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Judgment
Per: Hon’ble Shri Jayesh V Bhairavia, Member (J)
The applicant’s grievance, in brief, is that despite having retired from service on 30.04.2023, the departmental proceedings initiated against her in 2009 continued for an inordinate period and culminated in the Inquiry Officer’s report dated 31.01.2024 and the impugned order dated 25.09.2024.
By filing the present OA under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking the following reliefs:-
―(A) That the Hon’ble Tribunal be pleased to allow this petition.
(B)That, the Hon’ble Tribunal further be pleased to hold / declare that impugned ex-facie, illegal, arbitrary and unconstitutional action on the part of the respondents regarding issuance of order dtd. 25/09/2024, issued by the respondents, regarding imposition of penalty of withholding of 50 % of monthly pension otherwise admissible to applicant (Smt. Ashlesha Mehta, TREX (retd.) AIR) for period of 5 years is non-est in the eyes of law.
(C)That, the Hon’ble Tribunal further be pleased to quash and set-aside impugned ex-facie, illegal, arbitrary and unconstitutional action on the part of the respondents regarding issuance of order dtd. 25/09/2024, issued by the respondents, regarding imposition of penalty of withholding of 50 % of monthly pension otherwise admissible to applicant (Smt. Ashlesha Mehta, TREX (retd.) AIR) for period of 5 years.
(D)That the Hon’ble Tribunal further be pleased to direct the Respondent No.1 to produce / make available file / papers on which impugned order dtd. 25/9/2024 is issued for perusal of the Hon’ble Tribunal to ensure / satisfy the conscious of the tribunal that the reply of the applicant dtd. 11/4/2024 is duly / properly considered by the Respondent No. 1.
(E)Such other and further relief/s may be deemed just and proper in view of the facts and circumstances of the case may be granted.‖
FACTS OF THE CASE
Facts as stated by the applicant are that the applicant is Ex-TREX of the respondents. The applicant had retired from service w.e.f. 30.04.2023 on reaching age of superannuation.
The applicant had joined the respondents in the year 1989 as direct recruit TREX in the office of the respondents. The applicant while working as TREX in the office of Station Director, All India Radio, Ahmedabad, in the year 2006-07, on the basis of complaint filed by the then Station Director Smt. Sadhna Bhatt, FIR was filed against the applicant.
In view of the said FIR CBI, Gandhinagar had registered CBI cases against the applicant and against her late husband Shri Mihir Mehta who was serving as PEX in the office of the respondents. On the basis of material provided and supplied by the CBI and on the same set of facts and statement of witnesses, the respondents had initiated departmental proceedings under Rule 14 of CCS (CCA) Rules 1965 against the applicant vide memorandum dated 11.09.2009.
Upon denial of the charges by the applicant, the respondents proceeded with the departmental inquiry and appointed Inquiry Officers from time to time. The inquiry officer has submitted his report on 31.01.2024 to the Disciplinary Authority and as per said report, the charges levelled against the applicant were proved. The said inquiry report was in turned was supplied to the applicant as required under the rules for reply/representation against the same.
Thereafter, on receipt of the said I.O.’s report, the applicant had submitted her reply to the Disciplinary Authority. However, according to the applicant, the Disciplinary Authority miserably failed to consider the vital, important and material facts brought to the notice of the Disciplinary Authority in her reply dated 11.04.2024 and had considered the same in a routine, in a casual manner and without due and proper application of mind which becomes apparent from the impugned order dated 25.09.2024 (Annexure A/1 refer) issued by the Disciplinary Authority.
Aggrieved by and dissatisfied with the aforesaid impugned order dated 25.09.2024, the applicant has approached this Tribunal for seeking the reliefs as quoted above.
Pursuant to notice issued by this Tribunal, the respondents have filed their reply to which the applicant has also filed his rejoinder.
CONTENTIONS OF THE APPLICANT
The applicant’s counsel contended that the impugned order dated 25.09.2024, whereby the respondents imposed the penalty of withholding 50% of the monthly pension otherwise admissible to the applicant, Smt. Ashlesha Mehta, TREX (Retd.), All India Radio, for a period of five years, is ex facie illegal, arbitrary and unconstitutional. It was argued that the impugned action is unsustainable in law and warrants interference by this Hon’ble Tribunal.
Learned counsel for the applicant further contended that the impugned order dated 25.09.2024, imposing the penalty of withholding 50% of the applicant’s monthly pension for a period of five years, is contrary to the facts available on record as well as the settled principles of law. It was submitted that the departmental proceedings originated from the memorandum dated 11.09.2009 and remained pending for an inordinately long period. The Inquiry Officer appointed in 2014 allegedly proceeded with the inquiry without obtaining the requisite further approval of the Disciplinary Authority and in a manner contrary to Rules 14 and 15 of the CCS (CCA) Rules, 1965. The applicant had, therefore, already approached this Tribunal by filing OA No.381/2022, which is pending, however, as checked from case status from our website, the same was disposed of on 09.07.2026 but a copy of final order is not available on the website.
Learned counsel further submitted that the very initiation of the departmental proceedings was based upon the recommendation of the CBI pursuant to registration of CBI Case No. RC-2(A)/2007-GNR and was, therefore, neither an independent nor an objective decision of the Disciplinary Authority. According to the applicant, the Disciplinary Authority ought to have independently considered the material before initiating the disciplinary proceedings and could not have mechanically acted upon the recommendation of the investigating agency.
It is further contended that the applicant had been acquitted by the learned CBI Court in Special Case No.06/09 vide order dated 04.05.2019, but the said acquittal was neither duly considered nor appropriately dealt with by the Disciplinary Authority while passing the impugned order. Learned counsel also submitted that the material circumstances specifically highlighted by the applicant in her representation dated 11.04.2024, including the effect of the acquittal, were not properly appreciated.
Learned counsel also drew attention to the fact that the then Station Director, Smt. Sadhna Bhatt, on whose complaint the FIR had allegedly been registered, neither appeared before the Inquiry Officer nor gave any statement during the departmental inquiry. Nevertheless, the Inquiry Officer is stated to have relied upon a statement attributed to her before the CBI, which, according to the applicant, was neither signed nor voluntarily tendered before the CBI. Learned counsel argued that, in the absence of the witness being examined and the contents of the alleged statement being duly proved and subjected to verification and cross-examination, reliance upon such material could not have been placed against the applicant. According to learned counsel, this material infirmity in the inquiry proceedings was neither properly considered by the Inquiry Officer nor addressed by the Disciplinary Authority.
Learned counsel next submitted that the impugned order dated 25.09.2024 is a non-speaking order and reflects complete non-application of mind. Although the order runs into three pages, it does not disclose any meaningful consideration of the applicant’s detailed representation dated 11.04.2024 or the material objections raised therein. According to learned counsel, the impugned order substantially amounts to a mere narration of the facts and proceedings on record, without recording cogent reasons for rejecting the applicant’s defence and imposing the penalty. The order, therefore, cannot be sustained in law.
Learned counsel further contended that the subsequent conduct of the respondents itself demonstrates lack of application of mind. Learned counsel referred to the order dated 06.08.2024 passed by Respondent No.1, whereby a penalty of withholding 100% of the applicant’s monthly pension and permanent withholding of the entire gratuity had allegedly been imposed upon her, which order is stated to be under challenge in OA No.393/2024. He also argued that the same authority, within a short span thereafter, passed the impugned order dated 25.09.2024 imposing a different penalty, without clarifying whether the subsequent order was intended to modify, substitute or otherwise supersede the earlier order. Such inconsistency, according to learned counsel, further demonstrates non-application of mind and renders the impugned action legally unsustainable.
Learned counsel also relied upon the communication dated 16.10.2024 issued by Respondent No.3 and submitted that the said communication reveals a serious communication gap and lack of coordination amongst the offices of the respondents. Instead of bringing the long-pending proceedings to their logical conclusion, the respondents had, according to the applicant, created further confusion and uncertainty regarding the orders passed against her after retirement.
On the strength of the aforesaid submissions, learned counsel for the applicant urged that the impugned order dated 25.09.2024 be quashed and set aside as illegal, arbitrary, unjust, non-speaking and otherwise unsustainable in law, and the matter be remitted to the Disciplinary Authority for fresh consideration of the applicant’s defence and representation in accordance with law.
CONTENTIONS OF THE RESPONDENTS
Ms. R.R. Patel, learned counsel appearing for the respondents, at the outset, raised a preliminary objection to the maintainability of the present OA on the ground that the applicant has approached this Tribunal without availing the departmental remedy available to her. She submitted that the impugned order dated 25.09.2024, whereby 50% of the monthly pension otherwise admissible to the applicant has been withheld for a period of five years, is an appealable order and, therefore, the applicant ought to have exhausted the statutory departmental remedy before invoking the jurisdiction of this Tribunal. The present OA, having been filed without availing such remedy, is, according to the respondents, premature. Thus, in view of the said preliminary objection, the respondents do not, at this stage, press or offer any submissions on the question of limitation.
Learned counsel also submitted that the applicant had joined the respondent department as a Transmission Executive, AIR, on 30.10.1993 and was subsequently confirmed in service on 30.10.1995 upon successful completion of the prescribed probationary period of two years.
Further it is submitted that the CBI, ACB, Gandhinagar had registered two criminal cases against the applicant and other officials in relation to allegations involving criminal conspiracy and abuse of official position. Pursuant to the recommendation of the CBI for Regular Departmental Action, departmental proceedings were initiated against the applicant under Rule 14 of the CCS (CCA) Rules, 1965. In respect of the relevant proceedings, the applicant was served with a charge memorandum dated 11.09.2009. The articles of charges levelled against the applicant are reproduced as under:-
Article—I
Whereas Smt. Ashlesha Mehta, TREX, AIR Ahmedabad while functioning as such during the year 2006, despite having knowledge that a programme of Govt. of Gujarat namely Krishi Kranti was to be produced in-house by AIR, Ahmedabad, unauthorizedly submitted a proposal dated 19-04-2006 to Agriculture Minister on behalf of Maanisha Creatives Ltd. and also entered into subsequent correspondence with the office of the Agriculture Minister, Govt. of Gujarat, Agriculture Department, Office of Director of Sugar and Gujarat State Federation of Co-operative Sugar Factories (or Sugar Federation in short) on behalf of the said firm with an ulterior motive of fraudulently grabbing the production of the programme Krishi Kranii.
Further, Smt. Ashlesha Mehta was aware that she, being a public servant, cannot go for private production of programmes as it was barred by DG AIR circular no: 15/25/1976-CBS dated 1-09-1976, still she produced 32 episodes of the programme without prior knowledge and sanction of the competent authority for and on behalf of Maanisha Creatives Ltd.
As such, Smt. Ashlesha Mehta not only unauthorizedly entered into correspondence with various offices of Govt. of Gujarat with an ulterior motive of fraudulently grabbing the production of the programme Krishi Kranti, but also went on to produce the said programme without approval of the competent authority. She also kept AIR in dark about submitting the proposal to Agriculture Department and production of the said programme on behalf of the firm.
By the above act, Smt. Ashlesha Mehta has shown lack of integrity, lack of devotion to duty and acted in a manner of unbecoming of a Public Servant and engaged herself with private trade and employment thereby contravening Rulen 3 (1) (i) (ii) (iii) and Rule 15 of CCS (Conduct) Rules, 1964.
Article—II
Smt. Ashlesha Mehta, TREX, AIR, Ahmedabad while functioning as such during the aforementioned period, utilized the services of staff members/casual artists of the AIR, Ahmedabad to produce the programme Krishi Kranti by misrepresenting the facts to the concerned staff members/casual artists that the said programme was an in-house production of AIR and had to be produced/recorded in a private studio as the facilities at the AIR studios were not up to the mark or the AIR studios were pre-occupied. As such, Smt. Ashlesha Mehta misguided/misinformed the concerned staff members/casual artists for utilizing their services for production of the programme in an unauthorized manner. She also lent her own voice for the programme without approval of the competent authority.
By the above act, Smt. Ashlesha Mehta has shown lack of integrity, lack of devotion to duty and acted in a manner of unbecoming of a Public Servant and engaged herself with private trade and employment thereby contravening Rule 3(1)(i), (ii) & (iii) and Rule 15 of CCS (Conduct) Rules, 1964.
Article-III
Smt. Ashlesha Mehta, TREX, AIR Ahmedabad while functioning as such during the aforementioned period, despite having knowledge that the programme Krishi Kranti was to be produced by AIR, Ahmedabad and being aware that she, being a public servant, cannot go for private production of programmes, gave the programme Krishi Kranti a colour of a private production and went on to claim and receive a payment to the tune of Rs.3,35,500/- from Sugar federation as production charges for the programme Krishi Kranti in the name of Maanisha Creatives Ltd. by unauthorisedly claiming and receiving the production charges of the programme, she caused a financial loss to the tune of Rs.3,59,168/- the production charges as calculated by AIR, Ahmedabad.
By the above act, Smt. Ashlesha Mehta has shown lack of integrity, lack of devotion to duty and acted in a manner of unbecoming of a Public Servant and engaged herself with private trade and employment thereby contravening Rule3(1) (i), (ii) & (iii) and Rules 15 of CCS (Conduct) Rules, 1964." The said proceedings culminated in the order dated 25.09.2024 passed by the Ministry of Information & Broadcasting, whereby the penalty of withholding of 50% of the monthly pension otherwise admissible to the applicant for a period of five years was imposed upon her.
Learned counsel contended that the departmental inquiry was conducted strictly in accordance with the prescribed procedure. Upon the applicant's denial of the Articles of Charge, an Inquiry Officer was appointed, who conducted the inquiry and submitted his report dated 31.01.2024. The Inquiry Officer recorded a categorical finding that all the three Articles of Charge levelled against the applicant stood proved. Thereafter, the competent authority considered the inquiry report and tentatively agreed with the findings recorded therein. A copy of the inquiry report was accordingly furnished to the applicant, affording her an opportunity to submit her written representation.
Learned counsel also submitted that the applicant availed the said opportunity and submitted her written representation dated 11.04.2024. According to the respondents, the representation was duly considered by the competent authority on its merits and each of the contentions raised therein was specifically examined. The competent authority found that the applicant had failed to furnish any conclusive explanation capable of dislodging the findings recorded by the Inquiry Officer.
Learned counsel further submitted that, upon consideration of the inquiry report and the applicant's representation, the competent authority concluded the departmental proceedings and, vide order dated 25.09.2024, imposed the penalty of withholding of 50% of the monthly pension otherwise admissible to the applicant for a period of five years. It was emphatically contended that the said order was passed after following the procedure prescribed under Rule 8 of the CCS (Pension) Rules, 2021 read with Rules 14 and 15 of the CCS (CCA) Rules, 1965, and that there was no procedural or legal infirmity warranting interference by this Tribunal.
Learned counsel disputed the applicant's contention that the departmental proceedings could not have been continued or culminated in view of her acquittal by the learned CBI Court. She submitted that the applicant's acquittal in the criminal case, by itself, does not render the departmental proceedings unsustainable, since criminal proceedings and departmental proceedings operate in distinct fields and have different objectives. In this regard, reliance is placed upon the judgment of the Hon'ble Supreme Court in Ajit Kumar Nag v. General Manager, Indian Oil Corporation Ltd., reported in (2005) 7 SCC 764. She pointed out that the CBI has preferred Criminal Appeal No.925/2021 before the Hon'ble High Court of Gujarat against the said order of acquittal, which is stated to be pending.
As regards the applicant's challenge to the findings of the Inquiry Officer, learned counsel submitted that the findings were not founded merely upon the statement of one witness, namely Smt. Sadhna Bhatt, but upon an assessment of the statements of other witnesses as well as the documentary evidence and records produced during the inquiry. The Inquiry Officer, after appreciating the evidence available on record, had arrived at the conclusion that the Articles of Charge stood proved.
Learned counsel further contended that the Disciplinary Authority had duly applied its mind to the inquiry report as well as to the applicant's representation dated 11.04.2024. The allegation that the Disciplinary Authority had mechanically accepted the findings of the Inquiry Officer is specifically denied. Rather, it is submitted that the competent authority, after carefully considering the facts and circumstances of the case, the inquiry report and the applicant's representation, imposed the penalty vide order dated 25.09.2024. The penalty, according to the respondents, was commensurate with the gravity of the misconduct and was imposed in accordance with the applicable rules and in the interests of justice.
Learned counsel also sought to distinguish the impugned order dated 25.09.2024 from the separate penalty order dated 06.08.2024. She submitted that the two orders arise out of two entirely distinct departmental proceedings. The impugned order dated 25.09.2024 emanated from the departmental proceedings initiated pursuant to the CBI recommendation in RC-2(A)/2007-GNR, whereas the order dated 06.08.2024, imposing withholding of 100% of monthly pension and permanent withholding of the entire gratuity, was passed in a separate departmental proceeding arising out of the applicant's conviction in CBI Special Case No.31/2009. She also pointed out that the latter order has already been challenged by the applicant in OA No.393/2024, which is pending adjudication before this Tribunal. Hence, according to the respondents, the applicant cannot legitimately intermingle the two separate proceedings or orders.
Learned counsel also submitted that the office letter dated 16.10.2024 merely sought approval from the PAO, Mumbai for implementation of the orders dated 01.06.2023, 06.08.2024 and 25.09.2024, and that the same does not establish any illegality in the impugned action.
Learned counsel thus submitted that the impugned order dated 5.09.2024 was passed by the competent authority after following the procedure prescribed under Rule 8 of the CCS (Pension) Rules, 2021 read with Rules 14 and 15 of the CCS (CCA) Rules, 1965. It was contended that the order is based upon the findings recorded in the duly conducted departmental inquiry and upon consideration of the applicant's representation, and that no violation of the applicable statutory procedure or settled principles of law has been demonstrated by the applicant.
Lastly, learned counsel for the respondents submitted that the present OA is premature for want of exhaustion of the departmental remedy and, in any event, is also devoid of merit. The Original Application deserves to be dismissed.
While referring to the contents of the rejoinder, learned counsel reiterated the submissions as noted above.
ANALYSIS
We have heard learned counsel for the parties and perused the pleadings available on record.
We have given our thoughtful consideration to the rival submissions advanced by learned counsel for the parties and have carefully perused the pleadings and the material placed on record. The controversy essentially centres around the legality of the order dated 25.09.2024, whereby 50% of the monthly pension otherwise admissible to the applicant has been withheld for a period of five years pursuant to the departmental proceedings instituted against her while she was in service.
At the outset, we find substance in the preliminary objection raised by the respondents regarding non-exhaustion of the departmental remedy. Section 20(1) of the Administrative Tribunals Act, 1985 provides that a Tribunal shall not ordinarily admit an application unless the applicant has availed of the remedies available under the relevant service rules. The expression "shall not ordinarily" undoubtedly leaves a limited discretion with the Tribunal in appropriate cases; nevertheless, exhaustion of the statutory remedy is the normal rule. The Constitution Bench of the Hon'ble Supreme Court in S.S. Rathore v. State of Madhya Pradesh, reported in (1989) 4 SCC 582, has emphasised the importance of exhaustion of departmental remedies before invocation of the jurisdiction of the Tribunal.
In the present case, the impugned order is an order withholding 50% of monthly pension. Rule 23 of the CCS (CCA) Rules, 1965 expressly provides for an appeal against an order reducing or withholding pension, and the Explanation appended thereto makes it clear that the expression "Government servant" includes a person who has ceased to be in Government service. Thus, the fact that the applicant had already retired does not take away the statutory right of appeal available to her.
The applicant admittedly did not avail the said remedy before approaching this Tribunal. We, therefore, find that the OA is liable to be rejected on this ground alone. However, since detailed arguments have been addressed by both sides on the merits as well and the impugned order has been assailed on several substantive grounds, we consider it appropriate to examine the merits as well.
The next question is whether the departmental proceedings could validly be continued after the applicant's retirement on 30.04.2023. The answer is clearly in the affirmative. Rule 8 of the CCS (Pension) Rules, 2021 confers power to withhold or withdraw pension, wholly or partly, permanently or for a specified period, where in departmental or judicial proceedings the pensioner is found guilty of grave misconduct or negligence during the period of service. For better appreciation, we reproduce the said Rule 8 of the Rules ibid as under:-
"8.Power to withhold or withdraw pension .- (1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement : Provided that the Union Public Service Commission shall be consulted before any final orders are passed: Provided further that where a part of pension is withheld or withdrawn the amount of such pension shall not be reduced below the amount of minimum pension under rule 44.
(2)(a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service:
Provided that in all cases where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President and the President shall take the final decision in the matter in accordance with sub-rule (1).
(b)Notwithstanding anything mentioned in sub-rule (1) and clause (a), departmental proceedings instituted under rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, while the Government servant was in service and continued after retirement, shall have no effect on the pension and gratuity of the pensioner.
(c)The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment, -
(i)shall not be instituted save with the sanction of the President in Format 2;
(ii)shall not be in respect of any event which took place more than four years before such institution; and
(iii)shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service:
Provided that for the purpose of instituting departmental proceedings under this sub-rule, a memorandum of charges shall be communicated to the pensioner concerned in Format 3.
(d)Where a full-fledged enquiry is conducted giving an opportunity to the pensioner to show cause during the proceedings in accordance with the Central Civil Services (Classification, Control and Appeal) Rules, 1965, any further opportunity to show cause would not be necessary before taking action under sub-rule (1).
(3)In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings instituted under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 are continued under subrule (2), a provisional pension as provided in sub-rule (4) shall be sanctioned.
(4)(a) In respect of a Government servant referred to in sub-rule (3), the Accounts Officer shall authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant, or if he was under suspension on the date of retirement, up to the date immediately preceding the date on which he was placed under suspension.
(b)The provisional pension shall be authorised by the Accounts Officer during the period commencing from the date following the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.
(c)No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon.
(d)The provisions of this sub-rule shall not be applicable where allegations of misconduct are under investigation against a Government servant or where departmental or judicial proceedings are contemplated against a Government servant but have not actually been instituted or deemed to have been instituted in accordance with subrule (9) till the date of retirement of the Government servant. The pension and gratuity in such cases shall be authorised to be paid to the Government servant on his retirement in accordance with rule 63:
Provided that any departmental proceedings instituted after retirement of the Government servant shall be subject to the provisions of sub-rule (2).
(5)Payment of provisional pension made under sub-rule (4) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.
(6)Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.
(7)The President may at any time, either on his own motion or otherwise call for the records of any inquiry and revise any order made under these rules, after consultation with the Union Public Service Commission, and may confirm, modify or set aside the order; or remit the case to any authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case or pass such other order as he may deem fit:
Provided that no order enhancing the amount of pension or gratuity to be withheld or withdrawn, shall be made by the President unless the Government servant concerned has been given a reasonable opportunity of making a representation against the order proposed and except after consultation with the Union Public Service Commission.
(8)The President may at any time, either on his own motion or otherwise review any order passed under these rules, where extenuating or special circumstances exist to warrant such review or when any new material or evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case, has come, or has been brought, to his notice:
Provided that no order enhancing the amount of the pension or gratuity to be withheld or withdrawn, shall be made by the President unless the Government servant concerned has been given a reasonable opportunity of making a representation against the order proposed and except after consultation with the Union Public Service Commission. Explanation.- For the purpose of this rule,-
(1)(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and
(b)judicial proceedings shall be deemed to be instituted -
(i)in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made; and
(ii)in the case of civil proceedings, on the date the suit is filed in the court.
(2)the expression ―misconduct‖ means any act done or omitted to be done by the pensioner, during the period of service, including service rendered upon re-employment after retirement, and which was in violation of any provisions of the Central Civil Services (Conduct) Rules, 1964 for which action under Central Civil Services (Classification Control and Appeal) Rules, 1965 could be taken during the period of service.
(3)action under sub-rule (1) may be taken, if the pensioner is found guilty of,-
(i)any corrupt practices during service;
(ii)any misconduct whether in relation to the performance of official duty or otherwise; and
(iii)any misconduct whether resulting in pecuniary loss to the Government or otherwise.
(4)the expression ―civil proceedings‖ would mean such proceedings in respect of a civil suit filed by the Government only.‖
(emphasis supplied)
Subsequently, vide Gazettee Notification dated 07.10.2022, certain amendments have been carried out in the said CCS (Pension) Rules, 2021, which are called as CCS (Pension) Amendment Rules, 2022 vide which besides making amendment in certain Rules, amendment in Rule 8 of the said Rules have also been carried out, which are as under:-
2.They shall come into force on the date of their publication in the Official Gazette. In the Central Civil Services (Pension) Rules, 2021 (hereinafter referred to of the said rules), in rule 8,–
(i)for sub-rule (1), the following sub-rule shall be substituted, namely: –
―(1) (a) The President, in the case of a pensioner who retired from a post for which the President is the appointing authority;
(b)the Secretary of the Administrative Ministry or Department, in the case of a pensioner who retired from a post for which an authority subordinate to the President is the appointing authority; and
(c)the Comptroller and Auditor-General of India, in the case of a pensioner who retired from the Indian Audit and Accounts Department, from a post for which an authority subordinate to the President is the appointing authority.
may, by order in writing, withhold a pension or gratuity, or both, either in full or in part, or withdraw a pension in full or in part, whether permanently or for a specified period, and order recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental proceedings or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement :
Provided that the Union Public Service Commission shall be consulted before any final orders is passed by the President under this sub-rule:
Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the amount of minimum pension under rule 44.‖;
(ii)in sub-rule (2), –
a. in clause (a), for the proviso, the following proviso shall be substituted, namely: –
―Provided that where the departmental proceedings are instituted by an authority subordinate to the authority competent to pass order under sub-rule (1), that authority shall submit a report recording its findings to the said competent authority.‖;
b. in clause (c), for the word ―President‖ occurring at both the places, the words, brackets and figure ―authority competent to pass order under sub-rule (1)‖ shall be substituted;
(iii)in sub-rule (4), in clause (d), for the word, brackets and figure ―sub-rule (9)‖, the words ―Explanation to this rule‖ shall be substituted;
(iv)in sub-rule (6), for the word ―President‖, the words, brackets and figure ―authority competent to pass order under sub-rule (1)‖ shall be substituted;
(v)after sub-rule (6), the following sub-rule shall be inserted, namely:–
―(6A) (a) No appeal shall lie against any order made by the President under this rule.
(b)An appeal against an order under sub-rule (1), passed by an authority other than the President, shall lie to the President and the President shall, in consultation with the Union Public Service Commission, pass such orders on the appeal as he deems fit.” ”
(emphasis supplied)
More importantly, as evident from above rule position, where departmental proceedings had already been instituted while the Government servant was in service, such proceedings, after retirement, are deemed to be proceedings under Rule 8 of the Rules ibid and are continued and concluded in accordance with the said Rule.
The factual position in the present case is undisputed to this extent: the memorandum of charge was issued to the applicant on 11.09.2009 under Rule 14 of the CCS (CCA) Rules, 1965, i.e. much prior to her retirement on 30.04.2023. Consequently, this is not a case where departmental proceedings were sought to be initiated against a pensioner for the first time after retirement. The proceedings had already been validly instituted during the applicant's service and, by virtue of Rule 8 of the Rules ibid, were capable of being continued after her retirement.
This distinction is crucial because the restrictions applicable to departmental proceedings instituted after retirement, including the four-year limitation in Rule 8(2)(c)(ii) of the Rules ibid, cannot be imported into a case where proceedings had already been instituted while the employee was in service. The objection founded merely on the applicant's subsequent retirement, therefore, has no merit. The statutory scheme itself contemplates continuation and conclusion of such proceedings after retirement.
We may now consider the applicant's contention regarding the extraordinary delay. There can be no dispute with the proposition that disciplinary proceedings should ordinarily be concluded expeditiously. The charges relate to the year 2006, the charge memorandum was issued in 2009, whereas the Inquiry Officer submitted his report only on 31.01.2024. The delay is undoubtedly substantial and cannot be lightly brushed aside. At the same time, delay by itself does not constitute an inflexible rule for quashing disciplinary proceedings. At this stage, it is profitable to refer the decision of the Hon’ble Supreme Court in State of Andhra Pradesh v. N. Radhakishan, reported in (1998) 4 SCC 154, wherein the Hon’ble Supreme Court held that there can be no predetermined principle applicable to every case of delay and that the Court has to consider the nature of the charge, its complexity, the reasons for the delay, the prejudice caused to the delinquent employee and the competing requirement of maintaining clean and honest administration. As also, in Secretary, Forest Department v. Abdur Rasul Chowdhury, reported in (2009) 7 SCC 305, the Hon'ble Supreme Court reiterated that delay in concluding a departmental enquiry is not invariably fatal; the Court must examine whether the delay is satisfactorily explained and whether, in the circumstances, continuation of the proceedings would cause such prejudice as to render the enquiry unfair.
Tested on the aforesaid principles, we are not persuaded to annul the proceedings merely on the ground of delay. The charges against the applicant are not of a trivial or technical nature. Article-I alleges that, while functioning as TREX in All India Radio, she submitted a proposal to the Agriculture Minister on behalf of a private firm, corresponded with various Government offices on behalf of the said firm and thereafter produced 32 episodes of the programme Krishi Kranti without approval of the competent authority. Article-II alleges unauthorised utilisation of the services of AIR staff members/casual artists and lending of her own voice for the programme. Article-III alleges receipt of Rs.3,35,500/- from the Sugar Federation in the name of the private firm and consequent financial loss to AIR. These allegations, if established, concern integrity, devotion to duty, misuse of official position and alleged private financial benefit and are, therefore, matters which cannot be characterised as inconsequential.
It is also material that the proceedings were initiated in 2009 and did not originate after the applicant's retirement. Nevertheless, in the absence of material establishing that the entire delay was attributable exclusively to the respondents or that the applicant suffered demonstrable and irremediable prejudice in defending herself, we are unable to hold that the delay, by itself, renders the final penalty order non-est. The principle emerging from N. Radhakishan (supra) is one of balancing competing considerations and not an automatic rule of invalidation.
The applicant has next challenged the legality of the departmental findings on the ground that the learned criminal Court had acquitted her in Special Case No.06/09 on 04.05.2019. This contention also cannot be accepted. The settled legal position is that criminal proceedings and departmental proceedings operate in distinct fields. A criminal prosecution is concerned with determination of criminal guilt in accordance with the stringent standard of proof beyond reasonable doubt, whereas a departmental enquiry determines whether the employee has committed misconduct warranting disciplinary action and the findings may be recorded on the basis of preponderance of probabilities. It is profitable to refer the decision of the Hon'ble Supreme Court in Ajit Kumar Nag v. General Manager, Indian Oil Corporation Ltd., reported in (2005) 7 SCC 764, wherein the Hon’ble Supreme Court specifically held that acquittal by a criminal Court does not, by itself, preclude the employer from taking disciplinary action in accordance with the applicable service rules. The Hon’ble Supreme Court further recognised the distinction in the nature, object and standard of proof applicable to the two proceedings.
Consequently, the applicant's acquittal could not have been treated as an automatic exoneration from departmental liability. What was required of the Disciplinary Authority was to consider the effect of the acquittal along with the other material available in the departmental proceedings. The respondents have specifically stated that the applicant's representation dated 11.04.2024 was considered and that the competent authority did not find the explanation furnished by her sufficient to dislodge the findings of the Inquiry Officer. The mere fact that the conclusion ultimately reached was adverse to the applicant cannot, in itself, establish non-application of mind. The pendency of the appeal filed by the CBI against the said acquittal is, in any event, not the foundation of our conclusion. The independent and sufficient reason is that an acquittal in criminal proceedings does not ipso facto extinguish departmental liability. Ajit Kumar Nag (supra) squarely answers this aspect.
The applicant has also questioned the reliance upon the statement attributed to Smt. Sadhna Bhatt, contending that she was not examined before the Inquiry Officer and that the statement allegedly made before the CBI was neither signed nor subjected to cross-examination. This submission essentially invites us to undertake a re-appreciation of the evidentiary material considered by the Inquiry Officer. It is well settled that a departmental enquiry is not governed by the strict rules of evidence as applicable to a criminal trial. The scope of judicial review is limited to examining the decision-making process and not to re-appreciating the evidence as an appellate authority. At this stage, we deem it appropriate to refer some of landmark judgments of the Hon’ble Supreme Court.
The Hon’ble Supreme Court in the case of B.C. Chaturvedi v. Union of India, reported in (1995) 6 SCC 749, observed that penalty ordinarily cannot be substituted by the Tribunal; interference is warranted only where it shocks the conscience. The relevant para of the same reads as under:-
―18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.‖
Further, the Hon’ble Supreme Court in Union of India v. P. Gunasekaran, reported in (2015) 2 SCC 610, lays down the precise limits: no reappreciation of evidence; interference only for procedural illegality, breach of natural justice, irrelevant/extraneous considerations, perversity, or a finding based on no evidence. In this regard, it is profitable to reproduce the following paras of the said judgment, which read as under
―12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a)the enquiry is held by a competent authority;
(b)the enquiry is held according to the procedure prescribed in that behalf;
(c)there is violation of the principles of natural justice in conducting the proceedings;
(d)the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e)the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f)the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g)the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h)the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i)the finding of fact is based on no evidence.
13.Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i)reappreciate the evidence;
(ii)interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii)go into the adequacy of the evidence;
(iv)go into the reliability of the evidence;
(v)interfere, if there be some legal evidence on which findings can be based.
(vi)correct the error of fact however grave it may appear to be;
(vii)go into the proportionality of punishment unless it shocks its conscience.
14.In one of the earliest decisions in State of A.P. v. S. Sree Rama Rao [AIR 1963 SC 1723], many of the above principles have been discussed and it has been concluded thus : (AIR pp. 1726-27, para 7)
―7. … The High Court is not constituted in a proceeding under Article 226 of the Constitution as a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant : it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.‖
15.In State of A.P. v. Chitra Venkata Rao [(1975) 2 SCC 557 : 1975 SCC (L&S) 349 : AIR 1975 SC 2151], the principles have been further discussed at paras 21-24, which read as follows : (SCC pp. 561-63)
―21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao [AIR 1963 SC 1723] . First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.
22.Again, this Court in Railway Board v. Niranjan Singh [(1969) 1 SCC 502 : (1969) 3 SCR 548] said that the High Court does not interfere with the conclusion of the disciplinary authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding. In Niranjan Singh case [(1969) 1 SCC 502 : (1969) 3 SCR 548] this Court held that the High Court exceeded its powers in interfering with the findings of the disciplinary authority on the charge that the respondent was instrumental in compelling the shutdown of an air compressor at about 8.15 a.m. on 31-5-1956. This Court said that the Enquiry Committee felt that the evidence of two persons that the respondent led a group of strikers and compelled them to close down their compressor could not be accepted at its face value. The General Manager did not agree with the Enquiry Committee on that point. The General Manager accepted the evidence. This Court said that it was open to the General Manager to do so and he was not bound by the conclusion reached by the committee. This Court held that the conclusion reached by the disciplinary authority should prevail and the High Court should not have interfered with the conclusion.
23.The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. (See Syed Yakoob v. K.S. Radhakrishnan [AIR 1964 SC 477] .)
24.The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do.‖
We also deem it appropriate to refer the decision of the Hon’ble Supreme Court in the case of State of Karnataka v. Umesh, reported in (2022) 6 SCC 563 wherein again the Hon’ble Supreme Court reiterating that judicial review is not appellate review; the Tribunal examines natural justice, existence of evidence, compliance with statutory rules, perversity and proportionality. The relevant paras of the same are reproduced as under:-
“16.The principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law, the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct from those which govern a disciplinary enquiry. The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction.
17.In a judgment of a three-Judge Bench of this Court in State of Haryana v. Rattan Singh [State of Haryana v. Rattan Singh, (1977) 2 SCC 491 : 1977 SCC (L&S) 298 : (1977) 1 SLR 750] , V.R. Krishna Iyer, J. set out the principles which govern disciplinary proceedings as follows : (SCC p. 493, para 4)
―4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Evidence Act, 1872 may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The ―residuum‖ rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence — not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the Flying Squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground.‖ (emphasis in original and supplied ) These principles have been reiterated in subsequent decisions of this Court including State of Rajasthan v. B.K. Meena [State of Rajasthan v. B.K. Meena, (1996) 6 SCC 417 : 1996 SCC (L&S) 1455] ; Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh [Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh, (2004) 8 SCC 200 : 2004 SCC (L&S) 1067] ; Ajit Kumar Nag v. Indian Oil Corpn. Ltd. [Ajit Kumar Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764 : 2005 SCC (L&S) 1020] and CISF v. Abrar Ali [CISF v. Abrar Ali, (2017) 4 SCC 507 : (2018) 1 SCC (L&S) 310].‖
Having regard to the above, we observe that in the present case, the respondents have specifically asserted that the findings were not founded solely upon the statement of Smt. Sadhna Bhatt, but upon the statements of other witnesses and documentary material produced during the enquiry. The Inquiry Officer, after appreciation of the material available before him, recorded a categorical finding that all the three Articles of Charge stood proved. There is nothing placed before us which demonstrates that the findings are based on no evidence whatsoever or that no reasonable person could have arrived at such conclusions.We cannot, therefore, substitute our own appreciation of the evidence for that of the Inquiry Officer and the Disciplinary Authority. The law laid down in B.C. Chaturvedi (supra) squarely governs the field.
The contention that the Disciplinary Authority mechanically accepted the Inquiry Officer's report also does not commend acceptance. Rule 15 of the CCS (CCA) Rules, 1965 prescribes the procedure to be followed after receipt of the inquiry report. The Disciplinary Authority is required to furnish the report to the charged employee, together with tentative reasons for disagreement, if any, and to consider the representation submitted by the employee before recording its findings and proceeding to impose the appropriate penalty. In the present case, the inquiry report dated 31.01.2024 was furnished to the applicant, who submitted her written representation dated 11.04.2024. The respondents have stated that the representation was considered by the competent authority before the impugned order was passed. The applicant has not demonstrated any specific statutory requirement under Rule 15 of the Rules ibid which was violated in the course of this exercise.
The mere circumstance that the impugned order does not reproduce each and every submission contained in the applicant's representation cannot by itself lead to the conclusion that the representation was not considered. What is material is whether the decision-making authority had before it the relevant material and applied its mind to the defence. The record, as placed before us, establishes that the inquiry report was supplied, representation was invited, representation was submitted and thereafter the penalty order was passed. The judicial review jurisdiction cannot be converted into an exercise requiring the Disciplinary Authority to reproduce every contention raised by the delinquent employee, so long as the decision demonstrates consideration of the material issues arising for determination.
We also find no merit in the argument founded upon the separate order dated 06.08.2024. The respondents have explained that the said order arose out of a different departmental proceeding concerning the applicant's conviction in CBI Special Case No.31/2009, whereas the impugned order dated 25.09.2024 arose out of the disciplinary proceedings initiated pursuant to RC-2(A)/2007-GNR concerning the allegations relating to Krishi Kranti. The applicant has already challenged the former order in OA No.393/2024. In these circumstances, the legality of the order dated 06.08.2024 is not an issue before us in the present OA. The two proceedings cannot be conflated merely because both resulted in consequences affecting the applicant's pension. The question before us is confined to the legality of the order dated 25.09.2024.
The applicant's challenge to the proportionality of the penalty also deserves to be rejected. Once the charges are found to have been proved in a duly conducted departmental enquiry, the question of the appropriate penalty ordinarily falls within the domain of the competent disciplinary authority. In B.C. Chaturvedi (supra), the Hon'ble Supreme Court held that the disciplinary authority and, on appeal, the appellate authority have the discretion to impose an appropriate penalty having regard to the magnitude and gravity of the misconduct. Judicial interference with the quantum of punishment is justified only in exceptional circumstances, particularly where the penalty is so disproportionate as to shock the conscience of the Court/Tribunal. The same principle has been reiterated by the Hon'ble Supreme Court, including in Union of India v. Managobinda Samantaray, reported in 2022 SCC OnLine SC 284, that the quantum of punishment ordinarily lies within the discretion of the disciplinary authority and judicial review is attracted only where the exercise of discretion is grossly disproportionate or otherwise suffers from perversity or illegality.
In the present case, the penalty imposed is withholding of 50% of the monthly pension for five years. Rule 8 of the CCS (Pension) Rules, 2021 expressly contemplates withholding of pension, wholly or partly, permanently or for a specified period, where the pensioner is found guilty of grave misconduct or negligence during service. Thus, the nature of penalty imposed is one specifically contemplated by the statutory scheme. Having regard to the nature of the charges found proved, namely, alleged unauthorised dealings with Government authorities on behalf of a private firm, unauthorised production of a programme using AIR personnel/resources, and receipt of substantial production charges in the name of the private firm, we cannot hold that withholding 50% of pension for five years is so outrageously disproportionate that it shocks the conscience of the Tribunal.
We are conscious that the disciplinary proceedings have remained pending for an unusually long period. Such delay is certainly undesirable and the administrative authorities ought to ensure that departmental proceedings, particularly those affecting the retiral benefits of an employee, are concluded with reasonable expedition. Nevertheless, the law does not recognise delay as an automatic ground for exoneration in every case. In the facts before us, the charges are serious, the proceedings were instituted while the applicant was in service, the inquiry culminated in findings on all three Articles of Charge, the inquiry report was supplied to the applicant, her representation was obtained and considered, and the competent authority thereafter imposed a penalty expressly authorised by Rule 8 of the CCS (Pension) Rules, 2021.
On the touchstone of the principles laid down in Ajit Kumar Nag (supra) and B.C. Chaturvedi (supra), we find no ground to interfere with the departmental findings merely because the applicant had obtained an acquittal in the criminal proceedings or because she disputes the appreciation of evidence by the Inquiry Officer. Likewise, in the absence of demonstrated violation of the mandatory procedure under Rules 14 and 15 of the CCS (CCA) Rules, 1965, or a finding based on no evidence, the Tribunal cannot assume the role of an appellate authority over the departmental enquiry.
In the result, for the foregoing discussions, we find no merit in the instant OA and the same is accordingly dismissed.
All pending MA(s), if any, shall also stand disposed of.
There shall be no order as to costs.