Research › Browse › Judgment

Gauhati High Court · body

1995 DIGILAW 70 (GAU)

Subhendu Hom Roy v. State of Tripura

1995-03-30

N.G.DAS

body1995
This is an application under Article 226 of the Constitution of India by petitioner Shri Subhendu Horn Roy for an appropriate writ in the nature of Mandamus directing the respondents to pay the petitioner all his retirement benefits, namely, amount of Group Insurance, GPF, death-cum-retirement gratuity, encashment of leave etc. and also to pay him his pay and allowances that became due for the period of suspension from 20.2.1992 till 31.3.1993 i.e. the date of retirement on superannuation, 2. I have heard Mr. B. Das, the learned senior counsel appearing on behalf of the petitioner. No one appears on behalf of the respondents. 3. I have gone through the petition as well as the counter affidavit filed on behalf of the respondents. The undisputed facts that emerge out from the writ petition as well as the counter affidavit are that the petitioner was an Assistant Headmaster of some Higher Secondary School under the Education Department, Govt. of Tripura and that he was put under suspension by an order dated 28th of January, 1992 contained in Annexure A (vide No.F.11(16)-ARD/91) in contemplation of drawing up a departmental proceeding against him (petitioner). This order of suspension was, however, revoked after the retirement of the petitioner by an order dated 28.6.94. In the counter it has, however, been stated that the order of suspension was revoked before retirement of the petitioner on superannuation. Anyway there is no controversy that the order of suspension was revoked. From the counter it does not appear that articles of charges or any article of charges were at all framed against the petitioner till now. In this context it may be useful to refer to a decision of the Apex Court rendered in the case of State of Punjab vs. Khemi Ram, reported in AIR 1970 SC 214 . Their Lordship under para 11 of the judgment held : “If disciplinary action is sought to be taken against a Government servant it must be done before he retires as provided by the said rule. If a disciplinary enquiry cannot be concluded before the date of such retirement, the course open to the Government is to pass an order of suspension, and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final order is passed therein.” 4. If a disciplinary enquiry cannot be concluded before the date of such retirement, the course open to the Government is to pass an order of suspension, and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final order is passed therein.” 4. It is, thererfore, crystal clear from the above quoted passage of the judgment of the Supreme Court that disciplinary proceeding started before the retirement of an employee can be conducted even after his retirement on superannuation if the concerned authority passes necessary order for continuation of his service and refuses to permit him to retire until the enquiry is completed. In the instant case there is no dispute that Central Civil Services (Pension) Rules, 1972 was adopted by the Government of Tripura. 5. So, in view of the facts and circumstances, particularly the law laid down by the Apex Court, I am constrained to hold that no disciplinary proceeding can be continued against the petitioner as admittedly the petitioner was allowed to retire on superannuation with effect from 31.3.1993.1, therefore, see no reason why the reliefs sought for in this writ petition should not be allowed. 6. The result is that the respondents are directed to pay all pensionary benefits including the pay and allowances for the period of suspension to the petitioner within a period of 3 (three) months. Under the circumstances there would, however, be no order as to cost. 7. The writ petition is accordingly disposed of. 8. After dictation of the judgment Mr. ML Roy, the learned counsel appeared and submitted that due to some mis-understanding he did not appear in time. However, he was allowed to submit his points. The only point urged by Mr. Roy, the learned counsel appearing on behalf of the respondents is that the petitioner defalcated a sum of Rs.31,500/- and that as per Pension Rules, particularly the provisions laid down under Rule 9 of the Central Civil Services (Pension) Rules, 1972 which was adopted by the Government of Tripura the respondents are entitled to deduct the sum of Rs.31,5 00/- from the gratuity which the petitioner is entitled to get as retirement benefits. 9. To appreciate the contention of Mr. 9. To appreciate the contention of Mr. Roy it may be useful to quote the provisions of Rule 9 of Central Civil Services (Pension) Rules, 1972 which has admittedly been adopted by the Government of Tripura. Article 351 of the Civil Service Regulations, now Rule 9 of the Pension Rules, 1972 provides that such proceeding can be drawn up against a retired Government servant. Rule 9 (b) of the Central Civil Services (Pension) Rules, 1972 reads: “The department 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 President, (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 President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. (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 as provided in Rule 69 shall be sanctioned. (5) Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinary be made at a rate exceeding one third of the pension admissible on the date of retirement of a Government servant.” 10. A perusal of the above provisions make it abundantly clear that in the event of a Government servant who was allowed to retire such a proceeding can be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. In the instant case it would palpably clear from the statements made in the counter affidavit that no departmental proceeding was drawn up till the date of retirement i.e. 31.3.1993 with effect from which date the petitioner was asked to retire. There is no contention that the respondents took necessary order from the President. 11. So, in view of the decision of the Apex Court as quoted above and the reasons I have assigned, I do not find any ground to alter the decision I have already dictated. 12. The petition is accordingly allowed for the reliefs I have granted.