Gauhati High Court
Bhagaban Chandra Sarmah vs The State Of Assam And Ors on 14 March, 2017
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(EXTRAORDINARY WRIT JURISDICTION)
WP(C) Nos.1361/ 2010 & 141 of 2015
1. WP(C) No.1361 of 2010
Bhagaban Chandra Sarmah .... ... Petitioner
-Versus-
The State of Assam & others. ... ... Respondents
2. WP(C) No.141 of 2015 Bhagaban Chandra Sarmah .... ... Petitioner
-Versus-
The State of Assam & others. ... ... Respondents BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM For the petitioner : Mr. M. Choudhury, Advocate.
For the respondents : Dr. B. Ahmed,
Standing Counsel, Cooperation Deptt.
Date of hearing : 14.03.2017.
Date of Judgment : 14.03.2017.
JUDGMENT AND ORDER (oral)
1. Heard Mr. Manish Choudhury, learned counsel for the wit petitioner. Also heard Dr. B. Ahmed, learned Standing Counsel, Cooperation Department, appearing for the respondents. WP(C) Nos.1361/2010 & 141/2015 Page 1 of 29
2. Since both these writ petitions are founded on common facts raising similar questions of law, hence, these are being disposed of by this common judgment and order.
3. The facts of the case, briefly stated, is that the writ petitioner had earlier joined service under the erstwhile Kamrup District Central Co-Operative Bank Ltd., a registered cooperative society, as a supervisor in the year 1971. In the year 1979 the Kamrup District Central Co-Operative Bank Ltd. stood merged with the Assam Co-Operative Apex Bank Limited. Consequently, the Chief Executive Officer of the Assam Cadre Management Cooperative Society Limited (hereinafter, in short, ACMCSL) had issued a notification dated 29.01.1979 notifying that pursuant to the merger, the employees of the erstwhile bank would stand absorbed in the ACMCSL and their appointments would be deemed to have been made with effect from 16.01.1979. The name of the writ petitioner appeared in serial No.10 of the list of employees shown in the notification dated 22.01.1979. Thereafter, by issuing a separate notification dated 24.01.1979, the petitioner was posted as the Secretary in the Boko Gaon Panchayat Samabai Samiti (GPSS) in which post he had joined immediately. However, while working as the Secretary of the said Samabai Samiti, by the order dated 16.11.1987 issued by the Chief Executive Officer of the ACMCSL the petitioner was placed under suspension. Thereafter, by the order dated 26.09.1989 the petitioner was dismissed from service without WP(C) Nos.1361/2010 & 141/2015 Page 2 of 29 assigning any reason or holding any enquiry against him purportedly on the ground that he had misappropriated money belonging to the GPSS Ltd. during his tenure as Secretary.
4. Aggrieved by the order dated 26.09.1989, the petitioner submitted a representation before the Chief Executive Officer of the ACMCSL with a prayer to revoke the order of dismissal and accordingly the matter was placed before the Managing Committee. Thereafter, the Chief Executive Officer had passed an order dated 23.01.1991 reappointing the petitioner on humanitarian ground as per the decision of the managing committee held in its meeting dated 08.01.1991 subject to the condition that the petitioner would deposit the entire amount due to Sonapur GPSS within three months from the date of issuance of this letter. On 09.08.1991 the Chief Executive Officer had issued a separate order re-appointing the petitioner as Cadre Secretary and posting him at Jogibhaktagaon S.S. Limited under Morigaon Sub-Division in which post the petitioner had joined.
5. While the petitioner was working as Cadre Secretary in the GPSS, on 25.07.2001, the Additional Registrar of Cooperative Societies, Assam had issued a notification dated 25.07.2001 provincialising the services of the writ petitioner in the rank of Junior Inspector/Auditor of Cooperative Societies by fixing his pay scale at Rs.1515/- per month with effect from 22.09.1994 by protecting his last pay as allowed by WP(C) Nos.1361/2010 & 141/2015 Page 3 of 29 the Government notification dated 20.12.2000, in the scale of pay of Rs.1255-30-1435-40-1635-50-2035-60-2395-80-2635/- per month. In the said notification dated 25.07.2001, it was further mentioned that the arrear pay and allowances with effect from 22.01.1994 to 30.11.2000 will be worked out by revising the pay with effect from 01.01.1996 according to the ROP Rules, 1998.
6. On his services being provincialised, the petitioner was working as Junior Inspector in the Buraburi Samabay Samiti Limited under Morigaon Sub Division, when the respondent No.3 issued an order dated 06.09.2001 placing the petitioner under suspension with immediate effect. Thereafter, the respondent No.3 had issue another order dated 01.04.2002 reinstating the petitioner in service and attaching him in the office of the Assistant Registrar of Cooperative Societies, Morigaon with immediate effect.
7. On 20.03.1992 the Chief Executive Officer of the ACMCSL had issued a notice dated 20.03.1992 asking the petitioner to pay a total sum of Rs.7,810.83 to the Boko Gaon Panchayat Samabai Samiti Ltd. within fifteen days failing which disciplinary action will be taken against him. On receipt of the aforesaid notice dated 20.03.1992, the petitioner had sent a reply dated 04.04.1992 addressed to the Chief Executive Officer, ACMCSL, requesting the Chief Executive Officer to permit him to examine the relevant books and records of the said WP(C) Nos.1361/2010 & 141/2015 Page 4 of 29 society pertaining to the period during which he was in service so as to refresh his memory in order to respond to the charges levelled against him. However, despite receipt of the reply dated 04.04.1992, no action was taken permitting the petitioner to inspect the relevant record.
8. On 16.07.2005, the respondent No.4 had issued a communication addressed to the Secretary of Buraburi Samabay Samiti Limited asking him to attend the office of the Registrar of Cooperative Societies with all relevant books of accounts and records relating to recoverable amount shown against the petitioner. On 06.08.2005 the respondent No.3 had issued another final reminder to the petitioner to refund the entire misappropriated amount within 15 days from the date of receipt of the letter. Thereafter, on 29.08.2005 the respondent No.4 had issued a letter addressed to the Secretaries of Jagiroad Samabai Samiti Limited and Jugibhaktagaon Samabai Samiti Limited informing them that an enquiry will be held on the recoverable amount shown against the petitioner in the balancesheet of the said societies and that the enquiry would be conducted by the Sub-Registrar of Cooperative Societies (Audit), Head office. On 07.09.2005 the respondent No.4 had also issued separate notices to the Secretary of the concerned Samabay Limited asking them to be present with all relevant records.
WP(C) Nos.1361/2010 & 141/2015 Page 5 of 29
9. On 25.10.2005 the respondent No.2 had issued an order dated 25.10.2005 placing the petitioner under suspension with immediate effect on the ground that an amount of Rs.11,82,507/- had been misappropriated by him from the accounts of the six Samabai Samities Limited mentioned in the said order. Thereafter, on 31.12.2005, a show cause notice was issued to the petitioner leveling three charges against him giving seven days time to the petitioner to submit his reply. On receipt of the show cause notice containing the memorandum of charges, the petitioner submitted a representation dated 25.01.2006 requesting the authorities to permit him to inspect and take copies of the relevant documents so as to furnish an effective reply in respect of the charges levelled against him by giving a list of documents therein. On 25.01.2006 itself the petitioner had also submitted a preliminary written statement denying the allegations leveled against him, by explaining his stand in the matter.
10. Not being satisfied with the reply furnished by the petitioner, the respondent No.2 had issued an order dated 20.04.2006 appointing Sri A. J. Bora, District Deputy Registrar of Cooperative Societies, as the Enquiry Officer so as to conduct an enquiry in the charges brought against the petitioner as per Rule 9(6) of the Assam Services (Discipline and Appeal) Rules, 1964 and submit a report in respect of the charges within 60 days from the date of receipt of the communication. WP(C) Nos.1361/2010 & 141/2015 Page 6 of 29
11. On 19.08.2006, the respondent No.2 had issued another order by means of which the petitioner had been held to have retired from Government service with effect from 28.02.2006 on attaining the age of superannuation. In the order dated 19.08.2006 it was, however, mentioned that the departmental proceeding already drawn up against the petitioner shall be continued.
12. Although the Enquiry Officer had been appointed on 20.04.2006, yet, there was no progress in the enquiry proceeding. Due to the pendency of the disciplinary proceeding, the respondents had withheld the pension paper of the petitioner as a result of which he was deprived from the same. Since there was enormous delay in initiating the disciplinary proceeding and thereafter, the enquiry proceeding was kept pending for long years, hence, the writ petitioner had approached this Court by filing WP(C) No.1361/2010, inter alia, praying for setting aside the show cause notice dated 31.12.2005 as well as the disciplinary proceeding initiated thereunder on the ground of undue delay, with a further prayer for issuance of a writ of mandamus directing payment of the pensionary dues receivable by the petitioner.
13. Since the respondents had refused to pay the pension and other retirement dues to the petitioner on the ground of pendency of the disciplinary proceeding, hence, the petitioner had filed a Misc. Case No.3501/2011 in WP(C) No.1361/2010 praying for a direction WP(C) Nos.1361/2010 & 141/2015 Page 7 of 29 upon the respondents to immediately pay the provisional pension to the petitioner. By the order dated 27.05.2013 passed in Misc. Case No.3501/2011, this Court had passed a direction to the respondents to pay the provisional pension to the petitioner within a period of three months from the date of the order. However, when despite the specific direction contained in the order dated 27.05.2013, no action was taken in the matter as a result of which the petitioner had approached this Court by filing WP(C) No.141/2015, inter alia praying for a direction upon the respondents to settle his pension, current as well as arrear dues, in compliance with the direction contained in order dated 27.05.2013 passed by this Court in Misc. Case No.3501/2011 and for other consequential benefits. It may be mentioned herein that a contempt case was also filed by the petitioner for enforcement of the order dated 27.05.2013. By the interim order dated 25.05.2015 in WP(C) No.141/2015 this Court had directed that the petitioner be paid the provisional pension. In terms of the order passed by this Court the respondents had paid provisional pension to the petitioner upto 01.03.2011 but since then, neither the provisional pension nor the retirement dues have been paid to the petitioner till date.
14. By referring to the allegations levelled against the petitioner, Mr. Choudhury, learned counsel appearing for the writ petitioner, submits that there is no allegation against the writ petitioner pertaining to WP(C) Nos.1361/2010 & 141/2015 Page 8 of 29 misappropriation of any Government money but the so called allegations have been brought about by the different GPSS Limited relating to his short tenure as the Secretary of those Samities corresponding to periods ranging from 1979 till the year 2000. Mr. Choudhury submits that the alleged shortage of money could be on account of various reasons including the error in maintaining proper accounts. The learned counsel therefore, submits that there is no basis in the allegation levelled against the petitioner nor does the memorandum of charges contain any specific particulars supporting such allegation. However, submits Mr. Choudhury, even assuming that there is any merit in the charges brought against the petitioner, he being a Government servant, the authorities could not have imposed any penalty in the form of withholding pension of the petitioner without holding a regular enquiry into the charges. The learned counsel submits that in the present case, although a memorandum of charges has been issued to the petitioner and an Enquiry Officer was also appointed as far back as on 20.04.2006, no progress has been made in the enquiry proceeding for over 11 years now. On the contrary, taking the plea of pendency of the disciplinary proceeding the respondents have illegally withheld the pension papers of the petitioner as a result of which he has been deprived of the pensionary benefits despite having retired from service as far back as on 28.02.2006.
WP(C) Nos.1361/2010 & 141/2015 Page 9 of 29
15. By referring to the provisions of Rule 21 of the Assam Services (Pension) Rules, 1969, Mr. Choudhury submits, that is the only provision in the Rules which permits withholding of pension of a Government employee under the circumstances mentioned therein, that too, only if any pecuniary loss has been caused to the Government and in a departmental or judicial proceeding the pensioner has been found to be guilty of grave misconduct. In the present case, there is neither any allegation of pecuniary loss to the Government nor has the petitioner been found to be guilty of any misconduct. Such being the position, submits Mr. Chouhury, the respondents did not have any authority under the law to withheld the pension and other retirement benefits due to the petitioner on the mere pretext that a disciplinary proceeding is pending against him.
16. Referring to the contents of the show cause notice dated 31.12.2015 Mr. Choudhury further submits that a bare reading of the charges contained therein would go to show that those are completely vague. That apart, the charge Nos.2 and 3, even if taken on the face value, would not constitute a misconduct. The learned counsel further submits that there was neither any list of documents nor any list of witnesses furnished along with the show cause notice as a result of which the interest of the petitioner was seriously prejudiced thereby preventing him from furnishing an effective reply, more so, when the charge No.1 is founded on old transactions of which the WP(C) Nos.1361/2010 & 141/2015 Page 10 of 29 petitioner had practically no memory. Under the circumstances, submits Mr. Choudhury, the respondents did not have any jurisdiction or authority to withhold the pension or other retirement benefits of the writ petitioner. The learned counsel for the petitioner, therefore, prays for a direction upon the respondents to immediately finalise his pension and thereafter release the arrear pension and retirement benefits due and payable to the petitioner along with interest at the rate of 9% per annum since the petitioner has been unduly deprived of the fruits of his pensionary benefits for no fault on his part.
17. In support of his aforementioned arguments, Mr. Choudhury has relied upon the following decisions :-
1) (2005)6 SCC 636 [P.V.Mahadevan v. MD, T.N. Housing Board]
2) 1990 (Sup) SCC 738 [State of Madhya Pradesh v. Bani Singh and another].
3) (1998)4 SCC 154 [State of A.P. v. N. Radhakishan].
4) (2013) 12 SCC 210 [State of Jharkhand and others v.
Jitendra Kumar Srivastava and another].
5) 1987 (Supp) SCC 56 [Harendra Nath v. State of Bihar and others].
6) (2014) 8 SCC 894 [D.D.Tewari (dead) through Legal Representatives v. Uttar Haryana Bijli Vitran Nigam Limited and others].
18. Resisting the contentions advanced on behalf of the writ petitioner, Dr. B. Ahmed, learned Standing Counsel, Cooperation WP(C) Nos.1361/2010 & 141/2015 Page 11 of 29 Department, has submitted that there were complaints received by the office of the Registrar of Cooperative Societies regarding several instances of misappropriation of money by the petitioner while he was serving as Secretary in the aforementioned Gaon Panchayat Samabai Samities Ltd. Although the amount involved therein were not government money but belonged to the respective Cooperative Societies, yet, having come to know about the misconduct of the petitioner, the respondent Nos.2 to 4 were under a legal obligation to take appropriate action in the matter, more so when the same related to financial irregularities committed by a Government servant. Accordingly, a decision was taken to conduct an enquiry into the matter on the basis of show cause notice dated 31.12.2005. Dr. Ahmed has, however, fairly conceded that the disciplinary proceeding could not be concluded till date on account of the fact that the earlier Enquiry Officer has since been transferred and the department has not been able to appoint a new Enquiry Officer to go into the charges.
19. Referring to the question of delay, Dr. Ahmed has argued that the shortfall of the amount misappropriated by the petitioner has been reflected in the balance sheet of the respective Gaon Panchayat Samabai Samities and the said amount has been continuously shown in the subsequent balance sheets as well. Therefore, it cannot be said that there was delay in initiating the disciplinary enquiry. By referring to WP(C) Nos.1361/2010 & 141/2015 Page 12 of 29 a decision of the Supreme Court in the case of Burdwan Central Cooperative Bank Limited and another v. Asim Chatterjee and others, reported in (2012) 2 SCC 641 Dr. Ahmed submits that since the alleged irregularity was pertaining to financial misappropriation, hence, the misconduct of the petitioner under the previous employer could be looked into by the respondent authorities.
20. By referring to another decision of the Supreme Court rendered in the case of State of Uttar Pradesh v. Brahma Datt Sharma reported in 1987 AIR (SC) 943 Dr. Ahmed submits that since the disciplinary proceeding had been initiated against the petitioner while he was in service, hence, it was open for the Government to recover the amount misappropriated by the Government employee while in service. Dr. Ahmed has also produced the records pertaining to the disciplinary proceeding.
21. I have bestowed my anxious consideration to the rival contentions and have also meticulously examined the records placed before the Court.
22. In order to appreciate the contentions raised by the learned counsel for both parties, it would be necessary to take note of the different period during which the allegation of misappropriation of fund has been made against the petitioner while being posted as WP(C) Nos.1361/2010 & 141/2015 Page 13 of 29 Secretary of the respective Samabai Samities Limited. The following table will illustrate the said position :-
Sl. Name of the Societies Period of service of the petitioner No. From To 1 Boko S.S. Ltd. 24.01.1979 16.06.1985 2 Sonapur S.S. Ltd. 16.06.1985 26.11.1987 3 Jagi Bhakat Gaon S.S. Ltd. 09.08.1991 10.09.1993 4 Jagiroad S.S. Ltd. 10.09.1993 16.09.1993 5 Mayang S.S. Ltd. 19.09.1995 02.09.2000 (16.09.1995 6 Buraburi S.S. Ltd. 02.09.2000 06.09.2001
23. As has been mentioned above, the petitioner was earlier dismissed from service by his previous employer, namely, ACMCSL, by the order dated 26.09.1989 purportedly acting on the basis of complaints made by the Cooperative Societies alleging misappropriation of fund by the writ petitioner. However, later on, the petitioner was not only reappointed by his previous employer on humanitarian ground but even the service of the petitioner was provincialised by granting him the pay protection in terms of the order dated 25.07.2001.
WP(C) Nos.1361/2010 & 141/2015 Page 14 of 29
24. By the show cause notice dated 31.12.2005, as many as three charges had been levelled against the writ petitioner. The statement of allegations containing the charges is quoted herein below for ready reference :-
"STATEMENT OF ALLEGATIONS AGAINST SRI BHAGABAN CH. SARMA, JUNIOR INSPECTOR OF COOP. SOCIETIES (PROV. SECY.), C/O THE ASSISTANT REGISTRAR OF COOP. SOCIETIES, MORIGAON.
1) That while Sri Bhagaban Ch. Sarma was the Secy. of the following societies he misappropriated the societies fund for his personal gain as noted against the society.
Name of the Societies Balance sheet Amount
misappropriated
1. Buraburi S.S. Ltd. Morigaon 2002-03 Rs.8,41,975.14
2. Mayang Kamarpur - do- 2002-03 Rs.1,69,152.00
3. Jagibhakatgaon S.S. Ltd. -do- 2002-03 Rs.76,214.42
4. Jagiroad S.S. Ltd. - do- 2002-03 Rs.79,936.27
5. Sonapur S.S.Ltd., Guwahati 2003-04 Rs.7,418.35
6. Boko S.S. Ltd. - do- 2003-04 Rs.7,810.83
Rs.11,82,507.01
2) That while he was the Secy. of 6 societies as mentioned in the
charge No.1 he was asked by the higher authority vide letter No.CE(P) 415/94/51 dt. 6-8-2005 to refund the entire misappropriated amount within 15 days from the date of receipt of this letter without fail. But he failed to repay the amount and he did not take any appropriate action on this matter.WP(C) Nos.1361/2010 & 141/2015 Page 15 of 29
3) That while he was working in the office of the Asstt. Registrar of Coopo. Societies he received his suspension order No.CE(P) 415/94/52 dt. 25-10-2005 from the Asstt. Registrar of Coop. Societies, Morigaon with put on his signature on the office peon book. But in his letter dft. 7-
11-2005 submitted before the Registrar of Coop. Societies, Assam, that he has informed this Directorate that he was still working as "Liason Officer under Deputy Commissioner, Morigaon for "Raijor Padulit Raijor Sarkar Scheme".
Sd/- Illegible 31.12.05 Registrar of Coop. Societies, Assam, Khanapara, Guwahati-22."
25. What needs to be noted herein is that the show cause notice dated 31.12.2005 was not accompanied by any list of documents or list of witnesses by means of which the respondents were intending to prove and establish those charges. Although the petitioner had made representation dated 25.01.2006 seeking inspection of the seven documents mentioned therein, no such inspection has been allowed to him. In his written statement dated 25.01.2006 the petitioner has categorically denied all the charges levelled against him by giving proper explanation. According to the petitioner, the Charge No.1 is largely on account of improper computation of the accounts and that is the reason why he wanted to inspect the records. As regards Charge No.3, the petitioner has contended that there was a typographical error in the communication inasmuch as although the WP(C) Nos.1361/2010 & 141/2015 Page 16 of 29 petitioner had written "I am working", yet, what he meant was that "I was working" and therefore, it was merely a typographical error.
26. The Charge No.2 cannot be treated as an independent charge since question of refund/recovery from the petitioner can arise only if the charge No.1 was proved. From the materials available on record I find that the respondents had made attempts even in the past to recover money from the petitioner and for that purpose had not only placed him under suspension but had even dismissed him from service though he was reinstated back subsequently. Therefore, even assuming that the petitioner was guilty of misappropriation of the money belonging to the Cooperative Societies, the same was within the knowledge of the concerned authorities at least as far back as in the year 1987. But the disciplinary proceeding had been initiated only in 2005 i.e. after a delay of nearly 18 years if not more.
27. From a reading of the charge memo it appears that there were allegations against the petitioner of having misappropriated money belonging to the Buraburi Samabai Samiti Limited, Morigaon as well as Mayang Kamarpur Samabai Samiti Limited, Morigaon. However, from the record it is seen that the petitioner was not a Government servant on the date on which the said transactions have been alleged to have taken place. As such, allegations pertaining to the period of service of the petitioner as Secretary, GPSS, prior to the WP(C) Nos.1361/2010 & 141/2015 Page 17 of 29 provincialisation of his service, even if found genuine, could not have been enquired into under the provisions of Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964 since, the Rules can be invoked only to enquire into alleged misconduct of an employee during his tenure as an employee under the Government of Assam.
28. There can be hardly any doubt about the fact that no person can be allowed to misappropriate money belonging to any institution, be it public or private. But if the allegation of misappropriation of money is not admitted by the concerned person, then, law would require that the charges be established in accordance with law. It is only when the charges brought against the employee is established in any proceeding recognized by law that the person can be said to be guilty of such misconduct and can be accordingly proceeded against.
29. In the present case also, allegations of misappropriation of fund has been made against the petitioner with a demand for recovery of amount allegedly taken by him. But the demand for recovery would not be maintainable unless the allegation is established in an appropriate proceeding. The respondents had initiated a disciplinary proceeding by issuing the show cause notice dated 31.12.2005 wherein specific charges were framed. Thereafter, an Enquiry Officer was also appointed on 20.04.2006 to enquire into the charges. But WP(C) Nos.1361/2010 & 141/2015 Page 18 of 29 thereafter, the department did not pursue the matter any further. There is also no cogent explanation on record as to why the disciplinary proceeding has not been concluded till date.
30. In the case of P.V.Mahadevan (supra) the Hon'ble Supreme Court had quashed the charge memo merely on the ground that there was inordinate delay of 10 (ten) years in initiating departmental enquiry against the Government servant and there was no convincing explanation for the delay by his employer. The observations made in paragraphs 11 and 12 of the said decision would be relevant and are quoted herein below :-
"11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be WP(C) Nos.1361/2010 & 141/2015 Page 19 of 29 much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.
12. We, therefore, have no hesitation to quash the charge memo issued against the appellant. The appeal is allowed. The appellant will be entitled to all the retiral benefits in accordance with law. The retiral benefit shall be disbursed within three months from this date. No costs."
31. Again, in the case of State of Madhya Pradesh v. Bani Singh and another (supra) the Hon'ble Supreme Court has interfered with a disciplinary proceeding on the ground of inordinate delay by holding that it would be unfair to permit the departmental enquiry to proceed at that stage. That was a case when the respondents took more than 12 years in initiating the disciplinary proceeding without giving any satisfactory explanation on the reason for delay.
32. In the case of State of A.P. v. N. Radhakishan (supra) relied upon by Mr. Choudhury, the Hon'ble Supreme Court was confronted with a similar question wherein there was delay in conclusion of the departmental enquiry. While observing that a balance has to be maintained between purity of administration and the adverse effect which the prolonged proceedings have on an employee in case of unexplained delay causing prejudice to the employee, it has been held as follows:-
WP(C) Nos.1361/2010 & 141/2015 Page 20 of 29
"19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all relevant factors and to balance and weight them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained, prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice.WP(C) Nos.1361/2010 & 141/2015 Page 21 of 29
Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations."
33. From an analysis of the law laid down by the Hon'ble Supreme Court in the aforementioned decisions it can be safely held that undue delay in conclusion of disciplinary proceeding would result into serious prejudice to the interest of the Government servant and therefore, could be a valid ground for quashing the charge memo as well as the disciplinary proceeding.
34. As mentioned above, in the present case also, there was not only inordinate delay in initiating the disciplinary proceeding but the same has remained unconcluded for over 11 (eleven) years now without there being any explanation as to the reason for such delay. On the other hand, taking advantage of the pendency of the disciplinary proceeding, the respondents have stopped the pension and other retirement benefits due to the petitioner under the law. Therefore, it is evident that present is a clear case where serious prejudice has been caused to the interest of the petitioner due to no fault on his part. The erroneous decision of the respondents to withhold the pension and retirement benefit of the petitioner for more than 10 years since his retirement has lead to serious miscarriage of justice. WP(C) Nos.1361/2010 & 141/2015 Page 22 of 29
35. Dr. Ahmed has candidly admitted that the reason why the pension papers of the petitioner has not been forwarded till date is on account of pendency of the disciplinary proceeding. But I find that save and except Rule 21 of the Assam Services (Pension) Rules, 1969, there is no other provision which permits withholding of the pensionary benefits of a retired Government servant. Rule 21 is quoted herein below for ready reference :-
"21. The Governor of Assam reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a 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--
(a) such departmental proceeding, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service;
Explanation. --The continuation of the proceeding after the final retirement of the officer shall be automatic under sub-rule (a) of Rule 21 and no fresh decision of the Governor and/or the Appointing Authority WP(C) Nos.1361/2010 & 141/2015 Page 23 of 29 nor any show cause notice to the person concerned shall be necessary.
The powers under Rule 21 shall be exercisable not only in case of causing pecuniary loss to Government but also in all other cases.
(b) such departmental proceeding, if not instituted while the officer was in service, whether before his retirement or during his re- employment--
(i) shall not be instituted save with the sanction of the Governor of Assam;
(ii) shall not be in respect of any event which took place more than 4 years before such institution; and
(iii) shall be conducted by such authority and in such place as the Governor of Assam may direct and in accordance with procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service;
(c) no such judicial proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-
employment, shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution;
and WP(C) Nos.1361/2010 & 141/2015 Page 24 of 29
(d) the Assam Service Commission shall be consulted before final orders are passed."
36. By relying upon a pari-materia provision in the form of Rule 43(b) of the Bihar Pension Rules, the Hon'ble Supreme Court had made the following observations in the case of State of Jharkhand and others v. Jitendra Kumar Srivastava and another reported in (2013) 12 SCC 210 :-
"11. From the reading of the aforesaid Rule 43(b), following position emerges:-
(i) The State Government has the power to withhold or withdraw pension or any part of it when the pensioner is found to be guilty of grave misconduct either in a departmental proceeding or judicial proceeding.
(ii) This provision does not empower the State to invoke the said power while the department proceeding or judicial proceeding are pending.
(iii) The power of withholding leave encashment is not provided under this rule to the State irrespective of the result of the above proceedings.
(iv) This power can be invoked only when the proceedings are concluded finding guilty and not before."
Again in paragraph 13 of the said judgment the Supreme Court had made the following observations :-
"13. A Reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension etc. only when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There WP(C) Nos.1361/2010 & 141/2015 Page 25 of 29 is no provision in the rules for withholding of the pension/ gratuity when such departmental proceedings or judicial proceedings are still pending."
38. Since the decision of the Supreme Court in the case of Deokinandan Prasa v. State of Bihar, reported in (1971) 2 SCC 330 it is no more res integra that right to receive pension was equivalent to right to property and the same could not be denied to a Government servant except by following the due process of law. From the aforementioned observations made by the Supreme Court it is, thus clear that the respondents did not have the power or authority to withhold the pension and retirement dues of the petitioner even under the provisions of Rule 21 of the Assam Services (Pension) Rules, 1969 since it was not a case of miappropriation of Government money leading to pecuniary loss to the Government nor has the allegation of misconduct been established against the petitioner in a departmental or judicial proceeding. As a matter of fact, the criminal cases instituted against the petitioner by the concerned Gaon Panchayat Samabai Samiti Limited had also admittedly ended in the acquittal of the petitioner by the criminal court. If that be so, there was absolutely no basis for the respondents to withheld the pensionary benefits of the petitioner in the name of pendency of the disciplinary proceeding.
39. Coming to the next question of payment of interest as made by Mr. Choudhury, in a decision of the Supreme Court rendered in the WP(C) Nos.1361/2010 & 141/2015 Page 26 of 29 case of State of Kerala v. M. Padmanabhan Nair reported in (1985) 1 SCC 429 it has been held that pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but are the valuable rights and properties in their hands and any culpable delay in settlement and disbursement thereof must be visited with penalty of payment of interest at the current market rate till actual payment is made to the employee. By following the decision in the case of State of Kerala (supra) the Hon'ble Supreme Court had made the following observations in paragraph 6 in the case of D.D.Tewari (supra) :-
"6. It is an undisputed fact that the appellant retired from service on attaining the age of superannuation on 31.10.2006 and the order of the learned single Judge after adverting to the relevant facts and the legal position has given a direction to the employer-respondent to pay the erroneously withheld pensionary benefits and the gratuity amount to the legal representatives of the deceased employee without awarding interest for which the appellant is legally entitled, therefore, this Court has to exercise its appellate jurisdiction as there is a miscarriage of justice in denying the interest to be paid or payable by the employer from the date of the entitlement of the deceased employee till the date of payment as per the aforesaid legal principle laid down by this Court in the judgment referred to supra. We have to award interest at the rate of 9% per annum both on the amount of pension due and the gratuity amount which are to be paid by the respondent."
40. Similarly, in another decision rendered in the case of Harendra Nath vs. State of Bihar and others, reported in 1987 (Supp) SCC 56, the WP(C) Nos.1361/2010 & 141/2015 Page 27 of 29 Hon'ble Supreme Court has upheld the award of interest made by the High Court on pensionary dues having found that the payment was delayed unduly resulting in suffering to the retired employee. The entitlement of the petitioner to receive pension is not in dispute before this Court. Having regard to the facts and circumstances the case , I am of the view that there has been culpable delay in disbursement of the pensionary dues to the petitioner resulting into loss and injury to his interest. Therefore, by applying the ratio of the decisions in the case of M. Padmanabhan Nair (supra) and D.D.Tewari (supra), it is held that the petitioner would be entitled to recover interest calculated at the rate of 9% per annum on the arrear pension and gratuity amount which would be payable to the petitioner with effect from the date of filing the writ petition till the amount is actually disbursed.
41. In view of what has been discussed herein above, the memo of charge served upon the petitioner vide show cause notice dated 31.12.2005 is hereby quashed. It is held that there was no legitimate basis for the respondents to withhold the pension and gratuity amount payable to the petitioner pursuant to his retirement. Accordingly, a direction is hereby issued to the respondents to forthwith take appropriate steps for ensuring that the regular pension and gratuity of the petitioner is paid to him within a period of 3 (three) months from the date of receipt of a copy of this order together with interest calculated at the rate of 9% per annum on the amount payable to WP(C) Nos.1361/2010 & 141/2015 Page 28 of 29 him with effect from the date of filing of WP(C) No.1361/2010 until realization.
With the above observations, both the writ petitions stand allowed.
There would be no order as to cost.
JUDGE T U Choudhury WP(C) Nos.1361/2010 & 141/2015 Page 29 of 29