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2006 DIGILAW 66 (GAU)

Madan Mohan Baruah v. State of Assam

2006-01-17

RANJAN GOGOI

body2006
JUDGMENT Ranjan Gogoi, J. 1. Heard Mr. A. M. Bujarbaruah, learned Counsel for the petitioner and Mr. H. K. Mahanta, learned Government Advocate, Assam. 2. The petitioner retired as a Joint Director in the Animal Husbandry and Veterinary Department on 30.4.1994. After his retirement he was reemployed as the Managing Director of the Assam Livestock Development Corporation from which post also he retired in the year 1997. In fact, the petitioner, prior to his retirement from the post of Joint Director, was on deputation in the Corporation as the Managing Director. While rendering service in the Corporation as its Managing Director the petitioner is alleged to have committed financial irregularities in respect of an amount of Rs. 13 lakh (approximately) and that is why the regular pension and other retirement benefits of the petitioner have not been paid till date. It is the aforesaid action of the State in withholding the regular pension and other retirement benefits of the petitioner which is the subject-matter of contest in the present writ petition wherein the prayer is for a direction to the authorities to pay to the petitioner all that would be due to him by way of regular pension as well as other retirement benefits. 3. Though the State has not filed any affidavit in the case, the records produced before the Court at the hearing would go to show that at no point of time and, till date, any departmental proceeding had been initiated against the petitioner. However, in respect of the allegation of commission of financial irregularities by the petitioner, as noticed above, there is an investigation being conducted by the Bureau of Investigation (E.O.). The aforesaid investigation is not over as on date and final report of the investigation is yet to be submitted. The question that confronts the Court, therefore, would be whether the withholding of regular pension and other retirement benefits of the petitioner in the above noted circumstances would be justified in law. The petitioner, it may be noticed, is in receipt of provisional pension which has been granted under the interim orders passed by this Court in the present proceeding. 4. The power to withhold/withdraw pension or any part of it as well as the right to order recovery from pension already granted is vested in the State Government by the provisions of Rule 21 of the Assam Services (Pension) Rules, 1969. 4. The power to withhold/withdraw pension or any part of it as well as the right to order recovery from pension already granted is vested in the State Government by the provisions of Rule 21 of the Assam Services (Pension) Rules, 1969. Such power is to be exercised if a Government servant is found to be guilty of grave misconduct or negligence during period of service rendered including service rendered on reemployment after retirement. Such a finding of grave misconduct or negligence has to be recorded in a departmental proceeding or a judicial proceeding against the Government servant. Under Rule 21(a) if a departmental proceeding is initiated against a Government servant while such a Government servant is still in service such proceeding would automatically continue upon retirement of the Government servant. However, under Rule 21(b), a departmental proceeding, if not initiated while the Government servant was in service, cannot be initiated in respect of an event which may have taken place more than four years before the institution of such a departmental proceeding. Likewise, under Rule 21(c), a judicial proceeding not instituted while the Government servant was in service cannot be instituted in respect of a cause of action which arose or an event which took place four years before such institution. A judicial proceeding has been defined by Clause (b) of the Explanation to Rule 21 to include a criminal proceeding. Such a criminal proceeding may be deemed to have been instituted on the date when the Court takes cognizance of the offence alleged. In the present case, admittedly, no departmental proceeding has been initiated against the petitioner. However, as already noticed, an investigation with regard to commission of financial irregularities by the petitioner is presently pending. The allegation of commission of financial irregularities by the petitioner is during the period 2.3.1994 to 30.4.1994 as evident from the records placed before the Court. In the present case, admittedly, no departmental proceeding has been initiated against the petitioner. However, as already noticed, an investigation with regard to commission of financial irregularities by the petitioner is presently pending. The allegation of commission of financial irregularities by the petitioner is during the period 2.3.1994 to 30.4.1994 as evident from the records placed before the Court. As under Rule 21(c) a judicial proceeding, like a departmental proceeding, has also to be instituted in respect of an event which may have taken place four years before such institution and the allegation of commission of financial irregularities being during the period 2.3.1994 to 30.4.1994, it is crystal clear that the power to withhold the pension on the ground that a departmental proceeding or a judicial proceeding may be initiated against the petitioner in the future cannot be invoked because of the expiry of the time frame contemplated under the relevant part of Rule 21. 5. The above facts and circumstances make it abundantly clear that the power under Rule 21 of the Assam Services (Pension) Rules, 1969 to withhold the pension and other retirement benefits of the petitioner can no longer be invoked by the State. As the power to withhold the pension and retirement benefits cannot be invoked against the petitioner there will be little justification for the State to continue to deny the said benefits to the petitioner. Accordingly, the writ petition deserves to be closed with a direction to the appropriate authority in the State Government to forthwith take all necessary action and pass all consequential orders so as to entitle the petitioner to receive his regular pension and all other retirement benefits as may be found due to him. 6. It is made clear that this Court must not be understood to have expressed any opinion on the investigation stated to be presently pending against the petitioner in respect of commission of financial irregularities and such further action that the State may be advised to take against the petitioner after completion of the investigation. 7. The writ petition, consequently stands allowed as indicated above. The records placed before the Court be kept as a part of the record of the case. Petition allowed