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2010 DIGILAW 162 (GAU)

Sujit Kumar Sarmah v. State of Assam

2010-03-04

ANIMA HAZARIKA

body2010
JUDGMENT Anima Hazarika, J. 1. Heard Mr. B. Chakraborty, learned Counsel appearing for the Petitioner. Also heard Mr. B.J. Ghosh, learned State Counsel appearing for Respondent Nos. 1 to 7 as well as Mr. M. Bhagabati, learned Central Government Counsel appearing for Respondent No. 8. 2. This application under Article 226 of the Constitution of India has been filed by the Petitioner for a direction to the Respondents to quash the departmental proceeding and to release regular pension, leave encashment and other retirement benefits to the Petitioner. 3. The brief facts leading the Petitioner to file the instant writ potion may be summarised as follows: The Petitioner was appointed as Constable in the Assam Police in the year 1965 and thereafter he was promoted to the rank of Assistant Sub-Inspector of Police and Sub-Inspector of Police respectively in the year 1970 and 1984 and retired from service on superannuation w.e.f. 30.6.2006 while he was serving as Sub-Inspector of Police ('SI' for short) at Karimganj District. 4. The Petitioner while serving as S.I. of Police in Kamrup district, he fell ill and thus was compelled to take leave for better treatment. But during the period of his illness, while he was on leave, he was released from Kamrup district with direction to join in the Dhubri district. As he was on leave on medical ground from 1.10.2001 to 28.2.2002, after recovery he joined in the Dhubri district, whereof his leave period was duly regularised by the office order issued by the Superintendent of Police ('SP' for short) and a bill for the aforesaid period amounting to Rs. 25,892/- (Rupees twenty five thousand eight hundred and ninety two) only was duly submitted in the office of the Director General of Police, Assam, Guwahati for sanctioning the same. However, inspite of numbers of correspondences made by the S.P., Dhubri, the aforesaid amount has not been sanctioned till date. 5. While the Petitioner was serving in the Kamrup District a Criminal Case was registered against him being Dispur P.S. Case No. 458/94 under Sections 468/471/420/120(B) IPC read with Section12(1)(a) of the Indian Passport Act. Consequently, thereupon a departmental proceeding ('D.P.' for short) was initiated against him vide D.P. No. 5/94. However, he was completely in dark about the proceeding as he was not informed about the same nor any show cause notice was served upon him. Consequently, thereupon a departmental proceeding ('D.P.' for short) was initiated against him vide D.P. No. 5/94. However, he was completely in dark about the proceeding as he was not informed about the same nor any show cause notice was served upon him. He came to know about the proceeding only when his approved annual service increments were withheld on the ground of pendency of the departmental proceeding. Coming to know about the D.P., the Petitioner requested the authority time and again to complete the proceeding early. But till filing of the instant petition neither any show-cause notice, nor any charge memo has been served upon him. However, on 11.11.2008. i.e. after issuing notice by the Court in the instant writ petition, the Petitioner has been served with a Statement of Charges by the authority. It is now more than 16 years that the DP is pending for disposal and because of the pendency of the same the Petitioner has not been paid regular pension and the pensionary benefit inspite of his retirement from service on 30.6.2006. After filing of the instant writ petition, the provisional pension of Rs. 1,225/- per month has been paid to the Petitioner. But the annual increment has been withheld on the ground of pendency of the DP against him. When his repeated request/prayer made before the authority for early disposal of the DP, evoked no response, the instant writ petition has been filed with the aforesaid prayer. 6. Mr. Chakraborty, learned Counsel appearing for the Petitioner has strenuously urged that though the Petitioner had retired from service on 30.6.2006, till date he has neither been paid the regular pension nor any retiral benefits. The ground shown for not paying the regular pension and pensionary benefits by the authority is pendency of DP No. 5/94, which has admittedly been initiated in the year 1994 but no show-cause notice, nor statement of charges have been served upon the Petitioner while he was in service; however, after filing of the instant writ petition, statement of charges dated 11.11.2008 has been served upon him, which he has received in the later part of November, 2008. Mr. Mr. Chakraborty thus submitted that action of the authority itself has made it clear that departmental proceeding has been initiated against the Petitioner only after his retirement from service which is not permissible under Rule 21 of the Assam Services (Pension) Rules, 1969 (for short 'the Rules'), inasmuch as, no show cause notice has been served upon him apprising him of the decision and of the action proposed to be taken in terms of Clause (a) of Rule 21 of the Rules. Mr. Chakraborty has further submitted that a pending proceeding cannot be allowed to prolong indefinitely awaiting either the 'decision' or the "show cause notice" which are essential requirements of an action under Rule 21. 7. Mr. Chakraborty has further submitted that the criminal prosecution launched against the Petitioner came to an end with the judgment and order dated 03.06.2009 passed by the Chief Judicial Magistrate, Kamrup, Guwahati in G.R. Case No. 2783/1994 under Sections468/471/420/120(B) IPC read with Section 12(1)(a)/2 of Indian Passport Act. While acquitting the Petitioner alongwith others at para 16 the Court observed as follows: Para 16. In the result, we find and hold that the prosecution side has failed to bring home the charge under Sections 468/471/34 IPC read with Section12(b) of the Indian Passport Act against accused aforesaid beyond all reasonable doubt. We find them not guilty and accept forthwith. They are set at liberty and their bail bonds stand cancelled. The seized article and documents be returned to the person from whom the same were seized. 8. Drawing the attention of this Court to the aforesaid judgment of acquittal, Mr. Chakraborty, learned Counsel for the Petitioner urged that both the proceedings, i.e., departmental proceeding and criminal proceeding are based on same set of facts and evidence. The criminal proceeding came to an end with the acquittal of the Petitioner from the charges. Therefore, on this ground alone, departmental proceeding initiated after the retirement of the Petitioner is liable to be set aside and quashed. In support of his submission, Mr. Chakraborty has referred to a decision reported in a (Capt. M. Paul Anthony v. Bharat Gold Mines) reported in (1999) 3 SCC 679 . Therefore, on this ground alone, departmental proceeding initiated after the retirement of the Petitioner is liable to be set aside and quashed. In support of his submission, Mr. Chakraborty has referred to a decision reported in a (Capt. M. Paul Anthony v. Bharat Gold Mines) reported in (1999) 3 SCC 679 . The learned Counsel, therefore, submitted that it is a fit case in which this Court would quash and set aside the departmental proceeding and direct the authorities to pay pension, gratuity, leave encashment benefits and other retirement benefits to the Petitioner within a stipulated time. 9. In support of his submission Mr. Chakraborty has also placed reliance upon the following decisions: i) AIR 1990 SC 1308 : State of M.P. v. Bani Singh and Ors. ii) AIR 1998 SC 1833 (1): State of A.P. v. N. Radhakishan iii) AIR 2006 SC 207 : P.V. Mahadevan v. M.D. Tamilnadu Housing Board iv) (1984) 2 GLR 488: Girija Kr. Phukan v. State of Assam and Ors. 10. In reply, Mr. Ghosh, learned State Counsel, relying on the averments made in the counter-affidavit filed by the State Respondents, submitted that once the departmental proceeding was initiated or a Government servant was suspended in contemplation of the departmental proceeding, the Government servant is entitled to only provisional pension under Rule 22(1) of the Rules. He explained by referring to the language of Rule 21 of the Rules that the order for withholding or withdrawing a pension is passed by the Governor of Assam only after the departmental proceeding is completed and the Government servant is found guilty of grave misconduct or negligence during the period of his service. Thus, submitted Mr. Ghosh that no order is required to be passed by the Governor under Rule 21 of the Rules apprising the Petitioner of the decision and of the action proposed to be taken or withholding or withdrawing pension in the instant case as the departmental proceeding against the Petitioner has not been completed. Drawing the attention of this Court to Rule 22(1) of the Rules, Mr. Ghosh has submitted that where a departmental proceeding initiated against a Government servant prior to his retirement is continued, he is not entitled to pension but he is entitled to provisional pension, which has already been sanctioned and received by the Petitioner regularly. 11. Drawing the attention of this Court to Rule 22(1) of the Rules, Mr. Ghosh has submitted that where a departmental proceeding initiated against a Government servant prior to his retirement is continued, he is not entitled to pension but he is entitled to provisional pension, which has already been sanctioned and received by the Petitioner regularly. 11. Rules 21 and 22 of the Rules being relevant, for better appreciation, the same are reproduced hereinbelow: 21. The Governor of Assam reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a 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- (a) such departmental proceeding, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service; Explanation- The continuation of the proceeding after the final retirement of the officer shall be automatic under Sub-rule (a) of Rule 21 and no fresh decision of the Governor and/or the Appointing Authority nor any show cause notice to the person concerned shall be necessary. The powers under Rule 21 shall be exercisable not only in case of causing pecuniary loss to Government but also in all other cases. The powers under Rule 21 shall be exercisable not only in case of causing pecuniary loss to Government but also in all other cases. (b) such departmental proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment- (i) shall not be instituted save with the sanction of the Governor of Assam; (ii) shall not be in respect of any event which took place more than 4 years before such institution; and (iii) shall be conducted by such authority and in such place as the Governor of Assam may direct and in accordance with procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service; (c) no such judicial proceeding, if not instituted while the officer 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 an event which took place more than 4 years before such institution; and (d) the Assam Service Commission shall be consulted before final orders are passed. Explanation: For the purpose of this rule- (a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension from an earlier date, on such date; and (b) a judicial proceeding shall be deemed to be instituted- (i) in the case of a criminal proceeding, on the date on which the complaint or report of police officer, on which the Magistrate takes cognizance, is made, and (ii) in the case of a civil proceeding, on the date of presentation of the plaint in the Court. 22 (1) Where any departmental or judicial proceeding is instituted under Rule 21 or where a departmental proceeding is continued under Clause (a) of the proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which upon conclusion of such proceeding, final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement, 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; but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereon. (2) Payment of provisional pension made under Clause (1) shall be adjusted against the final retirement benefits sanctioned to such officer upon conclusion of the aforesaid proceeding but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period. 12. A bare reading of Rule 21 as quoted hereinabove would show that nature, ambit and scope conferred under Rule 21 of the Rules does not contemplate or authorise automatic continuation of any pending disciplinary proceeding against a retired Government servant. In this connection few paragraphs of the decision rendered by a Division Bench of this Court in Shri Girija Kr. Phukan (supra), referred to and relied upon by the learned Counsel for the Petitioner and relevant in the present case in hand are quoted hereunder: 8. We may now have a close view of the context and setting of the concerned rule. According to Rule 20 future good conduct is an implied condition of every grant of a pension and the Governor of Assam reserves to himself the right of withholding or withdrawing a pension or any part of it if the Petitioner be convicted or found guilty of misconduct. According to Note-2 appended to the rule failure or refusal of a pensioner to pay any payment owed by him to Govt. is not 'misconduct'. According to Note-2 appended to the rule failure or refusal of a pensioner to pay any payment owed by him to Govt. is not 'misconduct'. However, according to the explanation reduction in pension about to be sanctioned may be made in the circumstances contemplated in Rules 21 and 106(b). Rule 22 contemplates payment of 'provisional pension' pending action under Rule 21 but provides that no gratuity or death-cum retirement gratuity shall be paid to the applicant until the conclusion and till final orders are passed in the proceeding. No officer may be granted pension who is dismissed or removed from service for misconduct, insolvency or inefficiency though some 'compassionate allowances' etc. may be granted to him according to Rule 24. 9. We may now address ourselves to the core question. What is the object and purpose of Rule 21? What precisely is the ambit and scope of Clause (a) thereof? That pension can be claimed by person who had been in Govt. service and is no longer in service is beyond doubt. That it is a statutory right is also clear. Pension Rules obviously deal with this right. They do not deal with right any serving Govt. servant relating to his conditions of service. Can we, therefore, read Rule 21 as conferring power on the Govt. to punish its ex-employee for anything done by him while in service and for that matter continuing a disciplinary proceeding with that object though initiated before be ceased to be in service? The language of Rule 21 itself does not suggest that it has this object in view. The object of the rule is to be gathered from the cognate provision to which we have referred above. It deals with some of the cases and circumstances in which the Govt. can refuse either wholly or partly, in the manner prescribed therein the claim of pension laid by an ex-employee. Therefore, an affirmative and positive action must be taken under Rule 21, by the authority competent to act thereunder. According to us Clauses (a), (b) provide the modalities of taking action under Rule 21 they need not be read as 'proviso' in the technical sense. We do not, and indeed cannot, read Clause (a) to mean therefore, that by virtue thereof there shall be an automatic continuation of a pending disciplinary proceeding against an ex-employee. According to us Clauses (a), (b) provide the modalities of taking action under Rule 21 they need not be read as 'proviso' in the technical sense. We do not, and indeed cannot, read Clause (a) to mean therefore, that by virtue thereof there shall be an automatic continuation of a pending disciplinary proceeding against an ex-employee. This provision is not meant, according to us, to resurrect a dead proceeding, a proceeding which could only be co-extensive with the tenure of service of the employee. If Clause (a) is construed to mean that in virtue thereof a pending proceeding against an employee must be continued then in all cases in all pending proceedings this must be done in anticipation of action to be taken under Rule 21 by the competent authority whether or not such action is warranted thereunder. This construction would certainly produce an absurd result. Besides, there will be scope for complaints of arbitrary action if such proceeding is not continued in all cases and the disciplinary authority at its whim decides to pick and choose. Such a construction must, therefore, be ruled out as it would be unconstitutional. We must view this matter also from another angle. Rule 21 expressly confers power on the Governor of Assam to take action thereunder. Unless, therefore, such action is contemplated by him the authority which was holding the enquiry prior to the retirement of Govt. servant will have no jurisdiction to continue the proceeding. If he does so it will tantamount to his exercising the power under Rule 21 which expressly is conferred not on him but on the Governor of Assam. The fact that Clause (b) mandates sanction of the Governor to be obtained for a de novo proceeding supports this view. So also the fact that Clause (b) bars action in respect of events (beyond 4 years) which also can be similarly considered by the Governor. Indeed, express omission of this requirement in Clause (a) makes it constitutionally fragile and only by interpolating consideration of the same circumstance by the Governor in taking decision, the virus of unreasonable nexus can be removed to pre-empt challenge on this score. 10. Indeed, express omission of this requirement in Clause (a) makes it constitutionally fragile and only by interpolating consideration of the same circumstance by the Governor in taking decision, the virus of unreasonable nexus can be removed to pre-empt challenge on this score. 10. The language of Clause (a) may now be examined the expression "deemed to be a proceeding under this rule" in our opinion, patently indicates recognition of the position that power to continue against an ex-employee a pending disciplinary proceeding is not warranted in law. And, because, it will be a proceeding against a "pensioner" for the purpose merely of taking action under Rule 21, the nature and character of the proceeding requires to be indicated. The object of continuing the proceeding is obviously to spare the person concerned, if possible, the ordeal of a de novo proceeding which is contemplated under Clause (b). It is for expeditious disposal of the matter, because, the pension Rules, as alluded, mandate early disposal of applications for pension. It is merely an enabling provision meant to benefit the prospective pensioner. The expression "shall be continued" is not a mandate. The word "shall" is not to be read in the mandatory sense. That use of the expression "shall" is not considered decisive is well settled by canons of construction. In a recent decision rendered in Ajit Singh's case, (1983) 2 SCC 217 , the law on this point has been summarised and the dominant norm of interpretative technology in this field has been vocally projected. The meaning to be attached to the term should be determined, according to their Lordships, by answering the question "whether the object of the legislature will be defeated or furthered". There is intrinsic evidence written in Rule 21 itself which is to be read as a whole to indicate that the expressions "shall be continued" does not carry in it any mandate. Because, the nature and object of the proceeding under Rule 21 is entirely different. The pending proceeding even if continued cannot end in the punishments contemplated under the Disciplinary or Service Rules. Rule 7 of the Service Rules contemplates different kinds of penalties which may be imposed on a Govt. servant. Although Clause (iii) contemplates "recovery from pay of the whole or part of any pecuniary loss caused by negligence or breach of orders to the Govt. Rule 7 of the Service Rules contemplates different kinds of penalties which may be imposed on a Govt. servant. Although Clause (iii) contemplates "recovery from pay of the whole or part of any pecuniary loss caused by negligence or breach of orders to the Govt. "under Rule 21 what can be done is recovery from a person of the whole or part of any pecuniary loss caused to the Govt." On the condition that the person concerned in the pending proceeding is found guilty of "grave misconduct or negligence". Having regard to explanation (a) to Rule 21 wherein mention is made of "statement of charges", we feel persuaded to take the view that unless the person concerned is apprised of the intention by the Govt. of continuing the pending proceeding in terms of Rule 21 there shall be no jurisdiction to do so in the authority which had commenced the same. The expression "statement of charges" must obviously indicate not the allegations only but also the consequences likely to follow from the action proposed to be taken in respect thereof. Indeed, the requirement of principle of natural justice would persuade us to take this view. Prior warning is imperative for visiting a person with penal consequences in their recent decision in Liberty Oil Mill's Case AIR 1984 SC 1271 their Lordships dwelt at length on the question of reading into the statutory provision the requirements of natural justice. There can be no doubt that pursuant to a decision rendered in a pending proceeding continued after retirement of a Government servant serious civil consequences of penal nature follow which are writ large on the face of Rule 21 itself. In Maneka Gandhi ( AIR 1978 SC 597 ) nine learned Judges of the Supreme Court dealt with the question of reasonableness of procedure in the context of Article 21. Bhagawati, J. (speaking for himself and for Untwalia and Fazal Ali, JJ.) observed that natural justice is a great humanist principle intended to invest law with fairness and to secure justice. "Although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of legislature", so said their Lordships. Although "pension for a Govt. "Although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of legislature", so said their Lordships. Although "pension for a Govt. servant is a bounty for his past services the statutory obligations saddled on the State under the Pension Rules prohibits it from acting in a manner which may impinge on his right to livelihood embraced by Article21. We must remember that pension rules aforesaid are framed under Article 309. However, in (Francis Coralic AIR 1981 SC 746 ) the Court observed that the right to life enshrined in Article 21 means something more than just physical survival. It includes right to live with human dignity and all that goes along with it, the bare necessities of life such as adequate nutrition, clothing and shelter over the head...." In a later decision, Board of Trusties v. Dilip Kumar AIR 1983 SC 109 their Lordships observes as follows: Where therefore, the outcome of a departmental enquiry is likely to adversely affect reputation or livelihood of a person, some of the finer graces of human civilisation which make life worth living would be jeopardised and the same can be put in jeopardy only by law which inheres fare procedure. 12. For the foregoing reasons we entertain no doubt about the position that Rule 21 of the Pension Rules does not contemplate or authorise automatic continuation of any pending disciplinary proceeding against a retired Govt. servant. Indeed, according to us, condition precedent for continuance of the proceeding in terms of Clause (a) thereof is a decision of the competent authority, namely. Governor of Assam, to take action against the person concerned under Rule 21. That apart, before a pending proceeding can be continued "after retirement of a Govt. servant a show cause notice must be served on him apprising him of the decision and the action proposed to be taken in terms of Clause (a) of Rule 21. Reasonableness of this procedure would, however, further mandate these requirements to be fulfilled in a reasonable manner and within a reasonable time. In Mansaram (1984) 1 SCC 125 , their Lordships of the Supreme Court held that when time is not stipulated in the statute in respect of the proposed action the administrative action contemplated must be taken within a reasonable time. In Mansaram (1984) 1 SCC 125 , their Lordships of the Supreme Court held that when time is not stipulated in the statute in respect of the proposed action the administrative action contemplated must be taken within a reasonable time. The nature of the action and the proceeding contemplated under Rule 21 make it necessary to insist on the primacy of the requirement of "reasonable time". Because, the nature of the right created by the pension rules and the object of the provisions of the said rules make it clear that there should be no unreasonable delay in the matter of settlement of a claim for pension. The object fulfilling the Directive Principles must not be defeated. Reasonable explanation must be forthcoming to explain the delay in taking decision by the competent authority under Rule 21 and also in the service of show cause notice thereunder by the disciplinary authority. A pending proceeding cannot be allowed to prolong indefinitely awaiting either the "decision" or the "show cause notice" which are essential requirements of an action under Rule 21. 13. The learned State counsel has produced the original records. Perusal of the same would reveal that case file of DP No. 5/94 was missing and therefore the proceeding initiated against the Petitioner under DP No. 5/94 is pending and that is the only ground for not completing the DP drawn up against the Petitioner. 14. The admitted position in the instant case is that there is no decision by the Governor of Assam under Rule 21 and indeed, no show cause notice also has been served upon the Petitioner informing him that the proceedings initiated against him in the year 1994 shall be continued in terms of Rule 21. The Petitioner retired from service on 30.6.1996. Neither in the counter filed by the State of Assam, nor during the course of hearing this Court was informed that any "decision" was taken or any "show cause notice" was served on the Petitioner apprising him the decision and of the action proposed to be taken. The stand of the Respondent State all throughout has been that Rule 21 contemplates an automatic continuance of the pending proceeding and accordingly, the impugned proceeding initiated in the year 1994 did not lapse on the retirement of the Petitioner but continued. The stand of the Respondent State all throughout has been that Rule 21 contemplates an automatic continuance of the pending proceeding and accordingly, the impugned proceeding initiated in the year 1994 did not lapse on the retirement of the Petitioner but continued. The Respondent's specific case is that due to missing of the record of DP No. 5/1994 the departmental proceeding could not be proceeded with. Admittedly, in the instant case, D.P. was initiated in the year 1994, Petitioner retired from service on superannuation on 30.6.2006 and charge memo dated 11.11.2008 was served upon him in the later part of November, 2008, after his retirement which shows that charge memo was served after about more than 14 years of initiation of the D.P. In the case of Bani Singh (supra), N. Radhakishan (supra) and P.V. Mahadevan (supra) cited by learned Counsel for the Petitioner, the Apex Court has set aside and quashed the departmental proceedings initiated against the Petitioners on the ground of delay alone. 15. In view of the above discussion and the stand taken by the Respondent States as well as taking into consideration the decisions referred to hereinabove, this Court has no hesitation to hold the impugned proceedings to be without jurisdiction and the action of the disciplinary authority being violative of the principles of natural justice. The Departmental Proceeding is liable to be quashed which I hereby do. 16. In the result, the writ petition succeeds and is allowed. The Rule is made absolute. However, in the facts and circumstances of the case there shall be no order as to costs. 17. The Respondent authority is directed to take up the matter of the Petitioner for payment of regular pension as well as the pensionary benefits and any other payment which he is entitled to. The aforesaid payments shall be made within a period of 4 (four) months from the date of receipt of certified copy of this order. Petition allowed