A retired government servant convicted of a serious criminal offence involving corruption can be subjected to a pension penalty under the CCS (Pension) Rules based directly on the criminal court judgment, without a fresh departmental inquiry or the necessity of UPSC consultation.

ORDER

Per: Justice M. G. Sewlikar, Member (J)

By this application, the applicant is challenging the order dated 14.12.2018 (Annexure- A/1) whereby his pension has been cut by 30% for a period of 7 years.

2. Facts can be summarised thus:

3. The applicant joined Employees Provident Fund Organization (EPFO) as a Provident Fund Inspector Grade-I on 10.12.1982. He was promoted as Regional Provident Fund Commissioner Grade-I in March, 2006.

4. CBI filed a charge sheet bearing CBI Special Case No. 2 of 2010 under Section 13(1)(e) read with 13(2) of Prevention of Corruption Act 1988 and under Section 109 of Indian Penal Code, alleging that the applicant possessed assets, disproportionate to his known sources of income. The son of the applicant was also prosecuted by CBI. The Special Judge, CBI Court convicted the applicant and his son and sentenced them with two years of rigorous imprisonment and fine of Rs.30,000/- each (Annexure-A/3).

5. Aggrieved by the orders passed by the Special Judge of CBI Court, the applicant preferred criminal Appeal No.58/2016. The applicant had filed an application No.118/2016 under Section 389 of Code of Criminal Procedure 1973. The applicant was released on bail and his sentence has been suspended.

6. EPFO adopted Central Civil Services (Pension) Rules 1972, vide Gazette notification dated 25th September, 2008 (Annexure-A/6).

7. It is further alleged that in the month of May, 2018, show cause proposing imposition of penalty of reduction of pension by 30% for 7 years was issued by the respondents and the applicant was called upon to make representation on the same. The applicant tendered his representation on 31st May, 2018. In the said representation, applicant contended that there is no provision in Pension rules, akin to Rule 19(1) of CCS CCA rules. Simply by reason of conviction recorded by competent Court, without inquiry no penalty can be imposed on the government servant. The respondents vide impugned order dated 14.12.2018 (Annexure-A/1) imposed the aforesaid punishment of reduction of pension by 30% for 07 years. This order is under challenge in this OA.

8. The applicant has contended that in terms of judgment of Supreme Court, in the case of Akhtari Bi Vs. State of M.P. (Criminal Appeal No.320/2001) the Apex Court held that “appeal being a statutory right, the Trial Court’s verdict does not attain finality during the pendency of the appeal and for that purpose, his trial is deemed to be conducted despite conviction”. He contends that since the applicant has preferred appeal and it is still pending and sentence is suspended, the respondents cannot impose punishment, though, conviction is not stayed. He also contends that in terms of Rule 9 of Pension Rules 1972, before imposing punishment, advice of UPSC has to be taken. In the case at hand, the respondents have not taken advice of UPSC and on this ground alone, the application needs to be allowed.

9. Respondents filed their written statement contending that once a public servant is convicted and conviction is not stayed, the respondents/employer are permitted to take disciplinary action against the government servant. They further contend that Ministry of Labour and Employment vide letter dated 18th September, 2015 has issued clarification regarding consultation with UPSC in pension cut cases under Rule 9 (1) of Pension Rules 1972. It is stated that consequent upon adoption of Pension Rules 1972