PETITIONER:
D.V. KAPOOR
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT07/08/1990
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
SHARMA, L.M. (J)
CITATION:
1990 AIR 1923 1990 SCR (3) 697
1990 SCC (4) 314 JT 1990 (3) 403
1990 SCALE (2)175
ACT:
Central Civil Services (Pension) Rules, 1972: Rules
8(5)--Explanation (b) and 9 Pension and gratuity--Withhold-
ing of--For absence from duty--Whether valid and
legal--`Grave misconduct'--Interpretation of--Disciplinary
proceedings initiated while in service-Continued and con-
cluded on voluntary retirement--Whether valid and legal.
Central Civil Services (Conduct) Rules 1964: Rules
3(1)(i) and 3(1) (iii)--Absence from duty--Whether `grave
misconduct'--Withholding of pension----Whether permissible.
Words & Phrases: `Grave misconduct'--Meaning of---Rule
8(5), Explanation (b) Central Civil Services (Pension)
Rules, 1972.
HEADNOTE:
Disciplinary proceedings were initiated against the
appellant for wilful contravention of Rules 3(1)(i) and
3(1)(iii) of the Central Civil Services (Conduct) Rules.
1964 by absenting himself from duty without authorisation
and in not reporting to duty at New Delhi office on transfer
from London office. Pending proceedings, he was allowed to
retire voluntarily but was put on notice that the discipli-
nary proceedings would be continued under rule 9 of the
Civil Services Pension Rules, 1972. Thereafter, on comple-
tion of the enquiry, the President of India in consultation
with the Union Public Service Commission, decided to with-
hold the entire gratuity and pension otherwise admissible to
the appellant, on permanent basis, as a measure of punish-
ment. The appellant's writ petition challenging the legality
of the order was dismissed by the High Court, in limine.
In the appeal by special leave, before this Court, on
behalf of the appellant it was contended that since the
appellant had been allowed to retire voluntarily, the pro-
ceedings stood abated, and the authorities were devoid of
jurisdiction to impose the penalty of withholding gratuity
and pension as a measure of punishment, and that for award-
ing the said punishment the appellant must be found to have
committed grave misconduct or negligence within the meaning
of Rule 8(5), Explanation (b).
698
Allowing the appeal, this Court,
HELD: 1. Rule 9(2) of the Central Civil Services (Pen-
sion) Rules, 1972 provided that the departmental proceedings
if instituted while the Government servant was in service,
whether before his retirement or during his re-employment,
should, after the final retirement of the Government serv-
ant, be deemed to be proceedings under the rule and should
be continued and concluded by the authority by which they
were commenced in the same manner as if the Government
servant had continued in service. [701A-B]
In the instant case, merely because the appellant was
allowed to retire, the Government is not lacking jurisdic-
tion or power to continue the proceedings already initiated
to the logical conclusion thereto. The only inhibition is
that where the departmental proceedings are instituted by an
authority subordinate to the President, that authority
should submit a report recording its findings to the Presi-
dent. That has been done, and the President passed the order
under challenge. Therefore, the proceedings are valid in law
and are not abated consequent to voluntary retirement of the
appellant and the order was passed by the competent authori-
ty, i.e. the President of India. [701B-D]
2.1 Public employee holding a civil post or office under
the State has a legitimate right to earn his pension at the
evening of his life after retirement be it on superannuation
or voluntary retirement. It is not a bounty of the State.
Equally too of gratuity, a statutory right, earned by him-
Article 41 of the Constitution accords right to assistance
at the old age of sickness or disablement. Therefore, when a
Government employee is sought to be deprived of his pension-
ary right which he had earned while rendering services under
the State, such a deprivation must be in accordance with
law. [701F-G; 702D]
D.S. Nakara & Ors. v. Union of India, [1983] 2 SCR 165,
relied on.
2.2 Under Rule 9(1) of the Central Civil Services
(Pension) Rules, 1972, the President has reserved to himself
the right to withhold pension in whole or in part, whether
permanently or for a specified period, or he can recover
from pension of the whole or part of any pecuniary loss
caused by the Government employee to the Government subject
to the minimum. However, the exercise of the power is hedged
with a condition precedent that a finding should be recorded
either in departmental enquiry or judicial proceedings that
the pensioner com-
699
mitted grave misconduct or negligence in the discharge of
his duty while in office, as defined in Rule 8(5), Explana-
tion (b), which is an inclusive definition, i.e. the scope
is wide of mark, dependent on the facts or circumstances in
a given case. In the absence of such a finding, the Presi-
dent is without authority of law to impose penalty or with-
holding pension as a measure of punishment either in whole
or in part, permanently or for a specified period. [702G-H;
704B; 703E-F]
In the instant case, the Inquiry Officer found that
though the appellant derelicted his duty to report to duty,
at New Delhi on transfer from London, it was not wilful for
the reason that he could not move due to his wife's illness
and he recommended to sympathetically consider the case of
the appellant and the President accepted this finding, but
decided to withhold gratuity and payment of pension perma-
nently, in consultation with the Union Public Service Com-
mission. [703G-H; 704A]
The employee's 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 41 of the
Constitution. The right to gratuity is also a statutory
right. The appellant was not charged with nor was given an
opportunity that his gratuity would be withheld as a measure
of punishment. There is no provision of law under which the
President is empowered to withhold gratuity as well, after
his retirement as a measure of punishment. Therefore, the
order to withhold the gratuity as a measure of penalty is
illegal and devoid of jurisdiction. Since there is no find-
ing that appellant did commit grave misconduct as charged
for, the exercise of the power is clearly illegal and in
excess of jurisdiction as the condition precedent, grave
misconduct, was not proved. [704D-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5025 of
1985.
From the Judgment and Order dated 25.3.1985 of the Delhi
High Court in C.W.P. No. 686 of 1985.
Arun K. Sinha for the Appellant.
N.S Hegde, Additional Solicitor General, T.C. Sharma and
Mrs. Sushma Suri for the Respondents.
The Judgment of the Court was delivered by
700
K. RAMASWAMY, J. 1. This appeal by special leave under
Art. 136 of the Constitution arises against the decision of
the Delhi High Court in C.W.P. No. 686 of 1985 dated March
25, 1985. The appellant was working as an Assistant Grade IV
of the Indian Foreign Service, Branch ‘B’ in Indian High
Commission at London. On November 8, 1978 he was transferred
to the Ministry of External Affairs, New Delhi, but he did
not join duty as commanded, resulting in initiation of
disciplinary proceedings against him on August 23, 1979.
Pending the proceedings, on February 26, 1980 the appellant
sought voluntary retirement from service and by proceedings
dated October 24, 1980 he was allowed to retire but was put
on notice that the disciplinary proceedings initiated
against him would be continued under rule 9 of Civil Serv-
ices Pension Rules, 1972 for short ‘Rules’. His main defence
in the explanation was that his wife was ailing at London
and, therefore, he sought for leave for six days in the
first instance and 30 days later, which was granted, but as
she did not recover from the ailment, he could not undertake
travel. So he sought for more leave, but when it was reject-
ed, he was constrained to opt for voluntary retirement.
After conducting the enquiry the Inquiry Officer submitted
his report dated May 19, 1981. The gravemen of charges as
stated earlier are that the appellant absented himself from
duty from December 15, 1978 without any authorisation and
despite his being asked to join duty he remained absent from
duty which is wilful contravention of Rule 3(i)(ii) and
3(i)(iii) of the Civil Services Conduct Rule 1964. The
Inquiry Officer found that “it is however difficult to say
whether his absenting himself from duty was entirely
wilful”. In the concluding portion he says that both the
articles of charges have been established, the circumstances
in which the appellant violated the rules require a sympa-
thetic consideration while deciding the case under Rule 9 of
the Rules. The President, on consideration of the report,
agreed with the findings of the Inquiry Officer and in
consultation with the Union Public Service Commission decid-
ed that the entire gratuity and pension otherwise admissible
to the appellant was withheld on permanent basis as a meas-
ure of punishment through the proceedings dated November
24,. 1981. When the appellant challenged the legality there-
of, the High Court dismissed the writ petition in limine on
the ground that it would not interfere in its discretionary
jurisdiction under Art. 226 of the Constitution.
2. The contention of Mr. Kapoor, learned counsel for the
appellant is that the appellant having been allowed to
retire voluntarily the authorities are devoid of jurisdic-
tion to impose the penalty of withholding gratuity and
pension as a measure of punishment and the
701
proceedings stand abated. We find no substance in the con-
tention. Rule 9(2) of the Rules provided that the departmen-
tal proceedings if instituted while the Government servant
was in service whether before his retirement or during his
re-employment, shall, after the final retirement of the
Government servant, be deemed to be proceedings under this
rule and shall be continued and concluded by the authority
by which they were commenced in the same manner as if the
Government servant had continued in service. Therefore,
merely because the appellant was allowed to retire, the
Government is not lacking jurisdiction or power to continue
the proceedings already initiated to the logical conclusion
thereto. The disciplinary proceedings initiated under the
Conduct Rules must be deemed to be proceedings under the
rules and shall be continued and concluded by the authori-
ties by which the proceedings have been commenced in the
same manner as if the Government servant had continued in
service. The only inhibition thereafter is as provided in
the proviso namely “provided that where the departmental
proceedings are instituted by an authority subordinate to
the President, that authority shall submit a report record-
ing its findings to the President”. That has been done in
this case and the President passed the impugned order.
Accordingly we hold that the proceedings are valid in law
and they are not abated consequent to voluntary retirement
of the appellant and the order was passed by the competent
authority, i.e.the President of India.
3. His further contention that the appellant must be
found to have committed “grave misconduct” or “negligence”
within the meaning of Rule 8(5)(2) of the Rules which alone
gives power and jurisdiction to the authority to withhold by
way of disciplinary measure the gratuity and payment of
pension: Public employee holding a civil post or office
under the State has a legitimate right to earn his pension
at the evening of his life after retirement, be it on super-
annuation or voluntary retirement. It is not a bounty of the
State. Equally too of gratuity, a statutory right. earned by
him. Article 141 of the Constitution accords right to as-
sistance at the old aged or sickness or disablement. In D.S.
Nakara & Ors. v. Union of India, [1983] 2 SCR 165 the Con-
stitution Bench of this Court held that pension is not only
compensation for loyal service rendered in the past, but
also by the broader significance in that it is a social
welfare measure rendering socioeconomic justice by providing
economic security in the fall of life when physical and
mental prowess is ebbing corresponding to ageing process
and, therefore, one is required to fall back on savings. One
such saving in kind is when one had given his best in the
hey-day of life to his employer, in days of invalidity,
economic security by way of periodical
702
payment is assured. Therefore, it is a sort of stipend made
in consideration of past service or a surrender of rights or
emoluments to one retired from service. Thus pension is
earned by rendering long and efficient service and therefore
can be said to be a deferred portion of the compensation for
service rendered. In one sentence one can say that the most
practical raison d’etre for pension is the inability to
provide for one self due to old age. One may live and avoid
unemployment but not senility and penury if there is nothing
to fall back upon.
4. At page 190-D it is stated that pension as a retire-
ment benefit is in consonance with and furtherance of the
goals of the Constitution. The goals for which pension is
paid themselves give a fillip and push to the policy of
setting up a welfare State because by pension the socialist
goal of security from gradle to grave is assured at least
when it is mostly needed and least available, namely in the
fall of life. Therefore, when a Government employee is
sought to be deprived of his pensionary right when the had
earned while rendering services under the State, such a
deprivation must be in accordance with law. Rule 9(1) of the
rules provides thus:
“The President reserves to himself the right of withholding
or withdrawing a pension or part thereof, whether permanent-
ly or for a specified period, and of ordering recovery from
a pension of the whole or part of any pecuniary loss caused
to the Government, if, in any departmental of judicial
proceedings, the pensioner is found guilty or grave miscon-
duct or negligence during the period of his service includ-
ing service rendered upon re-employment after retirement.
Provided that the Union Public Service Commission shall be
consulted before any final orders are passed.
Provided further that where a part of pension is withheld or
withdrawn, the amount of such pension shall not be reduced
below the amount of rupees sixty per mensum.”
Therefore, it is clear that the President reserves to
himself the right to withhold or withdraw the whole pension
or a part thereof whether permanently or for specified
period. The President also is empowered to order recovery
from a pensioner of the whole or part of any pecuniary loss
caused to the Government, if in any, proceeding in the
departmental enquiry or judicial proceedings, the pensioner
is
703
found guilty of grave misconduct or negligence during the
period of his service including service rendered upon re-
employment after retirement.
Rule 8(5), explanation (b) defines ‘grave misconduct’ thus’
“The expression ‘grave misconduct’ includes the communica-
tion 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 Offi-
cial Secrets, Act, 1923 (19 of 1923) (which was obtained
while holding office under the Government) so as to prejudi-
cially affect the interest of the general public of the
security of the State.”
In one of the decisions of the Government as compiled by
Swamy’s Pension Compilation, 1987 Edition, it is stated
that:
“Pensions are not in the nature of reward but there is a
2binding obligation on Government which can be claimed as a
fight. Their forfeiture is only on resignation, removal or
dismissal from service. After a pension is sanctioned its
continuance depends on future good conduct, but it cannot be
stopped or reduced for other reasons.”
5. It is seen that the President has reserved to himself the
right withhold pension in whole or in part therefore whether
permanently or for a specified period or he can recover from
pension of the whole or part of any pecuniary loss caused by
the Government employee to the Government subject to the
minimum. 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 of the original or on re-employment. The
condition precedent thereto is that there should be a find-
ing that the deliquent is guilty of grave misconduct or
negligence in the discharge of public duty in office, as
defined in Rule 8(5), explanation (b) which is an inclusive
definition, i.e. the scope is wide of mark dependent on the
facts or circumstances in a given case. Myriad situation may
arise depending on the ingenuinity with which misconduct or
irregularity was committed. It is not necessary to further
probe into the scope and meaning of the words ‘grave miscon-
duct or negligence’ and under what circumstances the find-
ings in this regard are held proved. It is suffice that
charges in this case are that the appellant was guilty of
wilful misconduct in not reporting to duty after his trans-
fer from Indian High Commission at London to the Office of
External Affairs Ministry, Government of India, New Delhi.
The Inquiry Officer found that though the appellants dere-
licted his duty to report to duty, it is not
704
wilful for the reason that he could not move due to his
wife’s illness and he recommended to sympathetically consid-
er the case of the appellant and the President accepted this
finding, but decided to withhold gratuity and payment of
pension in consultation with the Union Public Service Com-
mission.
6. As seen 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 proceed-
ings that the pensioner committed grave misconduct or negli-
gence in the discharge of his duty while in office, subject
of the charge. In the absence of such a finding the Presi-
dent is without authority of law to impose penalty of with-
holding 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, subject to minimum of
Rs.60.
7. Rule 9 of the rules empowers the President only to with-
hold 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 employee’s right to pension is a statutory
fight. The measure of deprivation therefore, must be correl-
ative to or commensurate with the gravity of the grave
misconduct or irregularity as it offends the right to as-
sistance at the evening of his life as assured under Art. 41
of the Constitution. The impugned ‘order discloses that the
President withheld on permanent basis the payment of gratui-
ty in addition to pension. The fight to gratuity is also a
statutory right. The appellant was not charged with nor was
given an opportunity that his gratuity would be withheld as
a measure of punishment. No provision of law has been
brought to our notice under which, the President is empow-
ered to withhold gratuity as well, after his retirement as a
measure of punishment. Therefore, the order to withhold the
gratuity as a measure of penalty is obviously illegal and is
devoid of jurisdiction.
8. In view of the above facts and law that there is no
finding that appellant did commit grave misconduct as
charged for, the exercise of the power is clearly illegal
and in excess of jurisdiction as the condition precedent,
grave misconduct was not proved. Accordingly the appeal is
allowed and the impugned order dated November 24, 1981 is
quashed but in the circumstances parties are directed to
bear their own costs.
N.P.V. Appeal
allowed.
705