Allowed

Karayi Gopalan v. Director General,Cisf

Kerala HC20 Nov 2012WP(C)/20997/2010

Case brief

AI extract

What is this about?

This court set aside an order imposing a 25% pension cut on a retired CISF employee due to supervisory lapse. The judgment held that invoking Rule 9 requires a specific finding of grave misconduct and independent application of mind, neither of which was present. Arrears were directed to be released.

What did the court decide?

The impugned order (Ext.P2) is set aside. Respondents are directed to compute and release arrears of pensionary benefits within three months without interest.

Karayi Gopalan Vs Director General,Cisf — Pension and Retirement Benefits | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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TUESDAY, THE 20TH DAY OF NOVEMBER 2012/29TH KARTHIKA 1934

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WP(C).No. 20997 of 2010 (Y)

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PETITIONER:

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KARAYI GOPALAN, S/O.C.AMBU, KARAYI HOUSE, RAMAPURAM, NIRMALAGIRI POST KANNUR DISTRICT-670701.

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BY ADVS.SRI.N.JAMES KOSHY SMT.C.G.PREETHA

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RESPONDENTS:

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1. UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH BOLCK

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NEW DELHI-110 001.

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2. THE DIRECTOR GENERAL, CISF HEADQUARTERS, 13, CGOS COMPLEX LODHI ROAD, NEW DELHI-110 003.

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3. THE GROUP COMMANDANT,

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CISF GROUP HQRS, KENDRIYA BHAVAN, CSEZ (POST)

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KAKKANAD, KOCHI-37.

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4. THE DEPUTY INSPECTOR GENERAL/PERS,

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CISF HQRS., BLOCK NO.13, CGO COMPLEX

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LODHI ROAD, NEW DELHI-110 003.

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5. THE DEPUTY COMMANDANT & ENQUIRY OFFICER,

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CISF UNIT, NMPT MANGALORE-10.

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6. SRI.K.KORAPPAN,

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ASSISTANT COMMANDANT, CISF UNIT, NMPT

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PANAMBUR, MANGALORE-10.

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7. THE SECRETARY, UNION PUBLIC SERVICE COMMISSION, DHOLPUR HOUSE SHAHJAHAN ROAD, NEW DELHI-110069.

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R1TO7 BY ADV. SRI.T.P.M.IBRAHIM KHAN, ASST.S.G OF INDIA R1 TO 5 BY ADV. SRI.K.M.JAMALUDHEEN, CGC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 20997 of 2010 (Y)

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1: TRUE COPY OF THE ORDER DATED 31.5.2008. ISSUED BY THE THIRD RESPONDENT.

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P2: TRUE COPY OF THE FINAL ORDER DATED 26.11.1999

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P3: TRUE COPY OF THE ADVICE DATED 15.10.2010 TENDERED BY THE 7TH RESPONDENT (UPSC)

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P4: TRUE COPY OF THE APPEAL/REPRESENTATION DATED 9.3.2010 OF THE PETITIONER SENT TO 1ST RESPONDENT.

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P5: TRUE COPY OF THE ORDER DATED 16.4.2010 ISSUED BY 2ND RESPONDENT. P6: TRUE COPY OF THE ORDER PASSED BY THIS HONOURABLE COURT IN WP(C) NO.12481/2011 DATED 22.7.2011.

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P7: TRUE COPY OF THE ORDER PASSED BY THIS HONOURABLE COURT IN WP(C)28932/2011 DATED 31.10.2011.

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RESPONDENTS' EXHIBITS: NIL

// TRUE COPY//

PA TO JUDGE

Scl.

P.R. RAMACHANDRA MENON, J.

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W.P. © No. 20997 OF 2010

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Dated this the 20^th November, 2012

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J U D G M E N T

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The 'penalty in disguise' inflicted upon the petitioner by way

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of 25% cut in pension invoking Rule 9 of CCS ( Pension) Rules, 1972 in respect of the alleged supervisory lapse, is the subject matter of this writ petition.

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2 The case of the petitioner is that he commenced service as a Security Guard in the CISF(Central Industrial Security Force) as early as in the year 1973. After rendering unblemished service of 35 years, he was promoted to the post of Assistant Sub Inspector in the year 2006 and he retired from the service on 31.05.2008 on attaining the age of 60 years.

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The instance which forms the basis for the impugned action occurred in the New Mangalore Port Trust, where the petitioner was working at the relevant time, under the third

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W.P. © No. 20997 OF 2010

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respondent. About three weeks prior to the date of retirement of the petitioner, there was a surprise inspection of the premises by the 6^th respondent, particularly at one gate, where the petitioner was discharging his duty. The petitioner was having supervisory control over the Guards posted at the gate. In the course of inspection, the 6^th respondent recovered a sum of Rs.4,144/- from the trolley mirror near the gate, which was being guarded by two persons by name, Malle Gowda and D. Viswanath, who were served with charge sheet. The petitioner was also served with a charge sheet alleging 'supervisory lapse' on his part. There was no insinuation against the petitioner as to the recovery of money as aforesaid, which was sought to be attributed only against the security guards named above.

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In respect to the alleged misconduct committed by the petitioner, he was placed under suspension on 08.05.2008, followed by the charge sheet served to him on 10.05.2008. The petitioner submitted explanation on 16.05.2008, which, according to the respondents, was not satisfactory and hence an

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W.P. © No. 20997 OF 2010

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enquiry was conducted. The first posting of the enquiry was conducted by the Enquiry Officer on 27.05.2008, on which date, statement of the petitioner was recorded. Three witnesses came to be examined (including the 6^th respondent), on the days followed i.e. on 28.05.2008, 29.05.2008 and 30.05.2008 and the defence statement of the petitioner was recorded on 30.05.2008. The petitioner retired from the service on 31.05.2008 and it was thereafter that the Enquiry Officer submitted the report dated 06.06.2008, a copy of which was served to the petitioner on 08.07.2008. Based on the opportunity given to the petitioner, he sought to explain the position with reference to the findings of the Enquiry Officer in the report, by submitting a representation/explanation dated 16.07.2008. It appears from the admitted pleadings and proceedings that the disciplinary authority sought for advice of the UPSC with regard to the further course and events. It is seen that Ext. P3 advice was tendered by the UPSC on 15.10.2009. Considering the said advice, Ext.P2 order came to be passed on

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W.P. © No. 20997 OF 2010

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26.11.2009, whereby 25% of the pension payable to the

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petitioner came to be withheld, which in turn is under challenge in this case.

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The specific case of the petitioner, is that absolutely no opportunity of hearing was given to him at any point of time before deciding to cut down the pension invoking Rule 9 of the CCS (Pension) Rules. The finding on guilt arrived at by the Enquiry Officer was sought to be explained by submitting an explanation. But instead of passing an order on the basis of the said explanation, the respondents sought to obtain advice of the UPSC with intent to invoke Rule 9, with regard to which, the petitioner was totally unaware of. It is also not revealed, on what basis the UPSC tendered opinion to deduct 25% of the pension, inspite of the fact that the allegation against the petitioner, which was stated as proved, was only in respect of 'supervisory lapse'. The petitioner also contends that the actual culprits, who were guarding the gate are provided with the entire pensionary benefits, as they were permitted to be

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W.P. © No. 20997 OF 2010

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compulsorily retired from the service. There is also a specific case, as projected in Ground 'F' of the writ petition that exactly under similar circumstance, another ASI, by name 'P.K. Thampy' was proceeded against with necessary steps for imposing only a 'minor penalty' and accordingly he has been awarded a minor punishment of 'fine' equivalent to just three days' pay, as per the order dated 26.06.2009 passed by the 5^th respondent. The petitioner has been discriminated and has been given a very major punishment to the extent of reducing his pension by 25%, which is stated as absolutely without any basis, either on facts or in law.

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The respondents have filed a counter affidavit seeking to

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sustain their stand in passing Ext. P2 order and as to the compliance of the relevant rules with regard to the conduct of the domestic enquiry leading to Ext.P2. A reply affidavit has been filed from the part of the petitioner in response to the counter affidavit , also producing Exts.P6 and P7.

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The learned Counsel appearing for the petitioner

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W.P. © No. 20997 OF 2010

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submits that the punishment now imposed by way of pension deduction as per Ext. P2 is something more than the punishment which could have been imposed upon the petitioner, had he continued in service. The discrimination in the case of the petitioner, as projected in Ground 'F' is not rebutted anywhere in the counter affidavit filed by the respondents. Reliance is also sought to be placed on the decision of the Apex Court in D.V. Kapoor v. Union of India and others ( AIR 1990 SC 1923), particularly to paragraph Nos. 6,7 and 8, holding that a 'specific finding' has to be arrived at as to the grave misconduct committed, before invoking the power and procedure under Rule 9 of CCS (Pension)Rules,

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The learned Central Government Counsel appearing for the respondents submits that the order passed by the concerned authority vide Ext.P2 is by virtue of Rule 9 of the CCS(Pension) Rules, 1972, whereby the President is authorised to withhold or reduce pension to an appropriate extent. The learned Counsel further submits that the enquiry was conducted adhering

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to all known principles of natural justice and also in tune with the relevant provisions of law. 'Supervisory lapse' on the part of the petitioner stands established and since he retired from the service on 31.05.2008, the competent authority has sought to effect deduction of pension by virtue of Rule 9 and it was accordingly that the opinion of the UPSC was sought for and obtained vide Ext.P3. It was after considering the opinion tendered by the UPSC, that the deduction of pension was effected as borne by Ext.P2, which is not assailable under any circumstances, submits the learned Counsel.

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After hearing both the sides, this Court finds that the alleged misconduct of supervisory lapse was stated as committed on 08.05.2008 i.e., just 'three weeks' prior to the date of retirement. The Enquiry Officer conducted the first posting on 27.05.2008 and the proceedings were completed in 'three days', recording the defence statement on 30.05.2008, followed by further course and events. The petitioner admittedly retired from the service on 31.05.2008. It is settled law that,

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once an employee retires from the service, the disciplinary proceedings initiated prior to the date of retirement could be proceeded further only for the purpose of fixation of any loss, if any and no punishment could be imposed upon the delinquent employee, unless otherwise specifically provided. Of course, by virtue of Rule 9 of the CCS (Pension) Rules, 1972, it is open for the competent authority to invoke the same in appropriate cases and to effect deduction of pension or to withhold pension to the appropriate extent, if it is sustainable.

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Coming to the instant case, whether such course pursued by the authority is correct or sustainable, is the point to be looked into. Incidentally it also becomes necessary to consider the course adopted by the respondents under similar circumstances. As mentioned already, there is a specific case for the petitioner as raised in 'Ground 'F' that, in a similar situation involving supervisory lapse, an ASI by name P.K. Thampy was proceeded against and only a 'minor punishment' of cutting down three days' salary was awarded to him; whereas in the

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case of the petitioner merely for the reason that he retired from the service, a very major punishment in the form of cutting down pension by a substantial extent of 25% has been effected; that too without hearing him. The appeal preferred by the petitioner has been rejected as per Ext.P5 intimating that no appeal lies in view of Rule 22 of the CCS (CCA) Rules, 1965.

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The stand of the respondents, as given in paragraph 11 of the counter affidavit, is that the deparptmental proceedings initiated against the ASI, P.K. Thampy was only under Rule 37 of the CISF Rules 2001 pertaining to the steps for imposing minor punishment, which is not relevant to the case in hand. In fact, it becomes relevant as to the way in which a similar misconduct was sought to be proceeded against. When the respondents concede in paragraph 11 that in respect of a similar instance, the concerned ASI by name P.K. Thampy was proceeded against only under Rule 37 of the CISF Rules, 2001, why the proceedings were pursued against the petitioner under Rule 36 of the same set of Rules for imposing major penalty is a matter of mystery,

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is not explained by the respondents. It is also not in dispute that the punishment imposed upon the above ASI (by name Thampy) was only. Had the petitioner continued in service, some similar punishment could have been imposed in respect of the supervisory lapse and there would be no chance to have imposed a major punishment, when the respondents consciously took a decision to impose only a minor penalty in similar circumstances as in the case of Mr. Thampy. Deduction of pension by way of Ext.P2 comes, only by virtue of the fact that the petitioner came to be retired on 31.05.2008.

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Coming to the correctness and sustainability of the punishment and the Forum for challenging the same, there is a case for the petitioner that the rules do not contemplate any remedy by way of appeal. Still, the petitioner sought to file an appeal before the first respondent, which however came to be rejected as per Ext.P5 dated 16.04.2010, holding that there is no provision to challenge Ext.P2 by way of appeal in view of Rule 22 o the CCS (CCA) Rules 1965. . The learned Counsel for

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the petitioner has also referred to Rule 29 of CCS (CCA) Rules, 1965, whereby the matter could have been considered by the first respondent invoking the power of Revision; whcih course has not been chosen to be pursued .

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It is relevant to note that, before invoking the power under Rule 9 of CCS (Pension)rules, a' specific finding' has to be recorded as to the ' grave misconduct' committed by the delinquent employee, as made clear by the Apex Court in the decision in D.V. Kapoor v. Union of India and others ( AIR 1990 SC 1923 ), in paragraphs 6 and 7. Paragraph '6' is extracted for the convenience of reference:

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“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 proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to

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impose penalty of withholding 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/-.”

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It is asserted in paragraph '7' that the course to be pursued shall be commensurate with the gravity of the misconduct or irregularity, as it offends the right to assistance on the eve of a person's life as assured under Art.41 of the Constitution. The question is, whether such a proper exercise has been pursued by the respondents while passing Ext.P2.

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Coming to Ext.P2, the charge is extracted in the opening paragraph, the course and events leading to enquiry have been described in paragraph 2, while the third paragraph refers to the consultation effected with the UPSC, who, as per letter dated 15.10.2009 advised that the ends of justice would be met, if the 'penalty' of 25% cut in the monthly pension of the

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petitioner on permanent basis was imposed on him and that the gratuity could be released, if not otherwise required to be withheld. As per 4^th paragraph, the advice of the UPSC has been given effect to, leading to pension cut to an extent of 25%. Whether there was any independent application of mind is the question, which can never be answered otherwise than in the negative. There is absolutely no discussion at all, as to the finding on guilt, but for the reference to the advice tendered by the UPSC, which has been glibly swallowed by the competent authority. The finding on guilt and the gravity of misconduct have never been dealt with in Ext. P2 , which is a pre-requisite before invoking the power and procedure under Rule 9 of the CCS (Pension)Rules, as made clear by the Apex Court in the decision cited supra.

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In the above circumstance, this Court finds that Ext.P2 order passed by the 4^th respondent is per se wrong and illegal; more so, when there is absolutely no reference in the said order as to having served any notice before passing the same and

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when there is no averment in the counter affidavit that any such notice was given to the petitioner before deciding to invoke the power and procedure under Rule 9 of the CCS (Pension) Rules, but for issuance of a notice serving a copy of the enquiry report . Ext.P2 order is set aside accordingly. The concerned respondents are directed to compute the arrears of pensionary benefits payable to the petitioner and the same shall be released, at the earliest, at any rate, within 'three months' from the date of receipt of a copy of the judgment. This Court consciously refrains from awarding any 'interest' and holds that denial of interest on the due amount will stand as a proper punishment for the proven 'supervisory lapse' on the part of the petitioner.

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The writ petition is disposed of.

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P.R. RAMACHANDRA MENON, JUDGE.

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Karayi Gopalan v. Director General,Cisf

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Karayi Gopalan v. Director General,Cisf

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