S.N. Terdal, Judicial Member:
1. This Original Application is filed by the Applicant seeking the following reliefs:-
'1. That the Hon’ble Tribunal may be pleased to quash and set aside the impugned order dated 17.3.2016 imposing penalty of withholding of monthly pension and admissible gratuity, both in full i.e. 100% otherwise admissible to the applicant.
2. That the Hon’ble Tribunal may be pleased to direct the respondent authorities to release all financial benefit from the date of his retirement along with leave encashment with interest.
2. Heard Mr. S.K. Sikidar, learned counsel for the Applicant and Mr. R. Hazarika, learned Addl. C.G.S.C. for the Respondents, perused the pleadings and the documents produced by both sides.
3. The relevant facts of the case are that vide a Memorandum No.8-292/2004 Vig.II dated 21.03.2006 a Departmental Proceedings under Rule 14 of CCS (CCA) Rules 1965, was started against the Applicant for alleged misconduct referred to in the Article of Charge, which is reproduced below:-
'That the said Shri M.N. Khan while posted and functioning as Director (OFC) during the period 1996-1997 failed to maintain absolute integrity and devotion to duty and committed gross misconduct inasmuch he had conducted test checking of the work done in sub-section 16 if Imphal-Moreh route of the Contractor Shri Tarun Das before making final payment but silent about the non-availability of RCC protections. He failed to order to deduct the proportionate amount as per the deficiencies found by them during their sample test check. He simply approved the recommendation of Shri Ram Prasad, DE to deduct 10% of the final bill amounting to Rs.14,04,971.50 deducting a sum of Rs.1,40,954.00 and a sum of Rs.12,64,017;00 was passed by Shri Ram Prasad which was countersigned by him. Thereafter, a net amount of Rs.10,91,120.00 was released to the contractor by Shri Ram Prasad, DE vide Payment Voucher No.334 dated 12.12.1996 and paid vide Cheque No.G425174 dated 23.12.1996 for Rs.10,91,120.00. Moreover, in the test check report, they have mentioned that rocky soil has not been encountered all along the route, even then, he had not ordered for payment of trenching cost at the rate of hard soil instead of rocky soil, resulting in a huge pecuniary benefit to the Contractor.
Thus by his above acts, the said Shri M.N. Khan committed misconduct, failed to maintain absolute integrity, exhibited lack of devotion to duty and acted in a manner unbecoming of a thereby violated the provisions of Rule 3 (1) (i), (ii) & (iii) of CCS (conduct), Rules 1964.'
Under the CCS (CCA) Rules, the Departmental enquiry was conducted. The enquiry Officer by his Report dated 24.10.2010 concluded that the charge against the Applicant/Charged Officer is not proved. But however, the Disciplinary authority disagreeing with the Report of the Enquiry Officer and held that the charge was partially proved against the Applicant/Charged Officer. In the meantime, as the Applicant had filed Writ Petition bearing No.324 of 2008 before the Hon’ble Delhi High Court, and as per the interim order of the Hon’ble Delhi High Court, the Departmental Proceedings were continued, but however, no final order was passed. On the dismissal of the said Writ Petition, the Disciplinary Authority continued the Departmental Proceedings under Rule 9 of CCS (Pension) Rules 1972 and after following required procedure imposed the penalty 'pension cut of 10% for a period of two years' on the Applicant.
4. On the same allegations the CBI had prosecuted the Applicant before the CBI Court, Chandmari, Guwahati. The CBI Court found the Applicant guilty of offence under Section 13(1) (d) r/w 13(2) of PC Act, 1988 and convicted him to undergo a sentence for two years and fine of Rs.20,000/-. After the conviction by the CBI Court, the Respondents initiated another Disciplinary Proceedings under Rule 19(i) of CCS (CCA) Rules, 1965 and Rule 9 of CCS (Pension) Rules, 1972 against the Applicant and by impugned order dated 17.03.2016 imposed the penalty of withholding of 100% of monthly pension and admissible gratuity on permanent basis.
5. From the perusal of the orders dated 22.2.2016 and 17.3.2016 and the Articles of charge mentioned in the Memorandum dated 21.3.2005, it is clear that for the same alleged misconduct extracted above two penalties were imposed on the Applicant, one after conducting the Departmental Proceedings, simultaneously, with the staring of Criminal Proceedings and another penalty after the conviction in the Criminal Proceedings. The counsel for the Applicant brought to the notice of this Tribunal vide a letter No.9-1/2010-Vig.III dated 23.08.2013 issued by the Respondent’s Ministry. In the said letter at Para 4 is stated as follows:-
'4. As per the Gal’s instructions No. (9) under Rule 11 of CCS (CCA) Rules, 1965, there should not be two statutory penalties for one lapse/offence. In similar case, the UPSC has rendered advice that imposition of second penalty is not possible, observing that 'where after departmental enquiry penalty was imposed upon the employee, no penalty, could be imposed on same charges on basis of his conviction by Criminal Court.'
6. From the above extracted communications, it is clear that for the same lapse/offence where a
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fter departmental enquiry the penalty was imposed, no further penalty could be imposed on the same charges on the basis of the conviction of the Charge Officer by the Criminal Court. The said principle is squarely applicable to the case of the Applicant. 7. In the result, the O.A. is allowed. The impugned order bearing No.8-49/2014-Vig.II dated 17.03.2016 is set aside and the Respondents are directed to release all consequential retiral benefits to the Applicant including Leave Encashment with interest at 6% from the date of his retirement i.e. from 30.09.2011. No order as to costs.