Sita
Ram Yadava Vs. Union of India & Ors [1995] INSC 668 (13 November 1995)
Kuldip
Singh (J) Kuldip Singh (J) Hansaria B.L. (J)
CITATION:
1996 AIR 920 1995 SCC Supl. (4) 618 1995 SCALE (6)335
ACT:
HEAD NOTE:
O R D
E R
This
appeal is directed against the judgment of the Central Administrative Tribunal,
Allahabad (the tribunal) dated July 18, 1990 upholding the order of the
president of India under Rule 9 of the Central Civil Service (Pension) Rules,
1972 (the Pension Rules) withholding the entire monthly pension admissible to
the appellant and also denying the death-cum-retirement gratuity to which the
appellant may be entitled under the rules.
The
appellant, Sita Ram Yadava, was working as a Sorter in the Railway Mail Service
at Kanpur. He was absent from duty from October 11, 1973 to July 30, 1974. In the night between October 20/21, 1973, 70 gms of
illicit opium was recovered from Sita Ram Yadava who at that time stated that
he was the son of Bhagwati Prasad. He was arrested by the Excise Inspector under
the Opium Act. According to the respondents the arrested person was none other
than the appellant who according to the railway record is son of Jhullan
Prasad. Sita Ram Yadava was convicted under Section 9 of the Opium Act and was
sentenced to undergo rigorous imprisonment for three months. Appeal filed by
him was dismissed by the Sessions Judge. Criminal Revision filed by Yadava was
dismissed by the Jabalpur Bench of the Madha Pradesh High Court on February 28, 1975.
Disciplinary
proceedings were initiated against the appellant and as a consequence he was
dismissed from service by the order dated December 21, 1974 under Rule 19(i) of
the Central Civil Services (Classification, Control and Appeal) Rules, 1965
(the Rules). The appellant preferred appeal which was allowed with a direction
to the disciplinary authority to hold an inquiry under Rule 19 of the Rules.
Since
the case of the appellant before the disciplinary authority was that Sita Ram Yadava
who was convicted under the Opium Act was a different person than the
appellant, the appellate authority further directed that the disciplinary
authority should properly investigate into the identity of the
petitioner/convict and thereafter pass final order in the matter. The
disciplinary authority as a result of the inquiry passed the order dated June 11, 1984 dismissing the appellant from
service. A finding was recorded that the appellant was the same person who had
been convicted by the criminal court under the Opium Act.
The
appellant preferred appeal against the order dated June 11, 1984 and once again the appellate authority allowed the appeal
and directed the disciplinary authority to give further hearing to the
appellant. It was also directed that opportunity to cross-examine the
hand-writing expert should also be given. Before the departmental inquiry could
be completed, the appellant retired from service on March 31, 1985. The inquiry was, thereafter, converted into one under the
Pension Rules. The disciplinary authority finally recorded the finding that it
was the appellant who was convicted under the Opium Act. The proceedings were
forwarded to the President of India for final orders. The President proposed
the provisional punishment of withholding the petitioner's pension permanently
and not disbursing death-cum-retirement gratuity to him. Accordingly, a show
cause notice dated August
23, 1985 was issued to
the appellant and he submitted his reply. The Union public Service Commission
was consulted which approved the proposed punishment. Finally the President
passed the order of punishment on May 5, 1987.
The
Tribunal in the impugned judgment held as under:- "We do not think,
therefore, that there is any doubt in the authenticity of the court papers
whose negatives were made over to its Expert. So far as the photographs from
the Service Book and taking of specimen signatures and thumb impressions by the
Expert himself on 19.1.1984 is concerned, there is no reason to doubt their
genuineness. All these papers, according to the report of the Expert, were
obtained from the office of the Senior Superintendent of Post Offices/the
disciplinary authority.
The
papers, therefore, came from a proper custody ...........There is no reason,
therefore, to hold that the materials which were examined by the Expert were
not reliable or appropriate materials for the purposes of determining the
identity of the petitioner with the convict of the criminal case." In the
penultimate para of the judgment the Tribunal finally observed as under:
"These
are all the points which have arisen in this case. We notice that not only the
disciplinary authority appears to have considered all the relevant materials,
but the case was also considered by the Union Public Service Commission, who
submitted their recommendations dated 19.3.1987 (Annexure-14). A perusal of
this document shows that the Commission considered at length the disciplinary
proceedings including the appellate order requiring the investigation to be
made to fix the petitioner's identity.
After
the Inquiring officer's report dated 25.9.1985, the reply dated 13-9-85 given by the petitioner is also the Commission. In para
5 of Annexure-14 it is said that the Commission have examined the records of
the case carefully and saw no reason to differ from the findings of the Inquiring
Officer arrived at on the basis of the totality of the evidence examined during
during the enquiry and confirmed the view of the Inquiring Officer that the
petitioner is the same person, who was convicted in the criminal case.
Apparently
the Commission has bestowed its attention to the controversy it is not a case
of non-application of mind." We see no ground to interfere with the
findings of fact reached by the departmental authorities and upheld by the
Tribunal. We agree with the reasoning and the conclusions reached by the
Tribunal.
This
Court, while granting special leave, passed the following order :
"Special
leave granted. By the Presidential order dated 5.5.1987, both pension and DCRG
have been withheld.
Counsel
for the petitioner submitted that so far as gratuity is concerned, the matter
stands covered by this Court's decision in D.V. Kapur V. Union of India, 1990
(4) SCC 314. That case turned on the interpretation of Rule 9 of the Civil
Services Conduct Rules, 1972. In paragraph 10 of the judgment after referring
to the Rule, this Court pointed out that the right to gratuity being a
statutory right could be taken away by a valid Rule only and since Rule 9 did
not empower the withholding of gratuity and no other rule was pointed out which
permitted the withholding of gratuity, the order withholding gratuity could not
be sustained. We enquired of Mr. Tulsi, learned ASG, if he was in a position to
point out any Rule which entitled the President to withhold DCRG.
He was
not able to do so. It, therefore, prima facie appears that the contention urged
by counsel in regard to gratuity is well founded.
We,
therefore, by this interim order direct the release of DCRG to the petitioner
on the petitioner giving an undertaking to this Court to refund the same in the
event this Court so directs." It is not necessary for us to go into the
question whether death-cum-retirement, gratuity can be withheld under the
Pension Rules. Since the said gratuity has already been paid to the appellant,
we are of the view that it would be in the interest of justice to permit the
appellant to retain the same. He shall, however, not be entitled to the
pension.
The
appeal is disposed of accordingly. No costs.
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