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Madhya Pradesh High Court · body

2010 DIGILAW 194 (MP)

D. D. Jalota v. State of M. P.

2010-02-16

R.K.GUPTA, R.S.GARG

body2010
JUDGMENT R.S. Garg, J. 1. The petitioner who was working as Assistant Engineer in the Public Works Department was served with a charge-sheet on 3-10-1981, levelling the charges that he committed wrong and thereby caused loss to the State Government. It appears that the enquiry continued up to 30-11-1983 when the petitioner stood retired. Final order awarding the punishment of withholding of 26% of the pension was passed on 5-12-1985. Being aggrieved by the said order dated 5-12-1985 issued in the name of the Governor, the petitioner filed a Misc. Petition No. 1065/1986 in the High Court, which came to be transferred to the State Administrative Tribunal, Bhopal and was registered as Transfer Application No. 1797/1988. The petitioner submitted before the Tribunal that award of the punishment on 5-12-1985 was contrary to law and was absolutely illegal. It was also submitted by him that as per the order has not been passed by the Governor but has been passed in the name of the Governor even without seeking the approval from the Governor, the order was patently illegal. The matter was contested by the State Government but, however, vide judgment dated 23-1-1999 the Division Bench of the Tribunal dismissed the petition. Being aggrieved by the said order the petitioner, thereafter, filed a review before the Tribunal which was registered as M.A. No. 15/1999. After abolition of the State Administrative Tribunal the review petition came to this Court and was registered as MCC No. 2536 of 2003. On 23-6-2005, the review petition was withdrawn with a liberty to file a petition under Article 226 of the Constitution of India to challenge the legality of the order of the Tribunal. With the said liberty the petitioner has now filed Writ Petition No. 11951/2005 (S). 2. Learned Counsel for the petitioner submitted that after expiry of the period of two years from the date of retirement of the petitioner a final order withholding 26% of the pension payable to the petitioner could not be passed. With the said liberty the petitioner has now filed Writ Petition No. 11951/2005 (S). 2. Learned Counsel for the petitioner submitted that after expiry of the period of two years from the date of retirement of the petitioner a final order withholding 26% of the pension payable to the petitioner could not be passed. His submission is that a juxtapose reading of Rule 9(1), 9(2)(a) and 9(4)(b) of the M.P. Civil Services (Pension) Rules, 1976 (for short "the Rules") would make it clear that if the proceedings were instituted while the Government servant was in service then the same shall be deemed to be continued under Sub-rule (1) of Rule 9 and, therefore, such continuation would be the date of institution for purposes of Rule 9(4)(b) and in case the proceedings are not concluded within two years from the date the Government servant becomes a pensioner, the petitioner would be entitled to full pension and the authorities would lose their right to withhold any part of the pension. 3. Shri Jain, learned Counsel for the respondents, on the other hand, submitted that if the proceedings are deemed to be continued under Rule 9(2)(a), then there would be no limitation and Rule 9(4)(b) would not provide any assistance or solace to the petitioner. 4. We have heard the parties at length and have also gone through the Rules. 5. Rule 9(1), Rule 9(2)(a) and (b) and Rule 9(4) of the Rules read as under: 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: 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(Rs.60/-). (2)(a) The departmental proceeding referred to in Sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his reemployment, shall, after the final retirement of the Government servant, be deemed to be proceeding 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 recording 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 recovery from his pension of the whole or part of any pecuniary loss caused to the Government. *** *** *** (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 56 or 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 Rs. 60/- per month in case of invalid pension and Rs. 40/- per month in other cases: Provided further that where departmental proceedings have been instituted prior to the 25th October, 1978, the first proviso shall have effect as if 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 (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 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. 6. 6. A fair understanding of Rule 9(1) would project that the Governor is entitled to reserve to himself the right of withholding or withdrawing a pension or part thereof and of ordering recovery of the whole or part of any pecuniary loss caused to the Government if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement. The power vested in the Governor is to withhold or withdraw a pension or part thereof permanently or for a specified period and further power is to recover the amount which is suffered as a pecuniary loss by the Government because of the misconduct of the Government servant. Such power is to be exercised by the Governor while taking up the case of a person who has since retired. 7. Rule 9(2)(a) provides that where the departmental proceeding referred to in Sub-rule (1) are 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 proceeding under Rule 9 and shall be continued and concluded by the authority by which they were commenced treating the Government servant to be in service. Rule 9(2)(b) deals with the situation where the departmental proceedings are not instituted while the Government servant was in service whether before his retirement or during his re-employment. In such case, the proceedings shall, be instituted with the sanction of the Governor and shall not be instituted in respect of any event which took place more than four years before such institution. 8. There is a marked distinction between Rule 9 (2)(a) and Rule 9(2)(b). On one side Rule 9(2)(a) provides that the proceedings which were in progress shall be continued even after the retirement; such proceedings may be in relation to an act which is more than four years old, which may be in relation to the action or inaction or misconduct which might be for the period beyond four years or more. But once a person retires then the authority would not be entitled to take an action, in relation to the action or misconduct or of any event which took place more than four years before such institution. But once a person retires then the authority would not be entitled to take an action, in relation to the action or misconduct or of any event which took place more than four years before such institution. Rule 9(2)(a) says that after the final retirement of the Government servant, the earlier proceedings shall be deemed to be proceedings under Rule 9 and shall be continued by the authority which had commenced the proceedings. Once it is held that continuation of the proceedings shall be proceedings under Rule 9(1), which authorises the Governor to institute fresh proceedings after the retirement then continuation of the proceedings from the next date of the retirement shall be deemed to be valid proceedings under Rule 9(2)(a) but shall also be deemed to be fresh institution under Rule 9(1). Once continuation of the proceedings is held to be institution for purposes of Rule 9(2)(a) then we find no difficulty in applying Rule 9(4)(b) of the Rules. 9. It is to be seen from Rule 9(4) that according to Sub-rule (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 (4), a provisional pension and death-cum-retirement gratuity as provided in Rule 56 or Rule 64, as the case may be, shall be sanctioned. A fair understanding would show that where the proceedings are instituted, Sub-rule (4) shall apply and similarly where departmental proceedings are continued, Sub-rule (4) shall apply. There is a distinction between "fresh institution of the proceedings" and "deemed institution of the proceedings". In case where fresh proceedings are instituted, the same would be under Rule 9(2)(b) of the M.P. Civil Services (Pension) Rules, 1976, but where the proceedings are continued under Rule 9(2)(a) read with Rule 9(1) then date of the continuation shall be deemed to be the date of institution. 10. The Clause (b) of the third proviso appended to Rule 9(4) provides that 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. 11. 10. The Clause (b) of the third proviso appended to Rule 9(4) provides that 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. 11. As already observed, the departmental proceedings whether instituted earlier and continued under Rule 9(2)(a) or instituted under Rule 9(2)(b) are required to be completed within a period of two years from the date of institution. Under Rule 9(2)(b) the 'institution' is a 'factual institution' of the proceedings while for Rule 9(2)(a), the 'institution' is a 'deemed institution' because except under Rule 9 of the Rules nothing authorises the Government/Governor to continue with the proceedings and withhold the pension or direct recovery of the losses suffered by the Government because of the misconduct committed by the Government servant. 12. In the present matter, the charge-sheet was issued on 3-10-1981. The petitioner's last day of work with the department was 30-11-1983. He became a retired Government servant and a pensioner under the law on 1-12-1983. Once he became a pensioner or a retired Government servant then Rule 9(2)(a) would become applicable and the proceedings would be deemed to be continued under Rule 9(2)(a) and such deeming provision would mean that the proceedings against such person have been instituted on the very next day of his retirement and not otherwise. In the present matter, the final order with holding 26% of the pension was passed on 5-12-1985, which Vas undisputedly beyond a period of two years and, therefore, in accordance with Clause (b) of third proviso of Rule 9(4), the department was not entitled to withhold the pension but the entire amount of pension so withheld shall stand restored in favour of the Government servant. 13. In the matter of State of M.P. and Ors. v. R.L. Ogale and Ors. 2006 (1) MPLJ 412 : 2006(2) M.P.H.T. 202 , a Division Bench of this Court has also taken a similar view but, however, on a different reasoning. The Division Bench has laid down in Para 10 as under: 10. 13. In the matter of State of M.P. and Ors. v. R.L. Ogale and Ors. 2006 (1) MPLJ 412 : 2006(2) M.P.H.T. 202 , a Division Bench of this Court has also taken a similar view but, however, on a different reasoning. The Division Bench has laid down in Para 10 as under: 10. In the present case, the original respondent retired on attaining the age of superannuation on 31-8-1985 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 of 1976 Any proceedings 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 31-8-1985. 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, 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. 14. 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. 14. In the said matter, interpretation of the word "institution" and "deemed institution" was not considered, and therefore, we have taken up the said task. Being in conformity with the earlier Division Bench judgment, we hold that the order dated 5-12-1985 is illegal it deserves to and is accordingly quashed. The petitioner shall be entitled to full pension payable to him under the law. There shall be no order as to costs.