Punjab-Haryana High Court
Jaswinder Singh vs State Of Punjab And Others on 11 July, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
CWP No.21611 of 2023 (O&M) 1 201 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 21611 of 2023 (O&M) Date of decision : 11.07.2024 Jaswinder Singh eee Petitioner versus StateofPunjab&ors, 4 2 aes Respondents CORAM : HON'BLE MR.JUSTICE PANKAJ JAIN REE Present :- Mr. Sameer Sachdeva, Advocate for the petitioners. Mr. Sehajbir Singh Aulakh, AAG, Punjab. kee PANKAJ JAIN, J. (ORAL)
1 By way of present writ petition, the petitioner has laid challenge to the charge-sheet dated 07.03.2022 (Annexure P-2) and order dated 20.09.2022 (Annexure P-3) appointing Inquiry Officer to conduct departmental enquiry against the petitioner.
2 Petitioner retired as Superintendent of Police after attaining age of superannuation on 28.02.2018 and further after he was granted extension of two years the relationship between employer and employee i.e. the petitioner and the department finally snapped on 29.02.2020. On 07.03.2022 the petitioner was served with charge-sheet (Annexure P-2) which is subject matter of challenge in the present writ petition.
3 Learned counsel for the petitioner submits that the gravamen of the charges levelled in the charge-sheet relate to an incident of the 2013. The petitioner retired on 28.02.2018/29.02.2020. Charge-sheet has been issued on POOJA SHARMA 2024.07.16 18:26 I attest to the accuracy and authenticity of this order/judgment. CWP No.21611 of 2023 (O&M) 2 07.03.2022. Thus the proceedings initiated vide charge-sheet dated 07.03.2022 against the petitioner are in teeth of bare provisions as contained in Rule 2.2(b) of the Punjab Civil Services Rules (for short 'the PCS Rules') which mandates that a retiree cannot be served with charge-sheet for an incident dating 4 years prior to the date of retirement.
4 Per contra, learned State counsel would submit that the charge- sheet is based upon the observations made by Court of competent jurisdiction who while conducting trial found that the petitioner deliberately botched up the investigation leading to the acquittal of the culprits who were accused of offence punishable under NDPS Act.
5 I have heard learned counsel for the parties and have gone through the records of the case.
6 Facts are not much in dispute. The issue that arises for the consideration before this Court is whether there is a statutory bar in proceeding against the petitioner gua the incident relating to 2013 on the basis of charge- sheet served on 07.03.2022 which is post in time to the date of retirement of the petitioner which is 28.02.2018/29.02.2020.
7 It will be apposite to peruse Rule 2.2 (b) of the Punjab Civil Services Rules (for short 'the PCS Rules') which read as under :-
"2.2(b) The Government further reserve to themselves 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 reemployment after retirement :-POOJA SHARMA 2024.07.16 18:26 I attest to the accuracy and authenticity of this order/judgment. CWP No.21611 of 2023 (O&M) 3 POOJA SHARMA 2024.07.16 18:26 I attest to the accuracy and authenticity of this order/judgment.
Provided that :-
(1) Such departmental proceedings, 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 Article 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.
(2) Such departmental proceedings, if not instituted while the officer was in service whether before his retirement or during his reemployment -
(i) shall not be instituted save with the sanction of the Government;
(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 proceeding in which an order of dismissal from service could be made in relation to officer during his service.
(3) No such judicial proceedings, 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 four years before such institution; and the public Service commission should be consulted before final orders are passed.
Explanation - For the purpose of this rule -
(a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension from an earlier date on such date;
and
(b) a judicial proceeding shall be deemed instituted -
(i) in the case of criminal proceeding, on the date on which the complaint or report of the police officer on which the Magistrate takes cognizance is made; and
(ii) in the case of civil proceeding, on the date of presentation of the plaint in the Court.
Note : As soon as proceedings of the nature referred to in the above rule are instituted, the authority which institute such proceedings should without delay intimate the fact to the Accountant General. The amount of the pension withheld under clause (b) should not ordinarily exceed one- third of pension originally sanctioned, including any amount of the pension to be so withheld, CWP No.21611 of 2023 (O&M) 4 8 regard should be had to the consideration whether the amount of the pension left to the pensioner in any case would be adequate for his maintenance.
(Cc) (i) Where any departmental or judicial proceeding is instituted under clause (b) of Rule 2.2.0r where a departmental proceeding is continued under clause (i) of the provision thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which upon conclusion of such proceedings, final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement or if he was under suspension on the date of retirement up to date immediately preceding the date on which he was placed under suspension, but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and of final orders thereon.
The gratuity, if allowed to be drawn by the competent authority on the conclusion of the proceedings will be deemed to have fallen due on the date of issue of final orders by the competent authority :
Provided that where Departmental proceedings have been instituted under rule no of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 for imposing any of the penalties specified in clauses (i), (ii) and (iv) of rule 5 of the said rules, the payment of the gratuity or death-cum-retirement gratuity, as the case may be, shall to (not ?) be withheld.
(2) Payment of provisional pension made under sub-clause (i) shall be against the final retirement benefits sanctioned to such officer upon conclusion of the aforesaid proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.
Note :- The grant of pension under this rule shall not prejudice the operation of rule 6.4 ibid when final pension is sanctioned upon conclusion of the proceedings."
The question with respect to continuation of such proceedings in violation of Rule 2.2 (b) of the Punjab Civil Services Rules, Vol.II is no more res-integra and has been answered by Division Bench in Sub Inspector Puran POOJA SHARMA 2024.07.16 18:26 I attest to the accuracy and authenticity of this order/judgment. CWP No.21611 of 2023 (O&M) 5 Chand (Retd.) Vs. State of Punjab & ors. (2000) 3 SCT 515 holding as under :-
"7. Pointed attention of this Court has been drawn to clause (2) of the aforesaid rule 2.2(b). A careful perusal of the same would show that in case a departmental proceeding is to be initiated against an employee after his retirement, it cannot be in respect of an event which took place more than four years from the date when the proceeding is initiated. It is clear that the charge sheet was issued to the petitioner in the instant case on 24.11.1998, whereas the incident in question in respect to which he has been proceeded against relates to the year 1988 i.e. one decade prior to the issuance of the charge sheet. It is obvious that issuance of the aforesaid charge sheet is wholly unacceptable in law, as the same is clearly barred by the provision of clause (2) of rule 2.2(b) extracted above."
9 It is thus clear that issuance of charge-sheet on 07.03.2022 is clearly barred by the provisions as contained in Clause 2 of Rule 2.2 (b) of the PCS Rules as held by this Court in the case of Sub Inspector Puran Chand's case supra.
10 As a sequel of the aforesaid discussion held hereinabove, the present writ petition is allowed. Charge-sheet dated 07.03.2022 (Annexure P-2) and all proceedings subsequent thereto are held to be bad in law and are thus ordered to be quashed.
(PANKAJ JAIN ) JUDGE 11.07.2024 Pooja sharma-I Whether speaking/reasoned Yes Whether Reportable : No POOJA SHARMA 2024.07.16 18:26 I attest to the accuracy and authenticity of this order/judgment.