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Judgment
O R D E R
PER: HON’BLE MR. VARUN SINDHU KUL KAUMUDI, ADMINISTRATIVE MEMBER
The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
“…to call for the records pertaining to Letter No. E 155088\265, dt. 05.12.2023 along with Memorandum No. C-15015/3/2015-Vig dt. 24.11.2015 and Order No. C-15011/1/2004. Vig. dt. 07.04.2017; and set aside and quash the said Memorandum Letter and orders; and issue a direction to continue to draw and pay the family pension to the applicant in terms of PPO No. 286600400675 w.ef. 01.06.2023 and grant all consequential benefits and pass such other order or orders as deemed fit and proper in the interest of justice.”
The facts of the case, in a nutshell, as submitted by the applicant, are as follows:
The applicant is the wife of a deceased employee of Doordarshan Kendra, Hyderabad. The applicant's husband, viz., P Punnaiah Sarma (hereinafter referred to as 'employee'), while working as Head Clerk, was given the duties of an Accountant. On certain allegations, the CBI, Hyderabad Branch, which initially registered a case against others, added the said employee as Accused No. 04, among others, in the Charge-Sheet filed before the Special Judge for CBI Cases, Hyderabad. Cognizance was taken vide C.C. No. 18 of 2002. The III Additional Special Judge for CBI Cases, Hyderabad, vide judgment, dt.30.07.2012, convicted the employee, at the age of 68 years, and sentenced him to rigorous imprisonment of two years each and fine of Rs. 1000/- each, and, in default, to suffer Simple Imprisonment for 6 months each for the charge, u/s 13(2) r/w 13(1) (d) of P.C. Act, 1988. After paying the fine amount of Rs. 1000/-, on 30.07.2012, the Hon'ble Court suspended the sentence on the same day. Upon filing of CRLA No. 819 of 2012, the Hon'ble High Court of Judicature of Andhra Pradesh, at Hyderabad, in the related CRLAM.P. No. 1700 of 2012, suspended the execution of the sentence of imprisonment, vide order, dt.27.08.2012, pending disposal of the appeal on the same terms and condition, as fixed by the Hon'ble Trial Court.
It is submitted that, during pendency of the criminal trial, the employee had retired from service, on attaining the age of superannuation, on 31.12.2004. Respondents sanctioned provisional pension which was drawn and paid to the employee. During the lifetime of the employee, though the provisional pension was stopped, the same was restored, vide letter, dt. 27.02.2013, issued by the 4th Respondent/UPSC. Respondents issued a Memorandum, Central Administrative Tribunaldt.24.11.2015, proposing to withdraw the entire pension and gratuity of the employee, and gave him the opportunity to present his reply within 15 days. The employee submitted a reply to the said show-cause notice to the effect that he was already 72 years old and suffering from serious ailments; that his wife was aged 67 years and suffering from heart enlargement and his son, aged 43 years, was mentally retarded and dependent on the pension being paid and, further, that there was ever-increasing medical and health expenditure, apart from the day-to-day needs and he had no other source of income. The employee also submitted that, after rendering unblemished service for 40 years, he was dragged into a criminal case, due to his misfortune. He had filed a criminal appeal before the Hon'ble High Court. His specific plea in the said reply was that he was not the sole authority to sign the documents and various postings regarding the details of the advertisements recorded in the production sheet, Logbooks, Monthly Summary Sheets, were cross-checked and counter-signed by higher authorities. The alleged incidents had taken place in the years 1995-1997 and the auditors who had conducted audit inspection during the years 1995-1997 did not raise any objection. The applicant prayed to drop the proposed action, as, otherwise, the family would starve to death.
The employee was issued with a Memorandum, dt.24.11.2015, conveying the tentative decision of the President that it is decided to withdraw the entire pension and gratuity, in accordance with Rule 9 of the CCS Pension Rules, 1972. Such action of conveying the decision Central Administrative Tribunalprior to receipt of the employee’s representation was not correct in the eyes of law, argues the applicant. The employee submitted a representation, on 21.12.2015, mentioning that the Hon'ble High Court had suspended the sentence and that the appeal was pending. Thereafter, the employee was issued with a copy of UPSC advice, vide Memorandum, dt.02.08.2016, enclosing the advice, dt.08.07.2016. The employee submitted a reply on 29.08.2016, by giving the entire facts showing that the allegations levelled against him were false and the conviction was bad in law. He, then, received the impugned order, dt.07.04.2017, conveying that the President had decided to accept the advice, dt.18.07.2016, of the 4th Respondent, and imposed the penalty of withholding of 100% pension and gratuity on permanent basis. It is contended that the decision to withhold 100% of the monthly pension and 100% of gratuity was taken before seeking the advice of the UPSC. Thus, seeking response of the employee on the said advice of the UPSC was a mere formality. However, during the life time of the employee, the said order, dt.07.04.2017, was not given effect to. Revised PPO was issued on 18.12.2017, sanctioning pension to the employee, without a break.
The employee had sought the Note sheets/order sheets related to the Memorandum, dt.02.08.2016, and the order, dt.07.04.2017, under the Right to Information Act, which clearly show that the proposals initiated at the lower level were agreed to by the Secretary of the Ministry of Information and Broadcasting, the Minister of State (I&B) and the Hon'ble Minister (I&B) who merely signed with no remarks or Central Administrative Tribunalendorsement. Hence, there was no explicit order on file by the competent authority. In the Vigilance Wing, the file was processed, culminating in the Deputy Secretary (Vigilance) issuing the impugned order, dt.07.04.2017.
It is submitted that the employee, who was receiving provisional pension, died on 08.09.2022. After the demise of the said employee, the wife of the employee, viz., the applicant, continued receiving family pension, without interruption, till May, 2023. When the family pension credits were suddenly stopped, the applicant, on enquiry, was informed by the Bank that the family pension was discontinued at the behest of the Respondent Department. Upon that, the applicant submitted a representation on 23.11.2023 to the 3rd Respondent to the effect that that she is 76 years old and a mentally retarded son of 52 years is also dependent on her and requested for restoration of the family pension. The 3rd Respondent, vide letter, dt.05.12.2023, conveyed to the applicant that, in view of the penalty order, dt.07.04.2017, the Pay and Accounts Officer, Doordarshan Kendra, Chennai, vide letter, dt.24.05.2023, had requested the CPAO, New Delhi, to cancel the PPO and the bank branch was informed accordingly and that the subject is not within the purview of the office.
The applicant states that, in view of the settled law that where an appeal on conviction is pending and the sentence is suspended, authorities have to wait, without resorting to any action in pursuance of the conviction as the conviction by the trial Judge is not final.
3. The grounds raised for relief by the applicant include the following:Central Administrative Tribunal
It is submitted that in Oryx Fisheries (P) Ltd. Vs. Union of India (2010) 13 SCC 427, the Hon'ble Supreme Court held that issuing a Show Cause Notice by indicating punishment shows pre-judged mind. The Hon'ble High Court of Punjab and Haryana, in Jagtar Singh Vs. State of Punjab, categorically held that where an appeal is pending and the sentence is suspended, there is no hurry to dismiss the employee on the basis of conviction, as the conviction by the Additional Sessions Judge is not final. The aforesaid law has been considered by this Hon'ble Tribunal and, in similar facts of indicating the penalty in the Show Cause Notice, interfered with the Show Cause Notice and granted interim orders in O.A.No.853 of 2019. It is further argued that, since the impugned Memorandum, dt.24.11.2015, was issued specifying the penalty and the impugned order, dt.07.04.2017, was issued without considering the fact of suspension of sentence by the Hon'ble High Court, the impugned penalty, imposed on the employee in violation of law, smacks of malice in law.
According to the applicant, the impugned order, dt.07.04.2017, clearly shows (Page No.2 unnumbered para 3) that the President rejected the representation of the employee, dt.21.12.2015, in the first instance, and then referred the matter to the UPSC for advice, in violation of the Special Procedure envisaged in Rule 19 (2nd proviso) of the CCS (CCA) Rules 1965. The Hon'ble Supreme Court in the Union of India and Others v. R.P. Singh (2014) 7 SCC 340 referred to the DoPT O.M., dt.05.03.2014, and reiterated the law already decided in S.K. Central Administrative TribunalKapoor's case, wherein it was held that supplying the UPSC advice is mandatory before a decision is taken.
In the instant case, the record received under the Right to Information Act, 2005, clearly shows that the competent authority, viz., the Minister for Information and Broadcasting, who acted under the delegated authority of the President, had not passed any orders, hence, the impugned order communicated under the signature of the Deputy Secretary (Vigilance) suffers from lack of jurisdiction.
The action of imposing penalty on the employee, resulting denial of family pension to his wife i.e., the applicant herein, is illegal, arbitrary offending Articles 14, 16 and 21 of the Constitution. Hence, the OA.
On notice, Respondents have put in appearance through their Counsel and filed a written reply opposing the relief sought by stating that –
The present OA is filed by the applicant, assailing the impugned Letter No. E 155088/265, dt.05.12.2023, along with Memorandum No. C. 15015/3/2015-Vig, dt.24.11.2015, and Order No.C-15011/1/2004-Vig, dt.07.04.2017, and to set aside and quash the said Memorandum, Letter and orders and to issue a direction to continue to draw and pay family pension to the applicant, in terms of PPO No.286600400675, w.e.f. 01.06.2023, along with all consequential benefits.
According to the Respondents, the CBI, Hyderabad Branch, had registered case No.RC2(A)/99-Hyd for lapses during the tenure of the husband of the applicant at the CBS, AIR, Hyderabad, causing estimated revenue loss of Rs.37,07,794/- to the exchequer, from April, 1995, to Central Administrative TribunalMarch, 1998. The charged officer was relieved on superannuation, on 31.12.2004, with remarks that the disciplinary proceedings initiated against him by the department will continue, subject to the final decision of the Hon'ble CAT/CBI Court. The charged officer was convicted and against that he preferred an appeal and filed CRLA No.819/2012 before the Hon'ble High Court at Hyderabad, praying to suspend the sentence made in CC No.18/2002, dt.30.07.2012, which is still under deliberation. Further, as per the CCS (CCA) Rules, being the Appointing Authority, the Ministry of Information and Broadcasting (MIB) imposed the penalty of withholding of 100% (Hundred Percent) of monthly pension on a permanent basis along with 100% (Hundred Percent) of gratuity as admissible to him.
It is contended that, as per the penalty order, the pension was supposed to be stopped in 2017 itself, but due to inadvertent error, late Punnaiah Sarma kept on withdrawing pension even after retirement. And after the death of the charged officer, his wife, viz., the applicant, was receiving the family pension without any interruption till May, 2023, through the Union Bank of India (erstwhile Andhra Bank). The charged officer and his wife have been in receipt and enjoyment of the pension knowing that they were not entitled to it since May, 2017, to May, 2023, (72 Months).
Heard learned counsels for both the parties and perused the materials placed on record.
It is worth noting that the applicant is the wife of late P. Punnaiah Sarma, the deceased employee, who worked as Head Clerk/Accountant at the DD Kendra, Hyderabad, and retired on 31.12.2004, on attaining the age of superannuation.Central Administrative Tribunal The CBI, Hyderabad Branch, had registered a case No.RC2(A)/99-Hyd. on certain lapses during his tenure at CBS, AIR, Hyderabad, as Accountant, in the period from 22.07.1995 to 19.09.1997 and filed chargesheet before the CBI Court, Hyderabad. The matter pertained to estimated loss of revenue to the tune of Rs.37,07,794/- due to unauthorized broadcasting of advertisements. Cognizance of the offences was taken, vide CC No.18/2002, and vide judgment, dt.30.07.2012, the Hon'ble III Additional Special Judge for CBI Cases, Hyderabad, convicted the employee by sentencing him to suffer rigorous imprisonment of two years each and to pay a fine of Rs. 1000/- each, and, in default, to suffer simple imprisonment for 6 months each, for charges u/s. 13(2) r/w 13(1)(d) of the P.C. Act.1988. On payment of the fine amount of Rs.1000/, on 30.07.2012, the Court suspended the sentence. Aggrieved by the judgment passed by the Special Judge for CBI Cases, the charged officer preferred an appeal and filed CRLA No.819/2012 before the Hon'ble High Court of AP at Hyderabad. The Hon'ble High Court in related CRLAMP No.1700/2012, in CRLA No.819/2012, passed order, holding that -
"The execution of sentence of imprisonment passed by the III Additional Special Judge of CBI Cases, Hyderabad in CC No.18/2002 against the petitioner is suspended pending disposal of the appeal on the same terms and conditions as fixed by the trial court".
The Respondents proposed to hold an inquiry under Rule 14 of the CCS (CCA) Rule, 1965, on the ground of grave criminal misconduct and, accordingly, served Memorandum No.1(3)/2001-P.1/757, dt.24.06.2004, and directed him to submit a written statement of defence within 10 days of the receipt of the Memo and also to state whether he desired to be heard in person. Aggrieved by the said Memo, dt.24.06.2004, late Punnaiah Sarma/C.O. approached this Tribunal byCentral Administrative Tribunal filing OA No.977/2004, praying for an order quashing the Charge Memo, dt.24.06.2004, and also sought for an interim order, at the time of admission, staying all further proceedings in the departmental inquiry. This Tribunal, on 14.09.2004, ordered stay of further proceedings in the departmental inquiry. The charged officer was relieved on superannuation, on 31.12.2004, with the remarks that disciplinary proceedings initiated against him by the department will continue subject to the final decision of this Tribunal /CBI court. Since no decision was taken by this Tribunal, except staying the departmental proceedings, the PAO, Chennai, sanctioned superannuation pension, vide Order, dt.15.02.2005, with PPO No.286600400675. His pay was further revised, in accordance with DG, DD Lr. No.22/3/2005-S-II(A)/11672, dt.26.11.2007, and by PAO, DDK, Chennai, Lr.No.PAO/DD-MDS/PENSION/273, dt.11.07.2008, and same was being paid through the Andhra Bank, Ramanthapur Branch, Hyderabad. This Tribunal, however, passed judgment, on 02.11.2006, in OA No.977/2004 stating that –
“In the case in hand, since the administration had already got rid of him as the applicant has already retired from service and when this Tribunal, by considering the gravity of the charge and all other aspects, found that the disciplinary proceedings should be stayed and in view of the categorical submission made by the learned counsel for the applicant across the bar that it will not take much time to complete the criminal case as the stay has already been vacated, we are of the opinion that the departmental proceeding required to be stayed. We, therefore allow this application by directing the respondent not to proceed further in the departmental inquiry till the conclusion of the criminal case. The interim order passed by this Tribunal becomes absolute. MA No.357/2006 (Direction Petition) filed by the applicant stands allowed. There shall be no order as to costs." Therefore, the department stopped departmental proceedings against the official.
The department has further submitted that, as per the MIB Memorandum, dt.24.11.2015, the President had tentatively decided to withdraw the entire pension and gratuity of Sh. P.Punnaiah Sarma, in accordance with Rule 9 of the CCS (Pension) Rules, 1972. He was given an opportunity to make representation, in writing, on the penalty proposed. The applicant’s husband, P. Punnaiah Sarma, submitted his representation, dt.21.12.2015, stating that the Hon'ble Special Judge for CBI Cases, Hyderabad, had sentenced all the accused, irrespective of their involvement, by simply endorsing the charge sheet filed by the CBI. Aggrieved by the judgment, the charged officer had preferred an appeal and the same is pending final disposal, and requested for mercy, and dropping of the proposed action. After considering the show cause notice, representation of the charged officer and all other relevant aspects to the case, the President came to the conclusion that the charged officer had committed grave misconduct and, tentatively, decided to impose penalty of "withdrawing entire pension and gratuity". Thus, the Ministry of I & B referred the proposal to the UPSC for advice. The UPSC, vide their advice in File No.F.3/111/2016-S.I, dt.18.07.2016, felt that –
"Legally speaking when a person is convicted by Criminal Court, the same shall remain in force until and unless it is reversed or set aside by a competent court in appeal. The mere filing of an appeal and/or stay of the execution of the sentence do not take away the effect of conviction".
Respondents have relied on the order in the OA in Shri. Om Prakash Narang Vs. UOI & Ors. (1990) 12 ATC 365, wherein the full bench of the Hon'ble CAT held that during the pendency of appeal in a criminal case, only the sentence is suspended and not the conviction itself. In view of this, the UPSC advised that the ends of justice would be met, in this case, if the penalty of
"Withholding of the entire monthly pension and the gratuity as admissible to charged officer on permanent basis", is imposed on him. The Ministry decided, vide the order, dt.07.04.2017, that –
"… in view of the facts and circumstances of the case, the President has decided to accept the advice tendered by the UPSC vide their letter dated 18.7.2016 and decided that ends of justice would be met in this case if the penalty of withholding of 100% (Hundred Percent) of monthly pension, otherwise admissible to Shri P. Punnaiah Sarma is imposed on him on a permanent basis and further 100% (Hundred Percent) of gratuity as admissible to him, should also be withheld". The order was served on the charged officer under acknowledgment, dt.02.05.2017.
It is significant that despite the above orders withdrawing the pension and gratuity, the Pay and Accounts Office did not stop paying pension under PPO No.286600400675 beyond April, 2017. When the charged officer expired on 08.09.2022, the applicant communicated to the PAO, Chennai, vide Ir., dt.10.10.2022, requesting to pay her the Family Pension. Still, Smt.P.Savithri, the applicant herein, kept receiving the family pension continuously till May, 2023. It is seen that the charged officer and his wife kept enjoying the pension between May, 2017, to May, 2023, for a period of 72 Months. According to the Respondents, the applicant along with her husband indulged in illegal act by hiding the fact. They have taken the plea that the DDK could not proceed further as the matter was sub-judice before the Hon'ble High Court and is still pending for disposal. However, they communicated to the Manager, Union Bank of India, vide letters, dt. 08.05.2023 & 09.05.2023, to stop Pension/Family Pension drawn with immediate effect. Aggrieved by the actionCentral Administrative Tribunal taken by the Department, the applicant submitted representations, dt.13.11.2023 & 23.11.2023, requesting to restore the family pension. The representation was disposed, vide the impugned letter, dt. 05.12.2023.
As argued by the Respondents, as per the proposition laid down by the Apex Court in the case of State Bank of India Vs. Neelam Nag 2016 9 SCC 461, there is no legal bar on conduct of departmental proceedings as in this case. Thus, simultaneous departmental and criminal proceedings cannot be treated as double jeopardy. The contention of the applicant, that holding simultaneous proceedings is incorrect, is unsustainable. The applicant is not entitled to family pension as per the provisions of Rule 50(iii) of the CCS (Pension) Rules 2021.
We have considered the contention on behalf of the applicant that despite his submissions through the representation, dt.21.12.2015 (Annex.A-8), in response to Memo, dt.24.11.2015 (Annex.A-3), the penalty of withholding of 100% of pension and gratuity, was imposed. The order of punishment clearly shows, at para 2, that the decision about the punishment to be imposed had been taken in November, 2015, i.e., even before securing the UPSC advice and seeking representation of the husband of the applicant/C.O. thereupon, which is, allegedly, contrary to the Rule 9 of CCS (Pension) Rules, 1972. According to the learned counsel for the applicant, the note sheet procured under the RTI Act, shows non-application of mind by the decision making authorities, as they have not recorded any reasons for passing the orders.
The applicant's representation, sent in November, 2023, at Annex.A-13, is an admission that her husband was paid provisional pension till his death onCentral Administrative Tribunal 08.09.2022, and, thereafter, she was in receipt of family pension from February, 2023, to May, 2023, and no family pension was paid to her after that nor was the gratuity amount released. Reply to her representation, dt. 13.11.2023, was sent on 05.12.2023 by R3. It is stated that, even though penalty order to withhold 100% of the pension and gratuity was passed on 07.04.2017, the deceased employee as well as his wife continued to draw provisional pension/ family pension till May, 2023. Learned counsel for the applicant has relied upon the judgment of the Hon’ble Apex Court in the case of R.P. Singh (2014) 7 Supreme Court Cases 340 regarding the sequence in which, the UPSC advice is to be served, seeking the C.O's representation, before coming to any decision in such matters. We do not find that the said order has been disregarded by the concerned authorities in this case. Learned counsel for the respondents opposed the arguments of the applicant's counsel, and has cited the judgment, dt.16.09.2016, of the Hon’ble Supreme Court in S.B.I. & Ors. V. Neelam Nag & Anr. and has drawn the attention of the Tribunal to para 23 thereof, which lays down the following –
If the trial is not completed within one year from the date of this order, despite the steps which the Trial Court has been directed to take the disciplinary proceedings against the respondent shall be resumed by the enquiry officer concerned. The protection given to the respondent of keeping the disciplinary proceedings in abeyance shall then stand vacated forthwith upon expiring of the period of one year from the date of this order.
The punishment was imposed on the deceased employee as a consequence of his conviction, during his lifetime, after his superannuation. The criminal case was registered and charge sheeted by the CBI. The deceased employee was provided with adequate opportunity to defend himself. The relevant paras of the impugned order, dt.07.04.2017, are reproduced below-
“(iii)The CO contended that aggrieved by the judgement, an appeal had been preferred before the Hon'ble High Court of Andhra Pradesh (presently, the High Court of Telangana & Andhra Pradesh) vide Criminal Appeal No 819 of 2012 to set aside the judgment dated 30.07.2012 in CC.18/2002 passed by the learned III Addl. Special Judge for CBI Cases and the same has been pending. The Disciplinary Authority has taken into consideration the observation made by UPSC that the CO has filed an Appeal against the said CBI Judgment in Hon'ble High Court of Andhra Pradesh at Hyderabad and the Hon'ble High Court has suspended the sentence of imprisonment imposed on the Charged Officer, pending disposal of the Appeal and continued/extended his bail. However, Hon'ble High Court had not set aside the judgment of CBI Court. In this regard, the DoPT's instructions No. 371/23/92-AVD.III dated 04.03.1994 which inter-alia states that "when a person is convicted by a criminal court, the same shall remain in force until and unless it is reversed or set aside by a competent court in Appeal. The mere filing of an Appeal and/or stay of the execution of the sentence do not take away the effect of conviction, unless the Appeal is allowed and the conviction is set aside by the Appellate Court".
(iv)The CO made a contention that Disciplinary Authority proceeded to straight away impose the penalty based on the orders of conviction without examining the facts and circumstances of the case thoroughly. The contention of the CO was rejected by Disciplinary Authority as it has taken decision of imposing the penalty after taking into consideration all the relevant facts of the case. Further, as per Rule 19 of CCS (CCA) Rules, 1965, penalty can be imposed without holding any formal enquiry when Government servant has been convicted on a criminal charge on the ground of misconduct.
(v)The Charged Officer contended that the Hon'ble President's tentative decision to inflict 100% pension cut had been influenced by the decision of UPSC which did not consider all the aspects of the case. The Disciplinary Authority took a tentative decision to impose penalty on the Charged Officer after taking into consideration all the relevant facts of the case and the relevant provisions made under Rule 19 of CCS (CCA) Rules, 1965. Thereafter, the case was referred to UPSC as per the prescribed procedure. On the basis of advice tendered by UPSC, the Disciplinary Authority decided to accept the advice of UPSC to impose penalty of withholding of 100% (Hundred percent) of the monthly pension and 100% (Hundred percent) of gratuity.” Though the penalty of withholding 100% of pension and gratuity was imposed vide the above order, it was noticed that despite this order, the pension and, after the ex-employee’s death, the family pension was paid till May, 2023.
It is obvious that the applicant seeks to take advantage of the earlier oversight which had resulted in continuation of pension/family pension. It would be a mockery of the entire process if, even after conviction of the deceased employee, i.e., the present applicant’s husband, her prayer is allowed. We find no merit in the case of the applicant. The OA is, accordingly, dismissed. Pending MAs, if any, stand closed. No order as to costs.