ARBIND KUMAR RAVI V. MS COAL MINES PROVIDENT FUND ORGANIZATION THROUGH ITS COMMISSIONER

WPC/430/2020

AI Insights

The case involves Arbind Kumar Ravi, a former Upper Division Clerk at the Coal Mines Provident Fund Organization, who sought judicial intervention after his suspension and subsequent withholding of salary and pensionary benefits following a criminal conviction for demanding illegal gratification. The petitioner argued that the withholding of his salary and pension was arbitrary and not in accordance with the applicable regulations governing his service. The respondents contended that the actions taken were justified due to the serious nature of the misconduct under investigation. The court examined the applicability of the CCS (CCA) Rules, 1965 to the petitioner, ultimately finding that the CMPF (Staff and Conditions of Service) Regulation, 1964 was the correct framework, leading to the quashing of the impugned order.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 738036 (HC-JHARKHAND)
• Appeal Type: Others
• Pronouncement Date: 01-11-2023
• Assessment Year: misc
• Other Referred Cases: Devashish Das Vs. Union of India & Ors., Chandan Kumar & Ors. Vs. the CMPF & Ors., State of Jharkhand & Ors. vs. Ambay Cements & Anr., Zuari Cement Ltd. vs. Regional Director ESIC Hyderabad & Ors.
• Laws Referred To: P.C. Act, 1988, CMPF (Staff and Conditions of Service) Regulation, 1964, CCS (CCA) Rules, 1965
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: PRASHANT VIDYARTHY; ROMIT KUMAR
• Assessee Lawyers: MAHESH TEWARI
• Keywords: Departmental proceeding; Illegal gratification; Judicial Custody; Pensionary benefits; Suspension
• Section: 13(2); 7; 13(1)(d)

Judgement Text

"IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S). No. 430 of 2020 ---------- Arbind Kumar Ravi ………. Petitioner Versus 1. M/s. Coal Mines Provident Fund Organization, Dhanbad through its Commissioner. 2. The Commissioner, M/s. Coal Mines Provident Fund Organization, Dhanbad. 3. The Regional Commissioner, M/s. Coal Mines Provident Fund Organization, Region-III at Ranchi. ………. Respondents. ---------- CORAM: HON'BLE DR. JUSTICE S.N.PATHAK ----------- For the Petitioner : Mr. Mahesh Tewari, Advocate For the Respondents : Mr. Prashant Vidyarthy, Advocate Mr. Romit Kumar, Advocate ---------- 15/ 01.11.2023 Heard the parties. 2. Petitioner has approached this Court with a prayer for quashing and setting aside the letter No. 848 dated 14.12.2018 and thereafter, a direction be given to the respondents to release the 50% and 40% arrears of salary of the period of suspension. Further prayer has been made to release the pensionary benefits in favour of the petitioner since the same has not been paid to him till date inspite of repeated orders passed by this Court. 3. The case of the petitioner lies in a narrow compass. The petitioner was appointed by the respondent-CMPF as Upper Division Clerk on 28.01.1984 and since then, he was discharging his duties diligently and with full devotion towards his work. It is the case of the petitioner that on 24.07.2013, one Minima Gautam made a complaint before the Branch Head Office of CBI, ACB Ranchi against the petitioner alleging therein that on 23.07.2013, the petitioner had demanded illegal gratification of Rs.10,000/- from her for processing the pension papers of her husband, late Chandresh Kumar. Upon receipt of the said complaint the matter was enquired by CBI and the allegation levelled against the petitioner was found to be true. Accordingly, CBI registered a case vide R.C. No. 07(A)/ 2013-R under 2 Section 7 of the P.C. Act, 1988 against the petitioner and the petitioner was arrested on 24.07.2013 at 03:00 p.m. Thereafter, the petitioner moved before this Court for grant of bail and this Court vide its order dated 31.10.2013, passed in B.A. No. 8599 of 2013 was pleased to enlarge the petitioner on bail. 4. After being released on bail, petitioner went to his place of posting and submitted his joining which was accepted but as he was already put under suspension, he was asked to report to the Regional Office-II at Ranchi. In pursuance thereof, the petitioner submitted his joining and on attaining the age of superannuation, he got retired from the post of Upper Division Clerk. It is the specific case of the petitioner that order of suspension has been passed on 26.07.2013 i.e. the date when petitioner was in judicial custody, which is a clear violation of the Rules prevailing in the respondents Organization. Although petitioner represented before respondents for revoking the suspension order but they were sitting tight over the matter passing no order on his representation and hence, he has been constrained to move before this Court by way of W.P.(S). No. 1335 of 2015 and this Court vide order dated 23.11.2017 was pleased to dispose of the writ petition revoking the suspension of petitioner and directing the respondents to pay the salary and other admitted dues to the petitioner, in accordance with the law. 5. Thereafter, petitioner made a representation praying therein to grant him the entire salary and other allowances which has not been paid to the petitioner. However, in a very arbitrary manner, the respondents have issued an order in February, 2018 denying the payment of full salary and other allowances for the period of suspension. Further, while the matter was pending before the Court, the respondents have issued a letter dated 08.10.2018, asking reply from the petitioner as to why his entire post-retiral benefits i.e. pension, gratuity, etc. shall not be withheld in view of judgment passed by the learned Additional Judicial Commissioner-XVIII-cum- Special Judge, CBI Ranchi whereby the petitioner has been found guilty of having committed offence under Sections 7 and 13(2) read with Section 3 13(1)(d) of the P.C. Act. Upon receipt of the said letter, the petitioner immediately filed his reply stating therein that the respondents have no authority or jurisdiction to withhold the post retiral benefits of petitioner to which he is entitled for in accordance with law. It is further case of the petitioner that till the date of his retirement neither there was any departmental proceeding initiated against the petitioner nor was he involved in any adverse action, as alleged against him. The petitioner came to learn that 60% amount of his salary that was being paid to him has suddenly been stopped on and from 10.11.2018 although the representation, as asked by the respondents, has already been submitted but no final order has been passed. Hence, the petitioner has been constrained to knock the door of this Court again. 6. Mr. Mahesh Tewari, learned counsel for the petitioner vociferously argues that withholding of 60% of the amount of salary is a blatant misuse of power as the same cannot be allowed in terms of the Act and Rules of the Coal Mines Provident Fund Organization and the respondent-authorities being the creatures of the statute cannot be allowed to act beyond the four corners of the same. Learned counsel further argues that the respondent- authorities cannot be allowed to withhold the rest of the amount of 50% of salary from 26.07.2013 till 28.02.2016 and 40% salary of the petitioner withheld from 29.02.2016 when he retired from his service in view of the fact that on the date of his retirement there was no departmental proceeding initiated or pending against the petitioner. 7. On the other hand, Mr. Prashant Vidyarthi, learned counsel appearing for the respondents vehemently opposes the contention of learned counsel for the petitioner and submits that since judicial proceedings regarding criminal offence/ grave misconduct in respect of the petitioner was under investigation by CBI Ranchi, the petitioner was placed under suspension and subsistence allowance initially paid @ 50% from 26.07.2013 and thereafter it was paid @ 60% vide letter dated 10.09.2015. Learned counsel further argues that false allegation has been made in the writ petition that 4 only 60% pension has been paid to the petitioner on and from 01.03.2016, whereas, the fact is that 100% of provisional pension under Rule-69 of CCS Pension, 1972, amounting to Rs.18,731/- (including Dearness Relief) from 01.03.2016 was paid to petitioner and thereafter 100% revised provisional pension @ of Rs.21395/- w.e.f. 19.09.2016 along with arrears of pension of Rs.15,984/- was paid to the petitioner upto the month of September, 2018 and no amount of pension was retained in respect of the petitioner. Learned counsel further argues that since petitioner was suspended and thereafter convicted on account of serious charge of taking illegal gratification, he is not entitled for arrears of salary for the period of suspension. Learned counsel lastly submits that in light of aforesaid facts and circumstances, the writ petition being devoid of any merit is liable to be dismissed outrightly. 8. Having heard the rival submissions of the parties across the bar, this Court is of the considered view that the case of the petitioner needs consideration in view of the fact that the petitioner is the employee of CMPF and is guided by CMPF (Staff and Conditions of Service) Regulation, 1964 and not by CCS (CCA) Rules, 1965 under which the proceeding was initiated against the petitioner and as such, the entire proceeding conducted under the CCS (CCA) Rules, 1965 is not tenable in the eyes of law. 9. Similar issue fell for consideration before this Court in case of Devashish Das Vs. Union of India & Ors. (W.P.S. No. 1558 of 2011) wherein it was held that the proceeding under CCS (CCA) Rules, 1965 is not applicable to the employees of CMPF rather, they are guided by provisions of CMPF (Staff and Conditions of Service) Regulations, 1964. Further, this Court in case of Chandan Kumar & Ors. Vs. the CMPF & Ors. (W.P.S. No. 678 of 2019) has reiterated the same view which was affirmed by the Division Bench of this Hon’ble Court in LPA No. 221 of 2020, wherein the Hon’ble Division Bench has held as under: “21. The appellants have tried to justify the memorandum dated 14.09.2018 that the disciplinary proceeding has been initiated under the Regulation, 1964 but it is only in conjunction with the provision of Rule 14 and 18 of the Central 5 Civil Service (Classification Control and Appeal) Rules, 1965 and hence there is no illegality. 22. But we are not in agreement with the said submission reason being that when there is complete conduct Rule by way of Regulation, 1964 laying down the procedure, the disciplinary authority has been defined along with the conferment of power to deal with the minor or major punishment with the procedure as quoted hereinabove, why the disciplinary proceeding will be initiated by taking aid of the another provision which is applicable to the Central Govt. Employees. 23. There is no bar that the same cannot be done but the same is to be done in pursuance to the provision as provided under the Regulation 4 wherein the Commissioner has been conferred with the power that if the provision as contained under Regulation 1964 is incomplete or insufficient then the Commissioner can take aid of the corresponding provision applicable to the Central Government Employees. But subject to approval by the Central Government. But, there is no approval of the Central Government, since, no ground has taken as would be evident from the impugned memorandum dated 14.09.2018 wherein, there is only reference of the provisions of Rule 14 and 18 of the Rule, 1965 along with the provision of Regulation, 1964. Therefore, this Court is of the view that when the Regulation, 1964 provides a provision under Regulation 4. The exercise of power to take aid of the another provision can well be taken only in pursuance to the provision as contained in Regulation 4. This is on the basis of the principle that if any provision has been made in the statute either by way of Act or Rule or Regulation, the decision/thing is to be strictly in accordance with the law. Reference in this regard to be made to the judgment rendered in the case of Babu Verghese vs. Bar Council of Kerala (1999) 3 SCC 422 which reads as under: 31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under: “[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.” 6 32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. and again in Deep Chand v. State of Rajasthan These cases were considered by a three- Judge Bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in the case of State of Uttar Pradesh vs. Singhara Singh and Ors., reported in AIR (1964) SC 358, wherein it has been held at paragraph 8 as under: “....its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted....” Reference to the judgment rendered by the Hon'ble Apex Court also needs to be made in the case of Commissioner of Income Tax, Mumbai vs. Anjum M.H. Ghaswala & Ors., reported in (2002) 1 SCC 633, wherein it has been held at paragraph 27 as under: “..... it is a normal rule of consideration that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself....” Reference is also made to the judgment rendered by the Hon'ble Apex Court in the case of State of Jharkhand & Ors. vs. Ambay Cements & Anr., reported in (2005) 1 SCC 368, wherein it has been held at paragraph 26 as under: “....it is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. It is also settled rule of interpretation that where a statute is penal in character, it must be strictly construed and followed.....” 7 Reference is also made to the judgment rendered by the Hon'ble Apex Court in the case of Zuari Cement Ltd. vs. Regional Director ESIC Hyderabad & Ors. (in Civil Appeal No.5138- 40/2007), reported in (2015) 7 SCC 690, wherein it has been held at paragraph 14 as under: “14. As per the scheme of the Act, the appropriate Government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand v. Ambay Cements, it was held that: (SCC p.378, para 26) 26.... it is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way.” It is the settled position of law that a thing is required to be done strictly in pursuance to the provisions of law, if any deviation, then ultimately the provision as contained under the statute will have no effect. 24. Here in the instant case it is not that there is any embargo in taking aid of the another provision but that is subject to the provision of Regulation 4 wherein the Commissioner has been conferred power to take aid of the corresponding provision of conduct Rules applicable to the Central Govt. employee but with the approval of the Central Government. 25. This Court, therefore, is of the view that in absence of any decision by the Commissioner, the competent authority, with the approval by the Central Govt. then it is not available with the organization, the appellant herein to take aid of the another provision.” 10. Since the aforesaid issues have not been considered while passing the impugned order dated 14.12.2018, the same is hereby quashed and set aside. However, the respondents are at liberty to proceed against the petitioner in accordance with the provisions of CMPF (Staff and Conditions of Service) Regulation, 1964. 11. Resultantly, the writ petition stands allowed. (Dr. S.N. Pathak, J.) kunal/- "