Govind Singh Bhakuni v. High Court of Delhi and Anr.

6. The above has now prompted the petitioner to file the present petition seeking the following reliefs: a) Quash Impugned Order dated 22.04.2019 and Order dated 09.03.2021 thereafter issue appropriate writ/order/direction in the form of mandamus or any other appropriate writ/order/direction to the respondents to calculate and grant remaining pay & allowances w.e.f 01.09.2015 upto 06.02.2018 when compulsory retirement was granted, thereafter grant pension & gratuity considering 06.02.2018 the actual date of retirement as per administrative appellate authority order dated 21.01.2019 (Annexure-I) and further direct the respondents to recommend to pension payment order (PPO) to pay & Accounts Office No.VI, Government of NCT of Delhi, Treasury Building, Tis Hazari, Delhi in this respect. b) Grant cost of the present petition to the petitioner against the respondents.

7. As per petitioner, there is misinterpretation/misconstruction/ misreading of words by the Appellate Authority of the order dated 21.01.2019 whereby it was clarified that the petitioner could not be deprived of the right to his pension or gratuity in terms of Rule 40 of The Central Civil Service (Pension) Rules, 1972[3]. As per the petitioner, the pensionary benefits under CCS Pension Rules shall prevail being for specific purpose as against Central Civil Service (Classification Control and Appeal) Rules, 1965 as the same are not in effect anymore and the same have been wrongly referred to, in letter dated 18.01.2021 issued by the office of D&SJ. Without going into the merits of the same, we find that the orders dated 06.02.2018 passed by the Disciplinary Authority, 21.01.2019 passed by the administrative Appellate Authority and 22.04.2022 passed by the Appellate Authority are not based on the same and have no relevance for adjudication of the present writ petition. Hereinafter referred to as “CCS Pension Rules”

8. As per petitioner, there is no ambiguity in the order dated 21.01.2019 passed by the Appellate Authority and the objection raised vide letter dated 18.01.2021 by the Drawing and Disbursing Officer from the office of D&SJ is unwarranted in view of categorical finding given by administrative Appellate Authority vide appellate order dated 21.01.2019. Relying upon Prem Nath Bali v. Registrar, High Court of Delhi & Anr[4]. wherein despite there being no specific order from which date the pensionary benefits were to be given, although major penalty of compulsory retirement was imposed, the Apex Court granted pensionary benefits considering the suspension period was long which was not attributable to Civil Court servants with effect from the date of passing compulsory retirement order. Learned counsel for petitioner contended that in the present case, there is a specific order by appellate authority for considering the date of retirement as 06.02.2018 which leaves no ambiguity to raise any objection at least for granting pensionary benefits to present petitioner by the Drawing & Disbursing Officer of the office of D&SJ as regards the date from which the calculating of pensionary benefits have to be granted.

9. In rebuttal, both Registrar General, High Court of Delhi as the respondent no.1 and Principal D&SJ as the respondent no.2 filed separate counter affidavits, over all supporting the orders passed by the various forum(s) at different stages on diverse dates. As per respondents, the order of the Disciplinary Authority dated 06.02.2018 and that of the administrative Appellate Authority dated 21.01.2019 are clear and specific and needed no change. Further, both the orders have been duly considered AIR 2016 SC 101 by the Appellate Authority in the impugned order dated 22.04.2022. Thus no interference of any kind at this level is called for by this Court.

10. The respondents contended that as per Rule 33 of the CCS Pension Rules, where a government servant immediately, before his retirement or death, while in service, had been absent from duty on extraordinary leave or had been under suspension, the period whereof does not count as service and the emoluments which he drew immediately before proceeding on such leave or being placed under suspension shall be the emoluments for the purpose of this rule. In view thereof, as the petitioner was not in service he is not entitled to the reliefs prayed for in the present writ petition. Reliance for the same is also placed upon Rule 23 of the CCS Pension Rules, according to which the time passed by a Government servant under suspension pending inquiry into conduct shall count as qualifying service where, on conclusion of such inquiry, he has been fully exonerated or the suspension is held to be wholly unjustified; the period of suspension shall not count as service unless the authority competent passes such orders under the rule governing such cases, and the period shall count to such extent as the Competent Authority may declare.

11. The respondents also contended that it is settled law that in matters related to disciplinary proceedings, the scope of Judicial Review is limited and the Court(s) while exercising the Powers under Article 226 of the Constitution of India, do not sit in appeal to re-appreciate the evidence and facts or substitute its opinion unless it is shown that the appropriate procedure was not followed.

12. The respondents also contended that in terms of para 13 of Office Memorandum dated 04.08.2016 issued by the Ministry of Personnel, Public Grievance & Pensions, Govt. of India for implementation of 7th Central Pay Commission for pre-2016 pensioners, the Pension Disbursing Authorities should ensure that the revised pension and the arrears due to the pensioners who have retired before 01.01.2016 is paid in their account by 31.08.2016 or before positively. The case of the petitioner is not falling under the said head.

13. The respondents further contended that the petitioner in the present case was not acquitted by the Disciplinary Authority and the punishment of „Dismissal from Service‟ was awarded by the Disciplinary Authority treating the period of suspension as non-qualifying service vide order dated 06.02.2018 and the Administrative Appellate Authority also did not acquit the petitioner from the charges levelled against him. It was only the punishment of „Dismissal from Service‟ which was reduced to the one of „Compulsory Retirement‟ with effect from 06.02.2018. Therefore, the order of the Disciplinary Authority treating the period of suspension as nonqualifying service is valid.

14. In support thereof, learned counsel for respondents relied upon Management of Reserve Bank of India v. Bhopal Singh Panchal[5], Sh. D. N. Kadian v. LG., GNCTD & Ors[6]., Jagdish Chander v. Government of NCT of Delhi & Ors[7]. and Union of India & Ors. v Devi Krishan Sharma,[8] wherein under similar circumstances, the delinquent was not given benefit of reduction of punishment.

15. After hearing both learned counsel for the parties at considerable length and upon a careful perusal of the documents on record and cited judgments, this Court, at the outset, notes that a perusal of the writ petition reveals that the petitioner is guilty of raising similar grounds, which already stand negated vide detailed order(s) at different levels, before us. Though the petitioner has raised various grounds to agitate the case, pertinently, there is no challenge to the manner of the proceedings or to the decision making process. In a nutshell, all that the petitioner is seeking by virtue of the present writ petition is a „clarification‟, which has already been denied to him, to the effect that if the punishment of „Dismissal from Service‟ imposed vide order dated 06.02.2018 by the Disciplinary Authority has been reduced to the punishment of „Compulsory Retirement‟ vide order dated 21.01.2019 by the Appellate Authority, accordingly, it should be deemed that the petitioner continued to remain in service for the period 01.09.2015 till 06.02.2018 and the said period cannot be treated as not being in service and that he is well and truly entitled for the extension of pensionary benefit under the 7th Central Pay Commission and other benefits and not under the 6th Central Pay Commission.

16. It is further not the case of the petitioner that the respondents have not extended the benefit of his pension or gratuity in terms of Rule 40 of the CCS Pension Rules as the dispute raised in the present writ petition is only with regard to the final date of service of the petitioner, whether it is to be taken as 01.09.2015 or 06.02.2018. Though, under the garb of the present writ petition, the petitioner has, wrongly, tried to contend to the contrary before us.

17. Coming to the facts of the case, admittedly, the petitioner was awarded the punishment of „Dismissal from Service‟ vide detailed order dated 06.02.2018 passed by the Disciplinary Authority as he was held guilty of misconduct, and as categorically stated in the said order, reproduced above, the petitioner was not to get any benefits for the period of suspension other than subsistence allowances already paid to him. Admittedly, the administrative Appellate Authority vide its detailed order dated 21.01.2019 reaffirmed and reiterated the earlier order dated 06.02.2018 passed by the Disciplinary Authority without commenting or disturbing the material paragraph 15, and merely, partly allowed the appeal with certain modifications of the said order. As such, there was/could be no change of the period of suspension mentioned therein. In effect, the directions regarding non-grant of benefits for the period of suspension to the petitioner remained as such and only the punishment was scaled down. In our view, it can safely be inferred from a reading of the order dated 21.01.2019 that it is in the nature of a benevolent gesture extended by the administrative Appellate Authority in view of the then past 38 years of service rendered by the petitioner. The same can also be deciphered from the language of the order dated 22.04.2022 passed by the Appellate Authority. Thereafter, the date of service for the purpose of fixation of pensionary benefits was termed as on 31.08.2015 i.e. the date prior to him being put on suspension, in terms of order dated 21.01.2019 passed by the administrative Appellate Authority. The same was, once again, reaffirmed and reiterated by the Appellate Authority vide its detailed order dated 22.04.2022.

18. It is not in dispute that the petitioner was out of service since 31.08.2015 and that the same has not been modified or changed by any authority whatsoever. The only clarification given by the administrative Appellate Authority was vide its order dated 21.01.2019 whereby it is crystal clear that the relevant date for consideration in the present case is indeed 31.08.2015. The carrying out of any modification/ amendment by the administrative Appellate Authority vide its order dated 21.01.2019 of the order dated 06.02.2018 passed by the Disciplinary Authority is of no consequence or relevance as the petitioner was admittedly not in service. In any event, the same cannot come to the aid of the petitioner in view of the settled position of law, as enunciated in Management of Reserve Bank of India (supra), wherein the respondent was convicted by the Sessions Judge for misconduct and dismissed from service treating the period of suspension as period without pay and allowances and though the petitioner therein was given an honourable acquittal, however, the order of dismissal was not altered and was upheld. The Hon‟ble Supreme Court in that case held as follows:- “…… We have already pointed out the effect of the relevant provisions of Regulations 39, 46 and 47. The said regulations read together, leave no manner of doubt that in case of an employee who is arrested for an offence, as in the present case, his period of absence from duty is to be treated as not being beyond circumstances under his control. In such circumstances, when he is treated as being under suspension during the said period, he is entitled to subsistence allowance. However, the subsistence allowance paid to him is liable to be adjusted against his pay and allowances if at all he is held to be entitled to them by the competent authority. The competent authority while deciding whether an employee who is suspended in such circumstances is entitled to his pay and allowances or not and to what extent, if any, and whether the period is to be treated as on duty or on leave, has to take into consideration the circumstances of each case. It is only if such employee is acquitted of all blame and is treated by the competent authority as being on duty during the period of suspension that such employee is entitled to full pay and allowances for the said period. In other words, the Regulations vest the power exclusively in the Bank to treat the period of such suspension on duty or on leave or otherwise. The power thus vested cannot be validly challenged. During this period, the employee renders no work. He is absent for reasons of his own involvement in the misconduct and the Bank is in no way responsible for keeping him away from his duties. The Bank, therefore, cannot be saddled with the liability to pay him his salary and allowances for the period. That will be against the principle of 'no work, no pay' and positively inequitable to those who have to work and earn their pay. As it is, even during such period, the employee earns subsistence allowance by virtue of the Regulations. In the circumstances, the Bank's power in that behalf is unassailable.”

19. Similarly, reliance is also placed upon Sh. D.N. Kadian (supra) wherein petitioner was a member of Delhi Judicial Services and after being prosecuted for the demand and acceptance of illegal gratification, was suspended from service and was found guilty and the request of petitioner for payment of arrears for the period of suspension was denied holding that the period of suspension as „period not spent on duty‟. Once again, the Hon‟ble Supreme Court in the said case observed as follows: - “…..Therefore, a conjoint reading of Rules 9 and 69 of the Pension Rules with FR 54-B, in the opinion of the Court, means that the employer (in this case, the High Court) had the discretion to treat the period that the petitioner was under suspension, as not having been spent on duty; indeed, a plain reading of Rule 54B (5) and (7) reveal that without a finding that the suspension was unjustified, the period cannot be treated as having been spent on duty. Rule 9 (1) read with Rule 69 of the Pension Rules, enables only fixation of provisional pension and the authority has to await the outcome of judicial proceedings pending in the criminal charges alleged against the petitioner. To some extent, the petitioner is right in contending that the lack of any finality in the proceeding has resulted in his being deprived of his pension and terminal benefits. The Court observes that inherent in the nature of charges leveled and having regard to the procedural history of the case, delay was inevitable. The consequence of this hardship cannot mean that the petitioner, by default can claim as an entitlement the right to full pension fixation, with terminal benefits, which he is in law, and under the relevant rules, clearly not entitled to.”

20. Reliance is also placed upon Jagdish Chander (supra), wherein the petitioner was suspended from service for misconduct and inflicted with the punishment of withholding of five years of increments, though the Appellate Authority modified the punishment by reducing the withholding of increment by two years and decided that the period of suspension will be treated as period not spent on duty, this Court observed as follows:-

21. Lastly, reliance is placed upon Union of India (supra) wherein while deciding the issue of grant of increment during the period of suspension, a co-ordinate bench of this Court made the following observations:- “….. At the outset before delving into the merits of the case, it would be relevant to analyze the dictionary meaning of suspension. The term - `Suspend' would mean 'to debar usually, for a time, from any privilege, he execution of an office or from the enjoyment of an income'. It is a temporary deprivation of office or privilege. By reason of suspension, the powers, functions and privileges remain in abeyance but one continues to be subjected to the same discipline and penalties to the same authorities. The above definition makes it clear that during the period of suspension, all the privileges and benefits attached to the office is temporarily suspended unless the period of suspension is considered as the period spent on duty.”

22. Now coming to the issue of maintainability of the present writ petition in the present form. The petitioner by virtue of the present writ petition is seeking judicial review of the order(s) passed against him. As noted hereinabove, the petitioner has not challenged the constitution of the forum(s) or the manner of the proceedings or the decision making process and the whole case is based on the final decision arrived at by the administrative Appellate Authority first and then by the Appellate Authority thereafter, which cannot be gone into by this Court under a petition under Article 226 of The Constitution of India. In view thereof the present writ petition in not maintainable in law. We are fortified by H.B. Gandhi, Excise and Taxation Officer-cum-assessing Authority, Karnal and Others vs. M/s Gopi Nath & Sons And Others 9 wherein it is held as follows:- “8.......Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself.”

23. Similarly, reliance is placed upon Swapan Kumar Pal vs. Achintya Kmar Nayak and Others10 wherein it is held as follows: -

24. Lastly, reliance is also placed upon In Bank of India and Others vs.

25. In view of the aforesaid settled law regarding the scope of interference in matters of judicial review, in the opinion of this Court there is hardly any, in fact extremely little scope of interference in matters like the present one.

26. As such, in view of the punishment imposed by the Disciplinary Authority, upheld by the administrative Appellate Authority and also by the Appellate Authority and in view of the settled legal position qua the scope of interference in matters of judicial review involved in the present writ petition, this Court finds no merit in the present writ petition and holds that the petitioner is not entitled to the reliefs sought for in the present writ petition.

27. Accordingly, the present writ petition is dismissed, leaving the parties to bear their own costs.

SAURABH BANERJEE, J. MANMOHAN, J. DECEMBER 22, 2022