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Madhya Pradesh High Court · body

2008 DIGILAW 1078 (MP)

KRISHNALAL v. STATE OF M. P.

2008-08-27

SHANTANU KEMKAR

body2008
Judgment SHANTANU KEMKAR, J. ( 1. ) Petitioner was working on the post of Deputy Drug Controller in the Public Health and Family Welfare Department of the State Government. A charge sheet dated 05.10.87 (Annexure A/1) was issued to him levelling charge of unauthorised absence and of non compliance of the transfer order dated 13.06.1985. His reply to the charge sheet was not found to be satisfactory and as such the respondents conducted departmental inquiry against him. After recording of the evidence the Inquiry Officer submitted inquiry report on 07.05.1993 (Annexure A/5) holding the petitioner guilty of the charges levelled against him. A copy of the inquiry report was served upon the petitioner along with show cause notice dated 22.07.93 (Annexure A/4). The petitioner submitted a reply/representation (Annexure A/5-A) against the said inquiry report. The respondents after considering the petitioners representation held that the grounds raised by him in his representation to hold him not guilty are not satisfactory and it was observed that as the petitioner had already retired on 30.04.1997 in the circumstances the order dated 20.10.1996 by which it was decided to impose penalty of withholding of two increments with non cumulative effect could not have been passed against the petitioner, being of no effect upon him, the petitioner has been inflicted penalty of reduction of 30% of his pension for a period of one year invoking rule 9 (2) of the M.P.Civil Service (Pension) Rule 1976 (for short Rules) vide order dated 15.02.02 (Annexure A/6). ( 2. ) Aggrieved by the aforesaid order (Annexure A/6) the petitioner filed Original Application No.251/02 before the M.P.State Administrative Tribunal (for short the Tribunal) Bench at Indore. On abolition of the Tribunal the said O.A. has been transferred to this Court for its adjudication and has been renumbered as W.P.No.1565/03. ( 3. ) The only point urged by the learned counsel for the petitioner is that the charge sheet was issued to the petitioner on 05.10.87. The order of penalty of withholding of 30% of pension for one year was passed on 15.02.02 that is nearly five years after his retirement on 30.04.97. In the circumstances the impugned penalty order being in violation of Rule 9(4) of the Rules is illegal. The order of penalty of withholding of 30% of pension for one year was passed on 15.02.02 that is nearly five years after his retirement on 30.04.97. In the circumstances the impugned penalty order being in violation of Rule 9(4) of the Rules is illegal. He placed reliance on a Division Bench Judgment of this Court passed in case of State of M.P. and others v. R.L.Ogle and others 2006(3)JLJ218 = 2006(1) MPLJ 412 and on the order passed by learned Single Judge of this Court in case of B.P.Shrivastava v. State of M.P. 2008(1)MPWN47 to contend that the respondents had no right to direct reduction of the petitioners pension having regard to the fact that the inquiry was not completed by the respondents within a period of two years and the order of penalty has been passed much after the period of two years from the petitioners date of retirement from service. ( 4. ) The respondents on the other hand stated that the inquiry was completed on 07.05.1993 when the inquiry report was received holding the petitioner guilty of the charge. In the circumstance merely because the penalty order has been issued in the year 2002 the same cannot be held to be illegal and contrary to Rule 9 of the Rules. ( 5. ) It is not in dispute that the petitioner was issued charge sheet on 05.10.87. In the disciplinary inquiry the inquiry report was submitted on 07.05.1993. However, no order of punishment was issued though on 30.12.1996 (Annexure R/3) the matter was referred to the Public Service Commission seeking guidance in view of the fact that the petitioner was due to retire on 30.04.1997, but no decision was actually taken and the petitioner was allowed to retire. Thereafter an order was issued on 15.02.02 by the respondents by invoking Rule 9 of the Rules and reduced the petitioners pension by 30% for a period of one year. ( 6. Thereafter an order was issued on 15.02.02 by the respondents by invoking Rule 9 of the Rules and reduced the petitioners pension by 30% for a period of one year. ( 6. ) A Division Bench of this Court interpreting Rule 9 of the Rules in case of State of M.P. v. R.L.Ogle and others (supra) has held as under: Para 10: "In the present case, the original respondent retired on attaining the age of superannuation on 31.08.1985 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 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, i.e., on 31.08.1985. 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, 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." A learned Single Judge of this Court applying the ratio of the Judgment passed by the Division Bench in the case of State of M.P. and others v. R.L.Ogle has held in the case of B.P.Shrivastava v. State of M.P. (supra) as under: Para 5: "The Division Bench of this Court in State of M.P. and others v. R.L.Ogle and others [2006(3)JLJ218=2006(1)MPLJ412] (DB), has decided that if any enquiry against an incumbent is initiated before his retirement then the enquiry as such can be continued in pursuance to Rule 9(2) (a) of Madhya Pradesh Pension Rules, 1976. The Division Bench has further decided that the said enquiry has to be completed by the State Government within a period of two years and in case the enquiry is not completed within a period of two years then the Government shall have no power to impose the penalty of reducing the pension. Thus, in the instant case, the respondents have no right to direct for the reduction the pension of the petitioner or to effect any recovery." Para 6: "Since the order of punishment by reducing the pension of the petitioner by 5% was passed on 03.07.1996 (Annexure A/22) i.e., much after the period of two years from the date the petitioner retired from the services, therefore, in terms of the judgment passed by the Division Bench of this Court in R.L.Ogle (supra), the respondents will not have any right to pass an order dated 03.07.1996 (Annexure A/22) reducing the pension of the petitioner" ( 7. ) Having regard to the aforesaid legal position I am of the view that the respondents could not have passed the impugned order of reduction of his pension by 30% much after the period of two years from the date of his retirement. The contention of the petitioner that the departmental proceedings were already completed on 07.05.1993 when the inquiry report was received holding the petitioner guilty and therefore the order of penalty could have been passed even after more than two years of petitioners retirement cannot be accepted. The Supreme Court in case of Yoginath D.Bagde v. State of Maharashtra ( AIR 1999 SC 3734 )= (1999) 7 SCC 739 has held that the departmental proceedings are not concluded on the submission of the inquiry report but it come to an end only when the disciplinary authority on consideration of the report either exonerates or imposes punishment on the delinquent. Admittedly after the submission of the inquiry report a show cause notice was issued to the petitioner. He submitted his representation to it. Thereafter on 30.12.96 the opinion of Public Service Commission about the proposed penalty was sought but no order was passed and in the meanwhile on attaining the age of superannuation the petitioner was retired on 30.04.1997. After about five years of his retirement the impugned order of penalty has been passed on 15.02.02. ( 8. ) In the aforesaid circumstance the impugned order of penalty of reduction of petitioners pension passed on 15.02.02 (Annexure A/6) deserves to be and is hereby quashed. The petitioner be paid the deducted amount of pension with interest on it at the rate of 6% per annum from the date of deduction till payment. ( 9. ) The petition is allowed. No order as to costs. Petition allowed.