Removal from service after 498a conviction
sanjeev kumar
(Querist) 16 October 2016
This query is : Resolved
D/Sir,
I have been convicted for 1 yr SI and subsequently my employer has removed me from service with no financial benefits.Appeal to the appellate auth also declined.Am I eligible for any benefits?Appeal pending in the HC.
regrdas
Kumar Doab
(Expert) 16 October 2016
The disciplinary authority, appellate authority seems to have acted in accordance with service rules.
You have approached Court.
Court shall decide on merits.
What is the opinion of your own counsel that has seen all docs on record and is well versed with facts of the matter, service rules, precedence's etc.....!
Kuummaar AS
(Expert) 16 October 2016
sanjeev kumar,
Who was your employer? Have you gone through applicable service rules?
Sudhir Kumar, Advocate
(Expert) 16 October 2016
Thuo you did not state yet it appears that you were Govt employee. Pz tell if I am right
Advocate M.Bhadra
(Expert) 16 October 2016
File a Writ Petition In High Court for re-instate in Service if not yet done by your department. But you would not get the benefit of dismissal period.
In the year 1913 in a case Tamal Sen Vs.Food Corporation of India the Calcutta High Court held that a person is not entitled to back wages for the period during which he was out of service due to dismissal from service by reason of his conviction under Section 498A of the Indian Penal Code and subsequent reinstatement in service upon his acquittal by the Appellate Court.
In this Case the Petitioner was an employee of Food Corporation of India. FCI had dismissed him from Service on his conviction U/S 498A IPC, invoking the provision of Regulation 63(1) of the Food Corporation of India (Staff) Regulations, 1971. Subsequently, petitioner was found not guilty of the charge under Section 498A of the IPC by the Appellate Court. By an order dated 14 January, 2013, the petitioner was reinstated in service. It was stated in the said order that the period of the petitioner’s absence in service from the date of dismissal till the date of reinstatement will be treated as non-duty for all purposes and for that period he will not be entitled to any back wages/yearly increments, seniority and will not earn any kind of leave.
Rajendra K Goyal
(Expert) 16 October 2016
Discuss with lawyer expert in service matters, show him full case papers and explore the possibility of moving legally if merits exists.
Devajyoti Barman
(Expert) 16 October 2016
Conviction in 498A case is valid ground for removal of service.
Your financial grants can also be denied.
It all depends on the result of DP.
In any event you can challenge the finding of DP in the proper forurm or in high court if your service so permits.
Kuummaar AS
(Expert) 16 October 2016
sanjeev kumar
Don't remain silent after raising the query.
Rajendra K Goyal
(Expert) 16 October 2016
In the given facts agree with the expert Devajyoti Barman.
Kuummaar AS
(Expert) 17 October 2016
sanjeev kumar,
YOU WERE ASKED THE FOLLOWING QUESTIONS AND LATER ON ASKED NOT TO remain silent after raising the query.
Who was your employer? Have you gone through applicable service rules?
WHY ARE YOU STILL MAINTAINING SILENCE?
Sudhir Kumar, Advocate
(Expert) 17 October 2016
He said he is convicted. May not be having access to internet now.
Rajendra K Goyal
(Expert) 17 October 2016
May be the reason mentioned by the expert Sudhir Kumar.
P. Venu
(Expert) 17 October 2016
There does not appear to be any solution unless the conviction is set aside.
'Appeal pending in the HC' Please specify whether it is the appeal against conviction or against removal from service.
Kumar Doab
(Expert) 17 October 2016
The author may respond and post full details.
Guest
(Expert) 17 October 2016
Exoneration by the court in your appeal case is the only solution to get reinstated in the job with past service benefits.
Dr J C Vashista
(Expert) 18 October 2016
Your lawyer is well aware about your case u/s 498A IPC wherein you were convicted/ sentenced 1 year simple imprisonment as stated by you, discuss the case of reinstatement in service if s/he has been in practice for service matters as well, otherwise consult some other local advocate practicing service cases.
Rajendra K Goyal
(Expert) 18 October 2016
It seems the author does not seem to be interested to provide information.
sanjeev kumar
(Querist) 19 October 2016
D/Law Experts,
Thanks for your kind response.My employer was BSNL(PSU).My appeal against conviction u/s 498a is pending in the HC Chg.I was a regular employee.Convicted u/s 498a in 2012 and removed from service in 2014 under BSNL CDA Rules which are replica of CCS rules.Appeal to the competent authority declined in 2016.
Guest
(Expert) 19 October 2016
Dear Sanjeev Kumar,
In a case of conviction by the court of law, the Disciplinary Authority is bound to dismiss the employee. No discretion has been given to the Disciplinary Authority. That is why, I have pointed out that exoneration by the court in your appeal case is the only solution to get reinstated in the job with past service benefits.
So, better fight the appeal case very effectively to win the case through some competent lawyer, who may be perfect in family laws.
Dr J C Vashista
(Expert) 19 October 2016
Since the departmental inquiry has failed to consider the fact that the delinquent officer was convicted on the basis of charges proved u/s 498A IPC, which do not involve any moral turpitude, hence your case against termination/dismissal from service is liable to be set aside.
What is the opinion/advise of your lawyer?
Have you lost faith in your lawyer? If yes, change him/her immediately otherwise, do not depend upon the opinion/advise of some/any other advocate (including experts on this platform, since they do form their opinion on the basis of limited knowledge of facts).
Besides this, two cooks spoil the meals, remember the maxim, which is time tested and scientifically proved.
P. Venu
(Expert) 19 October 2016
I am of the considered opinion that it cannot be said that a conviction under Section 498A does not involve moral turpitude. As such, the only option for the author is to get his conviction set aside in the Appeal, that too on merits.
Kumar Doab
(Expert) 19 October 2016
Engage a very able counsel specializing in such/service matters and get relief from court.
Rajendra K Goyal
(Expert) 19 October 2016
agree with the expert P.S. Dhingra, Dr J C Vashista, P.Venu.
sanjeev kumar
(Querist) 19 October 2016
Thanks to all law veterans who spared their precious time and gave me valuable suggestions/guidelines.I have full faith on my lawyer but he does not deal service matters.Thanks again to all.
warm regards
sanjeev kumar
Kumar Doab
(Expert) 19 October 2016
You are welcome.
If you feel you may propose to your lawyer to discuss with a very counsel specializing in service matters.
Rajendra K Goyal
(Expert) 19 October 2016
You should discuss with a lawyer expert in service matters.
Sudhir Kumar, Advocate
(Expert) 19 October 2016
498a will involve moral turpitude.
further the allegations under 498a besides being criminal misconduct are also professional misconduct for govt servant and the person can be removed/dismissed even before conviction without waiting for court orders (but after following procedure of chargesheet and Inquiry).
Notwithstanding above.
Conviction is there and any conviction is sufficient ground for removal/dismissal without chargesheet.
dev kapoor
(Expert) 21 October 2016
Hi
All said by experts here is 'well said'. Please note that in the certain RULES 'unless one is convicted on offence of "moral turpitude",he shall not be removed from service.Study rules applicable in your case.There are however judgments also which say so.
This apart, it appears you are 'on bail'& obviously therefore operation of subordinate courts judgments must have been stayed thereby suspending your sentence/conviction till final disposal pof appeal.In that event your employer cannot order your suspension or dismissal from service.Let your case be reconsidered/reviewed on the analogy that 'there is no conviction'. This is possible in case HC has suspended sentence.
Take care...
dev kapoor
(Expert) 21 October 2016
Hello Mr.Bhadra/Expert, please ensure the citation is mentions correct year ? Ist it a reported judgment Sir?
Hv a Good Day..
Rajendra K Goyal
(Expert) 21 October 2016
Agree with the advice from expert Sudhir Kumar.
Kumar Doab
(Expert) 21 October 2016
Engage a very able counsel specializing in such/service matters and get relief from court.
I have sent you a link.
You may pick up relevant points.
Sudhir Kumar, Advocate
(Expert) 21 October 2016
Mr Dev Kapoor said
"Please note that in the certain RULES 'unless one is convicted on offence of "moral turpitude",he shall not be removed from service."
I shall be greateful if he could enhance my knowledge regarding such rules.
All that I know that Rule 19 of CCS(CC&A) Rules 1965 provides that :-
19. Special procedure in certain cases
Notwithstanding anything contained in rule 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 a 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 given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under clause (i)
Rule 19 (i) is attracted merely on "conviction on a criminal charge". There is no need that the charge should also involve moral turpitude as well.
Rajendra K Goyal
(Expert) 21 October 2016
For CCS(CC&A) Rules 1965 You can ask a copy through RTI / can purchase from book shop.
Guest
(Expert) 21 October 2016
I endorse the statement of Shri Sudhir Kumar.
Guest
(Expert) 21 October 2016
There is no need to ask a copy of CCS (CCA) Rules through RTI, as besides a time taking job, would also would cost more through RTI.
CCS (CCA) Rules are available on a petty price from all the booksellers dealing with the Government of India publications.
Kuummaar AS
(Expert) 21 October 2016
THE RULES ARE NEVER PROVIDED UNDER RTI BY THE GOVERNMENT AUTHORITIES.
Kumar Doab
(Expert) 22 October 2016
You may pick up relevant points, from the thread and links sent to you.
Engage a very able counsel specializing in such/service matters and get relief from court.
Guest
(Expert) 22 October 2016
I have already advised, better fight the appeal case very effectively to win the case through some competent lawyer, who may be perfect in family laws.
Your service problem is secondary issue to the family problem case, as your reinstatement in service depends solely upon your honourable acquittal in the criminal case against you.
Rajendra K Goyal
(Expert) 22 October 2016
Can be benefited from the advice from expert P.S. Dhingra.
dev kapoor
(Expert) 22 October 2016
Hi friends,
Conviction under section 498-A IPC has nothing to do with the employment of of any persons like cases of corruption,rape etc.It is a matter between husband and wife and/or other kith and kin of the spouses.I only offered a legal proposition that if it is not a case of 'moral turpitude', why there should be an ouster of an employee.Conviction does not ipso fact and must not have draconian consequences like employees' ouster from service whereas conviction or charge has nothing to do with employees job.
Lets think ORIGINAL & interpret Rules liberally(in favour of employee).
Reading following judgment between lines and interpreting it in right perspectives swill certainly support my view....
********
Kerala High Court
Ibrahim Kannu vs State Of Kerala on 28 October, 2005
Equivalent citations: 2005 (4) KLT 1034
Author: K Radhakrishnan
Bench: K Radhakrishnan, K Sankaran
JUDGMENT K.S. Radhakrishnan, J.
1. Removal of a government servant from service on the ground of conviction for an offence punishable under Section 138 of the Negotiable Instruments Act be not sustained for the reason that it is not an offence involving moral turpitude is the question that has been referred to us for consideration.
2. Learned Judge referred this case expressing some doubts with regard to the correctness or otherwise of the reasoning of another learned Judge of this Court in OP.No. 10336 of 2002. Petitioner in this case challenges Ext.P3 order of dismissal dated 13-12-2004 placing reliance on the judgment in OP.10336 of 2002. Learned single Judge felt that there cannot be a blanket declaration of law that the disciplinary authority shall not impose the penalty of dismissal or removal from service or any other major penalty on the sole ground that the conviction was for an offence punishable under Section 138 of the Negotiable Instruments Act. Learned single Judge pointed out neither Article 311 of the Constitution of India nor Rule 18 of the K.C.S. (C.C. & A) Rules speaks about "moral turpitude" and those provisions do not classify offences as those involving moral turpitude and those not involving moral turpitude. Learned single Judge pointed out that what is provided in Rule 18 of the K.C.S. (CC &A) Rules, 1960 is that circumstances of the case shall be taken into account and therefore a wide proposition that the disciplinary authority is not legally entitled to impose penalty of dismissal or removal from service or any other major penalty on the sole ground that the conviction was for an offence punishable under Section 138 of the Act is an over statement of law.
3. Petitioner was accused in S.T. 134 of 2001. He had borrowed a sum of Rs. 60,000/- from the complainant and issued a cheque for the same on 19-5-2001. Complainant had presented the cheque for encashment which was bounced, which led the filing of a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act. Criminal court found that the petitioner was guilty of the offence and sentenced to undergo simple imprisonment for a period of six months and to pay Rs. 60,000/- as compensation to the complainant under Section 357(3) of the Code of Criminal Procedure. Later order dated 13-12-2004 was passed by the second respondent dismissing the petitioner from service since he was convicted by the criminal court, the legality of which is under challenge in this Writ Petition.
4. Counsel appearing for the writ petitioner Sri. V.S. Sudheer placing reliance on a Division Bench judgment of this Court reported in Saseendran Nair v. General Manager, 1996 (2) KLT 432 contended that the act of issuing a cheque without sufficient funds is not generally regarded as morally wrong or corrupt and that the offence under Section 138 would not normally involve moral turpitude. Counsel also placed reliance on the decision of this Court in State of Kerala v. Mohanan, 2000 (1) KLT 129 and contended that the impugned order is illegal due to violation of principles of natural justice since he was not given an opportunity to file objections against the order of dismissal.
5. Learned Government Pleader tried to sustain the order stating that as per sub-Clause (a) of the second proviso to Clause (2) of Article 311 of the Constitution of India no notice is to be served or no opportunity of being heard be given where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. Further counsel also submitted that if a government servant is convicted by a criminal court it is always open to the department to dismiss him or remove him from service or to impose any other punishment, for which no opportunity of being heard need be given.
6. Article 311 of the Constitution of India deals with dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State. Article 311 (2) states that no such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Second proviso to Article 311 (2) however stipulates that where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge it shall not be necessary to give such person any opportunity of making representation on the penalty proposed. Proviso (2)(a) to Article 311 therefore makes it clear that an officer who was convicted on a criminal charge is liable to dismissal without any further proceeding under Article 311 (2). It includes conviction under any law which provides for punishment for a criminal offence. Article 311 does not make any distinction between crimes involving moral turpitude and other crimes or statutory offences.
7. The Supreme Court in Union of India v. Tulsiram Patel, and in Deputy Director of Collegiate Education (Admn.), Madras, has taken the view that the charge in the criminal case must relate to a misconduct of such magnitude as would have deserved the penalty of dismissal, removal or reduction in rank. Apex Court in Sankar Dass v. Union of India, and in Divisional Personal Officer, Southern Railway v. Challappan T.R. held that the proviso to Article 311 is merely an enabling provision and does not enjoin the disciplinary authority to impose the extreme penalty of dismissal in every case of conviction for trivial offences or technical offences involving 'moral turpitude'. Since punishment is grave the authority must consider whether, in view of the conviction, what penalty, if at all, should be imposed on the delinquent employee. Authority, evidently, will have to take into account the entire conduct of the employee, the gravity of the misconduct committed by him; the impact which his misconduct is likely to have on the administration, and other extenuating circumstances. Rule 18 of the Kerala Civil Services (Classification, Control and Appeal) Rules 1960 provides that where a penalty is imposed on a government servant on the ground of conduct which had led to his conviction on a criminal charge, the procedure prescribed in Rule 15, 16 and 17 of the aforesaid Rules need not be followed. Rule 18 further says that the disciplinary authority may consider the circumstances of the case and pass such orders thereon as he deems fit. Rule 18 of the Kerala Civil Services (C.C. & A) Rules, 1960 provides that before imposing penalty, the disciplinary authority has to consider the circumstances of the case. Neither Article 311 of the Constitution of India nor Rule 18 of the K.C.S. (CC & A) Rules speaks about "moral turpitude". Article 311 and Rule 18 would not confer any arbitrary power on the disciplinary authority, but before imposing punishment necessarily they have to take into consideration all relevant circumstances.
8. Division Bench of this Court in Saseendran 's case (supra) has only stated that the act of issuing a cheque without sufficient funds is not generally regarded as morally wrong or corrupt and that the offence under Section 133 will not normally involve moral turpitude. Holding so, the court held as follows:.
"We approve the said principle and hold that the question whether an offence would involve moral turpitude has to be decided on the facts of each case. All offences do not necessarily involve moral turpitude. Section 138 of the Act is no exception to the said principle. On the facts of the case, we find no scope for holding that the offence found against the appellant has any reflection of moral turpitude."
We also notice that while affirming the judgment in OP. 10336 of 2002 the Division Bench in K.S.R.T.C. v. Abdul Latheef, 2005 (3) KLT 955 held as follows:
"Even if there was conviction, under Rule 18 of the Rules, it was incumbent on the appointing authority to consider the circumstances as to the misconduct which lead to the conviction and to pass appropriate orders. Every cases of conviction shall not result in dismissal.
When the requirement in Section 138 of the Negotiable Instruments Act is satisfied, one will be deemed to have committed offence. It is only a deeming provision. Offence under Section 138 of the Act being an offence in the commercial practice cannot be taken as one involving moral turpitude, in the absence of any other cogent material to discern moral turpitude. No such special-circumstance is pointed out by the appellant. In such circumstances also the direction to reinstate the first respondent cannot be said to be unjustified."
We therefore notice that while affirming the judgment in OP.103 36 of 2002 the Division Bench has also held that offence under Section 138 of the Act being an offence in the commercial practice cannot be taken as one involving moral turpitude in the absence of any other cogent material to discern moral turpitude. We therefore find that the Division Bench has not fully supported the view expressed by the learned single Judge in OP. 10336 of 2002.
9. We are of the view, the reasoning of the learned single Judge that a government servant cannot be removed or dismissed from service for the sole reason that he has been found guilty under Section 138 of the Act is an over statement of law. In our view it would depend upon several factors including conduct of the employee, gravity of the misconduct, the impact of the misconduct on the administration and other extenuating circumstances. Further reasoning of the learned single Judge that a conviction in a case for an offence punishable under Section 138 cannot be treated as moral turpitude or as a blot on the character or conduct of an employee disentitling him to continue in the service of the Government is also not a correct proposition of law. We reiterate that would depend upon facts and circumstances of each case.
10. Further we may add, so far as this case is concerned the authorities have not applied their mind as to whether this is a fit case warranting dismissal of the petitioner from service. Counsel submitted that the petitioner was not given an opportunity of being heard before dismissing him from service and there was no application of mind by the authorities while passing Ext.P3 order which goes contrary to the dictum laid down by the Division Bench in Mohanan's case (supra). Under such circumstance we set aside Ext.P3 order and direct the second respondent to reconsider the question as to whether the conviction ordered by the criminal court under Section 138 of the Negotiable Instruments Act would warrant dismissal of petitioner from service. Second respondent would pass fresh orders with notice to the petitioner within a period of two months from the date of receipt of a copy of this judgment.
Writ Petition is therefore allowed as above and the question referred is answered accordingly.
%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
CENTRAL CIVIL SERVICES
(CLASSIFICATION, CONTROL & APPEAL) RULES, 1965
(3) How suspension is to be regulated during pendency of criminal proceedings, arrests, detention etc.
The case of suspension during pendency of criminal proceedings or proceeding for arrest, for debt or during detention under a law providing for preventive detention, shall be dealt with in the following manner hereafter :-
(a) A Government servant who is detained in custody under any law providing for preventive detention or a result of a proceeding either on a criminal charge or for his arrest for debt shall if the period of detention exceeds 48 hours and unless he is already under suspension, be deemed to be under suspension from the date of detention until further orders as contemplated in rule 10 (2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Government servants who is undergoing a sentence of imprisonment shall be also dealt with in the same manner pending decision on the disciplinary action to be taken against him.
(b) A Government servant against whom a proceeding has been taken on a criminal charge but who is not actually detained in custody (e.g., a person released on bail) may be placed under suspension by an order of the competent authority under clause (b) of Rule 10 (1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. If the charge is connected with the official position of the Government servant or involving any moral turpitude on his part, suspension shall be ordered under this rule unless there are exceptional reasons for not adopting this course.
And interpreting other rules thereunder.
GOOD NIGHT
dev kapoor
(Expert) 22 October 2016
Contd..
This judgment can also render fruitful assistance in interpret ting "moral turpitude"..
Delhi High Court
Sanjay Prasad vs Union Of India & Anr. on 19 September, 2011
Author: Dipak Misra,Chief Justice.
...
I have said that there is catena of judgments/law/rules that can be interpreted that in case conviction does not involve 'moral turpitude an employee,he may not be necessarily ousted from service.
Thanks.
Regards
Guest
(Expert) 22 October 2016
Dear Dev Kapoor,
I may like to point out that any judgment cannot alter the provisions of statutory rules, unless judgment renders the provision of any such rule as unconstitutional or the executive issues appropriate order for implementation in general through the Government of India decision or that of the concerned state. There are clear orders for the Disciplinary Authority to dismiss/ terminate an employee if convicted in any criminal case by the court of law.
Sudhir Kumar, Advocate
(Expert) 23 October 2016
read the case quoted Mr Dev Kapoor.
In that case the appellant was released on probation yet the removal from service is upheld.
Sudhir Kumar, Advocate
(Expert) 23 October 2016
agreeing with Mr Dhingra I will recall Rule 19 wherein "conviction" is the ground for imposing penalty and there is no need to prove "conviction on moral turpitude".
The petitioner should now waste money to challenge removal without getting the sentence quashed.
sanjeev kumar
(Querist) 23 October 2016
Sir,
There is one SC judgement.
Page 1
C.A. No.6770/2013 @ SLP (C) No. 1427 of 2009
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6770 OF 2013
(Arising out of Special Leave Petition (Civil) No. 1427 of 2009)
State of Jharkhand & Ors. ….. Appellant(s)
Vs.
Jitendra Kumar Srivastava & Anr. …..Respondent(s)
WITH
C.A. No. 6771/2013
(arising out of SLP(C) No. 1428 of 2009)
J U D G M E N T
A.K. Sikri, J
1. Leave granted.
2. Crisp and short question which arises for consideration in these cases
is as to whether, in the absence of any provision in the Pension Rules, the
State Government can withhold a part of pension and/or gratuity during the
pendency of departmental/ criminal proceedings? The High Court has -
answered this question, vide the impugned judgment, in the negative and
hence directed the appellant to release the withheld dues to the respondent.
1
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C.A. No.6770/2013 @ SLP (C) No. 1427 of 2009
Not happy with this outcome, the State of Jharkhand has preferred this
appeal.
3. For the sake of convenience we will gather the facts from Civil Appeal
arising out of SLP(Civil) No. 1427 of 2009. Only facts which need to be
noted, giving rise to the aforesaid questions of law, are the following:
The respondent was working in the Department of Animal Husbandry
and Fisheries. He joined the said Department in the Government of Bihar on
2.11.1966. On 16.4.1996, two cases were registered against him under
various Sections of the Indian Penal Code as well as Prevention of
Corruption Act, alleging serious financial irregularities during the years
1990-1991, 1991-1992 when he was posted as Artificial Insemination
Officer, Ranchi. On promulgation of the Bihar Reorganisation Act, 2000,
State of Jharkhand (Appellant herein) came into existence and the
Respondent became the employee of the appellant State. Prosecution, in
respect of the aforesaid two criminal cases against the respondent is pending.
On 30th January, 2002, the appellant also ordered initiation of disciplinary
action against him. While these proceedings were still pending, on attaining
-
2
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C.A. No.6770/2013 @ SLP (C) No. 1427 of 2009
the age of superannuation, the respondent retired from the post of Artificial
Insemination Officer, Ranchi on 31.08.2002. The appellant sanctioned the
release and payment of General Provident Fund on 25.5.2003. Thereafter, on
18.3.2004, the Appellant sanctioned 90 percent provisional pension to the
respondent. Remaining 10 percent pension and salary of his suspension
period (30.1.2002 to 30.8.2002) was withheld pending outcome of the
criminal cases/ departmental inquiry against him. He was also not paid leave
encashment and gratuity.
4. Feeling aggrieved with this action of the withholding of his 10 percent
of the pension and non-release of the other aforesaid dues, the respondent
preferred the Writ Petition before the High Court of Jharkhand. This Writ
Petition was disposed of by the High Court by remitting the case back to the
Department to decide the claim of the petitioner for payment of provisional
pension, gratuity etc. in terms of Resolution No. 3014 dated 31.7.1980. The
appellant, thereafter, considered the representation of the respondent but
rejected the same vide orders dated 16.3.2006. The respondent challenged
the rejection by filing another Writ Petition before the High Court. The said
petition was dismissed by the learned Single Judge. The respondent filed
3
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C.A. No.6770/2013 @ SLP (C) No. 1427 of 2009
Intra Court Appeal which has been allowed by the Division Bench vide the
-
impugned orders dated 31.10.2007. The Division Bench has held that the
question is squarely covered by the full Bench decision of that Court in the
case of Dr. Dudh Nath Pandey vs. State of Jharkhand and Ors. 2007 (4)
JCR 1. In the said full Bench Judgment dated 28.8.2007, after detailed
discussions on the various nuances of the subject matter, the High Court has
held:
“ To sum up the answer for the two questions are as follows:
(i) Under Rule 43(a) and 43(b) of Bihar Pension Rules, there
is no power for the Government to withhold Gratuity and
Pension during the pendency of the departmental
proceeding or criminal proceeding. It does not give any
power to withhold Leave Encashment at any stage either
prior to the proceeding or after conclusion of the
Proceeding.
(ii) The circular, issued by the Finance Department, referring
to the withholding of the leave encashment would not
apply to the present facts of the case as it has no sanctity
of law”.
5. Mr. Amarendra Sharan, the learned Senior Counsel appearing for the
petitioner accepted the fact that in so far as the Pension Rules are concerned,
there is no provision for withholding a part of pension or gratuity. He,
however, submitted that there are administrative instructions which permit
4
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C.A. No.6770/2013 @ SLP (C) No. 1427 of 2009
withholding of a part of pension and gratuity. His submission was that when
the rules are silent on a particular aspect, gap can be filled by the -
administrative instructions which was well settled legal position, laid down
way back in the year 1968 by the Constitution Bench Judgment of this Court
in Sant Ram Sharma vs. Union of India 1968 (1) SCR 111. He, thus, argued
that the High Court has committed an error in holding that there was no
power with the Government to withhold the part of pension or gratuity,
pending disciplinary/criminal proceedings.
6. The aforesaid arguments of the learned Senior Counsel based on the
judgment in Sant Ram Sharma would not cut any ice in so far as present
case is concerned, because of the reason this case has no applicability in the
given case. Sant Ram judgment governs the field of administrative law
wherein the Constitution Bench laid down the principle that the rules framed
by the authority in exercise of powers contained in an enactment, would also
have statutory force. Though the administration can issue administrative
instructions for the smooth administrative function, such administrative
instructions cannot supplant the rules. However, these administrative
instructions can supplement the statutory rules by taking care of those
5
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C.A. No.6770/2013 @ SLP (C) No. 1427 of 2009
situations where the statutory rules are silent. This ratio of that judgment is
narrated in the following manner:
“It is true that there is no specific provision in the Rules laying
down the principle of promotion of junior or senior grade -
officers to selection grade posts. But that does not mean that
till statutory rules are framed in this behalf the Government
cannot issue administrative instructions regarding the principle
to be followed in promotions of the officers concerned to
selection grade posts. It is true that Government cannot amend
or supersede statutory rules by administrative instructions, but
if the rules are silent on any particular point Government can
fill up the gaps and supplement the rules and issue instructions
and inconsistent with the rules already framed”.
There cannot be any quarrel on this exposition of law which is well
grounded in a series of judgments pronounced post Sant Ram Sharma case
as well. However, the question which is posed in the present case is
altogether different.
7. It is an accepted position that gratuity and pension are not the
bounties. An employee earns these benefits by dint of his long, continuous,
faithful and un-blemished service. Conceptually it is so lucidly described in
D.S. Nakara and Ors. Vs. Union of India; (1983) 1 SCC 305 by Justice D.A.
Desai, who spoke for the Bench, in his inimitable style, in the following
words:
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“The approach of the respondents raises a vital and none too
easy of answer, question as to why pension is paid. And why
was it required to be liberalised? Is the employer, which
expression will include even the State, bound to pay pension?
Is there any obligation on the employer to provide for the
erstwhile employee even after the contract of employment has
come to an end and the employee has ceased to render service?
-
What is a pension? What are the goals of pension? What
public interest or purpose, if any, it seeks to serve? If it does
seek to serve some public purpose, is it thwarted by such
artificial division of retirement pre and post a certain date? We
need seek answer to these and incidental questions so as to
render just justice between parties to this petition.
The antiquated notion of pension being a bounty a gratituous
payment depending upon the sweet will or grace of the
employer not claimable as a right and, therefore, no right to
pension can be enforced through Court has been swept under
the carpet by the decision of the Constitution Bench in Deoki
Nandan Prasad v. State of Bihar and Ors.[1971] Su. S.C.R. 634
wherein this Court authoritatively ruled that pension is a right
and the payment of it does not depend upon the discretion of
the Government but is governed by the rules and a Government
servant coming within those rules is entitled to claim pension.
It was further held that the grant of pension does not depend
upon any one’s discretion. It is only for the purpose of
quantifying the amount having regard to service and other allied
maters that it may be necessary for the authority to pass an
order to that effect but the right to receive pension flows to the
officer not because of any such order but by virtue of the rules.
This view was reaffirmed in State of Punjab and Anr. V. Iqbal
Singh (1976) IILLJ 377SC”.
8. It is thus hard earned benefit which accrues to an employee and is in
the nature of “property”. This right to property cannot be taken away
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without the due process of law as per the provisions of Article 300 A of the
Constitution of India.
9. Having explained the legal position, let us first discuss the rules
relating to release of Pension. The present case is admittedly governed by -
Bihar Pension Rules, as applicable to the State of Jharkhand. Rule 43(b) of
the said Pension Rules confers power on the State Government to withhold
or withdraw a pension or part thereof under certain circumstances. This
Rule 43(b) reads as under:
“43(b) The State Government further reserve to themselves the
right of withholding or withdrawing a pension or any part of it,
whether permanently or for specified period, and the right of
ordering the recovery from a pension of the whole or part of
any pecuniary loss caused to Government if the pensioner is
found in departmental or judicial proceeding to have been
guilty to grave misconduct, or to have caused pecuniary loss to
Government misconduct, or to have caused pecuniary loss to
Government by misconduct or negligence, during his service
including service rendered on re-employment after retirement”.
From the reading of the aforesaid Rule 43(b), following
position emerges:-
(i) The State Government has the power to withhold or
withdraw pension or any part of it when the pensioner is
found to be guilty of grave misconduct either in a
departmental proceeding or judicial proceeding.
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(ii) This provision does not empower the State to invoke the
said power while the department proceeding or judicial
proceeding are pending.
(iii) The power of withholding leave encashment is not
provided under this rule to the State irrespective of the
result of the above proceedings.
(iv) This power can be invoked only when the proceedings
are concluded finding guilty and not before.
10. There is also a Proviso to Rule 43(b), which provides that:-
“A. Such departmental
proceedings, if not instituted while the Government
Servant was on duty either before retirement or during
re-employment.
i. Shall not be instituted save with the sanction
of the State Government.
ii Shall be in respect of an event which took
place not more than four years before the
institution of such proceedings.
iii Shall be conducted by such authority and at
such place or places as the State
Government may direct and in accordance
with the procedure applicable to proceedings
on which an order of dismissal from service
may be made:-
B. Judicial proceedings, if not instituted while the
Government Servant was on duty either before retirement
or during re-employment shall have been instated in
accordance with sub clause (ii) of clause (a) and
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C. The Bihar Public Service Commission, shall be
consulted before final orders are passed.
It is apparent that the proviso speaks about the institution of
proceedings. For initiating proceedings, Rule 43(b) puts some conditions,
i.e, Department proceeding as indicated in Rule 43(b), if not instituted while
the Government Servant was on duty, then it shall not be instituted except:-
(a) With the sanction of the Government,
-
(b) It shall be in respect of an event which took place
not more than four years before the institution of
the proceedings.
(c) Such proceedings shall be conducted by the
enquiry officer in accordance with the proceedings
by which dismissal of the services can be made.
Thus, in so far as the proviso is concerned that deals with condition
for initiation of proceedings and the period of limitation within which such
proceedings can be initiated.
11. Reading of Rule 43(b) makes it abundantly clear that even after the
conclusion of the departmental inquiry, it is permissible for the Government
to withhold pension etc. ONLY when a finding is recorded either in
departmental inquiry or judicial proceedings that the employee had
committed grave misconduct in the discharge of his duty while in his office.
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There is no provision in the rules for withholding of the pension/ gratuity
when such departmental proceedings or judicial proceedings are still
pending.
12. Right to receive pension was recognized as right to property by the
Constitution Bench Judgment of this Court in Deokinandan Prasad vs. State
of Bihar; (1971) 2 SCC 330, as is apparent from the following discussion:
“29. The last question to be considered, is, whether the right to
receive pension by a Government servant is property, so as to attract
Articles 19(1)(f) and 31(1) of the Constitution. This question falls to
be decided in order to consider whether the writ petition is
maintainable under Article 32. To this aspect, we have already
adverted to earlier and we now proceed to consider the same.
30. According to the petitioner the right to receive pension is
property and the respondents by an executive order dated June 12,
1968 have wrongfully withheld his pension. That order affects his
fundamental rights under Articles 19(1)(f) and 31(1) of the
Constitution. The respondents, as we have already indicated, do not
dispute the right of the petitioner to get pension, but for the order
passed on August 5, 1966. There is only a bald averment in the
counter-affidavit that no question of any fundamental right arises for
consideration. Mr. Jha, learned counsel for the respondents, was not
prepared to take up the position that the right to receive pension
cannot be considered to be property under any circumstances.
According to him, in this case, no order has been passed by the State
granting pension. We understood the learned counsel to urge that if
the State had passed an order granting pension and later on resiles
from that order, the latter order may be considered to affect the
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petitioner's right regarding property so as to attract Articles 19(1)
(f) and 31(1) of the Constitution.
31. We are not inclined to accept the contention of the learned
counsel for the respondents. By a reference to the material
provisions in the Pension Rules, we have already indicated that the
grant of pension does not depend upon an order being passed by the
authorities to that effect. It may be that for the purposes of
quantifying the amount having regard to the period of service and
other allied matters, it may be necessary for the authorities to pass an
order to that effect, but the right to receive pension flows to an
officer not because of the said order but by virtue of the Rules. The
Rules, we have already pointed out, clearly recognise the right of
persons like the petitioner to receive pension under the
circumstances mentioned therein.
32. The question whether the pension granted to a public servant is
property attracting Article 31(1) came up for consideration before the
Punjab High Court in Bhagwant Singh v. Union of India A.I.R. 1962
Pun 503. It was held that such a right constitutes "property" and any
interference will be a breach of Article 31(1) of the Constitution. It
was further held that the State cannot by an executive order curtail or
abolish altogether the right of the public servant to receive pension.
This decision was given by a learned Single Judge. This decision
was taken up in Letters Patent Appeal by the Union of India. The
Letters Patent Bench in its decision in Union of India v. Bhagwant
Singh I.L.R. 1965 Pun 1 approved the decision of the learned Single
Judge. The Letters Patent Bench held that the pension granted to a
public servant on his retirement is "property" within the meaning of
Article 31(1) of the Constitution and he could be deprived of the
same only by an authority of law and that pension does not cease to
be property on the mere denial or cancellation of it. It was further
held that the character of pension as "property" cannot possibly
undergo such mutation at the whim of a particular person or
authority.
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33. The matter again came up before a Full Bench of the Punjab
and Haryana High Court in K.R. Erry v. The State of Punjab I.L.R.
1967 P & H 278. The High Court had to consider the nature of the
right of an officer to get pension. The majority quoted with approval
the principles laid down in the two earlier decisions of the same
High Court, referred to above, and held that the pension is not to be
treated as a bounty payable on the sweet will and pleasure of the
Government and that the right to superannuation pension including
its amount is a valuable right vesting in a Government servant It was
further held by the majority that even though an opportunity had
already been afforded to the officer on an earlier occasion for
showing cause against the imposition of penalty for lapse or
misconduct on his part and he has been found guilty, nevertheless,
when a cut is sought to be imposed in the quantum of pension
payable to an officer on the basis of misconduct already proved
against him, a further opportunity to show cause in that regard must
be given to the officer. This view regarding the giving of further
opportunity was expressed by the learned Judges on the basis of the
relevant Punjab Civil Service Rules. But the learned Chief Justice in
his dissenting judgment was not prepared to agree with the majority
that under such circumstances a further opportunity should be given
to an officer when a reduction in the amount of pension payable is
made by the State. It is not necessary for us in the case on hand, to
consider the question whether before taking action by way of
reducing or denying the pension on the basis of disciplinary action
already taken, a further notice to show cause should be given to an
officer. That question does not arise for consideration before us. Nor
are we concerned with the further question regarding the procedure,
if any, to be adopted by the authorities before reducing or
withholding the pension for the first time after the retirement of an
officer. Hence we express no opinion regarding the views expressed
by the majority and the minority Judges in the above Punjab High
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Court decision, on this aspect. But we agree with the view of the
majority when it has approved its earlier decision that pension is not
a bounty payable on the sweet will and pleasure of the Government
and that, on the other hand, the right to pension is a valuable right
vesting in a government servant.
34. This Court in State of Madhya Pradesh v. Ranojirao Shinde
and Anr. MANU/SC/0030/1968 : [1968]3SCR489 had to consider
the question whether a "cash grant" is "property" within the meaning
of that expression in Articles 19(1)(f) and 31(1) of the Constitution.
This Court held that it was property, observing "it is obvious that a
right to sum of money is property".
35. Having due regard to the above decisions, we are of the
opinion that the right of the petitioner to receive pension is property
under Article 31(1) and by a mere executive order the State had no
power to withhold the same. Similarly, the said claim is also property
under Article 19(1)(f) and it is not saved by Sub-article (5) of
Article 19. Therefore, it follows that the order dated June 12, 1968
denying the petitioner right to receive pension affects the
fundamental right of the petitioner under Articles 19(1)
(f) and 31(1)of the Constitution, and as such the writ petition under
Article 32 is maintainable. It may be that under the Pension Act (Act
23 of 1871) there is a bar against a civil court entertaining any suit
relating to the matters mentioned therein. That does not stand in the
way of a Writ of Mandamus being issued to the State to properly
consider the claim of the petitioner for payment of pension according
to law”.
13. In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7
SCC 651, this Court recognized that even when, after the repeal of Article
19(1)(f) and Article 31 (1) of the Constitution vide Constitution (Forty-
Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property
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was no longer remained a fundamental right, it was still a Constitutional
right, as provided in Article 300A of the Constitution. Right to receive
pension was treated as right to property. Otherwise, challenge in that case
was to the vires of Rule 10(1) of the West Bengal Services (Death-cum--
Retirement Benefit) Rules, 1971 which conferred the right upon the
Governor to withhold or withdraw a pension or any part thereof under
certain circumstances and the said challenge was repelled by this Court.
Fact remains that there is an imprimatur to the legal principle that the
right to receive pension is recognized as a right in “property”.
14. Article 300 A of the Constitution of India reads as under:
“300A Persons not to be deprived of property save by
authority of law. - No person shall be deprived of his property
save by authority of law.”
Once we proceed on that premise, the answer to the question posed by
us in the beginning of this judgment becomes too obvious. A person cannot
be deprived of this pension without the authority of law, which is the
Constitutional mandate enshrined in Article 300 A of the Constitution. It
follows that attempt of the appellant to take away a part of pension or
gratuity or even leave encashment without any statutory provision and under
the umbrage of administrative instruction cannot be countenanced.
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15. It hardly needs to be emphasized that the executive instructions are
not having statutory character and, therefore, cannot be termed as “law”
within the meaning of aforesaid Article 300A. On the basis of such a
circular, which is not having force of law, the appellant cannot withhold -
even a part of pension or gratuity. As we noticed above, so far as statutory
rules are concerned, there is no provision for withholding pension or gratuity
in the given situation. Had there been any such provision in these rules, the
position would have been different.
16. We, accordingly, find that there is no merit in the instant appeals as
the impugned order of the High Court is without blemish. Accordingly, these
appeals are dismissed with costs quantified at Rs. 10,000/- each.
……………………….J.
[K.S. Radhakrishnan]
………………………….J.
[A.K. Sikri]
New Delhi
August 14, 2013
16
Sudhir Kumar, Advocate
(Expert) 23 October 2016
The judgement quoted has the following features:-
(I) The emp0loyee retired with pending criminal case
IN THIS CASE HE HAS NEITHER RETIRED NOR CASE PENDING.
(ii) Bihar state govt rules applicable did not provide for stoppage of pension or gratuity
IN THIS CASE HE WAS BSNL EMPLOYEES WHOSE CDA RULES ARE REPLICA OF CCS RULES AND I HAVE ALREADY QUOTED THE PROVISION OF CCS RULES.
Kumar Doab
(Expert) 23 October 2016
You may move away from fascination and obsession for rules and focus on finding and approaching a very able counsel specializing in service matters.
Your able counsel shall advise you further.
Guest
(Expert) 23 October 2016
I have indicated the legal position. However, you may try your luck by using your own wisdom and the case laws, as deemed relevant.
Kumar Doab
(Expert) 23 October 2016
If you have gone thru all posts, links,your own counsel's advise, then you would know what to do and which forum(s) to approach.
You have lost in cases, appeals.
You want relief.
Your own counsel(s) must have advised you and you must have understood.
Still if there are doubts, approach other senior and seasoned counsels for second opinion.
sanjeev kumar
(Querist) 21 May 2023
My penalty was modified to ' compulsory retirement' by reviewing authority ie CMD BSNL. On 10th May 23 , Hon'ble High Court Chg has set aside my conviction based on compromise. Alimony paid ,Sec 13B, decree of divorce , all cases withdrawn by us in the Distt Lok Adalat . Are there chances of my reinstatement in my past job? Thanks in anticipation.
P. Venu
(Expert) 21 May 2023
Conviction having been set aside, you may seek for reinstatement. However, the decision being on compromise and not on merits, much depends upon the discretion of the competent authority.
