Madhya Pradesh High Court
R.K. Jain vs The State Of Madhya Pradesh on 26 November, 2014
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION No.1916/2012
R.K. Jain
Vs.
The State of Madhya Pradesh & another
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Shri Ashutosh Tiwari, learned Counsel for the petitioner.
Shri Vaibhav Tiwari, learned Panel Lawyer for the
respondents-State.
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Present : Hon'ble Shri Justice K.K. Trivedi
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O R D E R
(26/11/2014) This writ petition under Article 226 of the Constitution of India is directed against the order dated 27.06.2008 passed by the respondent No.2 as also the order dated 24.05.2011 passed in appeal of the petitioner by respondent No.1. By the impugned final order dated 24.05.2011, a penalty of withholding of 10% pension of the petitioner is imposed on the petitioner under Rule 9(1) of the Madhya Pradesh Civil Services (Pension) Rules, 1976 (herein after referred to as 'Pension Rules'). By the order dated 27.06.2008, recommendation is made by respondent No.2 for imposition of penalty of withholding of 5% pension of the petitioner for a period of one year under the aforesaid Pension Rules.
2. The facts giving rise to the present writ petition are that while the petitioner was in service as Food Inspector, a charge-sheet dated 19.02.2002 was issued to him under the provisions of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 (herein after referred to as 'CCA Rules') for conducting a regular 2 departmental enquiry for alleged misconduct, in terms of Rule 14 of the CCA Rules. The petitioner attained the age of superannuation and stood retired during the pendency of the departmental enquiry. However, in view of the provisions of Rule 9 of the Pension Rules, the enquiry remained pending against the petitioner. In terms of the Pension Rules, the matter was referred to the competent authority for passing an order.
3. From the order impugned it is clear that the matter was referred to the higher authority, i.e. the State Government, by the respondent No.2 only because the petitioner had retired during the pendency of the departmental enquiry and penalty was to be imposed by the competent authority. The respondent No.2 proposed only withholding of 5% of pension for a period of one year. Probably this was done because only Charge No.7 was said to be partially proved against the petitioner by the Enquiry Officer and to that extent the report of the Enquiry Officer was accepted. However, the State Government was of the view that instead of withholding of 5% pension for a period of one year, looking to the grave misconduct of the petitioner, he should be visited with a penalty of withholding of 10% pension permanently and accordingly the order was issued on 24.05.2011. It is this order which is sought to be challenged in the present writ petition mainly on the ground that opportunity of hearing was not given to the petitioner in appropriate manner, inasmuch as the petitioner was ill. This fact was brought to the notice of the Enquiry Officer and on account of his illness, the petitioner could not appear in the enquiry. Even when the charges were said to be not proved fully against the petitioner and the misconduct alleged in Charge No.7 was not such grave that a penalty of withholding of pension could be imposed, such order of imposition of penalty was issued. It is contended in the writ petition that no opportunity of personal hearing was 3 given and without following the procedure laid-down under Rule 14 of the CCA Rules, the enquiry report was sent to the higher authority. This order was sought to be challenged in an appeal before the respondent No.1 and that appeal ought to have been decided in appropriate manner, whereas the order impugned has been passed imposing the aforesaid penalty.
4. As has already been noted down in the order-sheet, the notices after admission of this writ petition were issued in the year 2012 granting sufficient time to the respondents to rebut the allegations made by the petitioner but no return whatsoever has been filed. Looking to this conduct as well as the fact that the order of penalty amounts to taking away proprietary right of the petitioner, the matter has been heard finally.
5. 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 continued 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:4
Provided that the State Public Service Commission shall be consulted before any final orders are passed:
Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below [the minimum pension as determined by the Government from time to time];
2(a) The Departmental proceedings [x x x], if instituted while the Government servant was in service whether before his retirement or during his re- employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced, in the same manner as if the Government servant had continued in service:
Provided that where the departmental proceedings are instituted by an authority subordinate to the Governor, that authority shall submit a report regarding its findings to the Governor.
(b) The departmental proceedings, if not instituted while the Government servant was in service whether before his retirement or during his re- employment:-
(i) shall not be instituted save with the sanction of the Governor;
(ii) Shall not be in respect of any event which took place more than four years before such institution; and [(iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings:-
(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 5 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 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 6
(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.
(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."
6. It is no doubt the right of the Governor to withhold or withdraw the pension is prescribed under sub-rule (1) of Rule 9 of the Pension Rules and it is also not in dispute that for the said purposes, each and every matter is not required to be referred to the Governor for taking a decision by him personally. It is the competent authority of the State to pass such an order in the given circumstances. However, the feature which is important, is that if the power under sub-rule (1) of Rule 9 of the Pension Rules is to be exercised, 7 the State Public Service Commission is required to be consulted before any final order is passed. In the order impugned it is nowhere indicated that the matter was referred to the State Public Service Commission before imposition of the penalty on the petitioner. The reference is made to the report submitted by the respondent No.2, meaning thereby the matter was not referred to the State Public Service Commission and the orders were obtained from the Council of Ministers for imposition of penalty. At least this important fact is not disclosed in the order impugned and nothing has been placed on record by the respondents that such compliance was done.
7. 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.
8. The other part of this Rule contained in sub-rule (2)(b) 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 8 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.
9. 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;
(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 :-
9(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;"
10. 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.10
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.
11. Under Rule 64 of the Pension Rules it is prescribed that the provisional pension would be granted where the departmental or judicial proceedings may be pending against the Government servant. Yet another rule is Rule 65 of Pension Rules, which prescribes recovery and adjustment of Government dues. The provisions of these Rules are relevant, therefore, they are also reproduced :
"64. Provisional pension where departmental or judicial proceeding may be pending.- (1)(a) In respect of Government servants refer to in sub-rule (4) of rule 9 the Head of Office shall authorise the payment of provisional pension not exceeding the maximum pension and 50% of gratuity taking into consideration the gravity of charges levelled against such Government servant, which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant or if he was under suspension on the date of retirement, up to the date immediately preceding the date on which he was placed under suspension.
(b) The provisional pension shall be drawn on establishment pay bill and paid to retired Government servant by the Head of Office during the period commencing from the date of retirement to the date on which upon conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.11
(c) Provisional gratuity shall be drawn on establishment pay bill and paid to retired Government servant by the Head of Office after adjusting dues mentioned in sub-rule (2) of rule 60, under intimation to Audit Office. Payment of provisional pension/gratuity made under sub-rule (1) shall be adjusted against final retirement benefit sanctioned to such Government servant upon conclusion of such proceedings, but no recovery shall be made where the pension/gratuity finally sanctioned is less than the provisional pension/gratuity or the pension/gratuity is reduced or withheld either permanently or for a specified period.
65. Recovery and adjustment of Government dues.- (1) It shall be the duty of every retiring Government servant to clear all Government dues before the date of his retirement.
(2) Where a retiring Government servant does not clear the Government dues and such dues are ascertainable.-
(a) an equivalent cash deposit may be taken from him; or
(b) out of the gratuity payable to him, his nominee or legal heir, an amount equal to that recoverable on account of ascertainable Government dues shall be deducted.
Explanation.-1. The expression "ascertainable Government dues" includes balance of house building or conveyance advance, arrears of rent and other charges pertaining to occupation of Government accommodation, over-payment of pay and allowances and arrears of income-tax deductible at source under the Income-tax Act, 1961 (No.43 of 1961)."
12. A further perusal of these Rules will make it clear that it is only a temporary arrangement made till the departmental enquiry is pending, with respect to the payment of pension but it nowhere prescribes that final orders will also be required to be issued in the matter of recovery. Rule 9 of the Pension Rules, if seen as a whole, deals with withholding of the pension in respect of a Government servant against whom the departmental enuiry 12 is initiated after the final retirement or is deemed to be continued under the provisions of the aforesaid rules but the provisions of this sub-rule are nothing but the adjustment of the recoverable amount of pension.
13. After this analysis, now it has to be examined whether charge against the petitioner was such that a penalty of dismissal from service could have been imposed on him, had he remained in the employment. Charge No.7 is said to be partially proved by the Enquiry Officer. The charge against the petitioner was that he has not made the entry in the register of samples, licence, sanction for prosecution and nomination. By not making such entries, it was alleged that the petitioner has provided assistance to those, who were found guilty of adulteration in the food grains. Reply to the said charge by the petitioner was that he has made the entries in the relevant register of all the information provided to him. The blank entries were because information in that respect was not provided by other Food Inspectors. The evidence was required to be produced in respect of such charge of the petitioner. The defence of the petitioner was required to be examined. Neither in the enquiry report nor in the proposal or even in the order impugned the facts have been discussed as to how this charge was found proved against the petitioner and whether such misconduct of the petitioner was such grave that had he been in the employment, he could have been dismissed from service. In the order impugned only this much is said that the proposal made by the respondent No.2 for imposition of penalty is accepted. In absence of clear finding with respect to the guilt of the petitioner, it was not to be held that the petitioner was guilty of the aforesaid charge. In his memo of appeal the petitioner has categorically contended that he was not posted at the place where irregularities were found with effect from 03.03.1995 to 30.05.1996 and, therefore, such a charge was not to be 13 held proved against him. Nothing is discussed in the order or the report in that respect. Even when the petitioner was absent in the departmental enquiry, a definite finding was required to be recorded in respect of such misconduct. The statements were recorded but when the petitioner was not available in the departmental enquiry on account of his spinal injury, though ex parte proceedings were done but again the provisions of Rule 14(11) of the CCA Rules were not followed. That being so, the report itself given by the Enquiry Officer was faulty one and was not to be relied upon. All these aspects were not examined by the respondent No.1 nor a definite finding was recorded that looking to the misconduct of the petitioner, he was liable to be dismissed from service, had he remained in the employment and, therefore, because of his retirement his pension was to be forfeited.
14. From this analysis and keeping in view the fact that for imposition of penalty of withholding of pension the findings were not properly recorded, the orders impugned cannot be sustained. Pension is a proprietary right as has been held by the Courts in several pronouncements. Such a proprietary right is not required to be taken away without following proper procedure of law. If such a drastic penalty of withholding of pension is required to be imposed on any such Government servant, definite finding is required to be recorded with respect to the gravity of the misconduct and the ultimate result of the said misconduct, whether it would have been resulted in dismissal from service, had the Government servant remained in the employment, and then only penalty aforesaid is required to be imposed. As nothing is found in this respect, no such consideration is done by the respondents while imposing penalty on the petitioner, the order dated 24.05.2011 cannot be sustained.
1415. Resultantly the petition is allowed. The order dated 24.05.2011 (Annexure P-1) is hereby quashed. Full pension of the petitioner is restored. The arrears of pension be paid to the petitioner within a period of three months from the date of receipt of the copy of this order. There shall be no order as to costs.
(K.K. Trivedi) Judge Skc