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PETITIONER: D.V. KAPOOR

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT07/08/1990

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. SHARMA, L.M. (J)

CITATION:  1990 AIR 1923            1990 SCR  (3) 697  1990 SCC  (4) 314        JT 1990 (3)   403  1990 SCALE  (2)175

ACT:     Central  Civil  Services (Pension) Rules,   1972:  Rules 8(5)--Explanation (b) and 9  Pension and gratuity--Withhold- ing   of--For   absence   from   duty--Whether   valid   and legal--‘Grave  misconduct’--Interpretation  of--Disciplinary proceedings  initiated while in service-Continued  and  con- cluded on voluntary retirement--Whether valid and legal.     Central  Civil  Services  (Conduct)  Rules  1964:  Rules 3(1)(i)  and 3(1) (iii)--Absence from  duty--Whether  ‘grave misconduct’--Withholding of pension----Whether permissible.     Words  & Phrases: ‘Grave misconduct’--Meaning  of---Rule 8(5),  Explanation  (b)  Central  Civil  Services  (Pension) Rules, 1972.

HEADNOTE:     Disciplinary  proceedings  were  initiated  against  the appellant  for  wilful contravention of  Rules  3(1)(i)  and 3(1)(iii)  of  the Central Civil Services  (Conduct)  Rules. 1964  by absenting himself from duty  without  authorisation and in not reporting to duty at New Delhi office on transfer from  London office. Pending proceedings, he was allowed  to retire voluntarily but was put on notice that the  discipli- nary  proceedings  would be continued under rule  9  of  the Civil  Services Pension Rules, 1972. Thereafter, on  comple- tion of the enquiry, the President of India in  consultation with  the Union Public Service Commission, decided to  with- hold the entire gratuity and pension otherwise admissible to the  appellant, on permanent basis, as a measure of  punish- ment. The appellant’s writ petition challenging the legality of the order was dismissed by the High Court, in limine.     In  the appeal by special leave, before this  Court,  on behalf  of  the appellant it was contended  that  since  the appellant  had been allowed to retire voluntarily, the  pro- ceedings  stood abated, and the authorities were  devoid  of jurisdiction  to impose the penalty of withholding  gratuity and pension as a measure of punishment, and that for  award- ing the said punishment the appellant must be found to  have committed grave misconduct or negligence within the  meaning of Rule 8(5), Explanation (b). 698 Allowing the appeal, this Court,

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   HELD:  1. Rule 9(2) of the Central Civil Services  (Pen- sion) Rules, 1972 provided that the departmental proceedings if  instituted while the Government servant was in  service, whether  before his retirement or during his  re-employment, should,  after the final retirement of the Government  serv- ant,  be deemed to be proceedings under the rule and  should be  continued and concluded by the authority by  which  they were  commenced  in  the same manner as  if  the  Government servant had continued in service. [701A-B]     In  the instant case, merely because the  appellant  was allowed  to retire, the Government is not lacking  jurisdic- tion or power to continue the proceedings already  initiated to  the logical conclusion thereto. The only  inhibition  is that where the departmental proceedings are instituted by an authority  subordinate  to  the  President,  that  authority should submit a report recording its findings to the  Presi- dent. That has been done, and the President passed the order under challenge. Therefore, the proceedings are valid in law and are not abated consequent to voluntary retirement of the appellant and the order was passed by the competent authori- ty, i.e. the President of India. [701B-D]     2.1 Public employee holding a civil post or office under the State has a legitimate right to earn his pension at  the evening of his life after retirement be it on superannuation or  voluntary retirement. It is not a bounty of  the  State. Equally  too of gratuity, a statutory right, earned by  him- Article  41 of the Constitution accords right to  assistance at the old age of sickness or disablement. Therefore, when a Government employee is sought to be deprived of his pension- ary right which he had earned while rendering services under the  State,  such a deprivation must be in  accordance  with law. [701F-G; 702D] D.S.  Nakara  & Ors. v. Union of India, [1983]  2  SCR  165, relied on.     2.2  Under  Rule  9(1) of  the  Central  Civil  Services (Pension) Rules, 1972, the President has reserved to himself the  right to withhold pension in whole or in part,  whether permanently  or  for a specified period, or he  can  recover from  pension  of the whole or part of  any  pecuniary  loss caused by the Government employee to the Government  subject to the minimum. However, the exercise of the power is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings  that the pensioner com- 699 mitted  grave misconduct or negligence in the  discharge  of his duty while in office, as defined in Rule 8(5),  Explana- tion  (b), which is an inclusive definition, i.e. the  scope is wide of mark, dependent on the facts or circumstances  in a  given case. In the absence of such a finding, the  Presi- dent is without authority of law to impose penalty or  with- holding  pension as a measure of punishment either in  whole or in part, permanently or for a specified period.  [702G-H; 704B; 703E-F]     In  the  instant case, the Inquiry  Officer  found  that though the appellant derelicted his duty to report to  duty, at New Delhi on transfer from London, it was not wilful  for the reason that he could not move due to his wife’s  illness and  he recommended to sympathetically consider the case  of the  appellant and the President accepted this finding,  but decided  to withhold gratuity and payment of pension  perma- nently,  in consultation with the Union Public Service  Com- mission. [703G-H; 704A]     The  employee’s right to pension is a  statutory  right. The measure of deprivation therefore, must be correlative to

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or commensurate with the gravity of the grave misconduct  or irregularity  as it offends the right to assistance  at  the evening  of  his  life as assured under Article  41  of  the Constitution.  The  right to gratuity is  also  a  statutory right.  The appellant was not charged with nor was given  an opportunity that his gratuity would be withheld as a measure of punishment. There is no provision of law under which  the President  is empowered to withhold gratuity as well,  after his  retirement as a measure of punishment.  Therefore,  the order  to withhold the gratuity as a measure of  penalty  is illegal and devoid of jurisdiction. Since there is no  find- ing  that appellant did commit grave misconduct  as  charged for,  the  exercise of the power is clearly illegal  and  in excess  of  jurisdiction as the condition  precedent,  grave misconduct, was not proved. [704D-G]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 5025  of 1985.     From the Judgment and Order dated 25.3.1985 of the Delhi High Court in C.W.P. No. 686 of 1985. Arun K. Sinha for the Appellant.     N.S Hegde, Additional Solicitor General, T.C. Sharma and Mrs. Sushma Suri for the Respondents. The Judgment of the Court was delivered by 700     K.  RAMASWAMY, J. 1. This appeal by special leave  under Art. 136 of the Constitution arises against the decision  of the  Delhi High Court in C.W.P. No. 686 of 1985 dated  March 25, 1985. The appellant was working as an Assistant Grade IV of  the  Indian Foreign Service, Branch ’B’ in  Indian  High Commission at London. On November 8, 1978 he was transferred to  the Ministry of External Affairs, New Delhi, but he  did not  join  duty  as commanded, resulting  in  initiation  of disciplinary  proceedings  against him on August  23,  1979. Pending the proceedings, on February 26, 1980 the  appellant sought voluntary retirement from service and by  proceedings dated October 24, 1980 he was allowed to retire but was  put on  notice  that  the  disciplinary  proceedings   initiated against  him would be continued under rule 9 of Civil  Serv- ices Pension Rules, 1972 for short ’Rules’. His main defence in  the explanation was that his wife was ailing  at  London and,  therefore,  he sought for leave for six  days  in  the first instance and 30 days later, which was granted, but  as she did not recover from the ailment, he could not undertake travel. So he sought for more leave, but when it was reject- ed,  he  was constrained to opt  for  voluntary  retirement. After  conducting the enquiry the Inquiry Officer  submitted his  report dated May 19, 1981. The gravemen of  charges  as stated earlier are that the appellant absented himself  from duty  from December 15, 1978 without any  authorisation  and despite his being asked to join duty he remained absent from duty  which  is wilful contravention of  Rule  3(i)(ii)  and 3(i)(iii)  of  the  Civil Services Conduct  Rule  1964.  The Inquiry  Officer found that "it is however difficult to  say whether  his  absenting  himself  from  duty  was   entirely wilful".  In  the concluding portion he says that  both  the articles of charges have been established, the circumstances in  which the appellant violated the rules require a  sympa- thetic consideration while deciding the case under Rule 9 of the  Rules. The President, on consideration of  the  report, agreed  with  the  findings of the Inquiry  Officer  and  in consultation with the Union Public Service Commission decid-

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ed that the entire gratuity and pension otherwise admissible to the appellant was withheld on permanent basis as a  meas- ure  of  punishment through the proceedings  dated  November 24,. 1981. When the appellant challenged the legality there- of, the High Court dismissed the writ petition in limine  on the ground that it would not interfere in its  discretionary jurisdiction under Art. 226 of the Constitution.     2. The contention of Mr. Kapoor, learned counsel for the appellant  is  that  the appellant having  been  allowed  to retire  voluntarily the authorities are devoid of  jurisdic- tion  to  impose  the penalty of  withholding  gratuity  and pension as a measure of punishment and the 701 proceedings  stand abated. We find no substance in the  con- tention. Rule 9(2) of the Rules provided that the departmen- tal  proceedings if instituted while the Government  servant was  in service whether before his retirement or during  his re-employment,  shall,  after the final  retirement  of  the Government  servant, be deemed to be proceedings under  this rule  and shall be continued and concluded by the  authority by  which they were commenced in the same manner as  if  the Government  servant  had continued  in  service.  Therefore, merely  because  the appellant was allowed  to  retire,  the Government is not lacking jurisdiction or power to  continue the proceedings already initiated to the logical  conclusion thereto.  The disciplinary proceedings initiated  under  the Conduct  Rules  must be deemed to be proceedings  under  the rules  and shall be continued and concluded by the  authori- ties  by  which the proceedings have been commenced  in  the same  manner as if the Government servant had  continued  in service.  The only inhibition thereafter is as  provided  in the  proviso  namely "provided that where  the  departmental proceedings  are instituted by an authority  subordinate  to the President, that authority shall submit a report  record- ing  its findings to the President". That has been  done  in this  case  and  the President passed  the  impugned  order. Accordingly  we hold that the proceedings are valid  in  law and  they are not abated consequent to voluntary  retirement of  the appellant and the order was passed by the  competent authority, i.e.the President of India.     3.  His  further contention that the appellant  must  be found  to have committed "grave misconduct" or  "negligence" within the meaning of Rule 8(5)(2) of the Rules which  alone gives power and jurisdiction to the authority to withhold by way  of  disciplinary measure the gratuity  and  payment  of pension:  Public  employee holding a civil  post  or  office under  the State has a legitimate right to earn his  pension at the evening of his life after retirement, be it on super- annuation or voluntary retirement. It is not a bounty of the State. Equally too of gratuity, a statutory right. earned by him.  Article 141 of the Constitution accords right  to  as- sistance at the old aged or sickness or disablement. In D.S. Nakara  & Ors. v. Union of India, [1983] 2 SCR 165 the  Con- stitution Bench of this Court held that pension is not  only compensation  for  loyal service rendered in the  past,  but also  by  the broader significance in that it  is  a  social welfare measure rendering socioeconomic justice by providing economic  security  in the fall of life  when  physical  and mental  prowess  is ebbing corresponding to  ageing  process and, therefore, one is required to fall back on savings. One such  saving in kind is when one had given his best  in  the hey-day  of  life to his employer, in  days  of  invalidity, economic security by way of periodical 702 payment is assured. Therefore, it is a sort of stipend  made

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in consideration of past service or a surrender of rights or emoluments  to  one retired from service.  Thus  pension  is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation for service rendered. In one sentence one can say that the  most practical  raison  d’etre for pension is  the  inability  to provide for one self due to old age. One may live and  avoid unemployment but not senility and penury if there is nothing to fall back upon.     4. At page 190-D it is stated that pension as a  retire- ment  benefit is in consonance with and furtherance  of  the goals  of the Constitution. The goals for which  pension  is paid  themselves  give a fillip and push to  the  policy  of setting up a welfare State because by pension the  socialist goal  of security from gradle to grave is assured  at  least when it is mostly needed and least available, namely in  the fall  of  life.  Therefore, when a  Government  employee  is sought  to be deprived of his pensionary right when the  had earned  while  rendering services under the  State,  such  a deprivation must be in accordance with law. Rule 9(1) of the rules provides thus: "The President reserves to himself the right of  withholding or withdrawing a pension or part thereof, whether permanent- ly or for a specified period, and of ordering recovery  from a pension of the whole or part of any pecuniary loss  caused to  the  Government,  if, in any  departmental  of  judicial proceedings, the pensioner is found guilty or grave  miscon- duct or negligence during the period of his service  includ- ing service rendered upon re-employment after retirement. Provided  that the Union Public Service Commission shall  be consulted before any final orders are passed. Provided further that where a part of pension is withheld or withdrawn,  the amount of such pension shall not be  reduced below the amount of rupees sixty per mensum."     Therefore,  it is clear that the President  reserves  to himself the right to withhold or withdraw the whole  pension or  a  part  thereof whether permanently  or  for  specified period.  The President also is empowered to  order  recovery from a pensioner of the whole or part of any pecuniary  loss caused  to  the  Government, if in any,  proceeding  in  the departmental enquiry or judicial proceedings, the  pensioner is 703 found  guilty of grave misconduct or negligence  during  the period  of his service including service rendered  upon  re- employment after retirement. Rule 8(5), explanation (b) defines ’grave misconduct’ thus’ "The  expression ’grave misconduct’ includes the  communica- tion  or disclosure of any secret official code or  password or  any  sketch,  plan, model, article,  note,  document  or information, such as is mentioned in Section 5 of the  Offi- cial  Secrets,  Act, 1923 (19 of 1923) (which  was  obtained while holding office under the Government) so as to prejudi- cially  affect  the interest of the general  public  of  the security of the State."     In one of the decisions of the Government as compiled by Swamy’s  Pension  Compilation, 1987 Edition,  it  is  stated that: "Pensions  are  not in the nature of reward but there  is  a 2binding obligation on Government which can be claimed as  a fight.  Their forfeiture is only on resignation, removal  or dismissal  from service. After a pension is  sanctioned  its continuance depends on future good conduct, but it cannot be stopped or reduced for other reasons." 5. It is seen that the President has reserved to himself the

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right withhold pension in whole or in part therefore whether permanently or for a specified period or he can recover from pension of the whole or part of any pecuniary loss caused by the  Government  employee to the Government subject  to  the minimum. The condition precedent is that in any departmental enquiry or the judicial proceedings, the pensioner is  found guilty  of grave misconduct or negligence during the  period of  his  service of the original or  on  re-employment.  The condition precedent thereto is that there should be a  find- ing  that  the deliquent is guilty of  grave  misconduct  or negligence  in  the discharge of public duty in  office,  as defined in Rule 8(5), explanation (b) which is an  inclusive definition, i.e. the scope is wide of mark dependent on  the facts or circumstances in a given case. Myriad situation may arise depending on the ingenuinity with which misconduct  or irregularity  was committed. It is not necessary to  further probe into the scope and meaning of the words ’grave miscon- duct  or negligence’ and under what circumstances the  find- ings  in  this regard are held proved. It  is  suffice  that charges  in this case are that the appellant was  guilty  of wilful misconduct in not reporting to duty after his  trans- fer  from Indian High Commission at London to the Office  of External  Affairs Ministry, Government of India, New  Delhi. The  Inquiry Officer found that though the appellants  dere- licted his duty to report to duty, it is not 704 wilful  for  the reason that he could not move  due  to  his wife’s illness and he recommended to sympathetically consid- er the case of the appellant and the President accepted this finding,  but  decided to withhold gratuity and  payment  of pension  in consultation with the Union Public Service  Com- mission.     6. As seen the exercise of the power by the President is hedged  with a condition precedent that a finding should  be recorded either in departmental enquiry or judicial proceed- ings that the pensioner committed grave misconduct or negli- gence in the discharge of his duty while in office,  subject of  the charge. In the absence of such a finding the  Presi- dent is without authority of law to impose penalty of  with- holding  pension as a measure of punishment either in  whole or  in  part permanently or for a specified  period,  or  to order  recovery  of the pecuniary loss in whole or  in  part from  the  pension of the employee, subject  to  minimum  of Rs.60. 7. Rule 9 of the rules empowers the President only to  with- hold  or  withdraw pension permanently or  for  a  specified period in whole or in part or to order recovery of pecuniary loss  caused  to the State in whole or in  part  subject  to minimum.  The  employee’s right to pension  is  a  statutory fight. The measure of deprivation therefore, must be correl- ative  to  or  commensurate with the gravity  of  the  grave misconduct  or irregularity as it offends the right  to  as- sistance at the evening of his life as assured under Art. 41 of the Constitution. The impugned ’order discloses that  the President withheld on permanent basis the payment of gratui- ty  in addition to pension. The fight to gratuity is also  a statutory right. The appellant was not charged with nor  was given an opportunity that his gratuity would be withheld  as a  measure  of  punishment. No provision  of  law  has  been brought  to our notice under which, the President is  empow- ered to withhold gratuity as well, after his retirement as a measure of punishment. Therefore, the order to withhold  the gratuity as a measure of penalty is obviously illegal and is devoid of jurisdiction.     8.  In view of the above facts and law that there is  no

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finding  that  appellant  did  commit  grave  misconduct  as charged  for, the exercise of the power is  clearly  illegal and  in excess of jurisdiction as the  condition  precedent, grave  misconduct was not proved. Accordingly the appeal  is allowed  and the impugned order dated November 24,  1981  is quashed  but  in the circumstances parties are  directed  to bear their own costs. N.P.V.                                                Appeal allowed. 705