V.K. Bali, Chairman:
1. D. K. Sinha, the applicant herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985, calling in question the Presidential order according sanction for departmental proceedings against him under rule 9 of the Central Civil Services (Pension) Rules, 1972 (hereinafter to be referred as the Rules of 1972), as contained in order dated 21.11.2007 issued under signatures of the Additional Development Commissioner and Chief Vigilance Officer, Office of the Development Commissioner (Micro, Small and Medium Enterprises), New Delhi, along with its enclosures, i.e., the memorandum, Annexure-I (statement of articles of charge); Annexure-II (statement of imputations of misconduct or misbehaviour in support of the articles of charge); and Annexure-III (list of documents).
2. Shorn of unnecessary verbiage, the facts that may be relevant for adjudication of the points raised in the present OA would reveal that the applicant while working as Assistant Director in the office of the Development Commissioner under the Ministry of Micro, Small and Medium Enterprises (MMSME), applied for the post of Deputy General Manager in the RITES Ltd., a Public Sector Undertaking of Government of India, in pursuance of an advertisement dated 02-08.09.2006 in the Employment News. His name was duly forwarded by MMSME, and clearance from the point of vigilance was also given, and it was stated that the appointment of the applicant in RITES would be on ‘immediate absorption’ basis. He was selected on the post aforesaid and the competent authority accepted his technical resignation with effect from 03.05.2007. The applicant joined RITES as Deputy General Manager on 04.05.2007. In January, 2009, through information received under the Right to Information Act, 2005, it transpired that the Deputy Director (Vigilance), MMSME had advised the Development Commissioner not to disburse any pensionary benefit to the applicant because CVC’s advice for initiating departmental proceedings against the applicant had been received. Memorandum dated 21.11.2007, in pursuance of the sanction accorded by the President under rule 9 of the Rules of 1972 for departmental proceedings came to be issued, and the applicant was put to departmental trial on the following charges:
“Charge-I
Shri D.K. Sinha, ex-AD(Met.) Admn./DDO, RTC, New Delhi had submitted a proposal for approval and sanction of funds for purchase of UTM 1000 KN cap Servo Hydraulic Universal Testing Machine for Metallurgy Laboratory of RTC, New Delhi during the year 2005-06 for Rs. 14,69,400/-. After receiving sanction for funds, quotations were called for. Letters were issued to all the firms for some clarifications and in the meantime Shri D.K. Sinha sent a proposal for revised specification for purchase of another UTM 1000 kn capacity machine as he got the information that a better version of this machine with more accuracy of indicated force with additional features was available in the market. After receiving sanction from Headquarter, RTC, New Delhi, a purchase order was placed vide their letter dated 17.1.06 with M/s Ashian Engineers Co. India, 415, Suneja Tower-II, Bldg. No. 12, Distt Centre, Janak Puri, New Delhi. While processing this case Sh. D.K. Sinha violated purchase procedure given in GFR and the CVC guidelines. The two bid system (technical and commercial) was not followed by Shri D.K. Sinha for procurement of machines in this case.
By his above act Shri D.K. Sinha, ex-AD(Met) Admn./DDO, RTC, New Delhi violated Rule 3(1)(i)(ii)(iii) of CCS (Conduct) Rules, 1964.
Charge-II
Shri D.K. Sinha had drawn the money on the last day of the financial year 2005-06 for delivering the cheque to the supplier after he had fulfilled all requirements specified in the tender document. Later on, on the basis of wrong arguments and technical requirements the payment of M/s Ashian Engg. Co. India was stopped and the supplier was asked to remove machine from the office premises vide letter No. PUR/MandE/Met/2005-06/RTC/NR/3485 dated 11.7.06 after putting wrong arguments and technical requirements vide letters No. PUR/MandE/Met/2005-06/ RTC/ NR/3162dtd20.6.200 and No.PUR/MandE/Met/2005-06/RTC/NR/3200 dtd 22.6.2006.
The payment was then wrongly withheld by Shri D.K. Sinha and was released only on the orders of the former Secretary (SSIandAR).
By his above act Shri D.K. Sinha, ex-AD(Met)Admn./DDO, RTC, New Delhi violated Rule 3(1)(i) and 3(1)(iii) of CCS(Conduct) Rules, 1964.”
3. Not being satisfied only with initiation of enquiry against the applicant under rule 9 of the Rules of 1972, vide order dated 29.05.2009, the MMSME wrote to the Development Commissioner informing the latter that the name of the applicant had been placed in the list of officers of gazetted status of doubtful integrity for the year 2008. Deputy Director (Vigilance) of MMSME also informed RITES Ltd. that the name of the applicant had been included in the list of public servants of doubtful integrity and that he should not be posted in any sensitive position. Being highly aggrieved of such action taken by the respondents, the applicant, earlier in point of time, filed an Original Application bearing OA No.3031/2009 in this Tribunal, calling in question the order bringing his name in the list of public servants of doubtful integrity. The said OA was allowed by us vide order dated 11.05.2010. We may make mention of some of the observations that may be relevant for the purpose of deciding the present OA as well. The same read, thus:
“8. From the perusal of the charges leveled against the Applicant, it is seen that the first charge is regarding procedural lapses. The Applicant has not followed the two bid system. The second charge against the Applicant is that he withheld the payment of the supplier of an equipment on wrong arguments and technical requirements. However, in both the charges, there are no allegations that the lapse on the part of the Applicant led to any loss to the government or that the Applicant acted in the manner indicated in the charges for some personal gain or that he gained anything by not following the procedure and by withholding the payment of the supplier of the equipment. Clearly, therefore, there is no charge of lack of integrity against the Applicant.”
Relying upon the judgment of the Hon’ble Supreme Court in R. Venkatakrishnan v CBI [(2009) 11 SCC 737], we set aside the orders impugned in the OA aforesaid, observing as follows:
“10. Applying the aforesaid in the instant case, it would be seen that once the Applicant has resigned on 3.05.2007, he was no longer under the control of the Respondent - MMSME after his resignation on 3.05.2007 from the service of the latter and his absorption in RITES Ltd. If the Respondent - MMSME was not the Applicant’s employer in 2008, when his name was retrospectively placed in the list of public servants of doubtful integrity, it was not justified in doing so. He was not transferred to RITES. He had been absorbed there. The word `Transfer’ in the OM of 28.10.1969, adverted to above, does not have the connotation of ‘transfer on deputation’, as the Respondents are trying to imply. The instructions quoted by the learned counsel for the Respondent, which have been reproduced in the preceding paragraph, would only apply to the persons in the employment of the Respondent. While, it is provided under the Rules, namely, Rule 9 of the CCS (Pension) Rules, 1972 that departmental proceedings can be instituted on the satisfaction of the President after his retirement, yet it is not provided under any rules or instructions that name of a retired person can be placed in the list of persons of doubtful integrity.”
4. When this OA came up for hearing before us at motion stage on 02.06.2011, while issuing notice, we recorded the contention of the learned counsel representing the applicant, who inter alia urged that the enquiry that started against the applicant in 2008, had made no headway, and that no steps had been taken in the matter. Besides thus seeking the reliefs, as indicated above, on the ground of delay in culmination of the departmental proceedings against the applicant it is also urged that the proceedings under rule 9 of the Rules of 1972 would be wholly uncalled for, as the two articles of charge on which the applicant is facing the departmental enquiry would not constitute a grave misconduct or negligence, and unless the charges be of such nature, as mentioned above, there cannot be any cut in pension of a retired employee, as clearly mentioned in rule 9 itself. The matter would be contested on merits as well, and it would be primarily stated that the applicant was not at all at fault as he was only sending information regarding the quotation having been accepted or the purchase order having been cancelled by the competent authority, to the party concerned. As regards the first charge framed against the applicant, it is pleaded that the proposal for cancellation of the order, which is the origin of the disciplinary proceedings, was given by Shri A. K. Gangopadhyay, Deputy Director (Met), which was duly approved by Shri A. K. Gogia, Additional Industrial Advisor and Director, and when the file was marked to the applicant, he proposed that before issuing the cancellation order, opinion from the office of the Development Commissioner, SSI, New Delhi, may be obtained, which was, however, not acceded to by the higher authorities of the applicant. It is then pleaded that the purchase order clearly stated that ‘the quotation has been accepted by the competent authority’ and that the applicant was only sending the information regarding the same to the party concerned. Similarly, the cancellation order also bore out that ‘the undersigned is directed to state’ that the supply order was being cancelled as the party could not supply the machines as per order. Insofar as the second charge which is as regards withholding payment of the supplier of an equipment on wrong arguments and technical requirement is concerned, it is pleaded that the technical justification for cancellation was also proposed by the Deputy Director and not by the applicant. We may reproduce the pleadings made in that regard in paras 5.6 to 5.8 of the OA, thus:
“5.6 Because from the noting in the file it would appear that the proposal for cancellation of the order, which is the origin of this disciplinary proceeding, was given by Shri A. K. Gangopadhyay, Dy. Director (Met), which was duly approved by Shri A. K. Gogia, Addl. Industrial Advisor and Director and when the file was marked to the applicant, he proposed that before issuing the cancellation order opinion from the office of the Development Commissioner, SSI, New Delhi, may be obtained, which was, however, not acceded to b the higher authorities of the applicant.
5.7 Because the purchase order clearly stated that ‘the quotation has been accepted by the competent authority’ and that the applicant was only sending the information regarding the same to the party concerned. Similarly, the cancellation order also bears out that ‘the undersigned is directed to state’ that the above supply order is hereby cancelled as you could not supply the above machines as per our order.
5.8 Because so far the second charge that the applicant withheld the payment of the supplied of an equipment on wrong arguments and technical requirements is concerned, it is respectfully stated and submitted that the letters dated 20.06.2006 and 22.06.2006 were neither issued nor routed through by the applicant. The technical justification for cancellation was also proposed by the Dy. Director and not the applicant.”
The respondents in the reply filed on their behalf, as regards the pleadings made in the paras aforesaid, in the corresponding para, have mentioned as follows:
“In reply to para 5.6 to 5.8 of the O.A. it is submitted that the applicant was one of members in the purchase committee and also working as DDO. No comments.”
5. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and filed their reply contesting the cause of the applicant. The broad facts, as mentioned above, are not in dispute. During the course of arguments, we were, however, informed that by now the enquiry officer has completed the proceedings. Insofar as, the reply on merits is concerned, we have already made mention of the same hereinbefore. Since the enquiry has now been completed, we may not go into the issue of delay in concluding the same. Even though, it appears to be a case where there is no reply on merits of the controversy as well, and from the contents of the OA referred to above, it may appear, even though prima facie, that the applicant may not be at fault at all, but we may also not go into that issue. However, insofar as the contention of the learned counsel that the charges subject matter of enquiry against the applicant are such that no proceedings under rule 9 of the Rules of 1972 would be competent or admissible, is concerned, the applicant appears to be standing on a solid wicket. Rule 9 of the Rules aforesaid, insofar as the same may be relevant, reads as follows:
“9. Right of President 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 pensions shall not be reduced below the amount of rupees three hundred and seventy-five per mensem.”
Perusal of the rule aforesaid would make it clear that if no pecuniary loss is caused to the Government and the allegations are not such which may constitute grave misconduct or negligence, no proceedings for inflicting punishment, which can only be as regards cut in pension of an employee, can be initiated. Insofar as, the applicant having caused no pecuniary loss to the Government is concerned, we have already returned a finding in that regard in the earlier OA filed by the applicant, decided on 11.05.2010. We have also held that in both charges, there was no element from where it may appear that the applicant acted in the manner indicated in the charges for some personal gain, or that he gained anything by not following the procedure, and clearly, therefore, there was no charge of lack of integrity against the applicant. Delinquency, if any, has been held to be only a procedural lapse.
6. It is interesting to note that the respondents were conscious of the fact that the applicant had retired, if his technical resignation is to be treated as retirement, and were thus conscious that the proceedings against the applicant, if at all, could be initiated only under rule 9 of the Rules of 1972, and in fact proceeded under the said rule only, but would not mention in the order dated 21.11.2007 when a decision was taken to proceed against the applicant, nor in the memorandum of even date, nor even in the statement of articles of charge, that delinquency on the part of the applicant had either put the Government to loss or would constitute a grave misconduct or negligence. It is true that the statement of articles of charge would mention that the applicant had violated rule 3(1) (i), (ii) and (iii) of the CCS (Conduct) Rules, 1964, but it is too well settled a proposition of law that the specific allegations have to be opined to be such which may amount to grave misconduct or negligence on the part of the employee concerned, and only reproduction of the rule would not suffice. Be that as it may, reading of the charges reproduced above would clearly demonstrate that the applicant could not be said to have committed grave misconduct or negligence in the discharge of his official duties. We are conscious of the fact that since the enquiry has been completed, one way to look at the things would be to leave this question to be determined by the authorities. However, in the peculiar facts and circumstances of this case, when the applicant has already gone through an agonizing trial after his retirement for a period of four years or so, and the remaining exercise to be done by the respondents would be an exercise in futility, we would not choose this course. Further, a Division Bench of the High Court of Calcutta in WPST No.185 of 2010 in the matter of Gaur Chandra Sarkar v State of West Bengal and others, decided on 06.05.2010, has held that mere participation at any stage cannot debar an employee from challenging the decision of the authorities to proceed with the disciplinary proceedings even after retirement from service.
7. Finding considerable merit in the present Original Application, we allow the same. Order dated 21.11.2007 according sanction for proceeding departmentally against the applicant under rule 9 of the Rules of 1972, along with its enclosures, as mentioned above, is quashed and set aside. The applicant shall be entitled to all consequential reliefs. If any post-retiral dues of the applicant have been withheld because of the pending enquiry, the same shall be made over to him forthwith. There shall, however, be no order as to costs.