JARNAIL SINGH Vs. SECRETARY, MINISTRY OF HOME AFFAIRS

JUDGEMENT

(1.) LEAVE granted. The appellant, Jarnail Singh, retired from the post of Under Secretary in the Ministry of Rome Affairs, Government of India on March 31,1986. By the Order dated May 26, 1988, the President of India directed that the full monthly pension and the entire amount of death -cum -retirement gratuity, otherwise admissible to the appellant, be withheld on a permanent basis. This direction was given on account of serious irregularities found to have been committed by the appellant in an inquiry held for the purpose and in consultation with the Union Public Service Commission. The appellant challenged this Order before the Central Administrative Tribunal which has rejected the appellant's contention and dismissed the application made for quashing this Order. Renee, this appeal against the Tribunal's order by special leave.

(2.) NOTICE on the petitioner's special leave petition was confined only to the question whether, by way of punishment, the payment of gratuity also could be withheld, for recovery of loss sustained by the Government. This appeal is, therefore, confined to this question only.

(3.) BEARING in mind the definition of the term 'pension' in Rule 3 (1) (o), the term 'pension' used in Rule 9(1) must be construed to include gratuity since the term 'pension', in the context, is not used in contradistinction to gratuity. Learned counsel for the appellant, however, referred to the amendment made in Rule 9 (1) by the Central Civil Services (Pension) Third Amendment Rules, 1991, whereby the term 'pension' has been substituted by the expression 'pension or gratuity, or both' and consequential amendments made in that sub -rule. The question is: Whether this amendment made in 1991 indicates, as contended by learned counsel for the appellant, that 'pension' alone could be withheld under Rule 9 (1) and not also the gratuity prior to the amendment of Rule 9 (1) in 1991? In our opinion, the definition of 'pension' in Rule 3 (1) (o) quoted above negatives the appellant's contention and clearly indicates that the 1991 Amendment is merely clarifacatory and makes explicit that which was clearly implicit prior to that amendment by virtue of the definition of term 'pension' in Rule 3 (1) (o). This clarification appears to have been made only to remove the doubt created by the decisions relied on by counsel for the appellant which are considered hereafter. Learned counsel for the appellant placed strong reliance on the decision in D.V. Kapoor v. Union of India [(1990) 4 SCC 314]. It was held in that case that the exercise of power by the President under Rule 9 is hedged with the condition that a finding should be recorded either in the departmental inquiry or a judicial proceeding that the person had committed grave misconduct etc. in the discharge of his duty while in office; and in the absence of such a finding, the President has no authority to impose the penalty of withholding the pension or to order recovery of the pecuniary loss. There was no such clear finding recorded in that case. That decision was based primarily on this point which was sufficient to sustain the conclusion reached. However, in para 10 (SCC) of that judgment, it was further said that no provision of law was shown to indicate that the President is empowered to withhold gratuity as well. It is, therefore, clear that the definition of the term 'pension' in Rule 3 (1) (o) was not brought to the notice of the Bench deciding D. V. Kapoor case which omission led to the making of this further observation after holding that the condition precedent for exercise of the power was absent. We are, therefore, with respect, unable to agree with this further observation in D. V. Kapoor to the effect that the power of the President in Rule 9 prior to its amendment in 1991, as confined only to withholding pension and it did not extend to gratuity as well.