Union of India & Another Vs. S.S. Ahluwalia  Insc 864 (24 August 2007)
Mathur & P.K. Balasubramanyan
APPEAL NO. 4247 OF 2006 G.P. Mathur, J.
appeal, by special leave, has been preferred against the judgment and order
dated 11.1.2006 of a Division Bench of Delhi High Court by which the Letters
Patent Appeal filed by the appellants was dismissed and the judgment and order
dated 20.12.2001 of the learned Single Judge was affirmed.
respondent S.S. Ahluwalia joined the Indian Army on 28.6.1965 as Commissioned
Officer. In the year 1973 he was relieved from the army and he joined Central
Reserve Police Force (CRPF).
respondent moved an application under Rule 43(d)(i) of the Central Reserve
Police Force Rules, 1955 (hereinafter referred to as 'the Rules') seeking
voluntary retirement with effect from 1.7.1993.
application moved by the respondent was rejected on 12.7.1993.
gave representations on 30.7.1993 and 10.8.1993 for re- examination of his case
and to accord sanction for his voluntary retirement. On reconsideration of the
matter the appellants accepted the prayer made by the respondent on 23.2.1994
subject to the condition that the proceedings for imposing major penalty
initiated against him vide memo dated 4.2.1994 shall continue. The respondent
submitted his representation on 12.9.1994 raising various pleas and prayed for
withdrawal of the charge-sheet and proceedings for imposition of major penalty.
In the inquiry proceedings the respondent filed written statement of defence on
21.2.1994. The Inquiry Officer, after conducting a full inquiry and recording
evidence, held that charge No. I was partly proved and charges Nos. II, III and
IV were fully proved. The case of the respondent was referred to Union Public
Service Commission (UPSC), who, after examination of the material on record,
advised that the ends of justice would be met in case a penalty of 10%
deduction from his basic pension for one year was imposed. The case was then
referred to Ministry of Home Affairs (MHA) for approval of the Competent
Authority for acceptance of the advice of the UPSC and award of punishment. The
Competent Authority then imposed punishment of 10% deduction from his pension
for a period of one year.
After the application of the respondent for his voluntary retirement had been
accepted by order dated 23.2.1994 he was actually relieved on 2.3.1994. He made
request for release of his retiral benefits but he was informed by
communication dated 12.5.1995 that till the proceedings of departmental inquiry
were concluded his retiral benefits could not be released.
respondent then filed three writ petitions in the Delhi High Court. Writ
Petition No. 637 of 1996 was filed praying for quashing of the order dated
12.5.1995 and consequential release of the retiral benefits like pension,
commuted pension, gratuity along with interest @ 14% per annum with effect from
1.7.1993 till the date of actual payment and also for a direction to the
appellants to treat the respondent as deemed to have voluntarily retired with
effect from 1.7.1993 in accordance with Rule 43(d)(i) of the Rules. On 5.9.1998
the respondent moved an amendment application for amending the Writ Petition
No. 637 of 1996 and in this a prayer was made that the order dated 23.2.1994
retiring the respondent be quashed and the appellants be directed to reinstate
the respondent in service with all consequential benefits. Writ Petition No.
2169 of 1997 was filed for quashing of the order dated 17.3.1997 by which a
penalty was imposed for deduction of 10% pension for one year. The writ
petitions were contested by the appellants herein by filing counter affidavits.
The learned single Judge, by judgment and order dated 20.12.2001, allowed the
writ petitions filed by the respondent herein, set aside the order imposing
penalty of 10% deduction in pension for one year and also directed for his
reinstatement in service with all consequential benefits including salary and
promotion. The appellants preferred a Letters Patent Appeal which was dismissed
by the Division Bench on 11.1.2006. It is these orders which are subject-matter
of challenge in the present appeal.
have heard learned counsel for the appellants and Mr. S.S. Ahluwalia,
There is no dispute that the respondent had moved an application on 15.3.1993
under Rule 43(d)(i) of the Rules seeking voluntary retirement from service with
effect from 1.7.1993. This application was rejected on 12.7.1993. He made
representations against rejection of his application on 30.7.1993 and 10.8.1993
and finally by order dated 23.2.1994 his request for voluntary retirement was
accepted subject to the condition that the proceedings initiated against him
for imposing major penalty vide memo dated 4.2.1994 shall go on. It is also not
in dispute that the respondent was actually relieved on 2.3.1994. Writ Petition
No.637 of 1996 had been filed by the respondent on 6.2.1996 wherein the relief
sought was that a direction be issued to the appellants to treat the respondent
as deemed to have voluntarily retired with effect from 1.7.1993 in accordance
with Rule 43(d)(i) of the Rules and further for quashing of the order dated
12.5.1995 and consequential release of his retiral benefits. An amendment
application was moved for amending the writ petition on 5.9.1998 and here for
the first time a relief was sought for quashing the order dated 23.2.1994
retiring the respondent and for a direction to reinstate him in service with
all consequential benefits. The learned single Judge did not at all notice the
fact that the request of the respondent for voluntary retirement had actually
been accepted on 23.2.1994 and he was actually relieved on 2.3.1994. Thereafter
he was no longer in service and had not done any work. The learned Single Judge
has merely observed that this was a case of extreme harassment and thereafter
passed the operative portion of the order directing reinstatement of respondent
in service with all consequential benefits including salary and promotion. The
order for reinstatement can be passed where as a result of disciplinary
proceedings initiated by an employer an employee is dismissed or removed from
service and the said dismissal or removal is found to be illegal by a court of
law. This was not a case here. There was absolutely no ground on which an order
for reinstatement with all consequential benefits could be passed in favour of
the respondent when he had himself sought voluntary retirement and had actually
been relieved on 2.3.1994. The Division Bench of the High Court also did not
advert to this aspect of the matter. The Division Bench merely observed that
had the appellants disposed of the matter of voluntary retirement of the
respondent in 1993 and had he been permitted to retire in that year itself he
stood fair chance of getting a re-employment. The view taken by the Division
Bench is wholly unsustainable in law. In the application moved by the
respondent on 15.3.1993 he had sought voluntary retirement from 1.7.1993. This
request was finally accepted on 23.2.1994 and he was relieved on 2.3.1994. As
such there was not much delay in accepting the prayer of the respondent for
voluntary retirement. The disciplinary proceedings had finally concluded
against the respondent with imposition of small punishment. In these circumstances
there was absolutely no ground for directing reinstatement of the respondent in
service with continuity in service and all consequential benefits.
learned single Judge has also set aside the order by which a penalty of 10%
deduction in pension for one year had been imposed.
part of the order has also been affirmed by the Division Bench.
be mentioned here that charge No. I was found to be partly proved and charges
Nos. II, III and IV were found to be fully proved.
scope of judicial review in the matter of imposition of penalty as a result of
disciplinary proceedings is very limited. The court can interfere with the
punishment only if it finds the same to be shockingly disproportionate to the
charges found to be proved. In such a case the court is to remit the matter to
the disciplinary authority for reconsideration of the punishment. In an
appropriate case in order to avoid delay the court can itself impose lesser
penalty. In the present case the penalty imposed upon the respondent was very
small, namely, 10% deduction from pension for one year. Thus there was hardly
any occasion for the High Court to interfere with the order of penalty passed
by the Competent Authority. However, having regard to the facts and
circumstances of the case and specially to the fact that the penalty was a
small one being 10% deduction from the pension for one year only, we do not
want to interfere with that part of the order of the learned single Judge and
also of the Division Bench.
the result the appeal is partly allowed. The directions issued for
reinstatement of the respondent with all consequential benefits including
salary and promotion are set aside.
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