OP (CAT) No. 1054 of 2011 (S)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 21ST DAY OF DECEMBER 2016/30TH AGRAHAYANA, 1938** **OP (CAT).No. 1054 of 2011 (S) ------------------------------** ## **AGAINST THE ORDER IN OA 134/2010 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** **PETITIONER(S)/(RESPONDENTS IN THE ORIGINAL APPLICATION:** **------------------------------------------------------** **1. THE COMMISSIONER OF CUSTOMS(PREVENTIVE), CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD,, KOCHI-18.** **2. THE ASSISTANT COMMISSIONER OF CUSTOMS** - **(PREVENTIVE), CENTRAL REVENUE BUILDINGS,, MANANCHIRA, CALICUT.** **3. THE SENIOR ACCOUNTS OFFICE, PAY & ACCOUNTS OFFICER, CUSTOMS HOUSE, KOCHI-9.** **4. THE PAY & ACCOUNTS OFFICER, CENTRAL PENSION ACCOUNTS OFFICE, TRIKOOT II COMPLE, BHIKAJI CAMA PLACE, NEW DELHI-66.** **5. UNION OF INDIA REPRESENTED BY ITS** - **SECRETARY, DEPARTMENT OF REVENUE, NORTH BLOCK,, NEW DELHI-110 001.** **BY ADVS.SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** **RESPONDENT(S)/(APPLICANT IN THE ORIGINAL APPLICATION): ------------------------------------------------------** **T.AYYAPPAN, SUPERINTENDENT OF CENTRAL EXCISE (RETD.), NARMADA BHAVAN, THEKKUMMURI P.O.,, TIRUR, MALAPPURAM DISTRICT.** **R1 BY ADVS.M/S.C.S.GOPALAKRISHNAN NAIR & CHANDINI G.NAIR** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 21-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (CAT).No. 1054 of 2011 (S) ------------------------------** ## **APPENDIX** ## **PETITIONER'S EXTS:O** **EXT.P1- A PHOTOSTAT COPY OF THE ORIGINAL APPLICATON NO.134 OF 2010 FILED BY THE RESPONDENT/APPLICANT ALONG WITH THE ANNEXURE BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXT.P2- A PHOTOSTAT COPY OF THE REPLY statement FILED BY THE PETITIONERS/RESPONDENTS BEFORE THE CENTRAL ADMINISTRATIVE TRIBUBAL, ERNAKULAM BENCH IN ORIGINAL APPLICATION NO.134 OF 2010.** **EXT.P3- A PHOTOSTAT COPY OF THE ORDER DATED 29.10.2010 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN ORIGINAL APPLICATION NO.134 OF 2010.** **/TRUE COPY/** **P.S.TO JUDGE.** **sl.** ## **P.R.Ramachandra Menon & P. Somarajan, JJ.** ==================================== O.P.(CAT)No.1054 of 2011 ==================================== Dated this the day 21[st] of December, 2016. ## **“CR”** ## **JUDGMENT** ## **. P. Somarajan, J** - 1.Aggrieved by the order of the Central Administrative Tribunal, Ernakulam in O.A.No.134/2010 dated 29.10.2010, the respondents therein have come up with this original petition under Article 227 of the Constitution of India. - 2.The dispute involved in O.A.134/2010 is with respect to the claim of the applicant therein to get his retiral benefits which was withheld by the authority. 3. The sequence of events involved in the case is as follows: The - applicant joined in the service of the respondents on 18.3.1977 -:2:- ## O.P.(CAT)No.1054 of 2011 and retired from service on superannuation on 30.6.2009 after completion of 32 years 3 months and 14 days of service. Though he received sanction orders for disbursement of retirement benefits issued by the 3[rd] respondent (A1, A2 and A3), no amount was paid to him, but only a provisional pension alone was granted from the month of July, 2009. His retirement benefits were withheld on the ground of a criminal case pending before the Judicial Magistrate of the First Class, Tirur based on the allegation of offence punishable under Section 324 I.P.C. which has ended in conviction and sentence by the court of first instance, sentencing him to undergo simple imprisonment for three months. In appeal, the punishment was modified to a fine of Rs.3,000/- against which a revision was filed before this Court and a stay was granted. The representation made by him (Ext.A9) did not serve any purpose, which has resulted in the ## O.P.(CAT)No.1054 of 2011 ## -:3:- filing of O.A.134/2010. The Tribunal, on considering the relevant provisions in connection with the factual events, ultimately found that the applicant is entitled to retiral benefits and that withholding of the same by granting provisional pension is bad in law. Accordingly, the Tribunal directed the respondents to make payments of retiral benefits as per A1, A2 and A3 with interest at the rate of 9% per annum from July, 2009 onwards by its order dated 29.10.2010. Aggrieved by the said order, the respondents filed this original petition. - 4.Heard. 5. Ext.P1 is the impugned order in O.A.No.134 of 2010. There is no dispute with respect to the service of the applicant for a long period of 32 years 3 months and 14 days commencing from 18.3.1977 to 30.6.2009. Annexures 1 to 3 are the sanction orders for disbursement of retirement benefits issued by the 3[rd] O.P.(CAT)No.1054 of 2011 -:4:- respondent, but only a provisional pension alone was granted to the applicant on account of proceedings pending before the JFCM, Tirur alleging offence punishable under Section 324 I.P.C. Ext.A5 is the judgment of the JFCM, Tirur. It was taken up before the appellate court and appellate court also found that the applicant is guilty, but modified the sentence to a fine of Rs.3000/- vide Ext.A6 judgment against which a revision was filed before this Court by the applicant. This Court granted stay and bail was also granted to the applicant. Ext.A8 is the stay order. 6. The main contentions raised by the respondents are with respect to the application of Rule 19 of CCS (CCA) Rules, 1965 which empowers the authority to place any servant under suspension when he is convicted of a criminal charge, Rule 69 of CCS (Pension) Rules, 1972 and Rule 4 of CCS (Commutation of -:5:- ## O.P.(CAT)No.1054 of 2011 Pension) Rules, 1981 and the authority of respondents thereto; besides the application of Rule 10(2)(b) of CCS (CCA) Rules, 1965. It was contended that as per Rule 10(2)(b) of CCS (CCA) Rules, 1965 that a Government servant is deemed to have been placed under suspension with effect from the date of conviction, if in the event of a conviction for an offence, he is sentenced to imprisonment exceeding 48 hours. It was _inter alia_ contended by the respondents that no retiral benefits can be given to the applicant till the completion of criminal proceedings pending against him. There is no dispute that the applicant was convicted for the offence punishable under Sections 324 IPC and that he was sentenced to undergo simple imprisonment for three months. The allegation is that he had assaulted his wife in public place based on which he was tried before the JFCM, Tirur. In Crl.A.308/2005 the conviction was confirmed but the sentence -:6:- ## O.P.(CAT)No.1054 of 2011 was modified by imposing a fine of Rs.3000/-. The said verdict was passed on 28.7.2008 and the same is marked as Ext.A6. A revision was filed by the applicant against Ext.A6 verdict dated 28.7.2008 before the High Court wherein bail was granted by suspending the sentence of fine of Rs.3000/-. The alleged incident took place in the year 2001. It is thereafter that the applicant retired from service on 30.6.2009. In other words, as on the date of his retirement on 30.6.2009, though he was found guilty of offence under Section 324 IPC, the sentence awarded was confined only to a fine of Rs.3000/-, which was subsequently stayed by the this Court. Admittedly, no appeal was preferred and no challenge was raised by anyone other than the applicant against the verdict passed by JFCM, Tirur or the 1[st] appellate court regarding the question of legality or validity of the conviction or the sentence awarded thereto. ## O.P.(CAT)No.1054 of 2011 ## -:7:- - 7.It was contended by the respondents that it is within their authority to place the employee under suspension as soon as a Government servant is convicted on a criminal charge as per Decision No.(2) of Government of India under Rule 19 of CCS (CCA) Rules, 1965. It is further contended that as per Rule 10 (2) (b) of the said Rules a Government servant is deemed to have been placed under suspension with effect from the date of conviction when he is sentenced to undergo imprisonment exceeding 48 hours. - 8.Rule 10(1) & (2) of CCS (CCA) Rules, 1965 is extracted below for reference: ## “ _**10. Suspension**_ - _The or_ - _(1) Appointing Authority any authority to which it is subordinate or the Disciplinary Authority or any other authority empowered in that behalf by the_ -:8:- ## O.P.(CAT)No.1054 of 2011 _President, by general or special order, may place a Government servant under suspension--_ _where a (a) disciplinary proceedings against him is contemplated or is pending; or_ _(b) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or_ _(c) where a case against him in respect of any criminal offence is under investigation, inquiry or trial;_ _Provided that, except in case of an order of suspension made by the Comptroller and Auditor General in regard to a member of the Indian Audit and Accounts Service and in regard to an Assistant Accountant General or equivalent (other than a regular member of the Indian Audit and Accounts_ -:9:- ## O.P.(CAT)No.1054 of 2011 _Service), where the order of suspension is made by an authority lower than the Appointing Authority, such authority shall forthwith report to the Appointing Authority the circumstances in which the order was made._ _(2) A Government servant shall be deemed to have been placed under suspension by an order of Appointing Authority--_ _(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period - exceeding forty eight hours;_ _(b) with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of - imprisonment exceeding forty eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.”_ O.P.(CAT)No.1054 of 2011 ## -:10:- _emphasis supplied)_ 9. Going by the above rule, it is clear that sub-rule (1) deals with the case in which a Government servant can be placed under suspension. Clause (b) deals with a case against the Government servant in respect of whom any criminal offence is under investigation, inquiry or trial. The criminal proceedings initiated against the applicant has culminated in a verdict by the trial court as well as the 1[st] appellate court and found that he is guilty under Section 324 IPC. It is true that against that verdict, a revision was preferred by the applicant before this Court challenging the conviction. But the fact that the trial court as well as the 1[st] appellate court rendered its decision would sufficiently show that, at the time of his retirement, no criminal offence as against him was under investigation, inquiry or trial. By that time, the criminal proceedings initiated ended in conviction against the O.P.(CAT)No.1054 of 2011 ## -:11:- applicant and hence there is no application of sub-rule (1) (b) of Rule 10 of CCS (CCA) Rules, 1965. Sub rule (2) is the deeming provision which says that on satisfying clauses (a) or (b) the Government servant shall be deemed to have been placed under suspension by an order of the appointing authority. Clauses (a) & (b) of sub-rule (2) deals with the time from which the deemed provision would operate. As per clause (a) of sub rule (2), it would start from the date of detention, if he is detained in custody for a period exceeding 48 hours. No case of detention of original petitioner in OA was made out or brought out. Clause (b) says that the deeming provision would operate from the date of his conviction for an offence by which he is sentenced to a term of imprisonment exceeding 48 hours with a rider that “unless he is not forthwith dismissed or removed or compulsorily retired consequent to such conviction”. O.P.(CAT)No.1054 of 2011 ## -:12:- Admittedly, there was no sentence of a term of imprisonment of the period exceeding 48 hours was in existence at the time of his retirement. Needless to say that with respect to the entitlement of retirement benefits, the status and position of the applicant as on the date of retirement shall be taken into account. Though there was a verdict at an earlier point of time imposing three months imprisonment, it has merged in the appellate verdict Ext.A6 wherein only a fine of Rs.3000/- alone was imposed and thereby brought the matter outside the purview of Sections 10(1) & (2) of CCS (CCA) Rules, 1965. As on the date of retirement though there was a conviction under Section 324 IPC, only a fine of Rs.3000/- alone was imposed under Ext.A6 appellate verdict and no sentence of a term of imprisonment exceeding 48 hours imposed on the applicant. So the applicant in OA would not come under the purview of Rule 10(1) & (2) of CCS (CCA) O.P.(CAT)No.1054 of 2011 ## -:13:- Rules, 1965. 10.Admittedly, no disciplinary proceedings were initiated against the original applicant and no case of any engagement in activities prejudicial to the interest and security of the State was either brought out or advanced against the applicant. Rule 69(1) of CCS Pension Rules, 1972 was also pressed into service which is extracted below for reference. ## _“_ _**69. Provisional pension where departmental or judicial proceedings may be pending**_ _(1)(a) In respect of a Government servant referred to in sub-rule (4) of Rule 9, the Accounts Officer shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement of the Government servant, or if he was under suspension on the date of retirement upto the date_ ## O.P.(CAT)No.1054 of 2011 ## -:14:- _immediately preceding the date on which he was placed under suspension._ _(b) The provisional pension shall be authorized by the Accounts Officer during the period commencing from the date of retirement upto and including the date on which, after the conclusion or of departmental 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._ _Provided that where departmental proceedings have been instituted under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for imposing any of the penalties specified in Clauses (i), (ii) and (iv) of Rule 11 of the said Rules, the payment of gratuity shall be authorized to be paid to the Government servant.”_ ## O.P.(CAT)No.1054 of 2011 ## -:15:- 11.Sub rule (4) of Rule 9 of CCS Pension Rules, 1972 is referred to in Clause (a) of Rule 69(1). A mere reading of Rule 9(4) would show that it refers to judicial proceedings initiated or departmental proceedings continued under sub rule (2). Rule 9 of CCS Pension Rules, 1972 is also extracted below for clarification. ## _“_ _**9. Right of President to withold 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_ -:16:- ## O.P.(CAT)No.1054 of 2011 _or negligence during the period of service including service rendered upon reemployment 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 pensions shall not be reduced below the amount of (Rupees Three Thousand five hundred) per mensem._ _(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 reemployment, shall, after the final retirement of the Government servant, be deemed to be proceeding under this rule and shall be continued and concluded by the authority by which they were commenced in the same_ -:17:- ## O.P.(CAT)No.1054 of 2011 _manner as if the Government servant had continued in service;_ _Provided that where the departmental proceedings are initiated by an authority subordinate to the President, that authority shall submit a report recording its findings to the President;_ _(b) 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;_ _(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_ O.P.(CAT)No.1054 of 2011 -:18:- _order of dismissal from service could be made in relation to the Government servant during his service._ _(3) Deleted;_ _(4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom or any departmental judicial proceedings are instituted or where departmental proceedings are confined under sub-rule a as (2), provisional pension provided in Rule 69 shall be sanctioned._ _(5) 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._ _(6) For the purpose of this rule,--_ ## O.P.(CAT)No.1054 of 2011 ## -:19:- _(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 plaint is presented in the court.”_ _(emphasis supplied)_ 12.In the present case, no departmental proceedings were initiated against the applicant in the O.A. The expression “if any deparmental or judicial proceedings” has to be read and O.P.(CAT)No.1054 of 2011 ## -:20:- understood with reference to the wording used in Rule 9(1), “whole or part of any pecuniary loss caused to the Government if in any departmental or judicial proceedings and found the employee guilty of their misconduct or negligence during the period of service”. Going by the scheme of Rule 9, especially sub rule (1) to (4), the same can be made applicable only when the pensioner is found guilty of misconduct or negligence during the period of service causing pecuniary loss to the Government. Sub rules (1) to (4) are interlinked and interconnected. There is a reference to sub rule (1) in sub rule (2) and there is reference to sub rule (2) in sub rule (4) which makes it clear the application of the requirement under sub rule (1) of Rule 9, both in sub rules (2) and (4). The expression used in Rule 9(1) “the departmental or judicial proceedings” has to be interpreted and understood not in isolation. The conjunction used “if” stands for limiting the O.P.(CAT)No.1054 of 2011 ## -:21:- scope of departmental or judicial proceedings to the expression used “pecuniary loss caused to the Government”. The wording used in Rule 9(1) regarding “judicial proceedings” has only a limited application and it has to be understood as judicial proceedings causing pecuniary loss to the Government. In other words, Rule 9(1) would come into play only when there is pecuniary loss caused to the Government by the pensioner by his grave misconduct or negligence during the period of service. Rule 4 of CCS (Commutation of Pension) Rules, 1981 also refers to Rule 69 of the Pension Rules in the matter of commutation of pension. Rule 4 of CCS (Commutation of Pension) Rules, 1981 is extracted below for reference: ## _“_ _**4.Restriction on commutation of pension**_ _No Government servant against whom as departmental or judicial proceedings referred to in Rule 9 of the Pension Rules_ -:22:- ## O.P.(CAT)No.1054 of 2011 _have been instituted before the date of his retirement, or the pensioner against whom such proceedings are instituted after the date of his retirement, shall be eligible to commute a percentage of his provisional pension authorised under Rule 69 of the Pension Rules or the pension, as the case may be, during the pendency of such proceedings.”_ 13.A mere perusal of Rule 4 would show that it is applicable only when there is departmental or judicial proceedings as referred to in Rule 9 of the Pension Rules. As discussed earlier, Rule 9 of the Pension Rules cannot be invoked against the original applicant for withholding retirement benefits unless the requirement under Rule 9 is satisfied. 14.On coming into Rule 19 of (CCA) Rules, 1965, it is really a special provision and is an exception to Rule 14 to Rule 18 of O.P.(CAT)No.1054 of 2011 -:23:- the said Rules. It is the provision wherein the employer Government can impose penalty on a Government servant without having recourse to Rules 14 to 18 of the said Rules. The said rule is a non-obstanti clause. It enables the Government to impose penalty on a Government servant notwithstanding anything contained in Rules 14 to 18, provided that the requirement under Clauses (1) to (3) has to be satisfied. In fact, clauses (2) & (3) deals with the subjective satisfaction of the President or the disciplinary authority as the case may be with respect to the reasons available to exclude the recourse/exercise under Rules 14 to 18 of the CCS (CCA) Rules. The actual requirement is made mention in Clause (1). Rule 19 is extracted below for reference: ## _“_ _**19. Special procedure in certain cases**_ -:24:- ## O.P.(CAT)No.1054 of 2011 _Notwithstanding anything contained in Rules 14 to Rule 18 –_ _(i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on criminal charge, or_ _(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or_ _(iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules;_ _the Disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit;_ _Provided that the Government servant may be on given an opportunity of making representation the penalty proposed to be imposed before any order is made in a case under Clause (i);_ -:25:- ## O.P.(CAT)No.1054 of 2011 _Provided further that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule.”_ _(emphasis supplied)_ 15.Rule 19 does not say anything about withholding the retirement benefits or application of Rule 19 to a person who had already retired from service. The scope and ambit of Rule 19 has to be assessed, being a special provision in derogation of Rules 14 to 18 of CCS (CCA) Rules, 1965 which are the mandate to be complied with for imposing penalty on a Government servant. In other words, the construction of Rule 19 and the requirement thereof and its application should be understood as an exception to the normal procedure warranting recourse to Rules 14 to 18. Rules 14 to 18 deal with both minor and major penalty proceedings. It is settled proposition of law that exception can ## O.P.(CAT)No.1054 of 2011 ## -:26:- be drawn only in exceptional cases. So the expression used therein “lead to his conviction on a criminal charge”, engrafted in Clause (i) should be understood as conviction of grave offence. Further, only a penalty can be imposed on the Government servant under Rule 19 as per its proviso. The penalty can be imposed on a Government servant narrated in Rule 11 which does not takein the power to withhold the retirement benefits. In fact, the penalties which can be imposed under Rule 11 of CCS (CCA) Rules, 1965 can be imposed on a Government servant, including compulsory retirement, removal and dismissal from service. In short, it is not permissible for the Government to withhold the retirement benefits available to the employee after his retirement under Rule 19 of CCS (CCA) Rules. 16.The employee's right to pension is a statutory right. The O.P.(CAT)No.1054 of 2011 ## -:27:- measure of deprivation therefore must be correlative to or commensurate with the misconduct or gravity of grave irregularity. The misconduct alleged has to be in discharge of public duty in office. In _**Krishnankutty v. Superintendent of Post office**_ (1975 K.L.T. 503), this Court had an occasion to consider the valuable right to a Government servant under Article 311(2) of the Constitution and protection thereof wherein it was held that a conduct not in the course of employment cannot be a misconduct. Similarly, a conduct which is not misconduct as per the Conduct Rules also cannot be the subjectmatter of disciplinary action against a Government servant. It was further held that a domestic quarrel which has nothing to do with the employment of a Government servant cannot be a misconduct, especially when it occurs at a place far away from the place of employment. It cannot be made a subject-matter of O.P.(CAT)No.1054 of 2011 -:28:- disciplinary action against a Government servant. Going by the principles laid down in the above said decision and the scope and application of various provisions referred to above, we are of the view that there is absolutely no reason for any interference to the order passed by the Tribunal. The original petition fails. Deserves only dismissal and we do so. The respondents are hereby directed to disburse the retirement benefits as per Annexures 1 to 3 with interest at the rate of 9% per annum from July, 2009 onwards till the date of disbursement within two months from today. No costs. ## **P.R.Ramachandra Menon, Judge** ## **P.Somarajan, Judge** sl.