prior to taking a decision on the same. 18. In the case of Union of India & Ors. Vs. R.P Singh (supra), the Apex Court held that when the advice of the UPSC is sought and accepted, the same has to be communicated before imposition of punishment. In the present case, the non-payment of gratuity is not a punishment/penalty, but it is only for the purpose of recovery of the misappropriated amount of Rs. 1.76 crores from the petitioner. When the charge of misappropriation of a huge amount of money has been proved, there is no doubt in the view of this Court that the misappropriated amount has to be recovered. The petitioner can have no justification for not trying to pay back to the Government the misappropriated amount, whether it be from his pension and/or his gratuity. As the non-payment of gratuity was only for the purpose of recovery of money and not an imposition of penalty, no prejudice is caused to the petitioner. Even otherwise, issuance of notice would have been a useless formality. As the non-payment of gratuity was only for the purpose of recovery of money and not an imposition of penalty, no prejudice is caused to the petitioner. Even otherwise, issuance of notice would have been a useless formality. This Court thus finds that there was no violation of the principles of natural justice as the non-payment of gratuity was a consequential order of recovery, secondary to the imposition of the major penalty of "compulsory retirement". As such, this Court is of the view that the judgment of the Apex Court in the case of Union of India & Ors. Vs. R.P Singh (supra) is also not applicable to the facts of the case. 19. In view of the reasons stated above, this Court finds no merit in the writ petition. The writ petition is accordingly dismissed.