IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : SERVICE MATTER

WP (C) No. 3012 of 2008

Reserved on : May 16, 2008

Pronounced on : July 04, 2008

RPS Panwar . . . Petitioner

through : Mr. H.K. Gupta with
Mr. G.S. Chamman, Advocates

VERSUS

Union of India and Anr . . . .Respondents

through : Mr. R.V. Sinha with
Mr. A.S. Singh, Advocates

CORAM :-
THE HON”BLE MR. JUSTICE A.K. SIKRI
THE HON”BLE MR. JUSTICE J.R. MIDHA

A.K. SIKRI, J.

1. The petitioner herein had joined the Department of Telecommunications

(for short, “DOT”) as Engineering Supervisor on 19.1.1968 and got
promotions from time to time. By the year 1999, he had risen to the rank of
ITS Group-A (SAG Level) as GM (Telephones) and was posted at
Moradabad. In July 2003, he was transferred as GM (Telephones) to
Muzaffarnagar, where on 18.9.2003 he was arrested by the CBI. It was on
the basis of FIR registered by the CBI on 12.9.2003 on the allegation of
disproportionate assets and his failure to intimate the same to the authorities.
Since his detention exceeding 48 hours, order was passed on 23.9.2003
under Rule 10(2) of the CCS (CCA) Rules, 1965 placing him under deemed
suspension with effect from 18.9.2003, i.e. the date of his arrest. Though the
petitioner was granted bail after a period of two months, i.e. on 18.11.2003,
his suspension continued as it was extended from time to time.

2. The petitioner was also served with the charge sheet dated 25.10.2004
under Rule 14 of the CCS (CCA) Rules. This was followed by another
charge sheet dated 13.12.2004 under Rule 16 for minor penalty proceedings
in which, after eliciting his reply, displeasure was conveyed. However,
insofar as suspension of the petitioner is concerned, his employer kept on
extending the same from time to time. Lastly on 15.2.2006, the suspension
was extended by 180 days, though the petitioner was attaining the age of
superannuation on 30.4.2006. This was followed by letter dated 13.4.2006
stating that the petitioner would continue under suspension even after his
retirement. Notwithstanding this, by another order dated 28.4.2006 he was
permitted to retire on 30.4.2006. The said Office Memorandum dated
28.4.2006 reads as under :- “ OFFICE MEMORANDUM Subject:-
Retirement of Officers of DOT/BSNL/MTNL during April, 2006. On
attaining the age of superannuation, Shri R.P.S. Panwar (Staff No. 690), an
officer of SAG of ITS Group “A”, presently working as General Manager,
BSNL, U.P. (West) Telecom Circle is permitted to retire from Government
service with effect from 30.04.2006 (A/N). 2. Since, Shri R.P.S. Panwar
(Staff No. 690), GM, is under suspension and his vigilance clearance is
withheld, he may be paid provisional pension only as per Rule 69 of the
CCS Pension Rules, 1972.

3. Charge reports may be furnished to all concerned. (Amarjit Singh) Under

Secretary to the Govt. of India.” 3. The provisional pension of the petitioner
was accordingly sanctioned, which he started getting with effect from
1.5.2006. After the retirement, the petitioner was served with another charge
sheet dated 5.10.2006 alleging various irregularities committed by him
during the period 19.4.1999 to 16.6.2003 while providing and extending the
tenure of security guards, which according to the disciplinary authority
amounted to misconduct. This was followed by yet another charge sheet
dated 15.3.2007 levelling as many as 7 articles of charges. These also relate
to the period 2000-03 when the petitioner was posted and functioning as GM
(Telephones), Moradabad. Vide his representation dated 6.6.2007, the
petitioner challenged the issuance of charge sheets dated 5.10.2006 and
15.3.2007 and initiation of disciplinary proceedings pursuant thereto, served
upon him after 30.4.2006, i.e. after his retirement. However, vide
communication dated 30.7.2007, his representation was turned down. After
receiving the aforesaid rejection, the petitioner preferred OA No. 1658/2007
before the Central Administrative Tribunal, which was filed in September
2007, challenging the issuance of the aforesaid two charge sheets on the
ground that after his retirement no such disciplinary action could be taken.
We may note that after the filing of the said OA, two more charge sheets
were issued to him on 25.10.2007 and 30.10.2007, which were, naturally,
not the subject matter of challenge before the Tribunal as when the OA was
filed challenging earlier two charge sheets, these charge sheets were not
served. We may also point out that the petitioner has submitted that the
disciplinary proceedings were not only in violation of Rules, but were also
illegal on the ground of mala fides and arbitrariness and further that they
were not sustainable as they relate to events which took place more than four
years before such institution. The Tribunal has dismissed the OA of the
petitioner vide its order dated 31.3.2008 holding that such an action could be
taken against the petitioner even after his retirement. Challenging this
judgment of the Tribunal the instant petition is preferred.

4. It is not in dispute that the aforesaid two charge sheets were served upon
the petitioner after his retirement/superannuation, which occurred on
30.4.2006. As per Rule 9 of the CCS (Pension) Rules (hereinafter referred to
as “Pension Rules”), charge sheet can be served against a retired officer also
under certain conditions, and one of them being that the event for which the
charge sheet is issued should be within four years from the date of issuance
of the charge sheet. This Rule also stipulates that if the departmental
proceedings are instituted against a Government servant before his
retirement or during his reemployment, it shall be deemed that those
proceedings are under Rule 9 and shall be continued and concluded by the
authority by which they were commenced even after his retirement in the
same manner as if the Government servant had continued in service. The
Rule also points out that where a Government employee is placed under
suspension, then the departmental proceedings shall be deemed to be
instituted on the date when he was placed under suspension.

5. Before the Tribunal, case of the petitioner was that the alleged
irregularities pertain to a period which was more than four years old and,
therefore, no such charge memos could be issued after his retirement. On the
other hand, the respondents pleaded that since the petitioner was placed
under suspension with effect from 18.9.2003, even when the charge sheets
are issued on 5.10.2006 and 15.3.2007 respectively, they shall relate back to
the date of suspension and it would be deemed as if the departmental
proceedings were instituted from the date of suspension, i.e. 18.9.2003. On
that date, the petitioner was very much in service and, therefore, there was
nothing wrong in the institution of the departmental proceedings.

6. The Tribunal has accepted the submission of the respondent and

dismissed the OA. Before us issue remains the same. Everything turns upon
the interpretation of Rule 9, shades whereof have already been highlighted
by us.

7. Before we come to the interpretation of this Rule, it would be necessary to

take note of the respondents” averments on certain aspects. As per the
respondents, the petitioner was placed under suspension in terms of Rule
10(2) of CCS (CCA) Rules, 1965 with effect from 18.9.2003 vide order
dated 23.9.2003 consequent upon his detention in CBI custody exceeding a
period of 48 hours. The petitioner was due for retirement on superannuation
on 30.04.2006, by which time the investigation of CBI could not be
concluded. At this juncture, the cases against the petitioner were reviewed
and it was found that 10 other departmental cases/complaints against him
were pending and it was decided to club all the cases. Accordingly, the
respondents issued order dated 13.4.2006. As regards averments made by the
petitioner that he was delivered the said order only on 11.1.2007, it is
submitted that he deliberately avoided to receive the same and left the
headquarters without seeking permission and without informing his
whereabouts. Various efforts were made by the Circle Office of the
respondents to deliver the order to him, but he avoided to receive it. The CBI
took 2” years in investigating the matter in view of the voluminous records
which were to be scrutinized and ultimately filed its charge sheet on
30.6.2006. It is only after those investigations that the allegations against the
petitioner in respect of various irregularities were crystallized and, therefore,
charge sheet dated 5.10.2006 and 15.3.2007 were issued to him after his
retirement. According to the respondents, therefore, there was no delay in
issuance of the charge sheets. As soon as the irregularities came to light the
matter was got thoroughly investigated in consultation with the CVC, and
finding the petitioner prima facie responsible for grave misconduct,
departmental proceedings were instituted by the impugned memorandum of
charges with the approval of the President of India.

8. Now, let us turn to Rule 9 :- “9. Right of President to withhold or

withdraw pension (1) The President reserves to himself the right of
withholding a pension or gratuity, or both, either in full or in part, or
withdrawing a pension in full or in part, whether permanently or for a
specified period, and of ordering recovery from a pension or gratuity of the
whole or part of any pecuniary loss caused to the Government, if, in any
departmental or judicial proceedings, the pensioner is found guilty of grave
misconduct or negligence during the period of service, including service
rendered upon re-employment after retirement: Provided that the Union
Public Service Commission shall be consulted before any final orders are
passed: Provided further that where a part of pension is withheld or
withdrawn, the amount of such pensions shall not be reduced below the
amount of rupees three hundred and seventy-five (Rupees One thousand
nine hundred and thirteen from 1.4.2004 “ see GID below Rule 49) per
mensem. (2) (a) The departmental proceedings referred to in sub-rule (1), 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: Provided that where the departmental proceedings are instituted
by an authority subordinate to the President, that authority shall submit a
report recording its findings to the President. (b) The departmental
proceedings, if not instituted while the Government servant was in service,
whether before his retirement, or during his re- employment, - (i) shall not
be instituted save with the sanction of the President, (ii) shall not be in
respect of any event which took place more than four years before such
institution, and (iii) shall be conducted by such authority and in such place
as the President may direct and in accordance with the procedure applicable
to departmental proceedings in which an order of dismissal from service
could be made in relation to the Government servant during his service. (3)
Deleted (4) In the case of Government servant who has retired on attaining
the age of superannuation or otherwise and against whom any departmental
or judicial proceedings are instituted or where departmental proceedings are
continued under sub-rule (2), a provisional pension as provided in Rule 69
shall be sanctioned. (5) Where the President decides not to withhold or
withdraw pension but orders recovery of pecuniary loss from pension, the
recovery shall not ordinarily be made at a rate exceeding one-third of the
pension admissible on the date of retirement of a Government servant. (6)
For the purpose of this rule, - (a) departmental proceedings shall be deemed
to be instituted on the date on which the statement of charges is issued to the
Government servant or pensioner, or if the Government servant has been
placed under suspension from an earlier date, on such date; and (b) judicial
proceedings shall be deemed to be instituted “ (i) in the case of criminal
proceedings, on the date on which the complaint or report of a Police
Officer, of which the Magistrate takes cognizance, is made, and (ii) in the
case of civil proceedings, on the date the plaint is presented in the Court.”
We are primarily concerned with sub-rule 2(a) and sub-rule (6) of Rule 9 of
the Pension Rules.

9. It is clear from clause (a) of sub-rule (6) of Rule 9 that for the purpose of
Rule 9, departmental proceedings are treated to have been instituted on the
date on which the statement of charges is issued to the Government servant
or pensioner. However, if the Government servant has been placed under
suspension from an earlier date, then they are deemed to have been instituted
on the date of suspension. Clause (a), thus, talks of departmental
proceedings, whereas clause (b) of sub-rule (6) deals with judicial
proceedings, criminal as well as civil. Insofar as criminal proceedings are
concerned, these are deemed to be instituted on the date on which the
complaint or report of a Police Officer is made, of which the Magistrate
ultimately takes cognizance. If sub-rule (6) of Rule 9 is applicable to the
present case, then the proceedings will be deemed to be instituted on
18.9.2003 when the petitioner was in service and thereafter it would
continue under this Rule by virtue of sub-rule 2(a).

10. The moot question, however, is as to whether clause (a) of sub-rule (6)
of Rule 9 applies even when a Government servant retires while under
suspension but till that time charge sheet is not issued, which comes to be
issued subsequent to the date of retirement. Contention of learned counsel
for the petitioner was that sub-rule (6) will have no application for two
reasons :- (i) on the retirement of a Government servant, relationship of
employer-employee ceases to exist and even when a person was facing
suspension, such suspension also comes to an end on the date of retirement.
Therefore, if the charge sheet is issued on a subsequent date after his
retirement as on the date of issuance of charge sheet, he is no more under
suspension. Sub-rule (6), therefore, would not apply in such a situation; and
(ii) in the present case, even otherwise the suspension of the petitioner was
not in contemplation of departmental proceedings, but in contemplation of
criminal proceedings. In fact, it was a deemed suspension on the ground that
the petitioner had been arrested by the CBI and he remained in custody for
more than 48 hours. The suspension was, therefore, relatable to the criminal
case and no orders were passed suspending him in contemplation of
disciplinary proceedings. On this ground also, argued the learned counsel for
the petitioner, sub-rule (6) could not have been applied to the present case.

11. We may deal with the second submission in the first instance. Rule 10 of
the CCS (CCA) Rules provides for suspension. It could be during the
pendency of or in contemplation of disciplinary proceedings. It could also be
during the pendency of or in contemplation of criminal proceedings, as is
clear from the reading of Rule 10, the relevant portion whereof is as under :-
“10. SUSPENSION (1) The Appointing Authority or any authority to which
it is subordinate or the Disciplinary Authority or any other authority
empowered in that behalf by the President, by general or special order, may
place a Government servant under suspension - (a) where a disciplinary
proceeding against him is contemplated or is pending; or (aa) where, in the
opinion of the authority aforesaid, he has engaged himself in activities
prejudicial to the interest of the security of the State; or (b) where a case
against him in respect of any criminal offence is under investigation, inquiry
or trial: Provided that ““. “

12. It is, thus, clear that the suspension can relate to either disciplinary
proceedings or criminal proceedings. In the present case, deemed suspension
order was passed under sub-rule (2) of Rule 10 of the CCS (CCA) Rules,
which is manifest from its bare perusal :- “ ORDER WHEREAS a case
against Shri R.P.S. Panwar, General Manager (Telecom), Muzaffarnagar, in
respect of a criminal offence is under investigation. AND WHEREAS, the
said Shri R.P.S. Panwar was detained in custody on 18.09.2003 for a period
exceeding forty-eight hours. NOW, THEREFORE, the said Shri R.P.S.
Panwar is deemed to have been suspended with effect from the date of his
detention i.e. 18.09.2003 in terms of sub-rule (2) of Rule 10 of CCS (CCA)
Rules, 1965 and shall remain under suspension until further orders. By order
and in the name of the President. (D.P. Saini) Under Secretary to the Govt.
of India” It is clear that it was because of his detention exceeding 48 hours
that he was treated under deemed suspension. This suspension was extended
from time to time. The orders passed extending the suspension after every
180 days are identically worded with change of dates. Therefore, purpose
would be served in taking note of one such order. While extending
suspension, order dated 19.4.2004 inter alia stated as under :- “WHEREAS,
a case against Shri R.P.S. Panwar, GM, Muzaffarnagar, in respect of a
criminal offence is under investigation and he is under suspension with
effect from 18.09.2003 vide this office order of even number dated
23.09.2003. xx xx xx”
13. However, a very significant development took place after passing of
orders dated 15.2.2006, which has changed the nature of suspension order.
As pointed out above, the petitioner was to attain the age of superannuation
on 30.4.2006. The case of the continuation of the petitioner”s suspension
beyond superannuation was, therefore, considered by the President and
orders dated 13.4.2006 was passed stating that he would continue to be
under suspension till finalization of all cases and decision on treatment of
suspension period would be taken only on the conclusion of all such cases.
This order does not limit the scope of cases to criminal case alone but, in no
uncertain terms, mentions about the departmental cases as well, as is clear
from the operative portion o the said order dated 13.4.2006, which is as
follows :- “NOW THEREFORE, the President has carefully considered the
case of Shri R.P.S. Panwar and keeping in view that 10 departmental cases,
in addition to a criminal case in which he was formally placed under deemed
suspension, are pending against him, has ordered that Shri Panwar will
continue to be under suspension till finalization of all the cases
(departmental/ criminal) and a decision on treatment of his suspension
period will be taken only on conclusion of all such cases, depending on the
outcome thereof By order and in the name of the President.” This order,
thus, in no uncertain terms and unambiguously records the decision making
process. Having regard to the pendency of 10 departmental cases, in addition
to a criminal case, the President had decided that he would continue to be
under suspension “till finalization of all the cases (departmental/ criminal”..”
. Since his continuation was treated, by the said order, pending departmental
cases as well, the petitioner cannot argue that the suspension was only with
reference to the criminal investigation and had nothing to do with the
departmental cases. We, therefore, do not accept the submission of learned
counsel for the petitioner in this behalf.

14. We now proceed to deal with the first submission, namely, applicability
or otherwise of sub-rule (6) of Rule 9 to those Government employees who
have retired from service. No doubt, in Common Law, after the retirement
and/or when there is cessation of employer-employee relationship, there is
no question of employee remaining under suspension. If we apply this
principle of Common Law, viz. once an employee retires, the employer-
employee relationship comes to an end, the sequitur would be that the
employer cannot take disciplinary action against his retired employee and
punish him for that. However, sub-rule 2(a) of Rule 9 creates legal fiction
and for the purpose of departmental action treats such a delinquent officer as
an employee of the Government. No doubt, the nature of penalties which can
be imposed after retirement are different as it would be absurd to inflict the
punishment prescribed under Rule 11 of the CCS (CCA) Rules on a retired
employee. To remove this absurdity, Rule 9 provides for different kinds of
punishments, which relate to forfeiture and/or cut in pension and gratuity. It
is for this reason the pension and gratuity are not released to the Government
employee, against whom the disciplinary proceedings are pending, at the
time of retirement and he is only given provisional pension. Once we
understand and accept this position, extending this deeming provision or
legal fiction, to a situation provided under sub-rule (6) of Rule 9 would also
be understandable. The President had passed specific orders dated 13.4.2006
extending the suspension till the conclusion of departmental cases as well as
criminal cases. This deemed suspension, for the purpose of departmental
cases, would continue even after retirement. Once the matter is looked into
from this angle, there is no difficulty in concluding that even when the
charge sheets were served after the retirement, the deemed date of initiation
of disciplinary proceedings would be the date of suspension.

15. Learned counsel for the petitioner, relying upon the judgment of the
Supreme Court in Bengal Immunity Co. Ltd. v. State of Bihar and Ors.,
1955 SCR 646, had argued that the legal fiction is to be limited to the
purpose for which it was created and should not be extended beyond that
legitimate field. There is no doubt about this proposition of law. Having
regard to the purpose for which Rule 9 in the Pension Rules has been
introduced, as highlighted and discussed in detail hereinabove as well as in
para 17 below, our opinion is in tune with the law laid down by the Apex
Court in Bengal Immunity (supra) and does not run contrary to the principle
laid down therein.

16. We may point out at this stage that learned counsel for the petitioner had
referred to and relied upon the same judgments which were cited before the
learned Tribunal. The learned Tribunal, after holding that deemed provisions
contained in sub-rule (6) of Rule 9 would be applicable to the present case,
dealt with those judgments and distinguished all those judgments as not
applicable and discussion in this respect can be found in paras 15 and 16 of
the judgment of the Tribunal. Since we are in agreement with the reasoning
given by the Tribunal and the manner in which the said case law is dealt
with, we do nothing more than to reproduce the said paras :- “15. Now we
deal with the cases cited by the learned counsel for the applicant in the OA:-
G. Kumararaj”s case, the issue was whether retiral benefits would be
admissible to the applicant who had been suspended on account of
registration of case by CBI but no DE had been initiated nor any charge
sheet had been filed in the criminal court. It was held that mere registration
of a case against him could not be treated as commencement of judicial
proceedings and hence retiral benefits were admissible. Bani Singh”s case,
the issue was regarding inordinate delay of over 12 years in initiation of
disciplinary enquiry. Hence we do not find it relevant to the present case,
facts being different. Janakiraman”s case, the issue was the procedure to be
adopted in the event of promotion of employees against whom departmental
proceedings were pending and when sealed cover procedure is to be resorted
to. Thus, this case also does not support the applicant”s case herein. 16. Now
we also deal with the cases cited by the applicant during the course of
hearing:- Case of Gurpreet Singh Bhullar and Anr. v. UOI and Ors., (2006
SCC (LandS) 658) relates to pendency of a criminal case against a selectee “
under Regulation 5(5), IPS (Appointment by Promotion) Regulations, 1955
for provisional inclusion in the select list. It was held by the Hon”ble
Supreme Court that proceedings should be treated as pending only if a
charge had been framed by the court. The facts of this case are entirely
different to the case in hand. In State of Bihar and Ors. v. Mohd. Idris Ansari
(JT 1995 (4) SC 134) charge sheet was issued to a retired government
servant for acts of omission/commission which were atleast 6 years old.
While the alleged misconduct of the applicant was in 1986-87, enquiry was
initiated in 1993. Hon”ble Supreme Court dismissed the appeal filed by the
State Government, as the proceedings were not in consonance with Rule
43(B) of the Bihar Pension Rules, and were time barred being more than 4
years old. Same was the case in S. Ramanujam v. Commissioner for
Departmental Inquiries and Ors. (1986 (4) SLR 530) where the Government
servant retired on 31.07.1978 and the Memorandum was issued on
31.01.1981 in respect of acts of omission/commission relating to the years
1971 and 1974-75. Application was allowed as charge sheet was barred by
limitation of 4 years and he had not been placed under suspension. The facts
being different do not advance the case of the applicant. Learned counsel for
applicant also placed reliance on K. Padmanabha Rao v. Accountant
General, API, Hyderabad and Ors., (1987 (4) ATC 756). In that case the
enquiry proceedings were quashed by the Hon”ble High Court even prior to
retirement of applicant. Hence, there was no enquiry under the CCS (CCA)
Rules, 1965 pending against him which could be continued under the
Pension Rules. It was held that consequent on the judgment of the High
Court in W.P. 985/1982, it is not competent for the department to continue
with the enquiry commenced against the applicant under the CCS (CCA)
Rules even for the limited purpose of withholding or withdrawing his
pension in whole or part under Rule 9 of CCS (Pension) Rules. The
applicant having been allowed to retire without any conditions, would,
therefore, be entitled to full pension, gratuity and other terminal benefits
consequent on his retirement. This case also does not support the applicant
herein. With regard to S.K. Mathur v. UOI and Ors., (2005 (2) CAT 286),
learned counsel for respondents has submitted that the decision of the
Tribunal is under challenge before the Hon’ble High Court. Hence, we
cannot take cognizance of this decision.” No further arguments were
advanced before us.

17. The reason for creating this legal provision and curtailing the common
law right of the employees is too obvious. A Government employee gets
gratuity on his retirement and also starts earning pension, which he
continues to get for the reminder of his life. So much so, after his death his
family is also entitled to family pension. These benefits are given for
rendering long and faithful service by such Government employees.
However, if it is found that during his employment he had committed some
act of indiscipline or misconduct, it would naturally have bearing on these
terminal dues like gratuity and pension. For this reason, when the
irregularities committed while in service are noticed and when the
disciplinary proceedings are initiated, the Government has taken upon itself
the right to continue the same after retirement as well. In such cases, where
the gross misconduct is found to have been committed while in service,
allowing such a person to earn full pension for rest of his life after retirement
may not be proper as the pension is given for not only long service but for
sincere and faithful discharge of duties. It is for this reason that even when
no inquiry was instituted when the Government servant was in service,
provision is made to proceed against him departmentally even after his
retirement. However, at the same time, balance is struck by providing that
the alleged irregularity should not be of a period more than four years old.
This provision obviates the possibility of harassing retired Government
servants by digging up old issues.

18. Once the aforesaid position is to be accepted as irrefutable, it is not

difficult to find the answer to the issue arising out of the situation at hand.
Here the petitioner was suspended while still in service and investigation
into the alleged irregularities initiated. It is to be borne in mind that
sometimes having regard to the complicated nature of charge, substantial
time is taken in the investigation. In the present case itself, the FIR against
the petitioner was lodged in September 2003, i.e. much before the
petitioner’s retirement on 30.4.2006. Keeping in view the fact that the
petitioner remained in custody for more than 48 hours, though initially order
of deemed suspension was passed, the President chose to extend this order
from time to time after re-assessment, keeping in view the seriousness of the
charges leveled against the petitioner. In such cases, where the investigation
gets completed after the retirement, the very purpose of introducing Rule 9
of the Pension Rules, would be defeated if the contention of the petitioner is
accepted and it is held that the provision of deemed suspension would not be
applicable.

19. For all these reasons, we dismiss this writ petition with no order as to
costs.

Sd/-
(A.K. SIKRI)
JUDGE

Sd/-
(J.R. MIDHA)
JUDGE