IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.3644-CAT of 2004 Date of Decision : January 25, 2011 Mohinder Singh ....Petitioner Versus Central Administrative Tribunal, Chandigarh Bench and another .....Respondents CORAM : HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Ankush Soni, Advocate for Mr. Amit Jain, Advocate for the petitioner. Dr. Urmil Gupta, Advocate for respondent No.2-Union of India. 1. To be referred to the Reporters or not ? 2. Whether the judgment should be reported in the Digest ? T.P.S. Mann, J. 1. By way of present writ petition, the petitioner, besides seeking quashing of order dated January 31, 2000 (Annexure P-4) passed by respondent No.2 whereby punishment of penal recovery of Rs.60,000/- to be recovered from his retirement dues was imposed, has challenged order dated October 10, 2002 (Annexure P-5) passed by the Chandigarh Bench of Central Administrative Tribunal (for short ‘the Tribunal’) whereby O.A. No.476- HR of 2000 filed by him against the order of punishment C.W.P. No.3644-CAT of 2004 was dismissed and to the order dated September 18, 2003 (Annexure P-7) vide which the review application filed by him was dismissed by the Tribunal. 2. According to the petitioner, who was Senior Barrack Store Officer (SBSO) with the Ministry of Defence, he had rendered 34 years of service and got voluntary retirement w.e.f. 28.2.1997. However, a day before his retirement, i.e. on 27.2.1997, he was served a charge sheet for major penalty under Rule 14 of the CSS (CCA) Rules, 1965 on the following charges :- “MES-303125 Shri Mohinder Singh, SBSO, while performing the duties of SO-2 (Resources) at C.E. Bareilly Zone, willfully confirmed that proprietary articles certificate (PAC), without approval of the appropriate authority, thus, making way for conclusion of indents placed on DGS&D, New Delhi for procurement of copper wound ballast choke 20/40 watts (GENELEC), which resulted in avoidable huge expenditure to the State. By the above act, MES-303125 Shri Mohinder Singh, SBSO, has exhibited negligence and lack of devotion to duty, thereby violating Rule 3(i)(ii) of CCS (Conduct) Rules, 1964.” -2- C.W.P. No.3644-CAT of 2004 3. Feeling aggrieved, the petitioner filed O.A. No.912-HR of 1997. The Tribunal declined to interfere with the disciplinary proceedings after observing that substantial portion of retirement benefits had already been released to him. He was relegated to the remedy of defending himself before the Inquiry Officer and a direction was also issued for completion of the inquiry within four months. Vide report dated 16.1.1999, the Inquiry Officer held that the charge against the petitioner was not proved. The disciplinary authority, however, served a show cause notice dated 10.5.1999 calling upon him to submit his reply as it had differed with the findings of the Inquiry Officer. The petitioner, once again, moved the Tribunal by filing O.A. No.543-HR-1999 with the pleas that there was nothing on record on the basis of which the disciplinary authority could record findings different from those of the Inquiry Officer and the Department had failed to conclude the Inquiry proceedings within stipulated/extended period and thereby it be deemed that the proceedings had been abandoned/dropped. Accordingly, he prayed for setting aside of the proceedings being a case of no evidence. The said O.A. was, however, dismissed on 12.11.1999 being pre-mature. Later on, impugned order (Annexure P-4) was passed by respondent No.2 whereby punishment of penal -3- C.W.P. No.3644-CAT of 2004 recovery of Rs.60,000/- was imposed. He then filed O.A. No.476-HR-2002 but the same was dismissed by the Tribunal vide impugned order dated 10.10.2002 (Annexure P-5). Even the review sought by him was declined by the Tribunal vide order dated 18.9.2003 (Annexure P-7). 4. Learned counsel for the petitioner has submitted that in view of Rule 9(1) of Central Civil Services (Pension) Rules, 1972 (for brevity 'Pension Rules of 1972'), no penalty could be inflicted on a retired person without consulting the Union Public Service Commission (for short ‘UPSC’). Moreover, no irregularity, whatsoever, had been committed by the petitioner while placing orders for supply of chokes. On the other hand, learned counsel for Union of India has submitted that consultation with UPSC was not necessary in the case of the petitioner, who was a civilian employee in defence establishment/service in view of the provisions contained in Regulations 5(1) and (2) of the UPSC (Exemption from Consultation) Regulations 1958 (for brevity 'Regulations of 1958'). As regards the charge against the petitioner, it is submitted by learned counsel for the respondent that the disciplinary authority had rightly differed with the conclusion of the Inquiry Officer and, therefore, order of punishment imposed was valid. -4- C.W.P. No.3644-CAT of 2004 5. We have heard learned counsel for the parties. 6. In order to adjudicate the controversy at hand it is necessary to refer to proviso to Rule 9(1) of the Pension Rules, 1972, which requires consultation with UPSC before any orders are passed imposing punishment of withholding a pension or gratuity, or both, or withdrawing a pension in full or in part whether permanently or for a specified period. The said proviso is reproduced here-in-below:- “9(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 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 pension shall not be reduced below the amount of rupees three hundred and seventy five per mensem.” -5- C.W.P. No.3644-CAT of 2004 7. In the present case, admittedly no reference, whatsoever, was made to UPSC. The stand of the respondent was that the consultation with UPSC was not necessary in the case of the petitioner, who was a civilian employee in defence establishment/service in view of the provisions contained in Regulations 5(1) and (2) of the Regulations of 1958. Regulation 5(1) provides that it shall not be necessary to consult the UPSC in regard to making of any order in the disciplinary proceedings other than those specified in Clauses (a), (b), (c) and (d). Sub Regulation (2) of Regulation 5 makes the provision that it shall not be necessary to consult the UPSC in regard to any disciplinary matters affecting a person belonging to defence service (civilian). This provision has to be read in conjunction with Sub Regulation (2) of Regulation 5, which provides that it shall not be necessary to consult the UPSC in respect of any of the matters mentioned in sub-clauses (a) and (b) of Clause 3 of Article 320 of the Constitution of India in the case of the services and posts specified in Schedule to the Regulations. In the Schedule appended to the Regulations of 1958, there is no specific mention with regard to the civilian in defence services. Moreover, the controlling Sub Regulation (2) of Regulation 5 is -6- C.W.P. No.3644-CAT of 2004 confined to the statutory application for consultation with the UPSC in the case of appointments and promotions made by various ministries/departments of the Government of India. The regulations do not bring within their ambit the matters which have been specified in sub- clause (c) of clause (3) of Article 320 of the Constitution. The Regulations of 1958, therefore, cannot cover the matters falling within the purview of Article 320(3)(c). These regulations apply only with regard to consultation in the case of appointments and promotions. 8. Even if it is accepted that the exemption as provided in Regulations of 1958 applies to the civilians employed in defence services, the fact remains that there is a specific provision in Rule 9(1) of the Pension Rules, 1972 which lays down that if a pensioner is found guilty of grave mis-conduct or negligence during the period of service, the UPSC shall be consulted before any final orders are passed. This provision cannot be circumvented by aid of the Regulations. Rules are superior form of legislation than the regulations. If there is any conflict between the rules and the regulations, the former have to take precedence and to prevail, whereas the conflicting provision in the latter has to be ignored. Respondent No.2, -7- C.W.P. No.3644-CAT of 2004 therefore, may not take shelter of the provisions made in the Regulations for not consulting the UPSC in the matter. Specific provision contained in the Pension Rules, 1972 requiring such a consultation could not have, thus, been avoided. 9. The petitioner has been charged for willfully confirming the Proprietary Articles Certificate (PAC) without approval of the appropriate authority, thus, making way for conclusion of indents placed on DGS&D, New Delhi for procurement of copper wound ballast choke 20/40 watts (GENELEC) which resulted in avoidable huge expenditure to the State. However, during the inquiry, it had surfaced that the indents were placed on 27.1.1992 wherein make of GENELEC for the items to be procured was already mentioned apart from conforming to IS 1534 Part I. PAC duly signed by competent authority, i.e. ACE Col. Chhatwal were also intact, though, the heading stood deleted. The DGS&D vide letter dated 24.2.1992 wanted clarification regarding deletion of PAC whether it still held good. The ACE was away on duty and the letter was disposed of by the petitioner. The confirmation of PAC was given as per the record available considering the certificate of PAC intact. The act of confirmation of PAC was intimated to -8- C.W.P. No.3644-CAT of 2004 ACE Col. Chhatwal, when he reported back on duty and ACE did not dis-approve the act of confirmation of PAC by the petitioner in any way and rather confirmed the fact of endorsement of PAC on the indents in his letter dated 20.3.1992. Signing of confirmatory letter by the petitioner while disposing of the pending letter of DGS&D, therefore, cannot be considered as an irregularity. Moreover, the rates indicated in the indents were Rs.110/- per choke, whereas the purchasing authority, i.e. DGS&D had purchased @ Rs.183/- per choke. 10. In view of the above, this Court has no other option but to accept the petition. 11. Resultantly, the petition is accepted, order (Annexure P-4) imposing punishment of penal recovery of Rs.60,000/- from the retirement dues of the petitioner is set aside and the Union of India is directed to release the amount of Rs.60,000/- to the petitioner alongwith interest @ 6% per annum from the date when it was due uptil the time of its payment. ( M.M. KUMAR) ( T.P.S. MANN ) January 25, 2011 JUDGE JUDGE satish -9-