ORDER
Mukesh Kumar Gupta, Member (J)
1. Validity of Presidential order dated 01.12.2005, imposing a penalty of one time cut of Rs.1000/- in the pension of applicant, is challenged in present proceedings.
2. Admitted facts of the case are that Shri A.N. Chatterji, Assistant Engineer (B/R) while functioning as AGE B/R Gaya, was proceeded under Rule 14 of CCS (CCA) Rules, 1965 vide Memorandum dated 21.11.2000, which contained two articles of charge. It would be expedient to notice said articles of charge, which read as under:
ARTICLE-I
MES-201048 Shri AN Chatterjee, AE B/R while functioning as AGE B/R Gaya during the period Sep’93 to Oct’ 96 committed gross irregularities, in that he reviewed four demands on 23 Apr 94. These demands were originally given on 20, 23 and 24 Mar 93. As a result of this reviewal of demands, GE Danapur placed 13 supply orders on 13 Aug 94 the day on which he had handed over his charge.
The said Shri AN Chatterjee also placed 3 job orders for Rs.56,650/- on 02 Feb 94 and two demands on 02 Feb and 05 Feb 95 for repairing of 100 KVA Generating Set on which a sum of Rs. 81, 151/- had already been spent. Thus he failed to ensure judicious expenditure of funds.
By the above acts the said MES-201048 Shri AN Chatterjee, AE B/R has failed to maintain para 45 of RMES 1968, exhibited lack of devotion to duty and violated the provision of Rule-3 (1) (ii) of CCS (Conduct) Rules 1964.
ARTICLE-II
That during the aforesaid period and while functioning in the aforesaid office the said Shri AN Chatterjee, AE B/R cleared 25 job orders for payment of the works which were executed prior to placement of orders and before he took over the charge.
By the above acts the said MES-201048 Shri AN Chatterjee, AE B/R exhibited lack of devotion to duty and thus violated the provision of Rule-3 (1) (ii) of CCS (Conduct) Rules 1964.
3. Aforesaid allegations were denied and, therefore, an oral enquiry was conducted. The enquiry authority vide its report dated 10.06.2002 returned following findings:
Article I(i) - Partly proved Article I (ii) - Not Proved Article II - Proved
Copy of said findings & report was made available to applicant, who submitted his representation dated 15/18th July, 2002 and requested to cancel said charges as same were baseless, incorrect and misconceived. A show cause notice dated 13.06.2005 was served upon applicant whereby Respondents proposed to impose penalty of one time cut of Rs.1,000/- in his pension and required him to submit representation against proposed penalty, if any. In the meantime, he retired on attaining age of superannuation w.e.f. 31.07.2003. Consequently, aforesaid disciplinary proceedings were converted to proceedings under Rule 9 of CCS (Pension) Rules, 1972 and the President became the Disciplinary Authority in the case. No reply was submitted to said show cause notice dated 13.6.2005. Vide impugned order dated 01.12.2005, aforesaid penalty was inflicted by President stating that after careful consideration of Inquiry Report, representation made by applicant against IO’s findings and the facts and circumstances of the case, it has come to the conclusion that since Articles I(i) has been partly proved and Article-II has been proved, penalty of one time cut of Rs.1,000/- in his pension ‘would meet the ends of justice.’
4. Shri S.K. Gosh, learned Counsel appearing for applicant raised following contentions:
The Charge Memorandum had been issued on 21.11.2000, Inquiry Officer submitted his report on 10.06.2002 and applicant submitted his representation against said findings on 15/18th July, 2002, yet Respondents delayed the proceedings and did not take any final decision. There was no justification to keep the said proceedings pending. Charge Memorandum had been issued for inflicting any one of the penalties prescribed under Rule 11 of CCS (CCA) Rules. Applicant retired on attaining age of superannuation on 31.07.2003 and, therefore, he was compelled to approach this Tribunal vide OA No. 390/2005, which was disposed of vide order dated 21.02.2005 with direction to Respondents to consider aforesaid issue and take an appropriate action preferably within four months. Respondents did not comply with said direction and passed impugned order dated 01.12.2005 belatedly, which was served upon applicant on 6.1.2006. The penalty of ‘one time cut of Rs.1,000/- in pension’ is not the penalty prescribed under said Rule 11.
Aforesaid penalty imposed admittedly pursuant to Rule 9 of CCS (Pension) Rules is unjustified, illegal and arbitrary. There is no findings recorded either by Inquiry Officer or by President that applicant was either guilty of ‘grave misconduct’ or ‘any penury loss caused to the Government.’ It is contended that in absence of aforesaid findings, which are the essential requisite conditions to be satisfied before taking any action under aforesaid rule, the Presidential order is liable to be set aside. How the respondents arrived at the figure of Rs.1,000/- has not been explained. The said figure is imaginary and based on no criteria.
5. The findings recorded by the Inquiry Officer, which in turn were accepted by the Disciplinary Authority are perverse, baseless and no person of ordinary prudence would come to said conclusion. The second article of charge relates to job orders which were placed prior to applicant took over the charge of AGE Gaya. It is not in dispute that 25 job orders were placed prior to applicant had taken over charge were indeed executed and, therefore, there was no justification in making such allegations. The Inquiry Officer had relied upon the statement of M.M. Bajpai for the period from mid 1991 to April 1993 and, therefore, his version is not relevant for the period thereafter. Applicant has been held responsible by Inquiry Officer stating that 25 job orders were placed to cover up the works, which were already executed. It was pointed out by learned Counsel that such was not the charge alleged. The only allegation made vide Article II was that he cleared 25 job orders for payment of the works which were executed prior to placement of orders. Learned Counsel pointed out that the details of job orders, 25 in number, were prior to date of 16.09.1993, which is evident from the discussion made by Inquiry Officer at page 5 of the enquiry report. The Inquiry Officer traveled beyond the charge sheet and adduced some new charges, which had not been the allegations against him. It was contended that the Inquiry Officer made observation that applicant ‘can be made accountable for wrong planning of repair and maintenance of Gen Set, which resulted in initiation of demands on 02 Feb and 05 Feb 94 for repair of the same Gen Set.’ With reference to Charge Memorandum, the learned Counsel pointed out that such were not the insinuation made.
6. In the back-drop of above, learned Counsel vehemently contended that impugned action shows non-application of mind & in turn, is liable to be set aside with all consequential benefits.
7. Respondents resisted the claim laid stating that the penalty was awarded by the competent authority after due consideration of recommendations / findings on articles of charge. Applicant was afforded a reasonable opportunity of hearing. He submitted a representation which had been duly considered. Since he attained age of superannuation on 31.07.2003 before the enquiry proceedings could be finalized, Rule 9 of CCS (Pension) Rules became operative and the departmental proceedings pending acquired the deeming status of proceedings under the said rules. The charges were crystal clear. A show cause notice was also issued on 13.6.2005, which has not been disputed as no representation was made against it. Applicant was responsible for scrutinizing and finalizing demands submitted by E/M Gde-I and by simply signing the communication he failed to perform his duties. Applicant’s contention that Respondents had no right or authority to impose any punishment which was not specified under Rule 11 of CCA (Pension) Rules is totally wrong and misleading. Said rule has to be read along with CCS (Pension) Rules, 1972 and the President becomes the competent authority to impose the penalty. There was no illegality or arbitrariness in the procedure adopted by Respondents. The enquiry proceedings were conducted following provisions of CCS (CCA) Rules as well as CCS (Pension) Rules and he is not entitled to any relief.
8. Shri R.P. Aggarwal, learned Counsel appearing for Respondents placing reliance on Amarjit Singh v. UOI, a Full Bench of this Tribunal, reported in ATR 1988 (2) CAT 637, contended that institution / continuance of proceedings is not dependant on any pecuniary loss being occasioned to the Government. Even in the absence of any penury loss, pension of a pensionary can be withheld or withdrawn in whole or part, after following prescribed procedure for an act of misconduct/negligence committed while in service. Reliance was placed on , D.V. Kapoor v. Union of India to suggest that the penalty imposed was lawful and justified. Learned Counsel further contended that the charges levelled were duly proved by the Inquiry Officer and, therefore, there is no occasion or justification to interfere with the said findings.
9. We have heard learned Counsel for the parties and perused the pleadings carefully.
10. Before proceeding further, it would be expedient to notice the relevant portion of Rule 9 (1) of CCS (Pension) Rules, 1972, which reads as follows:
9. Right of President to withhold or withdraw pension
(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a person or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement:
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A perusal of above rule would show that the condition precedent for invoking the right of the President for withholding pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part permanently or for a specified period and recovery is circumscribed with the findings of guilty of grave misconduct or negligence. The term guilty of grave misconduct or negligence in this manner assumes importance. In other words, in the absence of a clear cut finding of guilty of grave misconduct or negligence, the exercise of the powers under the aforesaid provision is neither justified nor warranted. In D.V. Kapoor v. Union of India (supra), the Hon’ble Court interpreted said provisions of Rule 9 and held that the condition precedent is that in any departmental enquiry or the judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, and that:
there should be a finding that the delinquent is guilty of grave misconduct or negligence in the discharge of public duty…. Myriad situation may arise depending on the ingenuity with which misconduct or irregularity is committed.
It was further observed therein that:
the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee.
The aforementioned judgment had been followed by this Tribunal in 1993 (25) ATC 117 K.G. Samnotra v. Union of India.
11. Examining the facts of present case and the findings recorded by enquiry officer as well as the President vis-`-vis the law noticed hereinabove, we find that the findings of grave misconduct or negligence has neither been recorded by the enquiry officer nor by the President while imposing punishment vide order dated 01.12.2005. We may note that in the given circumstances, as enquiry report is dated 10.06.2002 much prior to date of applicant attaining age of superannuation i.e. 31.12.2003, the findings of grave misconduct or negligence could not have been recorded by enquiry officer and such findings were required to be arrived at by the President before acting or exercising the power under Rule 9 thereof. We may also note that Central Vigilance Commission, who agreed with the Department that imposition of one time cut of Rs.1,000/- in pension vide Memorandum dated 08.06.2005 also did not touch the subject matter of grave misconduct or negligence.
12. In view of the discussion made hereinabove, we do not find it necessary to go into other aspects of the contentions raised.
13. Following aforesaid judgment, we have no hesitation to conclude that in the absence of finding of grave misconduct or negligence vide Presidential order dated 01.12.2005, the penalty of one time cut of Rs.1000/- in the pension of applicant imposed vide aforesaid order cannot be sustained in law. Accordingly, said penalty order is quashed and set aside with all consequential benefits. No costs.