The Delhi High Court has set aside an order permanently withholding 50% of the pension and gratuity of a former Research and Analysis Wing (RAW) officer. The Court ruled that the officer’s act of listing his live-in partner as his wife and their children as dependents in a diplomatic passport application did not amount to “grave misconduct” or “lack of integrity,” as he had consistently disclosed the relationship to the department throughout his service.
The Division Bench comprising Justice Navin Chawla and Justice Madhu Jain observed that the petitioner had maintained transparency regarding his domestic circumstances and that the department was already aware of the facts, having previously penalized him for the same relationship in 1994.
Background of the Case
The petitioner, Birendra Singh Kunwar, joined the Cabinet Secretariat (Research and Analysis Wing) as a Deputy Field Officer in 1976. He married Ms. Suman in 1981, but she allegedly deserted him in 1983. Subsequently, the petitioner began cohabiting with Ms. Manihal Devi, and two children were born from this relationship.
In 1990, based on a complaint by his legally wedded wife, departmental proceedings were initiated against the petitioner for neglecting his wife and living with another woman. These proceedings concluded in 1994 with a major penalty of reduction in pay by four stages for four years.
The current controversy arose in 2008 when the petitioner was inducted into the Special Circuit (Ministry of External Affairs) for an overseas assignment. He applied for diplomatic passports for himself, Ms. Manihal Devi, and their two children, listing Ms. Devi as his “wife” and the children as “dependent family members.”
Following this, the petitioner was served with a Charge Memorandum in 2011, just months before his superannuation. The charges alleged that he had:
- Misrepresented facts to cheat and mislead the Department.
- Fraudulently obtained diplomatic passports for a woman who was not his legally wedded wife.
- Exhibited a lack of absolute integrity, violating Rule 3(1)(i) and (iii) of the CCS (Conduct) Rules, 1964.
Although the Inquiry Officer found that the charges of lack of integrity were not established, the Disciplinary Authority issued a Disagreement Note in 2014, holding the charges as proved. Following advice from the Union Public Service Commission (UPSC), a penalty was imposed in 2017 under Rule 9(1) of the CCS (Pension) Rules, 1972, permanently withholding 50% of his monthly pension and 50% of his gratuity.
The petitioner challenged this penalty before the Central Administrative Tribunal (CAT), which dismissed his application in 2018. The Tribunal held that a government servant cannot commit a bigamous act and that the petitioner was bound by government rules. The petitioner then approached the High Court.
Arguments of the Parties
The Petitioner’s Submissions: Arguing in person, the petitioner contended that Rule 9 of the CCS (Pension) Rules allows for withholding pension only in cases of “grave misconduct” or “negligence,” or to recover pecuniary loss caused to the government. He argued that no pecuniary loss was caused in his case.
He submitted that he had never concealed his relationship with Ms. Manihal Devi. He relied on the findings of the Inquiry Officer, which noted that he had cohabited with her for nearly 30 years and that the relationship had “acquired a sense of finality.” He further argued that punishing him again for the same family issue amounted to double jeopardy, as he had already been penalized in 1994.
The Respondents’ Submissions: The Union of India argued that the petitioner, while holding a sensitive post, had misled the authorities to obtain diplomatic passports for persons who were not his legal family members. The counsel submitted that his marriage with Ms. Suman still subsisted as there was no divorce.
The respondents contended that the petitioner’s conduct exhibited a lack of personal integrity and was “highly unbecoming of a Government servant.” They relied on the Supreme Court judgments in Secretary, Forest Department v. Abdur Rasul Chowdhury (2009) and Union of India v. B. Dev (1998) to support the imposition of the penalty under Rule 9.
Court’s Analysis
The Division Bench focused its analysis on whether the petitioner’s actions constituted “grave misconduct” or “lack of integrity” warranting a cut in pension.
On Transparency and Concealment: The Court rejected the respondents’ contention that the petitioner had concealed material facts. The Bench noted that the department was fully aware of the petitioner’s relationship with Ms. Manihal Devi, as he had been subjected to a disciplinary enquiry regarding the same issue in 1994.
The Court observed:
“The record clearly establishes that the petitioner never concealed his relationship with Ms. Manihal Devi. He consistently disclosed Ms. Manihal Devi and her children in the service records, identifying her as his wife based on prolonged cohabitation for the purposes of family pension benefits.”
On the Findings of the Inquiry Officer: The Court referred to the Inquiry Officer’s report, which had acknowledged the petitioner’s transparency. The Inquiry Officer had noted:
“The Charged Officer has continuously cohabited with Ms. Manihal Devi for almost 30 years now and that relationship has acquired a sense of finality… He has not tried to fraudulently incorporate the names in the family particulars proforma… the Pers Division was well aware of his position.”
On Rule 9 of CCS (Pension) Rules: The Court distinguished the present case from the judgments cited by the respondents. Referring to the Supreme Court’s interpretation of Rule 9, the Bench reiterated that the rule empowers the President to withhold pension only if the pensioner is found guilty of “grave misconduct or negligence” in departmental or judicial proceedings.
Justice Madhu Jain, writing for the Bench, held:
“While a Government servant charged with lack of devotion to duty, may be held guilty of grave misconduct, depending upon the nature and gravity of the conduct, the learned Tribunal erred in characterizing the petitioner’s actions as ‘grave/gross misconduct’, as the petitioner never concealed his relationship with Ms. Manihal Devi.”
The Court further noted that no charge of pecuniary loss was framed or proved against the petitioner.
“We, therefore, find no legitimate reason for the respondents to permanently withhold 50% of the petitioner’s monthly pension and gratuity or for denying family pension to the petitioner’s dependents.”
Decision
The High Court allowed the petition and set aside the Order dated September 25, 2018, passed by the Central Administrative Tribunal.
The Court issued the following directions:
- The petitioner is entitled to his monthly pension and gratuity amount with effect from August 1, 2012.
- The respondents must release the arrears along with interest at the rate of 6% per annum from the date they became due until the date of actual payment.
- The respondents are directed to consider the petitioner’s plea to include the name of Ms. Manihal Devi and her children in the Pension Payment Order for family pension and CGHS facilities.
The respondents have been directed to comply with the order within eight weeks.
Case Details:
Case Title: Birendra Singh Kunwar v. Union of India Through Secretary (R) And Anr
Case No: W.P.(C) 1414/2019
Coram: Justice Navin Chawla and Justice Madhu Jain
