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Gujarat High Court · body

2010 DIGILAW 334 (GUJ)

Nirmalaben B. Trivedi v. State of Gujarat

2010-08-04

D.A.MEHTA

body2010
Judgment D.A. Mehta, J.—The petitioner has challenged the charge sheet bearing No. Makam/1089/Ta/Aa/28(200)-E dated 26th May 1998 with consequential prayer to direct the respondents to finalize the pension papers of the petitioner and to pay difference of pension to the petitioner with interest @ 18% p.a. in the backdrop of following facts and circumstances of the case. 2. On 17.7.1956 the petitioner lady was appointed as a teacher in Majiraj Girls’ High School, Bhavnagar. On 26.12.1991 the petitioner was appointed as Principal in the said school. On 31.5.1994 the petitioner retired having attained the age of superannuation. On 16.5.1998 the provisional pension payable to the petitioner was fixed at Rs. 4,470/- p.m. 3. On 28.5.1998 Joint Director (Admn.) communicated to the petitioner charge sheet dated 26.5.1998 issued by respondent State Government alleging certain irregularities/misconduct committed by the petitioner. Vide letter dated 17.6.1998 the petitioner raised a preliminary objection inviting attention to Rule 189A of the Bombay Civil Service Rules, 1959 (BCS Rules) pointing out that departmental inquiry cannot be instituted in respect of an event which had taken place more than four years prior to institution of the departmental proceedings. Thereafter, as respondent State Government has appointed an Inquiry Officer the petitioner has approached this Court by way of this petition on the basis of provisions of Rule 189A of the BCS Rules contending that the proceedings are wholly without jurisdiction. 4. Heard learned Advocate for the petitioner, who has invited attention to provisions of Rule 189A of the BCS Rules and submitted that the proceedings have been instituted in relation to an event which admittedly took place more than four years before the date of institution viz. 26.5.1998, considering the fact that in the charge sheet itself the period for which the misconduct is alleged is between 1991 and 1994. It was therefore submitted that the proceedings being wholly without jurisdiction and in contravention of statutory rules the proceedings are required to be quashed directing the respondent authority to finalize the figure of final pension payable to the petitioner. 5. Resisting the petition, learned Assistant Government Pleader submitted that once the proceedings have been instituted within a period of four years from the last day of the period of four years before such institution, the requirement of Rule 189A of BCS Rules stands satisfied and there is no prohibition in proceeding with the departmental inquiry. 5. Resisting the petition, learned Assistant Government Pleader submitted that once the proceedings have been instituted within a period of four years from the last day of the period of four years before such institution, the requirement of Rule 189A of BCS Rules stands satisfied and there is no prohibition in proceeding with the departmental inquiry. It was submitted that on merits it is open to the petitioner to raise all issues before the Inquiry Officer who has been appointed by the State Government including the issue of jurisdiction. That the petitioner had retired on 31.5.1994 while the charge sheet had been issued on 26.5.1998 and therefore also the same be held as being within period of limitation. Lastly it was submitted that provisions of Rule 189A of the BCS Rules are directory in nature and even on the said count the action of respondent authority was required to be upheld. 6. It is necessary to take note of the fact that no Affidavit-in-Reply has been tendered by the respondent despite the fact that the petition was admitted on 13.1.2000. 7. The facts are not in dispute. The petitioner retired on 31.5.1994. The charge sheet is dated 26.5.1998. It is not necessary to set out the charges stated in the charge sheet in the view that the Court is inclined to adopt. Suffice it to state that, prima facie, the charges in question are merely technical or venial breaches of procedure. 8. Rule 189A of the BCS Rules reads as under : “189A The Governor reserves 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 the Govt., if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including services rendered upon re-employment after retirement : Provided that— (a) such departmental proceeding, if instituted while the Govt. servant was in service, whether before his retirement or during his re-employment, shall after the final retirement of the Govt. servant 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 Govt. servant was in service, whether before his retirement or during his re-employment, shall after the final retirement of the Govt. servant 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 Govt. servant had continued in service; (b) such departmental proceeding, if not instituted while the Govt. 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 4 years before such institution; and (iii) shall be conducted by such authority and in such place as the Governor 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 Govt. servant during his service; (c) no such judicial proceeding, if not instituted while the Govt. 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 an event which took place more than 4 years before such institution; and (d) the Gujarat Public Service Commission shall be consulted before final orders are passed. Explanation.—For the purpose of this rule : (a) a departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Govt. servant or pensioner, or if the Government servant 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 the police office 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.” 9. A plain reading makes it clear that the Governor has been vested with a discretion to exercise the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, coupled with right of ordering the recovery from a pension the whole or part of any pecuniary loss caused to the Government, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of service. The Proviso thereunder, which operates as an exception lays down the conditions upon fulfillment of which the discretionary power set out in the principal provision can be exercised. Clause (b) of the Proviso stipulates that in case where a departmental proceeding has not been instituted while the Government Servant was in service, shall not be instituted or conducted as provided in any of the three sub-clauses viz. Sub-clause (i), (ii) and (iii). For the present the Court is not concerned with Clauses (c) and (d) of the Proviso. Explanation appearing after Clause (d) stipulates that the departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government Servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, from such earlier date. In the facts of the present case, admittedly the charge sheet is dated 26.5.1998 and has been forwarded to the petitioner by hand on 28.5.1999 (should be 1998). 10. Hence, even if one takes the date of the charge sheet, i.e. 26.5.1998 as the date of issue the departmental proceedings are deemed to have been instituted on the said day viz. 26.5.1998. The question that is required to be posed and answered is, as to when did the event take place before such institution for which the departmental proceedings have been instituted. The charge sheet itself states that the alleged acts of misconduct are between 1991 and 1994. Thus it is apparent that the event in respect of which departmental proceedings are instituted took place more than four years before such institution. 11. This condition stipulated by Proviso (b)(ii) of Rule 189A of BCS Rules is in the nature of an embargo and cannot be termed to be a period of limitation. The said provision stipulates a condition precedent upon satisfaction of which the proceedings can be instituted. 11. This condition stipulated by Proviso (b)(ii) of Rule 189A of BCS Rules is in the nature of an embargo and cannot be termed to be a period of limitation. The said provision stipulates a condition precedent upon satisfaction of which the proceedings can be instituted. If the jurisdictional facts show that such condition is not satisfied the authority cannot assume jurisdiction to institute departmental proceedings. Hence, there is no question of treating the said provision as being directory in nature, considering not only the language employed in the provision, but also the tenor of the provision. Just as in all spheres of human affairs there has to be a finality in relation to stale issues even in such proceedings there has to be a finality. Once legislature in its wisdom has provided for a prohibitory requirement it is not possible to read any discretion in the provision so as to relax the prohibition. 12. In light of what is stated hereinbefore it is not possible to accept the stand of respondent authority that the institution of departmental proceedings is in consonance with the requirement of Rule 189A of the BCS Rules. To the contrary, the institution is directly in violation of Rule 189A read with Proviso (b)(ii) under the said rule. Accordingly, charge sheet dated 26.5.1998 cannot be sustained and is hereby quashed and set aside. The respondent authority is directed to finalize the pension payable to the petitioner at the earliest but not later than a period of three months from today. This direction shall be complied with without waiting for a writ or a certified copy of this judgment. 13. The petition is allowed accordingly. Rule made absolute. Costs quantified at a sum of Rs. 250/- to be paid to the petitioner within a period of one month from today.