Point of law: Since there is no provision for forfeiting past service in cases of compulsory retirement, and in the absence of disciplinary authority reducing pension while imposing punishment, a second exercise of power under Rule 64 tantamounts to a second punishment, and therefore said action of reducing the pension is illegal.

JUDGMENT :

Mohammed Nias.C.P. J

The General Manager, Southern Railway, Chennai, and its officials are the petitioners in the above Original Petition (CAT) challenging the order in the Original Application filed by the respondent herein that set aside Annexures A3 and A6 orders sanctioning 2/3rd pension and 2/3rd gratuity as Compensation Pension respectively and directed the petitioners to pay to the applicant the full pension with effect from 26.10.2004, date of compulsory retirement.

2. The short facts necessary for the disposal of this original petition are a follows:-

The respondent herein, the applicant before the Tribunal was working as a Senior Clerk in Southern Railway and was given a penalty of compulsory retirement from service with effect from 25.10.2004, pursuant to a disciplinary proceeding that alleged that the applicant had obtained employment in the Railways under the Sports Quota by producing a fraudulent sports certificate. The punishment granted to the first respondent herein was questioned by him by filing OA No. 781/2005 before the Central Administrative Tribunal (CAT) Ernakulam, which dismissed the same by Annexure R1 order. The review attempted as RA No.52/2008 was also dismissed by the Tribunal by Annexure R2 order. Both these orders were challenged before this Court in WP(C)No.12315 of 2019, which was also dismissed confirming the orders of the Tribunal by Annexure R3. After the culmination of the proceedings as above mentioned, the petitioners settled the retirement benefits and as per the orders impugned sanctioned 2/3rd pension and 2/3rd gratuity as Compensation Pension under the Railway Services (Pension) Rules 1993 (for short 'the Rules') were passed. Those orders restricting the pension and gratuity were challenged before the CAT by filing OA No. 180/00885/2018. The Tribunal on the basis of the judgment of this Court in WP(C)No.24260 of 2006 dated 12.03.2007 held that the grant of compulsory retirement pension ought to have been simultaneously made along with the order of compulsory retirement and that not having been done, it must be treated that the applicant is entitled to full pension as the disciplinary authority in the original instance in Annexure A1 did not choose to pass any orders reducing the pension. It is the said order of the Tribunal that is challenged in this original petition.

3. The learned Deputy Solicitor General, Sri.Manu submits that the very basis of the order of the Tribunal was the judgment of this Court in WP(C)No.24260 of 2006 which held that the order reducing pension must be simultaneously passed along with the order of the disciplinary authority imposing the punishment. This view of the Court was held to be per incurium by a later judgment of this Court in WP(C)No.27942 of 2007 and therefore, the very basis of the order of the Tribunal has vanished. It is his further submission that this Court by Annexure R3 judgment had clearly found that the petitioner ought to have been granted the punishment of dismissal and that leniency was shown by the petitioners herein while granting a lesser punishment of compulsory retirement. He also argues that there is nothing in Rule 64 that contemplates passing of orders under the said Rule simultaneously with the order of the disciplinary authority and therefore the latter Division Bench has correctly interpreted the said Rule and held that the earlier decision is per incurium.

4. The learned counsel for the applicant-first respondent, however contends that the punishment of compulsory retirement given is distinct from dismissal or removal, and therefore it cannot lead to forfeiture of past service.

5. Reliance is placed on Rule 41 and 42 of the Rules, 1993. According to the learned counsel, since there is no provision for forfeiting the past service in cases of compulsory retirement, and in the absence of the disciplinary authority reducing the pension while imposing punishment, a second exercise of power under Rule 64 tantamounts to a seco