L.MOHAPATRA, J & B.P.RAY, J.
W.P.(C) NO.10381 of 2006 (Decided 04.05.2010)
UNION OF INDIA ………. Petitioner.
.Vrs.
HADIBANDHU BEHERA .......... Opp.Party.
CCS (PENSION) RULES 1972 - RULE 9.
For Petitioner - Mr. P.R.Barik, P.Choudhury & A.Pradhan.
For Opp.Party - Mr. D.P.Dhalsamanta & P.K.Behera.
B.P. RAY, J. The Union of India has filed this writ application assailing the order
passed by the learned Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A.
No.22 of 2004. This Original Application was disposed of by the learned Tribunal by
order dated 16.11.2005 by which the learned Tribunal has quashed the order of
punishment dated 31.10.2003 passed by the Under Secretary to the Government of
India, Ministry of Communications & Information Technology, Department of
Telecommunications and the consequential report of the Inquiring Officer and the
charges.
2. The fact giving rise to filing of O.A. No.22 of 2004 before the Tribunal was that
the opposite party retired from service as Telecom District Engineer, (in short “T.D.E.”),
Rourkela in the month of July, 1991. After retirement, a charge sheet dated 31.8.1994
was issued under Rule 9 of CCS (Pension) Rules, 1972. The gist of the allegation in the
charge sheet was that while the opposite party was functioning as T.D.E. during the
period 1990-91, he had passed orders for sale of unserviceable store materials to one
contractor, Shri M.Koteswar Rao without inviting sealed tenders or holding public auction
which was in violation of the order of the General Manager and thereby the loss
sustained by the Department was estimated at Rs.8.17 lakhs. On conclusion of the
enquiry, the Disciplinary Authority by order under Annexure-1 imposed punishment on
the opposite party by which the pension of the petitioner was reduced to minimum level
of pension i.e. Rs.1275/- per month and also the gratuity amount of Rs.72,188/- was
forfeited. This punishment was imposed by the Disciplinary Authority on the basis of the
advice tendered by the Union Public Service Commission and the Central Vigilance
Commission. This order under Anneuxre-1 was assailed before the learned Tribunal in
the aforesaid O.A.
3. The learned Tribunal after hearing the parties and on consideration of the relevant
materials on record and also on perusal of the relevant files has quashed the order of
punishment imposed on the opposite party. The Tribunal while quashing the order of
punishment has also quashed the report of the Inquiring Officer as well as the charge.
Thus the Tribunal by order dated 16.11.2005 has allowed the O.A. filed by the opposite
party. The present writ petition has been filed by the Union of India challenging the said
order.
4. On being noticed, the opposite party has filed a return. In the said return of the
opposite party, it has been stated that the punishment under Annexure-1 was imposed
on the intervention of a 3rd party without supplying copy thereof and it was also stated
that on the advice of the U.P.S.C. and the Central Vigilance Commission, the impugned
punishment under Annexure-1 was imposed.
5. We have heard learned Central Government Counsel appearing for the Union of
India and also the learned counsel appearing for the opposite party and we have also
carefully perused the impugned order passed by the learned Central Administrative
Tribunal.
6. On perusal of the impugned order passed by the learned Tribunal, it appears that
the departmental proceeding was initiated against the opposite party after his retirement
from service under Rule 9 of CCS (Pension) Rules, 1972. The allegation contained in
the charge has been noticed by us in the preceding paragraph referring to the findings of
the enquiry report. Learned Tribunal has held that no specific finding has been arrived at
by the Inquiring Officer as to whether the Department had sustained financial loss of
Rs.8.17 lakhs and the Disciplinary Authority agreed with the said findings of the Inquiring
Officer. It appears from the impugned order of Tribunal that the Central Vigilance
Commission to which the file was submitted found that the charges were fully proved
and it has further held that the lapses committed were serious in nature attaching
doubtful integrity of the opposite party and that the Central Vigilance Commission had
advised to impose penalty of suitable reduction in pension of the opposite party. This
advice of the Central Vigilance Commission having accepted by the Disciplinary
Authority, the learned Tribunal in the impugned order has held that the opposite party
had no dishonest motive, the decision to initiate action under Rule 9 of the Pension
Rules was violative of the own policy of the Department. It also further appears from
the impugned order that the action of the opposite party regarding disposal of
unserviceable store materials was referred to the C.B.I. in R.C. No.45(A)92-BBS and the
C.B.I. after holding a detailed inquiry remitted back the matter with the findings that the
charges of criminal conspiracy, cheating etc. could not be substantiated against the
opposite party. But, however, the C.B.I. was of the view that the opposite party has
committed grave mis-conduct in the alleged disposal of the unserviceable store
materials. Therefore, the Tribunal has held that the Disciplinary Authority was more
influenced by the findings of the C.B.I. to initiate the disciplinary proceeding though no
reason was available in the report of the C.B.I. in support of such recommendations.
Accordingly, the learned Tribunal has held that the Disciplinary Authority has failed to
apply its mind. The learned Tribunal having analyzed all the materials available in the
relevant files came to the conclusion that the C.B.I. had influenced the decision for
initiating a major action against the opposite party though such recommendation of the
C.B.I. The Tribunal has also found that similar such transactions were undertaken in
other districts, but no action was taken in respect of such transaction by the responsible
officers. But so far as the opposite party is concerned, he was singled out for the action
under Rule 9 of the Pension Rules.
7. Learned Tribunal having made a detailed analysis of the materials available on
record came to the conclusion that the alleged mis-conduct does not attract the rigor of
Rule 9 of the Pension Rules. Therefore, keeping in view, the law enunciated by the
Apex Court in the case of Nagaraj Shivarao Karjagi v. Syndicate Bank Head Office,
Manipal and Anr. (AIR 1991 SC 1507), learned Tribunal has reached the conclusion
that as the punishment has been imposed on the intervention of 3 rd party, the same is
unsustainable and so also the proceeding initiated.
8. We are in respectful agreement with the conclusion reached in the impugned
order of the Tribunal and we concur with the same, inasmuch as we also do not find any
infirmity therein.
Accordingly, the writ petition fails and is dismissed.
Writ petition dismissed.