THE LT GOVENOR OF DELHI & ORS.  Vs SHEELA VOHRA

W.P.(C) 9356/2020 Page 1 of 8
$~S-5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 18th January, 2021
+ W.P.(C) 9356/2020

THE LT. GOVE RNOR OF DELHI & ORS. …..Petitioners
Through: Mrs. Avnish Ahlawat, Standing
Counsel with Mrs. Tania Ahlaw at,
Mr. N. K. Singh and Ms. Palak
Rohemetra, Advocates
versus
SHEELA VOHRA …..Respondent
Through: Mr.M.K.Bhardwaj, Advocate
CORAM:
HON’BLE MR. JUSTICE MANMOHAN
HON’BLE MS. JUSTICE ASHA MENON

J U D G M E N T

ASHA MENON, J: (Oral)

CM No.30168/ 2020

Exemption allowed, subject to all just exceptions.
W.P.(C) 9356/2020, CM APPL. 30167/2020
1. The petition has been heard by way of video conferencing.
2. This writ petition has been filed under Article 226 read with Article
227 of the Constitution of Ind ia by the Government of NCT of Delhi
against the order dated 29th February, 2020 passed in O.A. No.2319/2019
2021:DHC:206-DBW.P.(C) 9356/2020 Page 2 of 8
by the Central Administrative Tribunal, Principal Bench, New Delhi
(hereinafter referred to as ‘CAT’).
3. The brief facts as are relevant for the purp oses of the present
petition are that the respondent was working as a Grade -I DASS Officer
with the petitioners and posted as Food Supply Officer (FSO), In -charge
of Circle -29, Tilak Nagar, in the Food and Supply Department, Govt. of
NCT of Delhi in May, 2 013. On 22nd July, 2015, a complaint was
received about the pilferage of specified food articles from the Public
Distribution System (PDS) in West District from the area MLA and
taking cognizance of the same, a door -to-door survey was conducted by
the Insp ecting Team. According to the petitioners, the respondent had
furnished the wrong information by downloading the address details of
card holders from the online PDS portal, which were factually not
correct, instead of downloading addresses from the NFS por tal, which
contained the correct information. Thus, the door -to-door survey became
a futile exercise for more than one month.
4. The respondent was suspended pending initiation of disciplinary
proceedings vide order dated 27th June, 2016, which was subsequent ly
revoked on 27th September, 2016 as advised by the Suspension Review
Committee. On 31st October, 2016, disciplinary proceedings for
imposition of minor penalty under Rule 16 of the Central Civil Services
(Classification, Control and Appeal) Rules, 1965 was initiated against the
respondent which culminated in imposition of a penalty of “reduction to
a lower stage in the time scale of pay by one stage for a period of one
year, without cumulative effect and not adversely affecting her pension”
on her with i mmediate effect vide order dated 14th February, 2017.
2021:DHC:206-DBW.P.(C) 9356/2020 Page 3 of 8
5. In the meantime, a One -Man Inquiry Committee was constituted of
Sh. S.N.Sahai, IAS, the then Principal Secretary (Home) to examine any
collusion between the Fair Price Shop Licensees and staff of Food &
Supplies Department and to identify pilferage, if any, for fixing
responsibility on the erring officers/officials in Circle -29 (Tilak Nagar).
This Committee submitted its Report on 2nd June, 2017. Thereafter, the
respondent was issued a memorandum dated 21st August, 2017 by the
Assistant Commissioner (West), Department of Food & Supplies, for the
lapses as indicated in the One -Man Committee Report at paras 3.3, 3.4,
3.5, 3.6, 3.7, 3.8 & 3.9 to ascertain her views before proceeding further in
the matter. T he petitioners submit that on examining the version of the
respondent, the same was not found satisfactory and therefore, the
decision was taken to initiate disciplinary proceedings against her for
imposition of major penalty. The respondent was accordingl y placed
under suspension vide order dated 30th August, 2018.
6. The respondent challenged this order of suspension vide O.A.
No.2319/2019 seeking its quashing and release of gratuity, leave
encashment, commuted value of pension, etc., to her, since only the
provisional pension under Rule 69 of the CCS (Pension) Rules, 1972 had
been released to her.
7. The CAT vide order dated 29th February, 2020 allowed the O.A.
and set aside the impugned order of suspension. The present petitioners
being the respondents befor e it, were directed to release the retiral
benefits to the applicant i.e. the respondent herein, if they had withheld
the same on account of suspension.
8. Before us, the learned counsel for the petitioners, Mrs.Avnish
2021:DHC:206-DBW.P.(C) 9356/2020 Page 4 of 8
Ahlawat submitted that the order of the CAT was completely erroneous
as it failed to consider the provisions of Rule 69 of the CCS (Pension)
Rules, 1972 where, upon suspension, provisional pension alone is payable
to the suspended official upon retirement. She submitted that the
respondent alon e was responsible for the pilferage of the food supplies as
the FSO alone was responsible for the monitoring of the PDS in Circle -29
(Tilak Nagar) and so the respondent was liable being the Circle In -charge.
We may point out here that when asked to show wh ere the respondent
had been named in the One -Man Inquiry Committee Report, the learned
counsel was unable to point out any such specific observations and it
appears that her arguments are based only on inferences drawn from the
Report. Admittedly, the resp ondent alone was not working in the said
department/Circle -29 and in all the paragraphs quoted, there is no specific
reference to any evidence that prima facie connected the respondent to
the defalcation.
9. We also find some force in the contention of Sh. M. K.Bharadwaj
the learned counsel for the respondent, who had appeared on advance
notice, that the respondent could not be subjected to a second inquiry on
the same set of facts. There is no dispute that the respondent had been
charge -sheeted for furnishing incorrect details of the beneficiaries of the
PDS in the locality and even as per the petitioners, she had made amends
by furnishing the correct details within a few days. She has also suffered
a minor penalty.
10. However, the learned counsel for the petitio ners insisted that the
CAT had erred in setting aside the suspension because the Department
was contemplating departmental action against the respondent. It was
2021:DHC:206-DBW.P.(C) 9356/2020 Page 5 of 8
argued that setting aside of the suspension was immaterial inasmuch as
after the retirement of the respondent, there could be no suspension.
However, Rule 69 of the CCS (Pension) Rules would still be applicable
and therefore, the CAT erred in directing payment of regular pension and
all retirement benefits.
11. The relevant portion of Rule 69 is extrac ted below for ready
reference : –
“69. Provisional pension where departmental or
judicial proceedings may be pending
(1) (a) In respect of a Government servant referred to in
sub-rule (4) of Rule 9 , the Accounts Officer shall
authorize the provisional pension equal to the maximum
pension which would have been admissible on the basis of
qualifying service up to the date o f retirement of the
Government servant, or if he was under suspension on the
date of retirement up to the date immediately preceding the
date on which he was placed under suspension. (emphasis
added)
(b) xxx xxx
(c) No gratuity shall be paid to the Government servant
until the conclusion of the departmental or judicial
proceedings and issue of final orders thereon:
Provided that where departmental proceedings have been
instituted under Rule 16 of the Central Civil Services
(Classification, Co ntrol and Appeal) Rules, 1965, for
imposing any of the penalties specified in Clauses (i), (ii)
and (iv) of Rule 11 of the said rules, the payment of gratuity
shall be authorized to be paid to the Government servant.”
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It is urged on behalf of the responden ts that under these provisions
if an official stood suspended at the time of retirement, then Rule 69
would have application and only provisional pension need be paid. It
appears that this was the reason why a day before her retirement, the
respondent was suspended. In respect of this action of the petitioners, the
CAT has made the following observation:
“5. It is rather surprising, if not unfortunate, that
Delhi Administration did not appreciate the circumstances,
under which an order of suspension can be passed.
Instances are not lacking, where the charge memos are
issued, just before an employee retires from service, so that
the rigors of Rule 9 of CCS (Pension) Rules, 1972 are
avoided. Hardly, one comes across an incident where an
employee is placed unde r suspension one day before
retirement. The whole exercise is indeed futile, inasmuch as
the suspension becomes redundant, once an employee
attains the age of superannuation. It is not even mentioned
that the applicant shall continue to be in service beyon d the
date of superannuation.”

12. We are in agreement with this observation of the Tribunal. It must
also be noticed that Rule 69, has to be read along with Rule 9 (4) as is
clear from the provisions itself extracted hereinabove. Rule 9(4) reads as
under: –
“9. Right of President to withhold or withdraw pension
(1) to (3) xxx xxx
(4) In the case of Government servant who has
retired on attaining the age of superannuation or
otherwise and against whom any departmental or
judicial proceedings are institut ed or where
2021:DHC:206-DBW.P.(C) 9356/2020 Page 7 of 8
departmental proceedings are continued under sub –
rule (2), a provisional pension as provided in Rule 69
shall be sanctioned.” (emphasis added)
13. In other words, it is Rule 9 which allows payment of provisional
pension under Rule 69 when at the time of his retirement a government
servant stood suspended in relation to a departmental o r judicial
proceedings that were already instituted or where departmental
proceedings were being continued against him, having been initiated
during the service of the retired officer. That position does not hold good
in the present case. Even at the time of suspension, a day before her
retirement, there were no departmental inquiry proceedings that stood
initiated against her or were pending. In fact, till date, no articles of
charge have been served to her. If and when the respondent is found
guilty of gr ave misconduct or negligence during service, the right of the
President to withhold pension and even direct recovery under Rule 9
would have full play. As rightly observed by the Tribunal, the rigours of
Rule 9 were sought to be overcome by a n erroneous application of Rule
69. To our mind, when after retirement there can be no suspension and
the suspension itself has been found to be malafide, there can be no
application of Rule 69 in vacuum, just because the petitioners are still
“contemplating ” on taking disciplinary action against the respondent.
14. This leads us to the most fundamental question as to why there has
been so much of delay. The One -Man Inquiry Committee Report was
submitted on 2nd June, 2017. Though a memorandum was issued to the
respondent on 21st August, 2017, which is placed at Annexure -F to the
petition at page 174 of the electronic file, till 30th August, 2018, no action
2021:DHC:206-DBW.P.(C) 9356/2020 Page 8 of 8
had been initiated against her, despite the claim of the petitioners in the
petition that the explanation offered by the respondent was not
satisfactory. Significantly, since then, till January, 2021, there has been
no movement towards initiation of any departmental inquiry and framing
of articles of charge against the respondent. A further delay has been
noticed in the fili ng of the present petition against the order of the CAT
dated 29th February, 2020 as the present petition was filed only on 29th
September, 2020. No doubt, Covid -19 Pandemic and the lockdown is a
handy excuse, but that would not explain the delay between t he
pronouncement of the impugned order and the lockdown in late March,
2020 and the further fact that the courts have been functioning through
Video Conferencing, particularly for urgent matters, since April, 2020. If
the petitioners were truly concerned a bout the defalcation and diversion
of supplies, as being against the public interest, they should have
immediately rushed to the courts.
15. We find no reason to interfere with the impugned order of the
Tribunal. The petition is accordingly dismissed along wit h the pending
application.
16. The judgment be uploaded on the website forthwith. Copy of the
judgment be also forwarded to the learned counsel through e -mail.

ASHA MENON, J

MANMOHAN, J
JANUARY 18, 2021/ s
2021:DHC:206-DB