HON’BLE SRI JUSTICE GODA RAGHURAM AND HON’BLE SRI JUSTICE R.KANTHA RAO W.P.NO.5806 OF 2010 DATED: 30.06.2010 BETWEEN: The Chief Commissioner of Income Tax(Admn.) And another .. Petitioners And S.B.Ramesh and another .. Respondents HON’BLE SRI JUSTICE GODA RAGHURAM AND HON’BLE SRI JUSTICE R.KANTHA RAO W.P.NO.5806 OF 2010 ORDER: (Per Hon’ble Sri Justice Goda Raghuram) The Chief Commissioner of Income Tax (Administration), Hyderabad and the Union of India have filed this fundamentally misconceived writ petition against the order dated 09.02.2010 of the learned Central Administrative Tribunal, Hyderabad Bench (The Tribunal) in O.A.No.1059 of 2009. 2. The respondent now a retired Income Tax Officer approached the Tribunal for a direction to the second petitioner herein to pay him the retirement benefits as per the earlier order, dated 14.05.1999 of the said respondent (visiting him with the penalty of compulsory retirement under the CCS (CCA) Rules 11(V) 1965 while sanctioning retirement terminal benefits under Rule 40 of the CCS (Pension) Rules, 1972) without reducing the quantum of pension due to him including gratuity etc; to release provisional pension; for further direction to the first petitioner herein to promote him as a Group-A Income Tax Officer with effect from 21.03.1991; and to extend all the consequential benefits on such promotion. 3. By the order impugned, the O.A.No.1059 of 2009 was partly allowed directing the petitioners herein to forthwith restore the provisional pension with retrospective effect from the date of conviction and continue to pay the same till conclusion of the judicial proceedings. The Tribunal directed that so far as the other benefits (other than the provisional pension) are concerned, the application is dismissed and the applicant required to await conclusion of judicial proceedings. The Tribunal further directed that the order with regard to payment of provisional pension shall be complied with by the petitioners herein within 15 days from the date of receipt of copy of its order. 4. The relevant and factual matrix wherefrom the lis arose, may briefly be stated: The first respondent was visited with the punishment of compulsory retirement on proven allegations of misconduct by an order of the competent authority dated 14.05.1999. Consequently he was retired on 19.05.1999. Thereafter on 23.06.1999 it was revealed “that the petitioner was involved in misappropriation of refund order books, had misused the same and unauthorized withdrawal of purported refunds of value of Rs.1,00,08,123-00ps, occurred. The CBI went into the matter and eventually laid charge sheet in C.C.No. 8 of 2001 before the Special Judge for CBI Cases, Hyderabad.” 5. It is stated by Sri B.Narasimha Sarma, learned standing counsel for Income Tax that C.C.No.8 of 2001 is pending. While so, the respondent was found involved another refund order dated 05.10.1999, misused by the first respondent involving an amount of Rs.2,97,97,900=00ps. It is further stated by the learned counsel for the petitioner that the amount of Rs.2,97,97,000/- was not encashed as an interdictory order was passed by the competent authority before encashment. In respect of this alleged misconduct of the respondent Crime No.20 of 1999 was registered and eventually the first respondent was prosecuted in C.C.No.336 of 2000 ending in his conviction by the Special Court by judgment dated 06.09.2005. On the basis of this judgment, a notice was issued by the competent authority proposing withdrawal of hundred percent pension and an order dated 27.12.2007 was passed visiting the first respondent with the penalty of withdrawal of full pension. Thereafter, by the order dated 01.10.2007 the appeal preferred by the first respondent (against the conviction in C.C.No.336 of 2000) was allowed in Criminal Appeal No.328 of 2005 and the first respondent was acquitted. Thereagainst the CBI filed Criminal Appeal No.593 of 2008, which is stated to be pending before this Court. 6. In the factual scenario stated above, the first respondent approached the Tribunal for payment of the entire pension. The learned Tribunal by the order impugned granted limited relief to the extent recorded above. 7. The singular contention urged by Sri Sarma, learned counsel for the petitioner to impeach the order of the Tribunal is that the first respondent did not in specie challenge the order dated 27.12.2006 visiting him with the penalty of withdrawal of full pension. The learned counsel would however though equivocally concede the position that in view of the 1st respondent’s acquittal in Criminal Appeal No. 328 of 2005 and the said order not having been suspended by this Court in Criminal Appeal No. 593 of 2008, the order of conviction is inoperative and that conviction was the solitary basis for the withdrawal of the full pension of the 1st respondent. 8. In the circumstances above, the order of the learned Tribunal is impeccable and warrants no interference by this Court under Article 226 of the Constitution of India. We are unable to appreciate the hypertechnical stance of the petitioners regarding the absence of a formal challenge to the order dated 27.12.2006. The order dated 27.12.2006 substantially and exclusively rests on the conviction of the first respondent. That conviction now having suffered eclipse due to the appellate order, the order of withdrawal of pension cannot survive. 9. For the aforesaid reasons, the writ petition is dismissed. The interim order of suspension dated 12.03.2010 stands dissolved. There shall be no order as to costs. _____________________ GODA RAGHURAM,J __________________ R. KANTHA RAO,J Date:30.06.2010 Kvrm/ccm HON’BLE SRI JUSTICE GODA RAGHURAM AND HON’BLE SRI JUSTICE R.KANTHA RAO W.P.No. 5806 of 2010 Date:30.06.2010