Full Text
HIGH COURT OF DELHI
Date of Decision: May 9, 2023
23789/2023 JANAK RAJ..... Petitioner
Through: Mr. Rajesh Tyagi, Adv.
Through: Ms. Bharathi Raju and Ms. Deepa Malik, Advs. for UOI
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA V. KAMESWAR RAO, J. (ORAL)
CM APPLs. 23624/2023 & 23789/2023 (for exemption)
Exemption allowed subject to all just exceptions.
Applications are disposed of.
JUDGMENT
1. The challenge in this writ petition is to an order dated March 10, 2023, passed by the Central Administrative Tribunal, Principal Bench, New Delhi (‘Tribunal’, in short) in Original Application No.347/2017 whereby the Tribunal has dismissed the OA filed by the petitioner.
2. The OA was filed by the petitioner challenging the order dated November 23, 2016 whereby the respondents have forfeited the pension and W.P.(C) 6022/2023 Page 2 Gratuity as payable to the petitioner. The order dated November 23, 2016, reads as under: “18.
WHEREAS after taking into account the submission of Shri Janak Raj, advice of DOP&T and full facts of the case, it may be observed that conviction of Shri Janak Raj, Ex. Asstt. Drug Controller of India, DGHS, New Delhi has not so far been set aside or stayed by the High Court and he has also not brought out any new facts which could have a bearing on the tentative decision of the Competent Authority for imposing penalty of 100% cut in pension and 100% cut in gratuity as admissible to him.
19. Now THEREFORE, the President being the Disciplinary Authority in the case after careful consideration of all the documents placed on record, facts and circumstances of the case, submission/representation of Shri Shri Janak Raj, the then Assistant Drug Controller of India, DGHS, New Dell dated 15/4/2015, advice of UPSC dated 21/4/2016, representation of Shri Janak Raj dated 13/5/2016 on the advice of UPSC made available to him vide memorandum dated 25/5/2016 and circumstances of the case in entirety has, come to the conclusion that ends of justice in the case would be met, if a penalty of 100% (one hundred percent) cut in pension and also 100%(one hundred percent) cut in gratuity, admissible to Shri Janak Raj, ADCT) (Retd) on a permanent basis be imposed with immediate effect.”
3. The Tribunal has upheld the order of the respondents referred to above, i.e., November 23, 2016 by relying upon the judgment of the Supreme Court in the case of K.C. Sareen v. C.B.I., Chandigarh, (2001) 6 SCC 584 wherein the Supreme Court in paragraphs 7, 8 and 9 stated as under: W.P.(C) 6022/2023 Page 3
4. The submission of Mr. Rajesh Tyagi, learned counsel appearing for the petitioner primarily is that, no doubt the petitioner has been convicted by the Criminal Court but the fact remains that the petitioner has challenged the order of Criminal Court before this Court, which is pending consideration.
5. According to him, the appeal being a continuance of the criminal proceedings initiated against the petitioner and in view of the Rule 69(1)(b) of the CCS Pension Rules which stipulates as under, till such time the appellate proceedings are decided, the petitioner is entitled to the provisional pension as was being paid to the petitioner. “The provisional pension shall be authorized during the period commencing from the date of retirement upto and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.”
6. Mr. Rajesh Tyagi in support of his submissions has relied upon the judgment of the Karnataka High Court in the case of N.K. Suparna v. Union of India & Ors., W.P.(C) 5938/2004, decided on September 23, 2004 and this Court in the case of Lakhminder Singh Brar v. Union of India & Ors., W.P.(C) 13191/2009, decided on September 16, 2010. We are not in agreement with the submissions made by Mr. Rajesh Tyagi.
7. Similar submissions were made by the petitioner before the respondents. Reliance was placed by the petitioner on the judgment in the case of N.K. Suparna (supra), wherein the respondents in paragraphs 12 to 17 of the order dated November 23, 2016 have stated as under: W.P.(C) 6022/2023 Page 5 “12.
WHEREAS Shri Janak Raj, ADC(I) was convicted by CBI Court vide judgement dated 29/8/2013 for acquiring assets disproportionate to his known sources of income to the tune of Rs.9,89,022/- which comes to approximately 40.55% of disproportionate assets against total income of Rs.24,38,607/- and savings of Rs.4,02,025/- which could not be satisfactorily explained by Shri Janak Raj. Further, vide order dated 31-8-2013, Shri Janak Raj was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,00,000/- and in default of payment of fine, to further undergo simple imprisonment for a period of four-months.
13.
WHEREAS as per DOP&T O.M No.371/23/92-AVD-III dated 4-3-1994, the disciplinary authority may proceed with the disciplinary proceedings including imposition of penalty as prescribed in the relevant disciplinary rules on the basis of conviction imposed on a public servant by a criminal court, notwithstanding the fact that a higher court on an appeal filed by the public servant concerned may order suspension of the sentenced passed by the trial court till the final disposal of the appeal.
14.
WHEREAS as per judgement in N.K. Suparna Vs. UoI in the WP No.5938 of 2004 by Karnataka High Court the pending of appeal in court is a judicial proceedings and final order under Rule-9(1) of the Rules in terms of Clause (b) of sub Rule-(1) of Rule 69 is required to be passed by President of India only after conclusion of judicial proceedings.
15.
WHEREAS the case file was referred to DOP&T for clarification as to whether the Disciplinary Authority can decide on the quantum of penalty in the disciplinary proceeding when the conviction of the Govt. servant has W.P.(C) 6022/2023 Page 6 been suspended by High Court or wait till the completion of judicial proceedings including appeal in Apex Court for finalization of the "disciplinary proceeding as in respect of the judgement in Shri N.K. Suparna Vs. UoI in the WP No.5938 of 2004 by Karnataka High Court.
16.
WHEREAS DOP&T advised to take a decision in the light of their O.M. dated 21/07/2016. DOP&T vide their O.M. F.No.11012/6/2007-Estt.(A-III) dated 21/07/2016 inter-alia states that when a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction it is public interest which suffers and sometimes even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office, it impairs the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction the fall out would be one of shaking the system itself. W.P.(C) 6022/2023 Page 7
17.
WHEREAS DOP&T O.M. F.No.11012/6/2007-Estt.(A- III) dated 21/07/2016 further states that thus action against a convicted Government servant should be taken straight away under Rule 19(1). An appeal against the conviction or even a stay on the sentence will have no effect unless the conviction itself is stayed.”
8. We agree with the reasoning given by the respondents in their impugned order. Additionally, Article 311 of the Constitution of India states as under:
9. Even Rule 9(6)(b)(i) of the CCS Pension Rules, 1972 contemplates that the judicial proceedings are said to be instituted on the date on which the complaint or the report of a Police Officer of which the Magistrate take cognizance is made. Article 311 contemplates that a government servant can be terminated upon his conviction. There is no denial to the fact that with the order of Criminal Court, the petitioner stood convicted and in appeal it is only the sentence which has been suspended not the conviction. So in that sense, the conviction against the petitioner stands.
10. The interpretation sought to be given by Mr. Rajesh Tyagi to the Rule 69(1)(b) of the Pension Rules is misplaced. It has to be necessarily interpreted to mean that the conviction which has been arrived at by the Criminal Court is sufficient to attract Rule 69(1)(b). This is also indicative from the fact that the Rule 9(6)(b)(i) contemplates the institution of judicial proceedings when the complaint / report is taken cognizance by the Magistrate. Surely, such judicial proceedings culminate when the final order in the case is passed by the Magistrate concerned. In this case, on the W.P.(C) 6022/2023 Page 9 passing of final order by the Criminal Court he is said to have been convicted and in terms of Rule 69(1)(b), the petitioner shall not entitled to the provisional pension.
11. In fact, the issue in hand stands covered by the judgment of the Division Bench of this Court in the case of P.C. Misra, Danics / Joint Director (Retd.) v. Union of India and Ors., 2018 SCC OnLine Del 13199, wherein the Court was concerned with an identical issue as is clear from paragraphs 1, 8, 9 and 18 of the judgment which we reproduce as under:
18. The thrust of the petitioner's submission is that since his criminal appeal is pending before the High Court against his conviction and sentence, and as the sentence has been suspended by the appellate court, his conviction has not attained finality since appeal is a continuation of the original proceedings. He also relies upon Rule 69(1)(b), which provides that the provisional pension shall be authorized during the period commencing from the date of retirement upto and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed W.P.(C) 6022/2023 Page 11 by the competent authority. The submission is that the judicial proceedings cannot be said to have attained conclusion in view of the pendency of the criminal appeal.”
12. This Court finally has in paragraphs 26, 29, 30, 31, 33 and 34 while dismissing the writ petition has held as under:
30. The decision in N.K. Suparna (supra) was assailed before the Supreme Court. The SLP was, however, withdrawn by the petitioner on 20.08.2008. Thus, the issue decided by the Karnataka High Court in N.K. Suparna (supra) has not received the seal of approval of the Supreme Court.
31. Having given our anxious consideration to the matter, we cannot persuade ourselves to agree with the view taken by the Karnataka High Court in N.K. Suparna (supra). Under clause (b) of Rule 69(1), the relevant expression used is “from the date of retirement upto and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority”. Pertinently, while making the said rule by resort to proviso to Article 309 of the Constitution of India, the President uses the expression “final” only once i.e. in relation to orders which are passed by the competent authority. However, no such word or expression is used before the word “conclusion of departmental or judicial proceedings”. If the intendment of the President - while framing the said rule was to release provisional pension to the government servant upto the date of “final” conclusion of departmental or judicial proceedings, the President would have used the said expression “final” before the words “conclusion of departmental or judicial proceedings”, just as he used the expression “final” in respect of the orders to be passed by the competent authority. Thus, the plain grammatical and literal interpretation of clause (b) of Rule 69(1) does not support the interpretation that the conclusion W.P.(C) 6022/2023 Page 14 of departmental or judicial proceedings means the “final” conclusion of departmental or judicial proceedings.
33. The decision in the appeal may not come for years for myriad reasons. Firstly, the heavy pendency of criminal appeals would come in the way of disposal of the appeal on an early date. Secondly, even the Government servant/appellant may seek adjournments to delay the disposal of the appeal. Is it to be accepted that a government servant - who stands convicted of a corruption charge before a criminal Court, should continue to receive provisional pension, just as good as the full pension, only on account of pendency of his criminal appeal? In our view, the answer to this question has to be an emphatic “No”.
34. If the interpretation of the petitioner were to be accepted, the conviction would not attain finality even for purposes of Rule 19 of the CCS (CCA) Rules, or Rule 9 of the Pension Rules even after dismissal of the Criminal Appeal, because the petitioner would still have a right to prefer a Special Leave Petition under Article 136 of the Constitution of India before the Supreme Court. There would be no end to this process as the petitioner could file one petition after another and seek review, recall, or even file a curative petition. Pertinently, the conviction of the petitioner has not been stayed by the appellate court and only his sentence has been suspended. Therefore, for all purposes, he is a convict. To permit such a convict to draw provisional pension - which in most cases would be equal to the full pension, would be to make a mockery of the law. The same would mean that despite his conviction by the criminal court involving a serious and grave case of misconduct, he would get away without any adversity, and would continue to remain a W.P.(C) 6022/2023 Page 15 burden on the State. Thus, in our view, for purposes of Rules 9(1) and 69(1)(b) of the Pension Rules, the judicial proceedings have attained conclusion upon the conviction of the petitioner by the trial Court, and the competent authority is entitled to pass final orders for withdrawing the whole or part of the pension permanently or for a specified period; for forfeiture of the Gratuity, and; for ordering recovery of the pecuniary loss caused to the government due to the grave misconduct established in the judicial proceedings.”
13. Insofar as the judgment of the Division Bench of this Court in the case of Lakhminder Singh Brar (supra) is concerned, the issue in the said judgment is opposite to the issue which arose for consideration in P.C. Mishra (supra), inasmuch as there the petitioner, who has retired during the pendency of the criminal case was acquitted. During the pendency of the criminal case, he was granted the provisional pension. His claim was that he should be given the regular pension in view of the acquittal. It may also be stated that against the acquittal, the State had filed appeal before this Court. This Court, interpreting the provisions of Section 69(1)(b) has held that the petitioner therein is not entitled to grant of regular pension during the pendency of the appeal.
14. Suffice to state, the Judgment is distinguishable on facts. Even otherwise, in view of the judgment of the Division Bench in P.C. Mishra (supra) placing reliance on the judgment of the Supreme Court in K.C. Sareen (supra) (which was not considered by this Court in Lakhminder Singh Brar), we agree with the conclusion arrived at by the Division Bench of this Court and hold that the Tribunal was justified in rejecting the OA. In the facts of this case, we are of the view that the impugned order needs no W.P.(C) 6022/2023 Page 16 interference. The writ petition and connected applications are dismissed.
V. KAMESWAR RAO, J
ANOOP KUMAR MENDIRATTA, J MAY 09, 2023