Madhya Pradesh High Court
Saroj Kumar Shrivastava vs The State Of Madhya Pradesh on 11 March, 2015
Author: K.K. Trivedi
Bench: K.K. Trivedi
HIGH COURT OF MADHYA PRADESH :
JABALPUR.
Writ Petition No.3719/2006
Saroj Kumar Shrivastava
Vs.
State of M.P. and others.
PRESENT :
Hon'ble Shri Justice K.K. Trivedi. J.
Shri Abhishek Gulati, learned counsel for the petitioner.
Shri B.D. Singh, learned Panel Lawyer for respondents.
ORDER
(11.03.2015) The petitioner has called in question the order of penalty of recovery of 50% pension and essentially the departmental enquiry initiated against him by way of filing this writ petition. It is contended that while the petitioner was serving on the post of Block Development Officer, he was placed under suspension vide order dated 2.11.1981. The said order was called in question in a writ petition before this Court, on the grounds that the authority issuing the order of suspension was not competent to do so and that the suspension has automatically revoked as charge sheet was not issued to the petitioner within time. The said writ petition, M.P.No.7/1982, came up for hearing before this Court and was allowed vide order dated 29.9.1982 holding that the suspension of the petitioner is automatically revoked on expiry of the period of 90 days. After a considerable long time, the charge sheet was issued to the 2 petitioner and the enquiry was initiated by orders of the Collector. The said enquiry was pending on account of the fact that Upper Collector Waidhan, who was made the enquiry officer was not posted in the said place for about a period of two years. Continuously, notices were issued to the petitioner, but since he has not appeared, treating as if charges levelled against the petitioner have been admitted by him, a report was given. However, during the pendency of the enquiry, the petitionrr attained the age of superannuation and retired on 31.12.2001. A second show cause notice was issued to the petitioner on 14.8.203, asking the explanation of the petitioner. A reply was submitted by the petitioner on 9.9.2003, but instead of considering the reply in appropriate manner, by order dated 20.1.2006, a penalty of withholding of 50% pension of the petitioner for a period of five years was imposed.
2: It is the contention of the petitioner that since the enquiry itself was not conducted while he was in service, no witnesses were examined, no findings were recorded, merely saying that the petitioner has admitted the charges because he has not filed his reply, the report was submitted. No action was taken on the report immediately when the petitioner was in service. The matter was thereafter referred to the higher authorities of the State only after the retirement of the petitioner and second show cause notice was issued to the petitioner. After a long time of his retirement, nothing was examined by the competent authority and mechanically the order impugned was issued imposing a penalty whereas, no misconduct of the petitioner was said to be proved. In view of this, it is contended that the order impugned is bad in law and is liable to be quashed.
33: Upon service of the notice of the writ petition, the respondents have filed their return contending inter alia that the charge sheet was issued to the petitioner levelling about 22 allegations regarding his misconduct. It was necessary on the part of the petitioner to submit a reply to the said charges. The reply to the charges was not filed by the petitioner though he was issued the notices, nor did he not appear before the enquiry officer. Ultimately, when it was found that the petitioner was not taking part in the departmental enquiry, report was given against him holding him guilty of alleged misconduct on 5.3.1999. Since the petitioner has attained the age of superannuation and has retired, the enquiry against the petitioner remained continue under the provisions of Rule 9 of M.P. Civil Services (Pension) Rules, 1976 (hereinafter referred to as the Rules of 1976 for brevity) explanation was called from the petitioner and, ultimately, when it was found that there was no satisfactory explanation given by the petitioner, the penalty was imposed. Thus, it is contended that the action was rightly taken by the respondents and, as such, the order of penalty is not liable to be interfered with and the writ petition is liable to be dismissed.
4: Heard learned counsel for the parties at length and perused the record.
5: First and foremost question is whether for any lapses on the part of the respondents could it be said that the petitioner was responsible for the misconduct or for that he was liable to be punished with severe penalty of withholding of pension after his superannuation. It is not in dispute that the misconducts of the petitioner were found in the year 1982, when he was placed under suspension by the order of the competent authority. It is also not in dispute that the said order of suspension was called in 4 question in M.P.No.7/1982 by the petitioner which was decided on 27.9.1982. The fact remains that the misconducts of the petitioner were within the knowledge of the authorities. The suspension of the petitioner was treated to be revoked automatically only because the charge sheet was not issued to the petitioner within the stipulated period prescribed under rule 9 of the M.P. Civil Services (Classification, Control and Appeal Rules, 1966) (hereinafter referred to as CCA Rules for brevity). It was to be explained by the respondents in the return as to why the charge sheet could not be issued to the petitioner within time. If there were 22 allegations or charges against the petitioner, it was more important that departmental enquiry should be initiated immediately.
6: Yet another aspect is that after issuance of the charge sheet, it appears that the enquiry officer was appointed. The petitioner was given the notice to submit his reply and according to the report of the respondents placed on record vide Annx.P/3, the notice for the first time was issued on 25.2.1984. If the petitioner was not coming forward to submit any reply to the charge sheet in terms of the provisions of Rule 14(5)(b) of CCA Rules, the enquiry officer was required to proceed ex parte against the petitioner as enquiry officer was already appointed. The enquiry officer was required to proceed in accordance to the provisions of Rule 14(11) of the CCA Rules and to record the evidence. There was no occasion for the respondents to continue sending the notices to the petitioner upto 26.7.1995 i.e. for a period of 11 years from the date of first notice. Thus, it appears that the enquiry officer was not interested or vigilant in completing the enquiry against the petitioner and kept it unnecesarily pending. It further appears that since the enquiry officer was not posted in between 26.7.1995 to 5 4.5.1997, no action was taken in that respect. The proceedings again were started with effect from 4.1.1997. If that was the situation and even after notice, the petitioner has not appeared nor has filed any reply to the charge sheet, the proceedings were to be completed in terms of the provisions of Rule 14(11) of the CCA Rules and then to take final decision. From perusal of the report dated 5.3.1999 Annx.P/3, it is clear that for a period of 14 years, the enquiry was kept pending, the witnesses as shown in the list of witnesses were though summoned, but none has appeared before the enquiry officer and no statements whatsoever were recorded. Only on the basis of this it was held that the petitioner has admitted the charges and, therefore, report was sent to impose a penalty on the petitioner. This report dated 5.3.1999 was not acted upon immediately upto the date of superannuation of the petitioner i.e. 31.12.2001. In view of this, the submissions made by the respondents that the petitioner was found guilty of misconduct cannot be sustained.
7: Even when the enquiry was pending while the petitioner has attained the age of superannuation, proceedings could have been done in terms of Rule 9 of the Pension Rules. The competent authority of the State was required to see that there was no enquiry whatsoever conducted against the petitioner, no finding of guilt were recorded and the report was only this much that since the petitioner has not filed his reply to the charge sheet, it is deemed that he has admitted his guilt. In these circumstances, the disciplinary authority after the superannuation of petitioner should have directed conducting of the enquiry in appropriate manner and giving a report. Instead a second show cause notice was issued to the petitioner of which reply was submitted by the 6 petitioner. Mechanically without examining all these aspects, without recording any finding, the respondents have passed the order on 20.1.2006 imposing a penalty of withholding of 50% pension.
8: It is not in dispute that the enquiry was initiated against the petitioner while he was in service and has remained pending when he attained the age of superannuation and retired on 31.12.2001, and therefore, the moot question, which is to be looked into, is what should be the procedure for imposing penalty on a retired Government servant and to what extent penalty can be imposed on a retired Government servant, if a departmental enquiry was initiated during the service of the Government servant and has remained continue after his retirement. The right of Governor to withhold or withdraw the pension is prescribed under Rule 9 of the Pension Rules, which needs elaborate discussion and, therefore, same is reproduced below :
"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-7
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:-
(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 his 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 8 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 the 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 25 th 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 two 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, the 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.9
(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 form an earlier date, on such date; and
(b) judicial proceedings shall be deemed to be initiated-
(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."
9: The other part of the Rule referred to herein above, mainly sub-rule (2) of Rule 9 of the Pension Rules, deals into different arena. First where the departmental enquiry is instituted while the Government servant was in service, whether before his retirement or during his re-employment, which according to the provisions of sub-rule (2)(a) of Rule 9 of the Pension Rules, be deemed to be proceedings under the Rule and shall be continued and concluded by the authority by which the same were commenced, in the same manner as if the Government servant had continued in service. The proviso prescribes that if the departmental enquiries are instituted by an authority subordinate to the Governor, that authority shall submit a report regarding its findings to the Governor. There is nothing except this provision made under the Rules in respect of departmental enquiry, which is initiated before the final retirement of the Government servant.
10 : The other part of this Rule contained in sub-rule (2)(b) 10 of Rule 9 of the Pension Rules contemplates that in case the departmental enquiry is not instituted when the Government servant was in service, shall not be instituted save with the sanction of the Governor, shall not be in respect of any event which took place more than four years before such institution, and 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. The most important part prescribed in this Rule is the nature of the penalty, which could be imposed and in what circumstances such a penalty is required to be imposed. It is specifically prescribed that such enquiry would be in respect of a misconduct for which a penalty of dismissal from service could be imposed, had the Government servant not been retired, if the charges are proved. The other part of the penalty is recovery of the loss caused to the State by the negligence or breach of orders by the Government servant concerned.
11 : If this is the specific provision made for imposition of penalty on a retired Government servant, it is more important to see why such a prescription is made in the Rules. Normally a Government servant while in service is governed by the CCA Rules where specific penalties are prescribed under Rule 10 of the said Rules. The said penalties are as follow :
"10. Penalties.- The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely :-
Minor penalties :-
(i) Censure;
(ii) Withholding of his promotion;11
(iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of order;
(iv) withholding of increments of pay or stagnation allowance;
Major Penalties :-
(v) reduction to a lower stage in the time scale of pay for a specified period with further directions as to whether or not, the Government servant will earn increments of pay or the stagnation allowance, as th case may be, during the period, on such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the further increments of his pay or stagnation allowance.
Note.- The expression "reduction to a lower stage in the time scale of pay" shall also include reduction of pay from the stage of pay drawn by a Government servant on account of grant of stagnation allowance, if any.
(vi) reduction to a lower time scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Government servant to the time scale of pay, grade, post or service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post or service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service;
(vii) compulsory retirement;
(viii) removal from service which shall not be a disqualification for future employment under the Government;
(ix) dismissal from service which shall ordinarily be a disqualification for future employment under the Government;"
1212 : Any of such penalties referred to herein above are to be imposed with prospective effect and not with retrospective effect. For the purposes of imposition of such penalty, a Government servant must be in service otherwise none of the penalties referred to herein above can be imposed on a Government servant after his retirement. Precisely this was the reason when on earlier occasion it was held by the Courts of law that after the retirement there would not be any continuance of the departmental enquiry. The Rules which are made in the Pension Rules for imposition of penalty are subsequently added because of the fact that after the retirement a Government servant, if has committed even serious misconduct, should not go scot-free without imposition of penalties as none of the penalties under the CCA Rules could be imposed on such a Government servant. Therefore, it is necessary to examine whether for a minor misconduct, for which a minor penalty would have been imposed on the Government servant, had he remained in the employment and would not have retired from service, major penalty could still be imposed by way of withholding pensionary benefits.
13 : In context of the aforesaid, it has to be examined whether allegations made against the petitioner were said to be proved to the extent that a major penalty of dismissal from service could have been imposed on him if all such charges were found proved. The findings as recorded by the enquiry officer in the case in hand is nothing, but admission of the guilt of the petitioner only because he has not appeared before the enquiry officer despite notice. Even the ex parte proceedings were not done in the said departmental enquiry against the petitioner expeditiously. The finding was recorded that because witnesses were not 13 coming forward because of the long lapse of time and pendency of the departmental enquiry, it was deemed that allegations made against the petitioner are admitted by him. By no stretch of imagination, such a finding of the enquiry officer can be treated as a proof of the misconduct of the petitioner. Even the gravity of the misconduct was not discussed. The State authority has said only this much that a loss of Rs.50,000/- was caused to the State Government on account of improper working of the petitioner. How such a loss was caused and how the petitioner alone was responsible for such a loss is also not discussed nor was found proved. In such a departmental enquiry, there was no basis to hold that the alleged misconduct of the petitioner was such grave that he would have been removed from service had he remained in service and would not have retired. Therefore, in view of the discussions made herein above, even the penalty of withholding of 50% pension for a period of five years could not have been imposed on the petitioner.
14 : As a result, the writ petition is allowed. The order impugned dated 20.1.2006 stands quashed. The withheld amount of pension be paid to the petitioner within two months from the date of order passed today.
15 : The writ petition is allowed and disposed of. There shall be no order as to costs.
(K.K. TRIVEDI) Judge A.Praj.