yourfather should file petition before CAT to direct govt to release his provident fund dues , gratuity and other pension benefits

2) Govt cannot withhold your father PF , gratuity merely because criminal case is pending

Central Administrative Tribunal - Delhi

Vijay Kumar Sharma vs Union Of India on 2 February, 2012

Central Administrative Tribunal

Principal Bench

OA-3689/2011

New Delhi this the 2nd day of February, 2012

Honble Mr. A.K. Bhardwaj, Member (J)

Vijay Kumar Sharma

Retired Assistant, IARI

S/o Sh. D.R. Sharma

R/o E-24, IARI Campus,

New Delhi-110012. . Applicant

(By Advocate: Shri Anil Singal)

Versus

1. Union of India

Through Secretary

Dept. of Agriculture Research & Education

Govt. of India-cum-Director General

ICAR, Krishi Bhawan, New Delhi-1.

2. The Director

IARI, Pusa, New Delhi

3. Chief Administrative Officer(Pension)

IARI, PUSA, New Delhi.

4. Chief Finance & Accounts Officer

IARI, PUSA, New Delhi. . Respondents

(By Advocate: Shri Piyush Sharma) Order(Oral) Honble Mr.A.K.Bhardwaj:

Applicant has filed the present Original Application seeking issuance of directions to respondents to release his regular pension with other retiral benefits.

2. In the detailed reply filed by respondents it is contended that an FIR No.141/04 was lodged in the police by Shri Arvind Kumar and Shri Vijay Kumar Sharma and other officials. The said FIR is still pending, thus in terms of provision of Rule 69 of Pension Rules, 1972, pensionary benefits i.e. gratuity and leave encashment etc. could not be released.

3. Learned counsel appearing for applicant relied upon decision of this Tribunal in the case of TejPal Singh Tuli Vs. UOI & Ors.(OA-3312/2009) wherein it was held that there has to be nexus between allegation in criminal case and official duty of concerned employee in the absence of which there may be no justification to carry on departmental proceedings against employee. Para 9 of the said judgment read as under:-

9. I find that this Tribunal in OA-2411/2007 has as recently as on 19.12.2008. I the case of Jogeshwar Mahanta Vs. UOI relating to matrimonial discard, in which the applicant had been proceeded under Rule 14 of the CCS (CCA) Rules, 1965 by issue of chargesheet on the basis of allegations made by the wife, decided that there has to be a nexus with official duty and whereas the applicant may be still embroiled in matrimonial dispute with his wife, them would be no justification to carry on with the departmental proceedings against him. The charge memo was therefore quashed and the application was allowed.

4. In the case of I.Yesudanam OA-2281/2009 it was held that the leave encashment and other retirement benefits could not be withheld on the ground of pendency of judicial proceedings. In the said case this Tribunal viewed that even during pendency of judicial proceedings, Govt. servant is entitled to release of leave encashment, CGIES and GPF amount payable to him. Relevant excerpt of the order passed in said case read as under:-

11. A perusal of the order passed by the Tribunal in OA-2154/2002, relied upon by the applicant, shows that Sh. J.P. Sharma was suspended on 26.02.2001 under Rule 10(1)(b) of the CCS(CCA) Rules, 1965 and superannuated on 31.03.2002 whereupon a provisional pension in terms of Rule 69 of CCS(Pension) Rules, 1972 was granted to him. He had sought payment of all retiral dues such as gratuity, leave encashment, full pension etc. with interest although he was involved in a case of embezzlement of government money and FIR was filed with respect to offences under Section 120-B, 420, 468, 477-A, IPC and 13(2) r/w 13(1)(c) of P.C. Act, 1988. Having considered the submissions made and provisions of the various Rules the Tribunal found that while no judicial proceedings could be said to have been instituted or deemed to be so, the applicant having been suspended, departmental proceedings would be deemed to have been instituted against him as per Rule (9)(6)(a) of CCS(Pension) Rules, 1972 and therefore on.ly a provisional pension could be paid. Further by reference to Rule 9(4) and 3(o) of the CCS (Pension) Rules, 1972 and keeping in view the judgment of the Apex Court in D.V. Kapoor Vs. UOI and Ors., (1990) 4 SCC 314, the Tribunal noted that use of the term pension was in contradistinction to gratuity, and thus gratuity would be payable. Again by a reference to CCS (Leave) Rules, 1972, particularly Rule 39(3) thereof it was noted that the competent authority could withhold cash equivalent of earned leave in such a case if there was a possibility of some money becoming recoverable on conclusion of the criminal/disciplinary proceedings. It was held that in absence of such satisfaction of the concerned authority having been expressed by an order in writing, the leave encashment could not have been withheld. In this background the applicant was found to be entitled to leave encashment and gratuity and also to provisional pension only.

12. When this matter was taken to the Honble High Court of Delhi in CWP No. 6465/2003 the Court took note of Rule 10 of the CCS (CCA) Rules, 1965 and Rules 9 and 69 of the CCS (Pension) Rules, 1972. The question of leave encashment was not entertained and notice was issued limited to the question of release of gratuity. The Court referred to relevant citations and in particular noted that criminal proceedings start after the filing of the chargesheet before the Court. Having examined the matter from various angles the Court came to the conclusion that in the facts of the case it could not be said that departmental proceedings had been instituted against the applicant therein, as Rule 10(1)(b) relates to suspension in a case where criminal offence is under investigation, inquiry or trial and the suspension which was ordered could not be considered to be relevant to departmental proceedings. Further, the date of suspension viz. 26.02.2001, could not be treated as the date of institution of judicial proceedings either. Thus, to give only provisional pension was found to be unjustified. But, the validity of Rules 9(4) and 69(1) of CCS (Pension) Rules, 1972, was not found to be questionable. I am therefore not persuaded that these judgments would be of any assistance to the applicant in the facts of the present case, which are at variance, so far as claim for payment of gratuity is concerned.

13. In the present case the applicant admits that he was suspended under Rule 10(1)(b) of the CCS CCA Rules, 1965. Noticeably the order of suspension enclosed at Annexure A/1, page 22 of the paperbook, shows that powers had been exercised under Rule 10(1) to place the applicant under suspension which would therefore not exclude the applicability of sub clause (b) thereof. Besides, the respondents say in their counter reply that judicial proceedings stood instituted against the applicant as charge sheet had been filed by CBI in the Court and the requirement of Rule 9(6)(b) of CCS(Pension) Rules, 1972 was satisfied. Such contention has not been rebutted nor any rejoinder filed to the reply. However, reliance has been placed mainly on the judgments of the Tribunal and that of the Honble High Court noted above, which do not support the applicants case for release of gratuity.

14. In so far as the claim for commutation of pension is concerned, I am in agreement with the respondents that such commutation of provisional pension authorized under Rule 69, would not be admissible to a government servant against whom departmental or judicial proceedings, as referred to in Rule-9 of the Pension Rules, have been instituted before retirement or afterwards. This finds support from Rule-4 of the CCS(Commutation of Pension) Rules, 1981 at Appendix-I to Swamys Compilation of CCS (Pension) Rules, 1972.

15. The claim of the applicant for leave encashment on the other hand is found to be similar to the claim raised in the case of J.P. Sharma (supra) to which the applicant therein was found to be entitled in the light of the following observations in para-15 thereof:-

The learned counsel for the applicant has further stated that even leave encashment of the applicant is not being permitted. He relied upon sub-rule (3) to Rule 39 of the Central Civil Services (Leave) Rules, 1972. The said Rule unfolds itself in the following words:-

39. Leave/Cash payment in lieu of leave beyond the date of retirement, compulsory retirement or quitting of service. (3) The authority competent to grant leave may withhold whole or part of cash equivalent of earned leave in the case of a Government servant who retires from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Government dues, if any.

One of the necessary condition to be satisfied in this regard is that the authority competent to grant leave can withhold whole or part of the cash equivalent of the earned leave if in the view of such authority, there is possibility of some money becoming recoverable from him on conclusion of the proceedings against him. This satisfaction of the concerned authority necessarily has to be in writing. Our attention has not been drawn that any such view has been expressed by the authority competent to grant the leave by passing an order to withhold the same for reasons referred to above. In the absence of any such opinion having been expressed, we are of the considered opinion that leave encashment could not have been withheld that was due to the applicant.

16. In the present case as well there is no material on record to show that any decision has been recorded by the competent authority expressing satisfaction that there were sufficient reasons for withholding the grant of leave encashment. As such I am of the view that the applicant would be entitled to the release of the amount admissible to him by way of leave encashment.

17. It is noticed from GOI decision (5) 2 (g) under Rule 68, CCS (Pension) Rules, 1972 that the Department of Pension and Pensioners Welfare by O.M. dated 05.10.1999 circulated the decision that payments under CGEGIS cannot be termed as terminal benefit and also that payment of the same cannot be withheld nor any government dues recovered therefrom except the amount claimed by financial institutions as due from the employees on account of loans taken for house building purpose. In so far as the claim for release of the GPF amount is concerned, the same enjoys protection in terms of the Provident Funds Act, 1925 as expressed therein and it is the duty of the authorities to release the same in accordance with the Rules.

18. The applicant is therefore found entitled to payment of leave encashment. Further, since the respondents have stated that the case for payment of CGEGIS amount as well as GPF amount has been taken up with the authorities, the same be finalized also keeping in view the above observations, and admissible amounts released. Since the applicant has retired on 30.06.2009, the interest shall be payable for delayed payment as admissible in accordance with law. This exercise be completed within three months from the date of receipt of a certified copy of this order and applicant informed by passing appropriate orders. The applicant is not entitled to payment of gratuity and to commutation of pension. Since it has been stated in Para 5.3 of the OA that a review has been filed by the respondents with regard to the orders of the Honble High Court of Delhi in the case of J.P. Sharma (supra), which has not been controverted by the respondents, the present directions shall be subject to the final outcome thereof.

19. The O.A. is disposed of as above. No costs.

5. In the case of UOI Vs. J.P.Sharma WP(C) 6465/2003 Honble Delhi High Court viewed that the gratuity of retired Govt. servant could not withheld for any length of time to await the instituton of departmental or judicial proceedings even after his retirement. The Relevant extract of said judgment of Honble High Court read as under.

22. This leads us to the question, as to what is the inter play of the rights of the Government and the retired Government servant with regard to the fixation of provisional pension and the withholding of the gratuity of the retired Government servant by the Government. Is it, that in every case where neither departmental proceedings nor judicial proceedings are instituted, as contemplated by Rule 9(6) as on the date of retirement of the Government servant, he immediately becomes entitled to receive full pension and gratuity? In such a situation, if departmental or judicial proceedings are instituted after the lapse of sometime from the date of the retirement of Government servant, but within the time permissible under Rule 9(2)(b)(ii) or otherwise within the period of limitation, would the Government not be entitled to fix the provisional pension and, in case by then the gratuity has not been paid to the retired Government servant would the Government not be entitled to withhold the gratuity in terms of Rule 9 (4) and Rule 69(1)(c) of the Pension Rules?

23. We may note that unlike for the initiation of

departmental proceedings, for the initiation of judicial

proceedings, there is no time limit prescribed under the Pension Rules within which the same can be initiated after the retirement of the government servant. However, judicial proceedings, be they civil or criminal, would be subject to the laws of limitation. A perusal of Rule 9(4) would show that the said Rule is applicable, inter alia, to every case where a departmental or judicial proceedings is instituted against the retired government servant. The said sub-rule(4) does not say that the departmental or judicial proceedings have necessarily to be in existence on the date of superannuation of the government servant. This means that even when the departmental or judicial proceedings are validly instituted subsequent to the date of superannuation, a provisional pension as provided in Rule 69 would be sanctioned in favour of the government servant.

24. The pension of a government servant, who is due to retirement, is required to be fixed well in advance, so that there is no delay in payment of pension to him immediately upon his retirement. Reference may be made to the provisions contained in Chapter VIII and in Rules 83 & 85 of the Pension Rules. Consequently, it follows that in respect of a government servant to whom Rule 9(4) of the Pension Rule does not apply, the Government is obliged to fix and pay the full pension and continue to pay the same, until a situation arises (with the institution of valid proceedings) as contemplated in Rule 9(4). Once a situation covered by Rule 9(4) arises, the government would become entitled to henceforth fix the provisional pension and continue to pay the same until the conclusion of the proceedings, and subject to the final outcome of the proceedings. While the right to receive monthly pension accrues immediately upon retirement, and the same is to be paid vide Rule 85(2) monthly on or after the last working day of the month to which the pension relates...................., so far as gratuity is concerned, there is no specific Rule with regard to disbursement thereof. Rule 85(1) states Except as otherwise provided in these Rules, a gratuity shall be paid in lump sum. While in respect of pension a statutory right exists, to receive pension immediately upon retirement month by month. There is no time bound prescription with regard to release of gratuity to the retired government servant. This also appears to be the scheme as evident from Rule 9(1) of the Pension Rules. The question of withholding pension or gratuity or both either in full or in part by the President can arise only in a situation where the same has in fact not been paid to the retired government servant. From the aforesaid analysis of the Pension Rules, we draw the following conclusions:-

(i) In a case where neither departmental proceedings nor judicial proceedings are instituted as contemplated by Rule 9(6) of the Pension Rules as on the date of retirement of the Government servant, he immediately becomes entitled to receive the full pension.

(ii) If departmental or judicial proceedings are instituted validly after the retirement of the Government servant, but within the time permissible under Rule 9(2)(b)(ii) or otherwise within the period of limitation, the government would become entitled to fix provisional pension to be paid henceforth till the conclusion of the proceedings and would abide by the final decision arrived at in the proceedings in relation to the payment of the pension.

(iii) While a Government servant does become entitled to receive gratuity upon retirement (when proceedings as contemplated by Rule 9(6) are not in existence on the ate of his retirement),there is no rule that the same is payable immediately upon retirement. If proceedings are validly instituted after the date of retirement of the Government servant, but prior to the disbursement of the gratuity to him, the Government servant cannot claim release of gratuity till so long as the proceedings are not concluded, and the final decision with regard to disbursement of gratuity would abide by the outcome of the proceedings.

25. Does it mean that the gratuity of a retired government servant can be withheld for any length of time to await the institution of the departmental or judicial proceedings even after his retirement? In our view the answer to this question has to be in the negative. In case departmental proceedings are not instituted within the time granted by Rule 9(2)(b) against a retired government servant i.e. within four years of the commission of the misconduct, the same cannot be instituted at all. Similarly, judicial proceedings, would have to be initiated within the period of limitation. If no judicial proceedings are initiated against the retired Government servant within the period of limitation, it would be impermissible for the Government to institute them later, or even to withhold the full pension or gratuity of the retired government servant. The power to withhold the grant of gratuity in contemplation of disciplinary or judicial proceedings cannot be permitted to be misused or abused by the Government. The same cannot become an instrument of harassment of the retired government servant in the hands of the Government. At the same time, the Government cannot lightly be divested of its right to withhold the gratuity in respect of a retired government servant in a deserving case. Therefore, in every case where the Government withholds gratuity in respect of a retiring/retired Government servant, the Government shall be obliged to pass an order disclosing the grounds with reference to the particular cases in respect of which Rule 9(4) and Rule 69 of the Pension Rules are sought to be invoked against the Government servant.

26. Coming to the facts of this case, we find that the RC/FIR in the present case was registered on 6.2.2001. Neither a complaint was lodged, nor a challan filed till even four years after the date of registration of the FIR against the respondent. Consequently, in our view the respondent could not be denied the gratuity due to him.

27. Having said that we may, however, clarify that the right of the President under Rule 9(1) is not in any way fettered by the mere fact that the government servant is released his gratuity and pension, since it is always open to the President to withdraw the pension in full or in part and to order recovery from the pension or gratuity of whole or any part of the pecuniary loss caused to the government, as may be established in the departmental or judicial proceedings. With these observations, we dismiss this petition leaving the parties to bear their respective costs.

6. In the impugned order dated 5.1.2011 it is indicated that a decision to release the retirement benefits regular pension to applicant could be taken as per the outcome of Honble Court. It is correct that the relevant rules permit the Govt. to withheld certain amount of terminal benefits payable to Govt. servant on his retirement, but the provision of such rules should not be applied in a mechanical manner and each case should be dealt with on its own merit keeping in view the nature of charge against the Govt. servant i.e. whether those are related to financial irregularities committed by the Govt. servant while in service or grave in nature. It is submitted by learned counsel appearing for respondents that allegation against applicant is of joining a group of person and beating one Shri Arvind Kumar an accounts officer in office, thus no leniency can be shown in dealing with him in any manner. A perusal of impugned order reveal that the same is passed in a mechanical manner. When a Govt. servant make a representation to authority competent to decide the same for redressal of his grievances, it is expected that the contention raised by him in such representation are dealt with and when certain benefit claimed by the govt. servant are not admissible to him in terms of rules, instruction or notifications, the same should be duly referred to in the order itself.

7. Keeping in view aforementioned circumstances, I deem it appropriate to dispose of the present OA with the direction to the respondents to decide the claim of applicant for terminal benefits keeping in view of aforementioned decisions of Honble High Court and this Tribunal. Such decision shall be communicated to applicant by way of speaking order within a period of two months from the date of receipt of a copy of this order.

8. OA stands disposed of. No costs.

(A.K. Bhardwaj) Member(J) /rb/

The pension cannot be stopped unless he is convicted. It is basic law that a person accused of an offence is presumed to be innocent unless he is proved guilty. You should move the HC for the release of his pension.

The matter can be taken up with high court through a writ of certiorari mandamus for relief. Since the charges against your father is not pecuniary loss to the government, the following judgment will be of use to your case for reference for the writ proposed to be filed before high court.

S.Kannan vs The State Of Tamil Nadu on 7 September, 2009

DATED :: [deleted]

CORAM

THE HONOURABLE MR.JUSTICE V.DHANAPALAN

WRIT PETITION No.17652 OF 2006

S.Kannan ... Petitioner

-vs-

1.The State of Tamil Nadu,

rep.by its Secretary to the Government,

Home Transport -II Department,

Fort St.George,

Chennai-600 009.

2.The Transport Commissioner,

Chepauk,

Chennai-600 005.

3.The Joint Transport Commissioner,

Chennai Zone,

Transport Department,

Ayanavaram,

Chennai-600 023. ... Respondents

Petition under Article 226 of the Constitution of India.

For petitioner : Mr.G.Ethirajulu

For respondents : Mr.V.Viswanathan,

Addl.Govt.Pleader.

O R D E R

Petitioner has filed this Writ Petition, praying for issuance of a writ of certiorari to call for the records relating to the proceedings made in Memo R.No.87355/V3/04, dated 22.09.2005, passed by the second respondent, quash the same and for a consequential direction to the respondents to include his name in the panel and promote him to the post of Motor Vehicles Inspector, Grade-I, with all attendant benefits.

2. Petitioner was appointed as Motor Vehicles Inspector, Grade-II, on 27.12.2000, in the office of the Regional Transport Officer, Coimbatore (North). Thereafter, on 06.06.2005, he was transferred to the Enforcement Wing and posted in the office of the Joint Commissioner, Chennai, namely, third respondent. His next promotion is to the post of Motor Vehicles Inspector, Grade-I. While so, the second respondent, in his office proceedings, which are impugned herein, dated 22.09.2005, framed three charges against the petitioner under Section 17 (b) of The Tamil Nadu Civil Services (Discipline & Appeal) Rules (in short, "the Rules"). The said charges are as under : "Charge-I : That on 14.06.03, Thiru S.Kannan while working as Motor Vehicle Inspector Grade-II at Regional Transport Office, Coimbatore (North) has personally inspected three vehicles involved in an accident near Karikadai bus stop in Pappanaickenpalayam on 13.06.03 and has submitted his inspection report in Form AIR stating that (i)The front left body is pressed in Corporation Bus TN37/N-0675.

(ii)The front left bumper twisted and left grill pressed in Corporation bus TN38/N-0309.

(iii)There are damages in front head light assembly, front vision mirror, fork, Handle bar, speedometer and petrol tank in Motor Cycle TN 37/AA-2369.

But, the report of the MD, TNSTC, Coimbatore regarding the damages of the two Corporation buses in this case reveals that

i)the backside left body and beeding is damaged in respect of TN 37/N-0675

ii)the front grill, bumper, right indicator, mirror and front left wind screen is damaged in respect of TN 38/N-0309.

Thus he has furnished incorrect accident report controversial to the factual occurrence of the accident in this case.

Charge-II : Thiru S.Kannan, Motor Vehicle Inspector, Grade-II, O/o the Regional Transport Officer, Coimbatore (North) has not properly inspected the two corporation buses involved in this accident without carefully analysing the nature of the accident and the possible damages depending upon the impact of this accident. This shows his negligence and lack of devotion to official duties. Charge-III : Thiru S.Kannan, Motor Vehicle Inspector Grade-II, O/o the Regional Transport Office, Coimbatore (North) has furnished false and misleading report in this case without technical expertise. Thus he has failed to maintain absolute integrity in the discharge of his official duty." Aggrieved over the said charges, the petitioner has filed this Writ Petition.

3. A counter has been filed by the respondents, stating as follows :

One K.Natarajan of Coimbatore had lodged a complaint against the petitioner, that his son met with an accident on 13.06.2003 between two State Transport Corporation buses near Kaarikadai Bus Stop in Pappanaickenpalayam and died on the way to hospital. The petitioner, who inspected the vehicles on 14.06.2003, wrongly reported with ulterior motive and for extraneous considerations in such a way that the two corporation buses dashed face-to-face and the position of the motor vehicle was unclear, by which the entire case turned turtle, in spite of clear evidences to prove the negligence of the accused in causing the accident and killing the victim. Therefore, he requested to take necessary action against the petitioner. The Deputy Transport Commissioner was asked to conduct a detailed enquiry in this regard to elicit the facts of the case and, on such enquiry, the petitioner reported that the motorcyclist had clashed against the bus bearing No.TN38/N0309, standing in front, on its left side, being hit by TN37/N0675 and died due to heavy injuries. In conclusion, the Enquiry Officer finalised that in comparison with the details of damages of the three vehicles with that of the accident report given by the petitioner, it was proved that the petitioner had furnished incorrect report. Hence, the petitioner had not inspected the vehicles properly. Subsequently, the charges were framed against the petitioner on 22.09.2005 and the Charge Memo was served on the delinquent officer on 18.01.2006. The Charge Memo is not a punishment, but an opportunity for the delinquent to explain his stand on the charges. The charges are framed as per rules and, hence, no interference is called for in the order impugned.

4. The one and only contention of the learned counsel for the petitioner is that the allegations made against the petitioner do not attract the ingredients to frame charges under Rule 17 (b), but only under Rule 17 (a), as there is no dishonest motive, and non consideration of the same by the respondents has vitiated the entire proceedings.

5. Learned counsel for the petitioner has cited three unreported orders of this Court in W.P.No.3558 of 2004, dated 05.09.2006; W.P.No.18517 of 2007, dated 12.10.2007, and W.P.No.21933 of 2005, dated 25.04.2006. (i) In W.P.No.3558 of 2004, a Division Bench of this Court has held as follows :

"9. As far as the second limb of the prayer sought for by the petitioner for promotion to the post of District Revenue Officer on par with his juniors and with consequential benefits, is concerned, we feel that the punishment of stoppage of increment for a period of six months without cumulative effect is only a minor punishment as per Tamil Nadu Civil Services (Discipline and Appeal) Rules applicable to the Tamil Nadu Government servants and the Charges could have been framed under Rule 17(a) as they were not serious in nature. Admittedly, the charges were framed against the petitioner for certain lapses and lack of supervision and no other allegations such as, illegal gratification, committal of penal offence, etc. which would come under Rule 17(b) were levelled against the petitioner. The Government has given specific guidelines with regard to framing of charges under Rule 17(a) and 17(b). The guidelines are to the following effect: "Guidelines for deciding whether charges may be framed under Rule 17(b):

(1) Cases in which there is reasonable ground to believe that a penal offence has been committed by a Government servant but the evidence forthcoming is not sufficient for prosecution in a Court of law, e.g., (a) possession of assets disproportionate to the known sources of income;

(b) obtaining or attempting to obtain illegal gratification;

(c) misappropriation of Government property, money or shares;

(d) obtaining or attempting to obtain any valuable thing or pecuniary advantage without consideration or for a consideration which is not adequate, etc.,

(2) Falsification of Government records.

(3) Irregularity or negligence in the discharge of official duties with a dishonest motive."

10. Therefore, as per the above said guidelines also, as stated earlier, the charges framed against the petitioner would not come under Rule 17(b), but only under Rule 17(a). However, since the petitioner was imposed punishment on framing Charges under Rule 17(b) which is a bar for consideration of promotion, he has been deprived of the promotion to the next cadre. Therefore, we are of the view that the charges should have been framed under Rule 17(a) and not under Rule 17(b). Therefore, in view of the Guidelines as stated in Letter No.248 issued by the Government of Tamil Nadu, dated 20.10.1997 which have been reconsolidated in the recent Letter No.1882/S/2005-2, dated 7.10.2005 issued by the Government of Tamil Nadu, the claim of the petitioner can be considered for further promotion. In identical circumstances, the Division Bench of this Court had an occasion to deal with the similar issue with regard to framing of Charges under Rule 17(a) and 17(b) following the above said Guidelines, and by its order, dated 7.12.2004 in W.P.No.19144 of 2004, has taken similar view that the Disciplinary Authority, while issuing charge memo, was required to keep in mind the guidelines for framing charges either under Rule 17(a) or under Rule 17(b).

11. Following the same, we are of the view that since the allegations levelled against the petitioner were not serious in nature besides since the proved allegations are minor in nature, only minor punishment can be imposed. As such the claim of the petitioner to the post of District Revenue Officer can be considered by the first respondent on par with his juniors and to this extent, the second limb of the prayer of the petitioner sought for in this Writ Petition is allowed." (ii) In W.P.No.18517 of 2007, it is held as follows :

"9.... It is pertinent to point out that as per the guidelines for deciding the charge under Rule 17 (b), there must be an irregularity or the negligence in the discharge of the official duty with the dishonest motive....Only if there is dishonest motive noticed, then it could be attributed; but, in this case, it is not so. Under the circumstances, the framing of charges under Rule 17 (b) was not at all warranted." "10.Now, the learned Additional Government Pleader would submit that after noticing the explanation, the authorities came to know that the facts would not attract a charge under Rule 17 (b), and they have applied to the Government for amending the charge as one for Rule 17 (a). This contention cannot be accepted since the matter is pending for a long time. Even assuming that there was a charge under Rule 17 (a), no question of deterring him from getting further promotion would arise, and it is not warranted so. Thus, the charges levelled against him, in the opinion of this Court, do not stand. That apart, the order of the second respondent rejecting the petitioner's claim to be included in the panel for the post of Motor Vehicle Inspector Grade I is also liable to be quashed. Accordingly, they are quashed. The respondents are also directed to consider the promotion of the petitioner to which he is legally entitled taking into consideration that the charges levelled against him have been quashed by this Court as above, in accordance with law as expeditiously as possible..." (iii) In W.P.No.21933 of 2005, it has been held as under :

"3...the only allegation against the petitioner is lack of effective supervision over his subordinates. Therefore, the respondents should have framed the charges under Rule 17 (a) instead of Rule 17 (b) to impose a minor punishment. It is also noticed that the charges impugned in these writ petitions were framed without taking into account the circular dated 11.3.2003 issued by the Government to determine whether the charges were to be framed under Rule 17 (a) or under Rule 17 (b) in respect of the allegations levelled against the petitioner. Therefore, from the materials placed on record, this Court is satisfied that the respondents have not acted properly in framing the charges under Rule 17 (b) without considering the explanation offered by the petitioner.... Therefore, the impugned charge sheets are set aside. The respondents are directed to consider the explanation submitted by the petitioner in response to the notice issued by them and frame charge under Rule 17 (a) if they want to proceed with the matter and pass appropriate orders in accordance with law thereafter."

6. In reply, the learned Additional Government Pleader would submit that the measurement of charges is to be decided by the disciplinary authority based on the gravity of offence or allegation; mere issuance of charge memo does not amount to awarding of punishment and that there is no wanton delay in the framing of charges.

7. The learned Additional Government Pleader would cite a Division Bench of this Court in Xavier Dhanaraj v. Secretary to Government, Public Works Department, Chennai, and Others, reported in 2008 (1) MLJ 1303 to show that Charge Memos could not be quashed only on the ground of delay in initiating the charges, particularly when the employee had never made a grievance that he was prejudiced due to the delay.

8. I have heard the learned counsel for the parties and also gone through the records.

9. The only point that arises for determination in this case is, whether the charges framed against the petitioner attract Rule 17 (a) or Rule 17 (b) of the Rules ?

10. For deciding the charges to be framed under Rule 17 (b), the Government, vide Circular No.14353, P&AR (Per.N)/93-1, dated 11.03.1993, has framed certain guidelines, which read as under : "Without prejudice to the generality of situations involving indiscipline, moral turpitude, corruption etc., charges under rule 17 (b) have to be framed in the following types of cases for imposing any one of the major penalties :- (1) Cases in which there is reasonable ground to believe that a penal offence has been committed by a Government servant but the evidence forthcoming is not sufficient for prosecution in a Court of Law, e.g. (a) possession of assets disproportionate to the known sources of income ;

(b) obtaining or attempting to obtain illegal gratification ;

(c) misappropriation of Government property, money or shares;

(d) obtaining or attempting to obtain any valuable thing or pecuniary advantage without consideration or for a consideration which is not adequate etc;

(2) Falsification of Government records.

(3) Irregularity or negligence in the discharge of official duties with a dishonest motive. (emphasis supplied)

(4) Misuse of official position for personal gain.

(5) Disclosure of secret or confidential information even though it does not fall strictly within the scope of the Official Secrets Act.

(6) Misappropriation of Government funds, false claims of Travelling Allowance, reimbursement of false medical bills etc.

Unless a major punishment is really warranted namely, dismissal from service, removal from service, compulsory retirement or reduction to a lower rank in the seniority list or to a lower post or time scale, framing of charges under rule 17 (b) is not necessary and should be avoided." (emphasis supplied)

11. On a perusal of the above guidelines, what comes to be known is that none of the charges framed against the petitioner comes under the above category of cases. Though the charges are framed against the petitioner under Rule 17 (b) as if there is irregularity or negligence in the discharge of official duties, as adumbrated in clause 3 of the guidelines referred to supra, the said negligence, alleged by the respondents, does not contain the dishonest motive, which is a crucial factor for deciding the category of the charge i.e., under 17 (a) or under 17 (b).

12. The very object of framing of the guidelines is that unless a major punishment is really warranted, namely, dismissal from service, removal from service, compulsory retirement or reduction to a lower rank in the seniority list or to a lower post or time scale, framing of charges under Rule 17 (b) is not necessary and should be avoided.

13. The point raised in this case is, whether the executive instructions of the Government can have a force of law ? In this connection, it is to be stated that the executive instructions of the Government can only be supplemental to the statutory rules, where the statutory rules are silent and such instructions cannot supplant the rules. In the present case, the instructions are intended to be used only as supplemental and they are not intended to supersede the statutory rules. In the absence of any conflict between the guidelines and the statutory rules, the disciplinary authority, while issuing the charge memo, was required to keep in mind the guidelines.

14. That being so, in the case on hand, the alleged delinquencies in the Charge Memo are minor in nature. No allegation of misconduct, misappropriation of funds of the Government or wilful and dishonest act is made against the petitioner in the Charge Memo. Also, the respondents have admitted in their counter that there is no financial loss to the Government and it is only a dereliction of duty on the part of the petitioner. In the absence of any such serious allegations, grave charges, attracting major punishment under Section 17 (b), in my considered opinion, cannot be framed against the petitioner. The authority was required to keep in mind the above guidelines, while framing the charges against the petitioner, which is apparently not done. The charges impugned herein were framed without taking into account the Government Circular No.14353, P&AR (Per.N)/93-1, dated 11.03.1993, issued by the first respondent, to determine whether the charges would fall under (a) or (b) of Rule 17 of the Rules in respect of the allegations levelled against the petitioner. So, the framing of charges against the petitioner is contrary to the Government Circular, dated 11.03.1993, and none of the charges framed against the petitioner, in my view, fall under Rule 17 (b). It is also not the case of the respondents that there was dishonest intention on the part of the petitioner in the discharge of his official duties. As such, the act of the respondents in framing charges, attracting Rule 17 (b), is vitiated by ulterior motive.

15. On receipt of the Charge Memo, the petitioner submitted his explanation on 10.02.2006, requesting for documents, which are referred in the Charge Memo. Though the explanation is dated 10.02.2006, neither the departmental enquiry was initiated against the petitioner nor did the authorities furnish the copies of documents, as requested by the petitioner.

16. Though it is stated in the order impugned that a list of documents by which and a list of witnesses by whom the charges are proposed to be maintained are also enclosed in Annexure III and IV respectively, no material is seen to that effect. Further, the specific case of the petitioner is that he has not been supplied with the documents, relied upon by the respondents, in spite of request. Therefore, failure to furnish the documents and statement of witnesses either along with the Charge Memo or on the request of the petitioner taints the entire proceedings.

17. Under the circumstances, the apprehension of the petitioner that if the promotion panel is prepared, in view of the pendency of the charges, his name will not be included in the panel, even though the alleged charges attract only Rule 17 (a) of the Rules, is germane. That apart, the allegation attributed against the petitioner in this case is one and the same. However, the second respondent has multiplied or split up the charges on the basis of the same allegation, which should be avoided as per the guidelines.

18. The date of incident is dated 14.06.2003. The Charge Memo is dated 22.09.2005, which, according to the petitioner, was served after much delay on 18.01.2006, which is not disputed by the respondents. No explanation is forthcoming on the part of the respondents initially with regard to framing of the charges belatedly i.e., after nearly two-and-a-half years after the incident and subsequently as regards the serving of the Charge Memo on the petitioner with much delay after four months pursuant to framing of the charges. Framing of charges belatedly, that too under Rule 17 (b), will shatter the right of the petitioner for promotion and infringement of the said right amounts to violation of principles of natural justice. Therefore, the impugned proceedings suffer from perversity, on the ground of laches as well.

19. Further, under Rule 377 of Tamil Nadu Motor Vehicle Rules, the officers empowered to inspect the vehicles involved in the accident are, the Magistrates, any inspecting officer of the Transport Department and Public Officers not below the rank of Sub-Inspector, and for that purpose they can enter at any reasonable time any premises where the vehicle is kept and remove the vehicle for examination.

20. In this case, the petitioner, being a Motor Vehicle Inspector, having the authority to inspect the motor vehicles involved in the accident, has done the inspection and submitted a report. However, based upon the report of the Managing Director, a charge memo has been issued to the petitioner.

21. One more aspect in this case is that the case in C.C.No.88 of 2003, dated 16.09.2004 has ended in acquittal on the ground that the alleged presence of eye witnesses namely P.Ws.1 and 2 in the place of occurrence is doubtful and that the damages in the motor cycle are not in corroboration with the evidence of the eye witnesses. The said judgment has become final, as no appeal has been preferred against the same. So, the mere complaint of the father of the deceased cannot be a material to initiate the proceedings against the petitioner.

22. A Division Bench of this Court in W.P.No.19144 of 2004, dated 07.12.2004, has held that when there is no dishonest motive, there cannot be any proceedings under Section 17 (b).

23. Though the decision cited by the learned Additional Government Pleader in Xavier Dhanaraj's case, referred above, is on the point, it is not applicable to the case on hand, the reason being, in the said case, the employee had never made a grievance that he was prejudiced due to the delay. However, in this case, one of the grievances of the petitioner is that he was prejudiced by the delay in framing the charges against him. The said delay, in my opinion, is clouded with a stigma.

24. For all the foregoing reasons, this Writ Petition is allowed, setting aside the order impugned, dated 22.09.2005, of the second respondent and directing the respondents to include the name of the petitioner in the panel, over and above his juniors, and promote him to the post of Motor Vehicles Inspector, Grade-I, if he is otherwise eligible, by affording all service and monetary benefits thereof. No costs. Consequently, the connected M.P.Nos.1 of 2006 and 1 of 2008 are closed. However, it is open for the respondents to proceed against the petitioner under Rule 17 (a) for the alleged charges, which shall not be a bar for promotion, in accordance with law.

Consult a lawyer practising in high court for further issues.