Madhya Pradesh High Court
State Of M.P. And Ors. vs R.L. Ogale And Ors. on 6 October, 2005
Equivalent citations: 2006(2)MPHT202
Bench: Chief Justice, Deepak Verma
ORDER
1. The original respondent was working as Forester in the Forest Department of Madhya Pradesh. He was promoted as Dy. Ranger in the year 1962 and, thereafter, as Forest Ranger in June, 1975. A departmental proceeding was initiated and a charge-sheet was issued against the original respondent on 22-8-1984, in respect of some misconduct alleged to have been committed by him while he was posted as Forest Ranger in-charge of Departmental Operations of Coupe Nos. 11, 12 and 13 of Chandgarh. While the departmental proceedings were pending the original respondent retired from service on attaining the age of superannuation on 31-8-1985. Thereafter, the Inquiry Officer submitted his inquiry report on 30-5-1988 and the Disciplinary Authority passed an order on 1-6-1991 directing inter alia for recovery of loss of Rs. 4,10,071.84 alleged to have been caused by the original respondent to the Government.
2. Aggrieved by the said order dated 1-6-1991, the original respondent filed O.A. No. 996/1992 before the Madhya Pradesh Administrative Tribunal, Jabalpur, and by order dated 22-5-1998 the said Tribunal held that the order was vitiated because the said order had not been passed by the Competent Authority nor had it been passed after consultation with the State Public Service Commission as provided in Rule 9 of the M.P. Civil Services (Pension) Rules, 1976 (for short 'the Rules of 1976'). After recording the aforesaid findings, the Tribunal quashed the order dated 1-6-1991 passed by the Disciplinary Authority for recovery of Rs. 4,10,071.84 from the original respondent.
3. Aggrieved by the said order dated 22-5-1998 passed by the Tribunal in O.A. No. 996/1992, the petitioners have filed this Writ Petition under Article 226/227 of the Constitution of India.
4. During the pendency of the Writ Petition, the original respondent R.L. Ogale expired and his legal heirs namely his wife, 3 sons and one daughter have been substituted as respondent Nos. 2 to 6.
5. Shri Yadav, learned Counsel for the petitioners, submitted that the Tribunal has taken a view that under Rule 9 of the Rules of 1976, the Governor is the Competent Authority to pass a final order for recovery of any pecuniary loss caused to the Government if in any departmental proceedings the pensioner is found guilty of grave misconduct or negligence by which the loss has been caused to the Government. He submitted that this is a case in which departmental proceedings have been initiated against the original respondent when the original respondent was in service and the proviso to Sub-rule (2) (a) of Rule 9 of the Rules of 1976 would show 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. He argued that hence the initiation of departmental proceedings can be made by any Authority subordinate to the Governor, but the final order on the report submitted by the Authority is to be passed by the Governor. He argued that in the present case, the Conservator of Forest was the Disciplinary Authority and he had initiated departmental proceedings against the original respondent and found the original respondent guilty of grave misconduct and negligence on account of which the Government had suffered loss of Rs. 4,10,071.84. He submitted that if the Tribunal had come to the conclusion that it was only the Governor who could have passed the final order for recovery of the aforesaid loss from the original respondent, the Tribunal should not have quashed the entire proceedings, but should have only quashed the final order for recovery and left it open to the Disciplinary Authority to submit his report to the Governor for a final order to be passed.
6. Shri D.K. Dixit, learned Counsel for the respondents, on the other hand, submitted that the original respondent, who has been held to be guilty for grievous misconduct and negligence by the Disciplinary Authority in the departmental proceedings, had retired way back on 31-8-1985 and, thereafter expired on 23-5-2001 and, therefore, at this stage if the Court gives liberty to the Disciplinary Authority to submit the report to the Governor to enable the Governor to pass the final order for recovery or loss under Rule 9 of the Rules 1976, the legal heirs of the original respondent will not be in a position to defend the action of the original respondent and, therefore, would be gravely prejudiced. He further submitted that under Rule 9 of the Rules 1976, the authorities were under an obligation to complete the proceedings within the stipulated therein and since the departmental proceedings were not completed within the time stipulated therein and the original respondent retired in the meanwhile and has also expired, at this stage no recovery of the loss can be made from the legal heirs of the original respondent.
7. Rule 9 of the Rules of 1976, on which great reliance has been placed by learned Counsel for the petitioners and the respondents is quoted hereinbe-tow in extensive:
9. Right to 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 withdraw, 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 [***], 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 proceeding 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 Governor may direct and in accordance with the procedure applicable to departmental proceedings :
(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.
(3) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during this re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution.
(4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under Sub-rule (2) a provisional pension and death-cum-retirement gratuity as provided in [Rule 64], as the case may be, shall be sanctioned:
[Provided that where pension has already been finally sanctioned to a Government servant prior to institution of departmental proceedings, the Governor may, by order in writing, withhold, with effect from the date of institution of such departmental proceedings fifty per cent of pension so sanctioned subject however that the pension payable after such withholding is not reduced to less than [the minimum pension as determined by the Government from time to time]:
Provided further that where departmental proceedings have been instituted prior to the 25th October, 1978, the first proviso shall have effect as it for the words "with effect from the date of institution of such proceedings" the words 'with effect from a date not later than thirty days from the date aforementioned", had been substituted:
Provided also that--
(a) If the departmental proceedings are not completed within a period of one year from the date of institution thereof, fifty per cent of the pension withheld shall stand restored on the expiration of the aforesaid period of one year;
(b) If the departmental proceedings are not completed within a period of 2 years from the date of institution the entire amount of pension so withheld shall stand restored on the expiration of the aforesaid period of two years; and
(c) If in the departmental proceedings final order is passed to withhold or withdraw the pension or any recovery is ordered, such order shall be deemed to take effect from the date of the institution of departmental proceedings and the amount of pension since withheld shall be adjusted in terms of the final order subject to the limit specified in Sub-rule (5) of Rule 43].
(5) Where the Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.
(6) For the purpose of this rule--
(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and
(b) judicial proceedings shall be deemed to be instituted--
(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and
(ii) in the case of civil proceedings, on the date the plaint is presented in the Court.
8. A reading of Sub-rule (1) of Rule 9, quoted above, shows that the power to pass an order for recovery of any pecuniary loss caused to the Government is reserved only to the Governor and no other Authority. Sub-rule (2) (a) of Rule 9 of the Rules of 1976 however, provides that if departmental proceedings were instituted while the Government servant was in service whether before his retirement or during his re-employment, all such departmental proceedings shall be deemed to be proceedings under Rule 9 of the Rules of 1976, after the final retirement of the Government servant and shall be continued and concluded by the Authority by which they were commenced, in the manner as if the Government servant had continued in service. Hence, if the Conservator of Forest was the Disciplinary Authority in the case of the original respondent and before the retirement of the original respondent from service on 31-8-1985, departmental proceedings have been initiated and charge-sheet has been issued on 22-8-1984 by the Conservator of Forest, the said departmental proceedings are deemed to be proceeding under Rule 9 of the Rules of 1976, even after retirement of the original respondent. The proviso of Sub-rule (2) (a) of Rule 9 of the Rules of 1976, however, makes it amply clear that where the departmental proceedings are instituted by the Authority subordinate to the Governor, that Authority shall submit a report regarding its findings to the Governor. In the present case, therefore, the Conservator of Forest having initiated the departmental proceedings, before the retirement of the original respondent, was only entitled to continue and complete the same and submit a report to the Governor regarding his findings in the departmental proceedings, but was not entitled to pass a final order for recovery of the loss of Rs. 4,10,071.84 from the original respondent. In our view, therefore, the Tribunal was right in quashing the order dated 1-6-1991 passed by the Conservator of Forest, Khandwa for recovery of Rs. 4,10,071.84 from the original respondent after his retirement on 31-8-1985.
9. Shri Yadav, learned Counsel for the petitioners, is right in his submission that the initiation of the departmental proceedings having been made prior to the retirement of the original respondent on 31-8-1985, the initiation of the departmental proceedings by the Disciplinary Authority was deemed to be a proceeding for recovery under Sub-rule (2) (a) of Rule 9 of the Rules of 1976, and could be completed as if the respondent had continued in service even after his retirement and that the Tribunal should have left it open for the Disciplinary Authority to submit the report to the Governor for passing the order for recovery under Rule 9 of the Rules of 1976. But we find that in Clause (b) of the third proviso of Sub-rule (4) of Rule 9 it is stipulated that if departmental proceedings are not completed within a period of 2 years from the date of institution, the entire amount of pension so withheld shall stand restored on the expiration of the aforesaid period of two years. A reading of Sub-rule (4) of Rule 9 of the Rules of 1976 makes it clear that the said Rule applies to a case of a Government servant who had retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under Sub-rule (2). The said Sub-rule (4) provides that in any of these cases the pension will be withheld, but only a provisional pension and death-cum-retire-ment gratuity as provided in Rule 64, as the case may be, shall be sanctioned.
10. In the present case, the original respondent retired on attaining the age of superannuation on 31-8-1985 and his pension including gratuity was withheld by the authorities under the aforesaid Rule 9 of the Rules of 1976, and the original respondent was paid, however, a provisional pension in accordance with the said Sub-rule (4) of Rule 9 of the Rules of 1976. Any proceeding under Rule 9 of the Rules of 1976 for recovery of loss from pension can be instituted only on or after the retirement of a Government servant and by virtue of Sub-rule (2) of Rule 9, the proceedings against the original respondent could be deemed to have been instituted on the date of his retirement, Le., on 31-8-1985. Clause (b) of the third proviso of the said Sub-rule (4) of Rule 9 of the Rules of 1976, makes it amply clear that if the departmental proceedings are not completed within a period of 2 years from the date of institution, the entire amount of pension so withheld shall stand restored on the expiration of the period of 2 years. Thus, the pension that has been withheld in the case of the original respondent stood restored on the expiration of 2 years from the date of institution of the departmental proceedings and no further order on the completion of such 2 years could be passed by the Governor for recovery of the loss of Rs. 4,10,071.84 from the original respondent. Thus, even if we hold that the departmental proceedings initiated by the Conservator of Forest did not stand vitiated and the findings in the said departmental proceedings by the Disciplinary Authority could be placed before the Governor, it will not be possible for the Governor to pass any final order for recovery of the loss of Rs. 4,10,071.84 from the original respondent in view of Clause (b) of the third proviso to Sub-rule (4) of Rule 9 of the Rules of 1976.
11. Shri Yadav, learned Counsel for the petitioners, however, submitted that a statutory fiction has been created in Clause (c) of the third proviso to Rule 9 to the effect that if in the departmental proceedings, final order is passed to withhold or withdraw the pension or any recovery is ordered, such order shall be deemed to take effect from the institution of the departmental proceedings and the amount of pension withheld shall be adjusted in terms of the final order subject to the limit specified in Sub-rule (5) of Rule 43. But in our opinion this is a provision providing for the legal consequences of a final order passed under Rule 9 of the Rules of 1976 and it makes it clear that once a final order is passed to withhold or withdraw the pension or to recover any amount of loss, the amount of pension withheld is to be adjusted in terms of the final order subject to limit specified in Sub-rule (5) of Rule 43. It does not in anyway qualify or alter the limitation of 2 years for completion of the departmental proceedings from the date of institution in a case where the Government servant has retired.
12. Shri D.K. Dixit, learned Counsel for the respondents vehemently submitted that since the original respondent was entitled to restoration of his entire pension including gratuity withheld on expiry of 2 years from the date of institution of the departmental proceedings under Clause (b) of the third proviso of Sub-rule (4) of Rule 9 of the Rules of 1976, the respondents should be granted interest at a reasonable rate on the amount of pension withheld calculated from the date of completion of such 2 years from the date of such institution of the departmental proceedings. We can not grant this relief to the respondents in this present writ petition as the present writ petition has been filed not by the respondents, but by the petitioners against the order passed by the Tribunal but we leave it open for the respondents to make the claim regarding interest in an appropriate forum in accordance with law.
13. For the aforesaid reasons, we find no merit in the writ petition and we accordingly dismiss the same summarily. The amount of pension including gratuity withheld will be paid to the respondents in accordance with the rules forthwith.