1. The applicant has challenged the order dated 02.9.2003 passed by respondent No. 2 whereby forfeiture of total pension was ordered with immediate effect.
2. The facts of the case giving rise to filing of this O.A. are that the applicant while working as Junior Telecom Officer in Pune Telecom District was caught by Anti Corruption Bureau on 31.10.1989 while accepting illegal gratification of Rs. 1000. The applicant was convicted by order dated 18.6.1998 by special Judge Pune in Special Case No. 21/93 and was sentenced to undergo regorous imprisonment for two years and fine of Rs. 1000. The applicant preferred Criminal Appeal No. 604/98 in Bombay High Court. He was released on bail by Bombay High Court order dated 15.7.1998. Thereafter, the applicant filed Criminal Application No. 3584/98 for suspending the sentence in the aforesaid Criminal Appeal No. 604/98. The High Court passed order dated 21.12.1998 allowing the criminal application in terms of prayer Clause (B). Applicant stated that he retired on superannuation on 30.9.1997.
He was paid provisional pension of Rs. 4722 per month under Rule 69 of CCS (Pension) Rules, 1972 from 01.10.1997 to 30.9.2000 by BSNL, Pune and from 01.10.2000 to 30.8.2003 by Joint Controller of Communication Accounts, DOT Cell, CGMT, Mumbai. The applicant's pension was stopped from 01.9.2003 as per order vide Exhibit Al. It is also stated that the applicant submitted his reply dated 16.11.2002 to the memorandum dated 07.11.2002 and requested to defer further action contemplated in the said memorandum for forfeiting his provisional pension. The applicant sent another representation dated 03.11.2003 and requested to allow him to draw pension at the earliest.
3. The respondents have contested the O.A. on the ground of limitation as well as on merit. In reply they have stated that the applicant retired on 30.9.1997 on attaining the age of superannuation. He made appeal in the Hon'ble High Court of Judicature at Bombay against the judgment of Special Judge, Pune, which was admitted by the High Court and he was granted bail. A show cause notice was issued to the applicant giving him an opportunity to explain the circumstances why action should not be taken against him under provisions of Rule 9 of CCS (Pension) Rules vide memorandum dated 07.11.2002 with the approval of President of India. The applicant submitted his representation on 16.11.2002 wherein he stated that he had made an appeal to the Hon'ble High Court of Judicature at Bombay and the appeal has been admitted.
Respondents stated that the Hon'ble High Court has not granted any stay on the proceedings under Rule 9 of CCS (Pension) Rules, 1972. The order dated 02.09.2003 passed by President is strictly in accordance with CCS (Pension) Rules, 1972 and hence the O.A. is devoid of merit and deserves to be dismissed.
4. Learned Counsel for the applicant advanced contention that the respondent No. 2 did not properly interpret the order dated21.12.1998 in criminal application No. 3854/98 filed in Criminal Appeal No. 604/98 passed by the High Court suspending conviction and sentence as well as the effect, operation and execution of the judgment and order dated 18.6.1998 passed by Special Judge, Pune in Special Case No. 21/93 in its true letter and spirit. The plain/clear/unambiguous meaning of the said order is that there was no conviction at all against the applicant. Thus there is no stigma of conviction and therefore, applicant is not at all guilty of grave misconduct or negligence. It is also contended that the provision of Rule 9(1) of CCS (Pension) Rules, 1972 are not at all applicable to the applicant as the pensioner was not found guilty to grave misconduct or negligence during the period of service by virtue of order dated 21.12.1998 of Bombay High Court. It is further contended that the UPSC has tendered illegal and ill advice to the respondent No. 2 regarding interpretation of the order of High Court.
5. Per contra learned Counsel for the respondents contended that Hon'ble High Court has suspended the conviction and sentence as well as the effect, operation and execution of the judgment and order dated 18.6.1998 passed by learned Special Judge, Pune in special Case No.21/93 but the Hon'ble High Court in its order dated 21.12.1998 has not passed any stay for proceedings under Rule 9 of CCS (Pension) Rules, 1972. The respondents have taken action against the applicant as per Rule 9 of CCS (Pension) Rules, 1972. It is also contended that the contention of the applicant is not correct that UPSC has tendered illegal/ill advice to the respondents. In fact, the UPSC is not a party respondent in this case, therefore, the ground raised by the applicant behind the back of the UPSC cannot be examined by this Tribunal.
6. The applicant has moved M.P. 402/05 seeking condonation of delay stating that the provisional pension was stopped by order dated 02.9.2003 of respondent No. 2. The applicant submitted his representation dated 03.11.2003 to respondent No. 2 and prayed for paying him the pensioner benefits as the order dated 02.9.2003 is illegal. After sending representation dated 03.11.2003 applicant could not challenge the order dated 02.9.2003 due to his illness as he was bedridden from 8 to 10 months, hence there is a delay in approaching this Tribunal.
7. The respondents have also filed reply to the M.P. stating that the applicant has not explained the delay from the date of receipt of punishment order dated 02,9.2003. Therefore, the applicant failed to make out any case for condonation of delay.
8. We have considered the rival contentions raised, arguments advanced and case law cited by learned Counsel for the parties.
9. In the present case, the applicant was caught in trap case and prosecution started against him under various sections of IPC and Prevention of Corruption Act, 1988. He was convicted for the offence under Sections 7, 13(1)(d)read with Section 13(2) of Prevention of Corruption Act, 1988 and under Section 120 IPC by the Special Judge, Pune on 18.6.1998. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1000 in default to undergo for the rigorous imprisonment for three months. The applicant preferred criminal appeal No. 604/98 against the order dated 18.6.1998 passed by Special Judge in Special Case No. 21/93. Hon'ble High Court vide order dated 15.7.1998 passed the following order: Admit. Pending disposal of the appeal, appellant shall be enlarged on bail provided he furnishes a personal bond of Rs. 5000 and 2 securities of the like amount to the satisfaction of the Trial Court.
Therefore, the appliant filed criminal application No. 3854/98 in the aforesaid criminal appeal. The Hon'ble High Court by order dated 21.12.1998 allowed the application. The order of Hon'ble High Court reads as under: Appeal against conviction has been admitted. Applicant has been enlarged on bail. This is an application for suspension of the conviction and sentence on the ground that the applicant is a Government employee. Considering the facts and circumstances, application allowed in terms of prayer Clause (b).
This Hon'ble Court be pleased to suspend the conviction and sentence as well as the effect, operation and execution of the judgment and order dated 18.6.98 passed by the Ld. Special Judge, Pune in Special Case No. 21/93.
10. Learned Counsel for the applicant contended that the applicant in Criminal Miscellaneous Petition No. 3854/98 brought to the knowledge of the Hon'ble High Court if the effect, operation and execution of conviction and sentence is not suspended, the applicant cannot survive for want of pension etc., and the Hon'ble High Court felt satisfied that the order of conviction needs to be suspended so that the convicted applicant does not suffer from disqualification of pension provided under CCS (Pension) Rules, 1972. Hence, Hon' ble High Court passed order dated 21.12.1998 in Criminal Miscellaneous Application No.3854/98 suspending the conviction and sentence as well as the effect, operation and execution of judgment and order dated 18.6.1998 in Special Case No. 21/93 after considering that the applicant is a Government servant. Thus, Hon'ble High Court definitely intended that the provisional pension of the applicant should not be stopped. In support of his contention, learned Counsel has placed reliance in the case of Rama Narang v. Ramesh Narang to contend that the respondents cannot initiate proceedings under Rule 9 of CCS (Pension) Rules, 1972. Hon'ble Apex Court in Rama Narang (supra) held: In appropriate case High Court in appeal on being suspending the order of conviction, can grant interim stay - But person approaching the High Court should invite the Court's attention to the specific consequence which is likely to fall upon conviction so as to enable the Court to apply its mind on that point before granting the stay.
11. The Hon'ble Delhi High Court in K. Bhagyanath v. State 2003(2) SLJ 183 had occasion to deal with similar issue and after taking into consideration the ratio of Rama Narang case and other decisions of Apex Court, in Paras 6, 8 & 9 observed as under: 6. The learned Additional Sessions Judge has relied upon the observation of the Supreme Court in K.C. Sareen v. CBI, Chandigarh JT 2001(6) SC 59, where the Supreme Court has made the following observation: When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a Court of Law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior Court. The mere fact that an Appellate or Revisional Forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such finding. If such a public servant become entitled to hold public office and to continue to go official acts until he is judicially absolved from such findings by reason suspension of the order of conviction it is public interest which suffers and sometimes even irreparably. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appal of the revision.
8. A three Judges Bench of the Supreme Court in Rama Narang (supra), has made the following observation: That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in Section 267 of the Companies Act, we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the Court from granting an order to that effect in a fit case.
The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction.
9. The Supreme Court was considering the question whether the appellant was liable to be invited to the consequences of Section 267 of the Companies Act notwithstanding the order by the High Court which was passed while admitting the appellants appeal against his conviction and sentence awarded by an Addl. Sessions Judge. Section 267 forbids a company from appointing or employing or continuing the appointment or employment of any person as its managing or whole time director who is or has at any time been convicted by a Court of an offence involving more turpitude. The Supreme Court examined the power of the Court under Section 389(1) of the Cr.P.C. which provided for suspension of sentence pending an appeal and release of the appellant on bail. The Supreme Court noticed that in certain situation the order of conviction could be executable since it may incur a disqualification as was in the case before the said Court.
It was observed that in such cases power under Section 389(1) of the Cr.P.C. could be invoked and the attention of the Appellate Court should be invited to the consequences that were likely to fall to enable it to apply its mind to the issue.Union of India and Ors. v. Ramesh Kumar 1997 SCC (L&S) 1774 considering the power of Appellate Court and the effect of staying the sentence based on conviction passed by the Trial Court laid down the following proposition of law: Under Section 389 of the Cr.P.C. the Appellate Court has power to suspend the execution of sentence and to release the accused on bail. When the Appellate Court suspends execution of the sentence and grants bail to an accused, the effect of the is that the sentence based on conviction is for the time being postponed, or kept in abeyance during the pendency of the appeal. In other words, by suspension of execution of sentence under Section 389 of Cr.P.C. an accused avoids undergoing sentence pending criminal appeal.
However, the conviction continues and is not obliterated and if the conviction is not obliterated, any action against a Government servant on a misconduct which lead to his conviction by the Court of law does not lose its efficacy merely because the Appellate Court has suspended the execution of sentence. Such being the position of law, the Administrative Tribunal fell in error in holding that by suspension of execution of sentence by the Appellate Court, the order of dismissal passed against the respondent was liable to be quashed and the respondents is to be treated under suspension till disposal of criminal appeal by the High Court.
13. In the present case, Hon'ble High Court in the Miscellaneous Application No. 3854/ 98 for suspending the sentence allowed the application in terms of prayer (b). Prayer (b) reads as under: This Hon'ble Court be pleased to suspend the conviction and sentence as well as the effect, operation and execution of the judgment and order dated 18.6.98 passed by the Ld. Spl. Judge, Pune in Spl. Case No. 21/93.
Hon'ble Apex Court in case of Rama Narang (supra) held in Para 15 as under: Section 389(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. The order referred to in Section 389(1) must be an order capable of execution. An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which, if not suspended, would be required to be executed by the authorities.
Thus, the legal position emerges that when the Appellate Court suspend the execution of the sentence and grant bail to an accused, the effect of the order is that the sentence based on conviction is for the time being postponed or kept in abeyance during the pendency of the appeal.
In this case also the Hon'ble High Court suspended the conviction and sentence as well as the effect, operation and execution of the order of conviction. Suspension of the execution of sentence also includes the conviction as well. The order convicting and sentencing the accused public servant is subject of the appeal in which the Appellate Court released the accused applicant on bail and stayed the operation and effect of the order, it does not take away the power of Disciplinary Authority to take action against the delinquent employee. Mere suspension of sentence or conviction during the pendency of the appeal is for the time being but the conviction continues till it is set aside by the Appellate Court. In that event any action taken against Government servant on misconduct does not lose its efficacy, merely because the Appellate Court has suspended the execution of the sentence. It is the settled legal position. Hon'ble High Court has suspended the conviction and sentence as well as the effect, operation and execution of the order dated 18.6.1998 passed by learned. Special Judge, Pune. But the Hon'ble High Court has not stayed the further proceedings under Rule 9 of CCS (Pension) Rules, 1972. In case of Rama Narang (supra) Hon'ble Apex Court observed: In a situation where the order of conviction may incur a disqualification, as in this case, the attention of the Appellate Court must be specifically invited to the consequence that is likely to fall to enable it to apply its mind to the issue since under Section 389 (1) it is under an obligation to support its order "for reasons to be recorded by it in writing.
In the instant case, the Hon'ble High Court has not granted stay to the applicant in respect of a dis-qualification incurred by the order of conviction. Therefore, the ratio of Rama Narang (supra) is not helpful to the applicant. Where the ratio of the case in Ramesh Kumar (supra) is squarely applicable to the facts of the present case.
14. It is seen that the impugned order passed by respondent No. 2 is dated 02.09.2003 whereas the O.A. has been filed on 26th May, 2005. The applicant in his M.P. 402/05 for condonation of delay has tried to explain the delay that the applicant submitted his representation dated 03.11.2003 to respondent No. 2 and therefore, he could not challenge the order due to his ill health. Thus, it appears that the cause of action firstly arose on 02.9.2003 and even if the date of his representation dated 03.11.2003 is taken into account the O.A. must have been filed within one and half year of submission of representation i.e. on or before 02.5.2005. The day to day delay of 24 days has not been sufficiently explained by the applicant and no medical certificate has been filed. Therefore, the O.A. is also barred by limitation.
15. For the reasons stated above, we find no illegality in the order passed by respondent No. 2 in withholding the total pension of the applicant. The O.A. has no merit and is liable to be dismissed. It is dismissed accordingly on merit as well as on limitation. No order as to costs.