JUDGMENT
1. Heard Sri Satish Chaturvedi, learned Counsel for the petitioners and Sri K.K. Mishra, learned Counsel for the Respondent No. 1.
2. The Respondent No. 1 was an employee in the Accountant General Office. He retired from service on 30.6.1995. On 1.7.1995, he wrote a letter in the fake name of S.D. Tripathi, A.A.O. to the Chief Medical Officer, Shahjahanpur informing him that audit of office of Chief Medical Officer, Shahjahanpur shall be conducted from 4.7.1995 to 7.7.1995 for which the records should be kept ready. Though the Respondent No. 1 was a retired person even then the audit was done by him alongwith another person named Sanjay Tiwari. Information of the aforesaid unauthorised audit of the office of Chief Medical Officer, Shahjahanpur was given to the Deputy Accountant General (Inspection Civil). Action was taken against the Respondent No. 1 who was charge-sheeted and a show cause notice was issued to him and his pension was deducted by order of the competent authority. An appeal was filed against the order of the competent authority, which was also dismissed on 1.7.1999. The Respondent No. 1 filed an Original Application before the Central Administrative Tribunal impugning the aforesaid order. The same was allowed by the Tribunal on 23.11.2001 on the ground that the sanction of the President was not obtained as required under Rule 9 of the Pension Rules, 1972. Against the aforesaid order, a review petition was preferred by the petitioners which was rejected vide order dated 28.5.2002.
3. In order to appreciate the controversy, the relevant portion of Rules 8 and 9 of the Central Civil Services Pension Rules, 1972 are quoted herein below :
"8. Pension subject to future good conduct :
(1) (a) Future good conduct shall be an implied condition of every grant of pension and its continuance under these rules.
(b) The Appointing Authority may, by order in writing, withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct :
Provided that, where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the amount of rupees three hundred and seventy-five (Rupees one thousand two hundred and seventy-five from 1.1.1996 [see GID below Rule 49) per mensem.
(2) Where a pensioner is convicted of a serious crime by a Court of Law, action under Sub-rule (1) shall be taken in the light of the judgment of the Court relating to such conviction.
(3) In a case not falling under Sub-rule (2), if the authority referred to in Sub-rule (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order under Sub-rule (1),
(a) serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit, within fifteen days of the receipt of the notice or such further time not exceeding fifteen days as may be allowed by the Appointing Authority such representation as he may wish to make against the proposal; and
(b) take into consideration the representation, if any, submitted by the pensioner under Clause (a).
(4) Where the authority competent to pass an order under Sub-rule (1) is the President, the Union Public Service Commission shall be consulted before the order is passed.
(5) An appeal against an order under Sub-rule (1), passed by any authority other than the President, shall lie to the President and the President shall, in consultation with the Union Public Service Commission, pass such orders on the appeal as he deems fit.
Explanation.--In this rule,--
(a) the expression 'serious crime' includes a crime involving an offence under the Official Secrets Act, 1923 (19 of 1923) ;
(b) the expression 'grave misconduct' includes the communication 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 Official Secrets Act, 1923 (19 of 1923), (which was obtained while holding office under the Government) so as to prejudicially affect the interests of the general public or the security of the State.
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 two hundred and seventy-five from 1.11.1996--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 of 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."
4. A perusal of Rule 9 (1) would indicate that action can be taken by the President under Rule 9 in respect of grave misconduct or negligence "during the period of service". The emphasis in the rule is clearly on the aforesaid words which limits the scope of operation of the rule only in cases where the grave misconduct or negligence is reported to be of during the period of service. Admittedly the incident, for which the opposite party No. 1 has been proceeded against is of a period after the retirement of Opposite Party No. 1 and is, therefore, not covered under Rule 9. The sanction of the President is required in respect of only such act or omission of the delinquent employee during the period of his service. In view of this, we find that the Tribunal has erred in relying on the aforesaid provisions as a result whereof the order of the Tribunal dated 23.11.2001 deserves to be set aside.
5. Learned Counsel for the petitioner has urged that the action taken against the Respondent No. 1 was under Rule 8 of the aforesaid rules quoted herein above and has also relied on the decision of the apex Court in the case of Union of India and Ors. v. B. Dev, AIR 1998 SC 2709. He has particularly drawn our attention to para 9 of the said judgment with special reference to the following lines contained in the said paragraph :
"The explanation clearly extends grave misconduct to cover communication of any official secrets. It is not an exhaustive definition. The Tribunal is not right in concluding that the only kind of misconduct which should be held to be grave misconduct is communication etc. of an official secret. There can be many kinds of grave misconduct. The explanation does not confine grave misconduct to only the type of misconduct described there....."
6. Learned Counsel for the respondents urged that the action has been taken by the petitioners without complying with the provisions contained in Rule 8 and, therefore, even otherwise the order impugned before the Tribunal was vitiated. Since the impugned decision rests only the ground of applicability of Rule 9 without considering the impact of Rule 8, we are not inclined to go into this question and it shall be open to the parties to raise this issue before the Tribunal and the Tribunal shall be at liberty to decide the matter again in accordance with law.
7. In view of the findings recorded and the conclusions arrived at by us herein above, the writ petition is allowed and the order of the Tribunal dated 23.11.2001 is quashed. The subsequent order dated 28.5.2002 dismissing the review application is also set aside. The Respondent No. 2-the Central Administrative Tribunal, Allahabad Bench, is directed to proceed to decide the matter afresh in accordance with law as expeditiously as possible preferably within 4 months.