AI Structured Summary
Not yet generated for this judgment
Judgment
PRAMOD KUMAR DAS, MEMBER (A):
Heard. Perused the pleadings made in the RA to which reply filed by the respondents’ department and the documents filed in support thereof.
We would like to put on record a few facts of the matter to come to the conclusion as to whether this is a fit case to exercise the power of review to review the order dated 04.09.2019 in OA 805/2014 sought by the applicant. In order to understand the full facts of the matter, according to us, a gist of the case needs to be dealt into, which are that the applicant while working as SSRM N Dn. in Odisha Circle, retired on superannuation in the afternoon of 30.11.2011. Admittedly, prior to his retirement, disciplinary proceedings under Rule 16 of CCS (CCA) Rules, 1965 was initiated against him vide memorandum dated 27/28.04.2010, which was concluded in imposition of withholding of one increment of pay for a period of six months when it falls due, without cumulative effect vide memo dated 29.07.2010, as against which, applicant preferred appeal alleging that the punishment imposed is de hors Rule 102 of Postal Manual Vol. III and DGP&T order No. 6 below Rule 11 of CCS (CCA) Rules, 1965 stipulating that penalty of withholding of next increment cannot be imposed retrospectively as was done in respect to him vide memo dated 29.07.2010 and, as per the order of the Appellate Authority, the Disciplinary Authority revised the order of punishment 29.07.2010 in terms of Rule 130 of Postal Manual to that of reduction to a lower stage in the time scale of pay by one stage etc. vide memo dated 08.07.2014, as against which, the applicant preferred representation to DG(Postal), New Delhi on 26.07.2014 and, thereafter, approached before this Bench in OA No. 805/2014. During pendency of the OA, the representation dated 26.07.2014 was disposed of by DG (Postal), New Delhi vide order dated 04.12.2014, which order was delivered to the applicant on 16.12.2014. The OA No. 805/2014 was disposed of by this Bench on 04.09.2019, operative part of which is reproduced below:
“9.From the above a question arises as to whether the applicant having retired from service on superannuation with effect from 30.11.2011, modified punishment as imposed vide order dated 8.7.2014 could be made effective from 01.08.2010. Since the final order was not passed on the disciplinary proceedings initiated against the applicant prior to his retirement on 30.11.2011, it should be deemed that the proceedings so initiated remained inconclusive and the punishment as imposed vide order dated 29.07.2010 becomes inoperative. Therefore, the proceedings ought to have been converted under the relevant provisions of Pension Rules, the President of India being the Disciplinary Authority to impose punishment on a retired Government employee. This procedure has not been followed in the instant case. Besides, in paragraph-5.9 of the O.A., the applicant has averred as follows:
"5.9.That the order of modified penalty made at Annexure-A/13 is also invalid and ineffective ab initio. Because the wrong stage of pay band has been mentioned in the modified order, which multiplies the irregularities. The PB of the applicant Rs.22660/- and not Rs.22120/- as on 01.08.2010 and the stage before the last increment, i.e. on 30.06.2010 was Rs.21840/- and not Rs.21310/-. But in the modified order the stage have been shown as Rs.22120/- and Rs.21310/- against the actual stage Rs.22660/-and Rs.21840/- respectively".
10.This averment of the applicant has not been effectively answered by the Respondents in their counter. In view of this, and keeping in view the fact that the applicant has not challenged the Directorate's order dated 4.12.2014 in this O.A., to meet the ends of justice, we remit this matter back to Respondent No.1, the Secretary-cum-Director General of Posts, Dak Bhawan, New Delhi to reconsider the matter having regard to the observations made by this Tribunal in the preceding paragraphs and pass an appropriate orders within a period of sixty days from the date of receipt of this order under intimation to the applicant.” [Emphasis added]
The applicant this RA seeking review of the order dated 04.09.2019. According to Ld. Counsel for the applicant, the DoP&T vide OM dated 13.04.2009 restored the earlier OM dated 28.02.1981 in withdrawing the OM dated 31.07.1987. In terms of OM dated 28.02.1981, since grave misconduct or negligence cannot be established as a result of minor penalty proceedings initiated under Rule 16 of CCS (Pension) Rules, 1972, action under Rule 9 of CCS (Pension) Rules, 1972 for withholding or withdrawing pension or part of pension thereof etc. cannot be taken against a pensioner in respect of whom minor penalty proceedings had been instituted and has been continued after retirement. Thus, such minor penalty p[proceedings continued after retirement do not have any effect in the matter of reducing or withholding his pension. Therefore, quashing the order of punishment imposed on the applicant, remitting the matter to the authorities concerned with observation that “Therefore, the proceedings ought to have been converted under the relevant provisions of Pension Rules, the President of India being the Disciplinary Authority to impose punishment on a retired Government employee. This procedure has not been followed in the instant case” is an error apparent on the face of record being contrary to rules and law and, therefore, the order needs to be reviewed.
On the other hand, Ld. Counsel for the respondents department based on the reply submitted in this case has stated that Rule 16 proceedings was initiated against the applicant for his omission and commission, which ended in imposition of penalty, while the applicant was very much in service, vide memo dated 29.07.2010. He preferred appeal and retired on 30.11.2011. In compliance of the order of the Appellate Authority, the Disciplinary Authority revised the order of punishment vide memo dated 08.07.2014, against which, he preferred representation to DG (Postal), New Delhi on 26.07.2014 and, thereafter, approached before this Bench in OA No. 805/2014. During pendency of the OA, his representation was disposed of by DG (Postal), New Delhi vide order dated 04.12.2014. The steps taken after the retirement of the applicant was in continuation of the punishment already imposed while he was in service in culmination of the proceedings under Rule 16. There is no absolute bar for continuance or conversion of disciplinary proceedings initiated under Rule 16 after his/her retirement, rather, by the DoP&T OM, discretion is vested with the authority to take action keeping in mind the provision under Rule 9 of CCS (Pension) Rules, 1972, therefore, it cannot be said that the Tribunal committed any error either on fact and law requiring this Bench to review the order more so when the order of punishment still stand good having not been quashed by this Bench. Hence, he prayed that the RA being devoid of any merit is liable to be dismissed.
It may be noted that, as per the rules, major penalty proceedings initiated against an employee, while in service, under Rule 14 of CCS (CCA) Rules, 1965 after his retirement or continuance under re-employment shall, after his retirement, be deemed to be proceedings under Rule 9 of CCS (Pension) Rules, 1972. But, no such ex facie provision is forthcoming to the effect that proceedings initiated under Rule 16 of CCS (CCA) Rules, 1965, while the employee was in service, after his retirement shall be deemed to be proceedings under Rule 9 of CCS (Pension) Rules, 1972. Fact remains that withholding of full pension or a part thereof or gratuity can be imposed on a Govt. servant after his retirement, provided, he/she is found guilty of grave misconduct or negligence or loss of Govt. money only after following due procedure or rules and such misconduct cannot be established in a proceedings initiated under Rule 16 of CCS (CCA) Rules, 1965 so as to attract the provision of Rule 9 of CCS (Pension) Rules, 1972. We find that this Bench vide order dated 04.09.2019 did not quash the order of punishment and simply remitted the matter back to the authority concerned for reconsideration with observation that after his retirement it should have been a punishment under Rule 9 of CCS (Pension) Rules, 1972, which, according to us, is an error apparent on the face of record. Hence, the order of this Bench dated 04.09.2019 in OA 805/2014 in remitting the matter to the authority concerned for consideration/re-consideration of the representation of the applicant keeping in mind the observation that “ Therefore, the proceedings ought to have been converted under the relevant provisions of Pension Rules, the President of India being the Disciplinary Authority to impose punishment on a retired Government employee. This procedure has not been followed in the instant case” stands reviewed and deleted with observation that the aforesaid observation shall not weigh in the mind of respondent No.1 while complying with the order of this Bench dated 04.09.2019 in OA 805/2014.
This RA is accordingly disposed of. Costs made easy.