Madhya Pradesh High Court
Shiv Kumar Tiwari vs Madhya Pradesh State Electricity Board on 24 September, 2015
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HIGH COURT OF MADHYA PRADESH ; JABALPUR
WRIT PETITION NO. 15623/2007(S)
Shiv Kumar Tiwari
Vs.
Madhya Pradesh State Electricity Board and others
Present : Hon'ble Shri Justice K.K. Trivedi
Shri M.K. Sulakhe, learned counsel for the petitioner.
Shri Anoop Nair, learned counsel for the respondents.
ORDER
(24.09.2015) The petitioner is aggrieved by the order of penalty dated 23.11.2006, by which 10% pension of the petitioner is withheld for a period of 5 years, without prejudice to the order dated 26.10.2006 by which 40% pension of the petitioner was forfeited permanently.
2. It is contended by the petitioner that while he was serving as Junior Engineer, he was served with a charge sheet dated 21.05.2005 alleging misconduct against him. The petitioner though filed the reply of the said charge sheet but later on made a prayer for his voluntary retirement, which was considered by the respondents and he was allowed to voluntarily retire with effect from 31.08.2005. However, the departmental enquiry against the petitioner remained pending even after his voluntary retirement. It is the case of the petitioner that though the charges were not fully 2 proved against the petitioner but an extreme penalty withholding 10% pension of the petitioner for a period of 5 years has been imposed, therefore, he is required to file the present writ petition before this Court.
3. The facts relating to conduct of departmental enquiry and the procedure to be followed in the said enquiry are not disputed. The respondents have adopted M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as the Rules of 1966 Rules for brevity) in the matter of governing the services of the employees of the respondents. They have further adopted the M.P. Civil Services (Pension) Rules, 1976 (hereinafter referred to as the Pension Rules for brevity). A departmental enquiry is to be conducted under provisions of 1966 Rules, but the penalty prescribed in the said Rules, cannot be imposed on a Government servant after his retirement including the voluntary retirement. For the said purpose, the specific provisions under the Pension Rules are made to the effect that if a departmental enquiry was initiated while the employee concerned was in service it shall remain continued and is to be concluded in the same manner as is prescribed under 1966 Rules. Since Rule 9 of the Pension Rules is required to be interpreted, the relevant portion of the same is reproduced for ready reference:
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"9. Right of governor to withhold or withdraw pension.-(1) The Governor reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from pension of the whole or part of any pecuniary loss caused to the Government if, in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re- employment after retirement:
Provided that the State Public Service Commission shall be consulted before any final orders are passed:
Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below [the minimum pension as determined by the Government from time to time];
2(a) The Departmental proceedings [x x x], if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced, in the same manner as if the Government servant had continued in service:
Provided that where the departmental proceedings are instituted by an authority subordinate to the Governor, that authority shall submit a report regarding its findings to the Governor.
(b) The departmental proceedings, if not instituted while the Government servant was in service whether before his retirement or during his re-employment:-
(i) shall not be instituted save with the sanction of the Governor;
(ii) Shall not be in respect of any event which took place more than four years before such institution; and [(iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings:-4
(a) in which an order of dismissal from service could be made in relation to the Government servant during his service in case it is proposed to withhold or withdraw a pension or part thereof whether permanently or for a specified period; or
(b) in which an order of recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders could be made in relation to the Government servant during his service if it is proposed to order recovery from his pension of the whole or part of any pecuniary loss caused to the Government].
4. A perusal of the said rules will indicate that the enquiry, if initiated, while the delinquent employee was in service would have to remain continue even after superannuation/retirement of the employee concerned and is required to be conducted in the same manner as if the employee was in service. However, the aspect that what type of penalty could be imposed on a retired government servant and what would be the nature of that penalty, has not been explained in this part of Rule 9. It would be clear from the reading of Rule 9(2)(b) of the Pension Rules that where the enquiry is initiated after the retirement of the delinquent employee, the penalty can be imposed for recovery from the retiral dues, if any pecuniary loss is caused to the government by negligence or breach of order by such delinquent employee. The penalty of reducing the pension can be imposed only if the 5 misconduct is said to be such grave that the employee could have been dismissed from service, had he remained in the service.
5. These aspects have been considered by this Court in the case of R.K. Jain vs. The State of Madhya Pradesh & another - Writ Petition No. 1916/2012 decided on 26.11.2014. While interpreting the provisions of Rule 9 of the Pension Rules and Rule 10 of the 1966 Rules this Court has held that even in case where the departmental enquiry is initiated before the retirement of the delinquent employee, the same analogy has to be drawn for the purpose of imposing a penalty. Otherwise, there would be a discriminatory provision for imposing of penalty in the cases of retired employees one who was subjected to the departmental enquiry before the retirement and other one against whom the departmental enquiry is initiated after retirement. The aforesaid principle is to be made applicable in the present case as well.
6. It is to be seen that certain facts were within the knowledge of the respondents relating to the misconduct of the petitioner. However, admittedly the petitioner was allowed to voluntarily retire with effect from 31.08.2005, even when the department was aware of the fact that the charge sheet was already issued to the petitioner and the departmental enquiry was constituted against him. In view of the aforesaid, only if the misconduct of 6 the petitioner was treated as, such grave that he could have been dismised from service, had he remained in service, the penalty could have been imposed on him after his voluntary retirement.
7. From the order impugned as also the findings recorded by the Enquiry Officer, it is clear that the charges leveled against the petitioner were not fully proved. The charges which were found proved against the petitioner, do not constitute a serious misconduct of the nature on account of which the petitioner could have been dismissed from the service, had he remained in the employment. The penalty of withholding of pension on that count could not have been imposed on the petitioner. Equally it is seen that charges of financial loss to the employer were not leveled against the petitioner. It was not specifically alleged against him that because of any act of the petitioner, any financial loss, duly quantified was caused to the employer. For the said reason, penalty of withholding of pension by way of recovery could not have been imposed on the petitioner. This being so, the order dated 23.11.2006 (Annexure P-1) is wholly against the statutory provisions of Pension Rules, which have been duly adopted by the respondents. This aspect has not been considered by the respondents nor the fact has been stated that there were other reasons for withholding the pension of the petitioner or that there was a separate set of rules authorizing the respondents to 7 withhold the pension of the petitioner.
8. It is further contended by the learned counsel for the petitioner that though initially the petitioner was suspended by order dated 08.07.2004 but the charge sheet was not issued to him within a period of 45 days, therefore, the suspension was to be treated as revoked after expiry of the said period of 45 days. The petitioner was not reinstated in service as it was treated that he was voluntarily retired on his own application vide order dated 31.08.2005. According to petitioner, he should have been treated in service after the expiry of the period of 45 days from the date of issuance of the order of suspension and should have been paid all monetary claims in that respect till the date of his voluntary retirement.
9. Since there is no opposition of such an allegation made by the petitioner, by the respondents as no return has been filed by them after service of notice of the writ petition, it has to be held that the suspension of the petitioner had revoked after 45 days from the date of issuance of the order of suspension as no charge sheet as prescribed under Rule 9 of the 1966 Rules was issued to the petitioner. The respondents were duty bound to treat the petitioner as reinstated in service after the expiry of 45 days from the date of order of suspension and were required to pay him all the service dues including the salary and other benefits till the 8 date of his voluntary retirement.
10. As a consequence of the aforesaid discussion, the writ petition is allowed. The order dated 23.11.2006 is hereby quashed. Withheld pension of petitioner in terms of the order impugned aforesaid be restored back to him and entire amount of arrears of pension be paid to the petitioner within two months from the date of receipt of certified copy of the order passed today including the interest on the said amount @ 6% per annum from the date the same was due till the date of realization.
11. Since the petitioner was suspended vide order dated 8.7.2004, but, in terms of the findings recorded by this Court, that order was to be treated as revoked on 23 rd August, 2004 because no charge sheet was issued to the petitioner within a period of 45 days, the petitioner would be entitled to the salary of the post and other service benefit w.e.f. 23.8.2004 till 31 st August, 2005 on which date his voluntary retirement was accepted by the respondents. Let this amount be paid to the petitioner within the aforesaid period.
12. The writ petition stands allowed and disposed of finally to the extent indicated hereinabove.
(K.K.Trivedi) Judge shukla