Dr Samir Kumar Das v. Union of India

1. Memorandum of 27th November, 2017 (Annexure P-1) proposes to hold an inquiry against petitioner under Rule 9 of CCS (Pension) Rules, 1972 for inflicting major penalty is assailed in this petition on the ground that petitioner has been already removed from service on 1st December, 2016 and so, petitioner cannot be proceeded against under the CCS (Pension) Rules, 1972.

2. It is submitted by petitioner’s counsel that petitioner is covered by Employees’ Provident Fund & Miscellaneous Provisions Act, 1952 and is eligible for contributory provident fund, gratuity and hence, CCS (Pension) Rules, 1972 are not applicable to petitioner. In response to the impugned Memorandum of 27th November, 2017 (Annexure P-1), 2018:DHC:958 W.P.(C) 407/2018 Page 2 petitioner had sent e-mail of 13th December, 2017, which has been responded to by respondent- Union of India vide communication of 26th December, 2017 (Annexure P-14) requiring petitioner to submit a reply to the impugned Memorandum/ Charge-Sheet, which is also assailed in this petition.

3. The precise submission of petitioner’s counsel is that petitioner is covered by Employees’ Provident Fund & Miscellaneous Provisions Act, 1952 and Employees’(Conduct, Discipline And Appeal) Rules, 2005 (Annexure P-10) of respondent-FCI Aravali Gypsum & Minerals India Limited. Learned counsel for petitioner maintains that there is no provision in the aforesaid Rules (Annexure P-10) permitting initiation of departmental proceedings after tenure of petitioner has ended.

4. Upon hearing and on perusal of impugned Memorandum of 27th November, 2017 (Annexure P-1), respondent-UOI’s communication of 26th December, 2017 (Annexure P-14) and the material on record, I find that the stand taken by petitioner in its Communication of 12th December, 2017 (Annexure P-12) regarding applicability of CCS (Pension) Rules, 1972, goes to the root of the matter. Upon finding the impugned response (Annexure P-14) to be unsatisfactory, Respondent- Union of India is directed not to insist upon filing of reply to the impugned Memorandum of 27th November, 2017 (Annexure P-1) till this vital issue is properly addressed by it vide a reasoned order. It is made clear that if respondent- Union of India comes to a conclusion that petitioner cannot be proceeded against under the CCS (Pension) Rules, 1972, then it be also considered if petitioner can be proceeded against under The CCS (Conduct) Rules, W.P.(C) 407/2018 Page 3

1964. Before proceeding further, the fate of petitioner’s Communication of 12th December, 2017 (Annexure P-12) be made known to petitioner, so that petitioner may avail of the remedy, as available in law, if need be.

5. With aforesaid directions, this petition and application are disposed of.

JUDGE FEBRUARY 07, 2018 r