MAHENDRA SINGH vs Bsnl on 30 October 2026

O R D E R

Per: Kumar Rajesh Chandra, Member (A)

The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief: “8.1 That your Lordships may graciously be pleased to quash and set aside the impugned Order dated 21.05.2018 issued by the Respondent no. 1 as contained in Annexure- A/3. 8.2 That your Lordships may graciously be pleased to direct/ command the Respondents to accord/ release Final Pension, pay/ release the entire amount of Death cum Retirement Gratuity amounting to Rs. 434874/- and full Commuted Value of Pension alongwith statutory interest thereupon from the date of superannuation up to the date of its actual payment. 8.3 Any other relief or reliefs including the cost of the proceeding may be allowed in favour of the applicant.”

2. For the sake of clarity, facts in the case as stated by the applicant in the OA, are discussed and delineated herein under:- The applicant superannuated from service on 31.01.2010 while serving as Senior Telegraph Office Assistant (TG) in the Patna Telecom District. While serving as Head Clerk in the Telephone Department, R-Block, Patna, he was implicated in a criminal case registered by the CBI, Patna Branch, vide RC-7(A)/06 (Special Case No. 02/06), on the allegation of demanding illegal gratification of ₹300/- from one Sri Jayant Kumar. During the pendency of the criminal case, the applicant was permitted to retire on attaining the age of superannuation without initiation of any departmental proceeding. After retirement, he was granted provisional pension and paid his leave encashment, GIS and GPF. However, his Death-cum-Retirement Gratuity (DCRG) amounting to ₹4,34,874/- and the commuted value of pension were withheld on account of the pending criminal case.

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Subsequently, the learned Special Judge, CBI-III, Patna, vide judgment dated 04.12.2012, convicted the applicant and sentenced him to undergo rigorous imprisonment for one year and pay a fine of ₹1,000/-. Aggrieved thereby, the applicant preferred Criminal Appeal vide Cr. Appeal (SJ) No. 57 of 2013 before the Hon’ble Patna High Court, which was admitted on 23.01.2013 and is stated to be pending adjudication. Thereafter, Respondent No. 4 issued a memorandum dated 23.01.2014 calling upon the applicant to show cause as to why his pension and gratuity should not be permanently forfeited. The applicant submitted a detailed reply dated 14.02.2014, enclosing the relevant order of the Hon’ble High Court and other documents. According to the applicant, no further order in the matter was communicated to him at that stage. After a lapse of more than eight years from his retirement and over four years from the issuance of the aforesaid memorandum, Respondent No. 1 passed the impugned order dated 21.05.2018, communicated vide letter dated 19.06.2018, imposing a permanent cut of 50% in the applicant’s pension under Rule 61 of the BSNL CDA Rules, 2006, on the ground of his conviction by the CBI Court. The applicant has challenged the aforesaid order as arbitrary, illegal and contrary to the applicable rules and judicial precedents. He contends that the impugned order was passed despite the pendency of his criminal appeal before the Hon’ble Patna High Court and without compliance with the mandatory requirement of consultation with the Administrative Ministry under Rule 61(4)(1) of the BSNL CDA Rules, 2006. He further asserts that the respondents failed to consider the judgment of the Division Bench of the Hon’ble Karnataka High Court in N.K. Suparna v. Union of India & Others, reported in 2005 (1) ATJ 420.

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The applicant further submits that, notwithstanding the imposition of the 50% permanent cut in pension, the respondents have continued to withhold the entire DCRG amount of ₹4,34,874/- and have not released the admissible commuted value of pension. He claims that such continued withholding is contrary to the applicable rules and constitutional guarantees under Articles 14, 16, 21 and 311 of the Constitution of India. He also asserts that similarly situated employees who were subjected to compulsory retirement following conviction have been granted their admissible retiral benefits, whereas no departmental proceeding was initiated against him before his superannuation. Aggrieved by the impugned order and the continued withholding of his retiral benefits, the applicant has approached the Tribunal seeking appropriate relief, including setting aside of the impugned order, release of his admissible retiral benefits and payment of statutory interest for the period of delay. 3.1 Learned counsel for the applicant submits that the impugned order dated 21.05.2018, imposing a permanent cut of 50% in the applicant’s pension under Rule 61 of the BSNL CDA Rules, 2006, is arbitrary, illegal and unsustainable in law. It is contended that the applicant had already superannuated from service on 31.01.2010 without any departmental proceeding having been initiated against him, and the subsequent order of conviction dated 04.12.2012 is under challenge in Criminal Appeal No. 57 of 2013, which was admitted by the Hon’ble Patna High Court on 23.01.2013 and remains pending adjudication. 3.2 Learned counsel for the applicant further submits that the respondents failed to comply with the mandatory procedural requirement of consultation with the Administrative Ministry under Rule 61(4)(1) of the BSNL CDA Rules, 2006, before passing the impugned order. It is argued that the applicant’s reply dated document Location:

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14.02.2014 to the show-cause memorandum dated 23.01.2014 was submitted along with relevant documents, but the respondents neither communicated any decision thereon nor properly considered the applicant’s submissions before imposing the penalty. 3.3 It is further contended by Learned Counsel for the applicant that the impugned order has been passed in disregard of the principles laid down in N.K. Suparna v. Union of India & Others, reported in 2005 (1) ATJ 420, as well as other judicial pronouncements relied upon by the applicant. Learned counsel argues that the respondents have acted inconsistently in dealing with the applicant’s retiral benefits, particularly when, despite imposing a permanent cut of 50% in pension, they have continued to withhold the entire DCRG amount of ₹4,34,874/- and the admissible commuted value of pension. 3.4 Learned counsel for the applicant accordingly submits that the continued withholding of the applicant’s retiral benefits, without due consideration of the applicable rules and the circumstances of his retirement, is unjustified and violative of Articles 14, 16, 21 and 311 of the Constitution of India. It is further argued that the prolonged withholding of these benefits has caused grave financial hardship to the applicant, who is a senior citizen, and his family.

4. Per contra, Learned Counsel for the respondents submits that the applicant has no legal right to claim release of full pension, as the penalty of 50% cut in pension on a permanent basis was imposed by the competent Disciplinary Authority under Rule 61 of the BSNL CDA Rules, 2006, after considering the gravity of the misconduct leading to his conviction, his reply to the show-cause memorandum and the facts and circumstances of the case in their entirety. The proposal to award penalty was sent to the document Location:

Sonali Lal administrative Ministry and this was duly ratified by the Department of Telecommunications (DoT) before passing the final order. 4.1 Learned counsel for the respondents further submits that the applicant was caught red-handed by the CBI in the year 2006 on the allegation of demanding illegal gratification while he was in service. Although he superannuated on 31.01.2010 while the criminal case was pending, he was subsequently convicted by the learned CBI Court in 2012. It is argued that the mere pendency of the criminal appeal before the Hon’ble Patna High Court does not preclude the Disciplinary Authority from taking action under the applicable rules on the basis of the conduct that led to the applicant’s conviction. 4.2 In this regard, learned counsel for the respondents relies upon the Government of India, DoP&T, Office Memorandum F.No. 11012/6/2007-Estt.(A-III) dated 21.07.2016, which permits the Disciplinary Authority to impose an appropriate penalty on the ground of conduct leading to conviction without waiting for the expiry of the period for filing an appeal or for the decision of the appellate court where an appeal has been preferred. It is submitted that, following the conviction, the applicant was issued a show-cause memorandum dated 23.01.2014 under Rule 61 of the BSNL CDA Rules, 2006, providing him an opportunity to explain why his pension, gratuity or both should not be withheld or reduced, either wholly or partly, permanently or for a specified period. The applicant submitted his reply, which was duly considered before the competent authority took a final decision. Learned counsel for the respondent specifically denies the applicant’s contention that the departmental proceedings had been closed and submits that the matter remained under consideration until the proposed penalty was ratified by the DoT vide letter document Location:

Sonali Lal dated 10.05.2018, whereafter the impugned order dated 21.05.2018 was passed. 4.3 With regard to the withholding of retiral benefits, learned counsel for the respondents submits that no illegality was committed in withholding the applicant’s gratuity and commuted value of pension during the pendency of the relevant proceedings. Reliance is placed upon Rule 69(1)(c) of the CCS (Pension) Rules, 1972, which provides that gratuity shall not be paid until the conclusion of departmental or judicial proceedings and the issuance of final orders thereon. Learned counsel also refers to the decision of the Hon’ble Allahabad High Court in Ramsiya Yadav v. State of U.P. & Others (2016) in support of the proposition that gratuity may be withheld until the conclusion of the criminal proceedings. It is further submitted that the DCRG amounting to ₹5,25,063/- has already been released to the applicant vide office letter dated 28.12.2018, following the passing of the penalty order dated 21.05.2018. 4.4 Learned counsel for the respondents contends that the impugned order was passed in accordance with Rule 61 of the BSNL CDA Rules, 2006, and the applicable Government of India instructions, after affording the applicant due opportunity to submit his explanation and following the principles of natural justice. It is argued that the penalty was imposed after due consideration of the gravity of the criminal misconduct established against the applicant and after ratification by the competent administrative authority. The respondents, therefore, maintain that the impugned order is neither arbitrary nor violative of Articles 14, 16, 21 or 311 of the Constitution of India.

5. Learned Counsel for the applicant, by way of rejoinder to the written statement filed by the respondents, submits that the impugned action/order is without jurisdiction and authority of document Location:

Sonali Lal law. It is contended that the applicant is governed by Rule 9 of the CCS (Pension) Rules, 1972, and any order imposing a cut in pension or directing recovery of any loss from the applicant’s retiral benefits can be passed only by the competent authority in accordance with the said Rules, with the requisite approval of the Hon’ble President, wherever mandated. The respondents could not have invoked Rule 61 of the BSNL CDA Rules, 2006, to impose a permanent cut in the applicant’s pension in derogation of the applicable pension rules. It is, therefore, submitted that the impugned order, having been passed under the BSNL CDA Rules, 2006, without following the mandatory requirements of the CCS (Pension) Rules, 1972, is unsustainable in law. The applicant further submits that the issue involved in the present OA has already been considered by this Tribunal at Circuit Sitting at Ranchi, in O.A. No. 497/2019, wherein it was held, as contended by the applicant, that any recovery from pension or imposition of a cut therein must be governed by the CCS (Pension) Rules, 1972, and the requisite order must be passed by the competent authority in accordance with the said Rules. Accordingly, the applicant contends that the impugned order passed by the respondents under Rule 61 of the BSNL CDA Rules, 2006, is not sustainable in law.

6. I have heard rival contentions of the parties and perused material on record. I have considered the matter in its entirety and come to the following conclusion: 6.1 The applicant has filed the present Original Application challenging the order dated 21.05.2018, communicated vide letter dated 19.06.2018, whereby a penalty of permanent cut of 50% in pension was imposed upon him under Rule 61 of the BSNL CDA Rules, 2006, consequent upon his conviction by the learned Special Judge, CBI-III, Patna, vide judgment dated 04.12.2012. The document Location:

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applicant has also sought release of his Death-cum-Retirement Gratuity (DCRG) and the admissible commuted value of pension, along with interest. 6.2 The undisputed facts are that the applicant superannuated from service on 31.01.2010 while the criminal case instituted against him by the CBI was pending. He was subsequently convicted on 04.12.2012 and sentenced to undergo rigorous imprisonment for one year and pay a fine of ₹1,000/-. His criminal appeal against the conviction is stated to be pending before the Hon’ble Patna High Court. Following the conviction, a show-cause memorandum dated 23.01.2014 was issued to the applicant, and, after consideration of his reply and ratification by the Department of Telecommunications vide letter dated 10.05.2018, the impugned penalty order was passed on 21.05.2018. 6.3 The principal contention of the applicant is that the impugned order is without jurisdiction, as any cut in pension could be imposed only under Rule 9 of the CCS (Pension) Rules, 1972, with the requisite approval of the Hon’ble President. It is further contended that the respondents failed to comply with the mandatory requirement of consultation with the Administrative Ministry under Rule 61(4)(1) of the BSNL CDA Rules, 2006. The respondents, on the other hand, contend that the impugned order was passed by the competent authority in accordance with the applicable rules and instructions after affording the applicant an opportunity to submit his explanation. The proposal to award penalty was sent to the administrative Ministry and this was duly ratified by the Department of Telecommunications (DoT) before passing the final order. There is clear mention of this fact in the impugned order itself kept as Annexure A/3 of the O.A.

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6.4 This Tribunal has considered the Rule 61 of BSNL, CDA Rules, 2006 that deals with disciplinary action against retiring employees. The same is quoted as under: "Rule 61. DISCIPLINARY PROVISIONS FOR RETIRING EMPLOYEES

(1) The employee against whom disciplinary proceedings have been initiated will cease to be in service on the date of superannuation but the disciplinary proceedings will continue as if he was in service until the proceedings are concluded and final order is passed in respect thereof. The concerned employee will not receive any pay and/or allowance after the date of superannuation. He will also not be entitled for the payments of retirement benefits till the proceedings are completed and final order is passed thereon except his own contribution to Provident Fund and he will be entitled for the provisional pension as per applicable rule.

(2) Disciplinary proceedings, if instituted while the employee was in service whether before his retirement or during the re-employment, shall after the retirement of the employee, be deemed to be proceeding under these Rules and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service.

(3) During the pendency of the disciplinary proceedings the disciplinary authority may withhold payment of gratuity for ordering the recovery from gratuity of the whole or part of any pecuniary loss caused to the company, if the employee is found in the disciplinary proceedings or judicial proceedings to have been guilty of offences/misconduct as mentioned in sub-section (6) of Section 4 of the Payment of Gratuity Act, 1972 or to have caused pecuniary loss to the company by misconduct or negligence, during his service including service rendered on deputation or on re-employment after retirement. However, the provisions of Section 7(3) and 7(3A) of the payment of Gratuity Act, 1972 should be kept in view in the event of delayed payment in case the employee is fully exonerated.

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(4) (1) Chairman/Managing Director is the competent authority to issue sanction to institute the departmental proceedings against the absorbed employees after retirement for withholding a pension for combined service of BSNL and DOT period (herein referred as pension) or gratuity or both either 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 Company, if, any disciplinary or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon reemployment after retirement: Provided that the Administrative Ministry 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 pensions shall not be reduced below the amount of rupees one thousand two hundred and seventy five (Rs. three thousand five hundred from 01.01.2006).

(4) (2)(a) The disciplinary proceedings referred to in sub-rule 4(1),if instituted while the absorbed employee was in service whether before his retirement or during his re-employment, shall, after the final retirement of the absorbed employee, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the absorbed employee had continued in service : Provided that where the disciplinary proceedings are instituted by an authority subordinate to the Chairman/Managing Director, that authority shall submit a report recording of its findings to the Chairman/Managing Director.

(4) (2)(b) The disciplinary proceedings, if not instituted while the absorbed employee was in service, whether before his retirement, or during his re- employment,- document Location:

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(i) Shall not be instituted save with sanction of the Chairman/Managing Director,

(ii) Shall not be in respect of any event which took place more than four years before such institution, and

(iii) Shall be conducted by such authority and in such place as the Chairman/Managing Director may direct and in accordance with the procedure applicable to disciplinary proceedings in which an order of dismissal from service could be made in relation to the absorbed employee during his service.

(4) (3) In the case of the absorbed employee who has retired on attaining the age of superannuation or otherwise and against whom any disciplinary or judicial proceedings are instituted or where disciplinary proceedings are continued under this rule, a provisional pension shall be sanctioned with the prior approval of Department of Telecom.

(4) (4) Where the Chairman / Managing Director decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a absorbed employee.

(4) (5) For the purpose of this rule,-

(a) disciplinary proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the absorbed employee or the pensioner, or if the absorbed employee has been placed under suspension from an earlier date, on such date; and (b) Judicial proceedings shall be deemed to be instituted-

(i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made, and

(ii) in the case of civil proceedings, on the date the plaint is presented in the Court.

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Explanation For the purpose of these rules "absorbed employee" means DOT including erstwhile DTS/DTO employees who have taken permanent absorption in BSNL." Rule 61(4)(1) of the BSNL CDA Rules, 2006, specifically provides for action against absorbed employees after retirement in respect of their pension and gratuity, including a permanent or time- bound cut in pension. The said provision further stipulates that the Administrative Ministry shall be consulted before any final order is passed. In the present case, the respondents have asserted that the proposed penalty was duly ratified by the Department of Telecommunications vide letter dated 10.05.2018 before the impugned order was issued. The impugned order reflects compliance with the said requirement. Hence, the applicant’s challenge on this ground cannot be accepted. 6.5 The contention that the pendency of the criminal appeal precluded the respondents from imposing the impugned penalty also cannot be accepted. The respondents have relied upon the Government of India, Ministry of Home Affairs, Office Memorandum dated 29.11.1966, and DoP&T, Office Memorandum F. No. 11012/6/2007-Estt. (A-III) dated 21.07.2016 which permits the competent authority to take disciplinary action on the basis of conduct leading to conviction without awaiting the decision of the appellate court. Mere pendency of an appeal against conviction does not, by itself, render the impugned order invalid. No material has been placed before us to establish that the conviction has been stayed or set aside. Now we would like to examine the expression CONCLUSION of the judicial proceeding. The trial court or the court of first instance arrives at the CONCLUSION which basically means the reasoned document Location:

Sonali Lal judgement on the basis of factual matrix and legally admissible evidence and the issues of law put forth by all the concerned parties. The appellate court judicially examines this CONCLUSION or the decision of a trial court. The word 'appeal' would mean the consideration before the superior court for the purpose of examining the soundness of the decision of the trial court by testing it mainly on the anvil of following correct procedure rather than re-hearing the case. It is accepted that there may be exceptions to this situation when the superior court may hear the case afresh in certain exceptional matters, but that is only an exception and not the general rule. The stage of appeal may be there or may not be there in different cases, but it is not a mandatory requirement that there has to be an appeal in each and every case. The applicant has argued that he has filed an appeal against his conviction by the CBI Special Court. But the fact remains that conviction has not been set aside so far. He has argued on the basis of various judicial pronouncements that the conviction by the trial court has not attained finality so judicial proceeding has not attained finality. I intend to further elaborate and examine the situation in the following manner. Let us visualise the situation where a criminal case has been registered against a Government officer. Since a criminal case has been instituted against that officer, broadly speaking it can lead to either of the two situations. The first situation will deal with a scenario where the case has ended in conviction of that officer by the trial court. This officer who has since been convicted will be presumed to be, rightly being accused of the charge at the moment. He decides to further agitate the issue before the superior judicial forum by filing an appeal.

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This course is undisputedly legally available to him. Now he files a representation before the respondent authorities to absolve him of all the adverse consequences that have been inflicted on him because of this conviction, on the grounds that his appeal is pending even though the conviction has not been set aside and the matter is still pending adjudication before the appellate court. Hence, he interprets that the judicial proceeding cannot be presumed to have attained finality. This has led him to believe that he is entitled for all the benefits that should accrue to him as if he has never been convicted. If this interpretation as sought to be put by the applicant is accepted, it would have serious ramifications. Once a Government servant is convicted he has to be treated as a convict for all purposes. For all purposes means for the purpose of pension also. It does not appeal even to common sense that a convict should be paid pension till the judicial proceedings attain finality. A Government officer, who is convicted, will employ all the means at his command to delay the hearing of the appeal. It will not be in the interest of the society at large to pay pension to a convicted Government officer. Moreover, it will not act as deterrence for the like-minded Government officer. If such an interpretation is placed, it will give the message that despite conviction, a Government officer will get pension till the finality of judicial proceedings. This cannot be the intention of the legislature to indefinitely delay the option available to the Government authorities of taking the decision and wait for the outcome of appeal and then only pass an order under relevant service rules. Now let us think of an alternative scenario in which the same person, against whom a criminal case was registered and investigated/ tried by the trial court was also subjected to departmental proceeding on the basis of his being charge-sheeted in that criminal case. Subsequently, the criminal case ended in his document Location:

Sonali Lal acquittal. Now, he demands that adverse consequences of say withholding pension or gratuity from the date of his being held guilty in the consequent departmental proceeding should now be set aside because of his acquittal in criminal case, and he should be granted all the benefits that are due to him. The respondent authorities decide not to grant him all these benefits on the grounds that they have challenged the acquittal, and the judicial proceeding has still not attained finality, and hence he will have to wait for his pensionary benefits or other favourable consequences that are due to him. Again, this can also not be accepted, and this is definitely a situation, where the resourceful entity that is the applicant in the first scenario and the respondent authorities in the second scenario is trying to use their might to their advantage. If the contention of the applicant is accepted in the instant case, then the respondents' department will be at a serious disadvantage because the rules are being interpreted, against them. This situation cannot be allowed to prevail; hence it is very essential that the interpretation of the word “till the conclusion of judicial proceeding” should be interpreted in the manner that it will end with the proceeding in the trial court or the court of first instance. It will be pertinent to mention that the interpretation of the expression "conclusion of judicial proceeding" has been dealt with in a plethora of judgements and opposing views are available. A large number of such decisions of Hon'ble Supreme Court as well as Hon'ble High Courts have been examined in O.A. 213/2019 of Mumbai Bench by a full bench of the Central Administrative Tribunal consisting of Hon'ble Justice A.K. Srivastava, Hon'ble Justice Govind Selwikar and Hon'ble Mr. Eapen who have gone through all such judgments and held the document Location:

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view pronounced on 2nd November, 2023 that conclusion of Judicial proceeding should end with the judgement of trial court/court of first instance. This full bench was constituted to settle this particular issue as different co-ordinate benches of the tribunal were taking different views by selectively quoting different rulings of superior judicial forum. None of such quoted ruling has been declared as the binding precedent by the Hon'ble Apex Court. This expression does not include the judicial proceedings pending before the appellate court. Hence, the applicant is not entitled to any benefit in view of appeal pending in the criminal proceeding because the order of conviction still stands and it has not even been suspended, leave apart being quashed or set aside. 6.6 As regards the applicant’s claim for release of DCRG, it is evident from Annexure R/1 to the written statement that the respondents have already sanctioned and released DCRG amounting to ₹5,25,063/- vide letter dated 28.12.2018. Accordingly, the prayer for release of the said amount does not survive for consideration, subject to verification of actual payment. 6.7 However, Rule 61(3) of the BSNL CDA Rules, 2006, deals separately with withholding gratuity and recovery therefrom during the pendency of proceedings, subject to the conditions specified therein. The impugned order imposing a permanent cut in pension does not, on the material placed before us, expressly direct forfeiture of gratuity. The question of forfeiture or recovery from gratuity, therefore, cannot be treated as having been decided merely by the imposition of the pension cut. In view of the stated release of DCRG, no further direction in this regard is called for in the present proceedings.

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6.8 In view of the foregoing discussion, and having regard to the material available on record, this Tribunal finds no sufficient ground to interfere with the impugned order imposing a permanent cut of 50% in the applicant’s pension. The Original Application, therefore, fails and is accordingly dismissed. The prayer relating to DCRG stands disposed of in view of its stated release. The applicant’s claim for commuted value of pension and interest is also rejected insofar as it is founded upon the grounds urged in the present Original Application. 6.9 There shall be no order as to costs.

Sd/-

(Kumar Rajesh Chandra)

Administrative Member

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