9911796707
TMI Blog2014 (3) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... ide/quashing the order dated 17th/18th April, 2012 passed by Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise and Customs by which punishment has been awarded for withholding of 30% pension for five years. (ii)For direction to the respondents to make payment of 18% interest over the dues amount of the gratuity, leave encashment and commutation of pension considering date of superannuation on 31.01.2003 till April, 2012. (iii)Any such order or orders, as this Hon'ble Tribunal deem fit and proper." 2. The case of the applicant is as follows:- (i) The applicant was appointed as Sub-Inspector on 14.05.1963 and thereafter promoted to the post of Assistant Commissioner, Customs. He was allowed to retire in the afternoon on 31.01.2003 as the Assistant Commissioner, Customs, Patna. After superannuation, the applicant was not paid gratuity, leave encashment and no decision was taken on the application made for commutation. (ii) A departmental proceeding was initiated against the applicant for which enquiry officer was appointed and enquiry report was submitted on 16.01.2008 and the copy of the enquiry report was ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity with the findings of the enquiry officer. (viii)The applicant filed explanation against the letter dated 25.02.2011 on 16.03.2011 highlighting that for the alleged mistake for the year 1993-94 to August 93 charges was framed on 11.12.2002 and thereafter, the applicant was allowed to superannuate on 31.01.2003. (ix)Ultimately, the applicant was served with Order No. 8/12 dated 17/18th April, 2012 issued under the signature of Under Secretary to the Government of India, Ministry of Finance, Departmen by which he was communicated that the Hon'ble President has imposed a penalty of withholding of 30% monthly pension admissible to the applicant for the period of five years and the gratuity admissible to the applicant would be released if not required in any other case (Annexure-I). (x)However, no decision on the point of interest was communicated to the applicant. It is further stated that disagreement note is beyond the scope of chargesheet. Being aggrieved with, the applicant has filed the instant application. 3. It has been submitted by the applicant that UPSC has failed to consider the spirit of Rule 173-I and 11-B which are quite different. It has been submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on) Rules, 1972. So far as payment of interest is concerned, the respondents have submitted that there is no provision of interest in the Rules. 6. The applicant has filed his rejoinder wherein it is stated that the respondents have misconceived the existing Rule 173 (I) of Central Excise Rules, 1944 which only assigned duty of the applicant for assessment but the said legal proposition has been misconceived only for the reason 173(1) of Central Excise Rules, 1944 was amended vide notification no. 36/96 dated 20.11.1996 which was acted upon with regard to proposal for introduction of self-assessment. As the cause of action arose in 1993-94, as per the existing rules at that relevant point of time the applicant has not committed any misconduct in discharging his duties which is clearly evident from the enquiry report of the enquiry officer which has not been denied by the respondents. 7. We have heard the learned counsel for both the parties and perused the records. 8. The contentions raised by the applicant in para-4 are being dealt by us in the following paragraphs. 9. It is settled law that the courts in its judicial review can only interfere with the findings of the discipli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or gratuity or both, either in full or in part if the pensioner is found guilty of grave misconduct or negligence during the period of service. 11. In the instant case, the disciplinary authority after discussing the enquiry report, disagreement note as well as reply to the disagreement note has come to the following conclusion:- "......... Even if no evidence is there to establish ulterior motive, there is no doubt of his negligence and complete lack of devotion of duty." 12. It is also noted that the applicant has not challenged any provision or applicability of Rule-9 under which the President has right to withdraw or withheld full pension. From perusal of provision of Rule-9 as well as findings of the disciplinary authority, it is clear that the applicant has been found guilty on the ground of negligence and complete lack of devotion to duty. Thus, the allegation of the applicant that the grounds taken in his report were not considered by the disciplinary authority while imposing the punishment is not valid as the disciplinary authority while coming into conclusion has elaborately discussed the IO's report, disagreement note as well as contention of the applicant. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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