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2012 DIGILAW 110 (MP)

State of M. P. v. Puranlal Nahir

2012-01-24

ALOK ARADHE, RAJENDRA MENON, SUSHIL HARKAULI

body2012
ORDER Aradhe, J. -- 1. A Division Bench as well as learned Single Judge of this Court having found difficulty in agreeing with the view taken by another Division Bench of this Court in State of Madhya Pradesh v. R.L. Ogale [ 2006(3) JLJ 218 = 2006(1) MPLJ 412 ], in exercise of powers under rule 8 of Chapter 4 of the Madhya Pradesh High Court Rules, 2008, have referred the certain questions for consideration by a Larger Bench. The questions referred for consideration in Writ Appeal No.31/2011 are : “(1) Whether the disciplinary proceedings initiated by the Government against a Government servant any time after his retirement are deemed to have been instituted on the date of his retirement and if so, its effect on the period for conclusion of enquiry in view of rule 9 of M.P. Civil Services (Pension) Rules, 1976? (2) Whether the disciplinary proceedings initiated by the Government against a Government employee after his retirement automatically comes to an end in case the enquiry is not concluded within two years of its inception? (3) Whether on the face of clause (c) of third proviso to sub-rule (4) of rule 9 of M.P. Civil Services (Pension) Rules, 1976, the Governor is precluded from passing a final order in relation to payment of pension to a Government employee, against whom disciplinary proceedings are initiated after his retirement, in case the enquiry against him is not concluded within two years of its inception?” The questions which have been referred for consideration in Writ Petition No.3494/2011 (S) are : “(i) Whether the law laid down by the Division Bench of this Court in the case of State of Madhya Pradesh v. R.L. Ogale [ 2006(3) JLJ 218 = 2006(1) MPLJ 412 ], lays down the correct proposition of law? (ii) Whether in case of a retired Government servant, the Governor can pass an order by way of punishment for withholding or withdrawing a pension or part thereof, whether permanently or for a specified period; and can also pass an order ordering recovery, even after expiry of two years period from the date of issuance of charge-sheet?” 2. Background facts giving rise to the references briefly stated are that respondent in Writ Appeal No.311/2011 attained the age of superannuation on 31st July, 2000. Background facts giving rise to the references briefly stated are that respondent in Writ Appeal No.311/2011 attained the age of superannuation on 31st July, 2000. A charge-sheet dated 13.9.2002 was served on the respondent and disciplinary authority vide order dated 28.9.2006 imposed the punishment of stoppage of 20% of pension permanently under clause (c) of third proviso to rule 9(4) of M.P. Civil Services (Pension) Rules, 1976. The respondent challenged the said order in a writ petition. The writ petition was allowed by the learned Single Judge by placing reliance on the decision in the case of R.L. Ogale (supra), and it was held that disciplinary proceedings initiated against the Government servant automatically came to an end, as the enquiry was not concluded within a period of two years of its inception and, therefore, the disciplinary authority cannot pass any order imposing punishment. Being aggrieved by the aforesaid order, the State Government preferred an appeal before the Division Bench. In Writ Petition No.3494/2011, the petitioner attained the age of superannuation on 31.5.2008. The disciplinary enquiry was initiated against him on 4.12.2004 and eventually, an order of punishment dated 5.2.2011 was passed by which reduction in the amount of pension by 30% for a period of five years was inflicted upon him. The petitioner challenged the order of punishment in the writ petition. The Division Bench by order dated 22.6.2011 and the learned Single Judge by order dated 25.4.2011 have referred the questions stated supra for consideration by the Larger Bench. 3. Learned Advocate General appearing for the appellants in Writ Appeal No.311/2011 submitted that interpretation putforth by the Division Bench in R.L. Ogale’s case, on rule 9(4) of the M.P. Civil Services (Pension) Rules, 1976 (hereinafter referred to as ‘the Rules’) is not proper. The Division Bench has failed to consider clause (c) of third proviso to Order 9 rule (4) of the Rules in its proper perspective. It is further submitted that if the provisions of rule 9(4) of the Rules are read in its entirety, it is axiomatic that the departmental proceedings against the Government servant can continue beyond the period of two years and do not automatically come to an end. It is further submitted that if the provisions of rule 9(4) of the Rules are read in its entirety, it is axiomatic that the departmental proceedings against the Government servant can continue beyond the period of two years and do not automatically come to an end. It is also submitted that the disciplinary authority is not precluded from passing final order in relation to payment of pension in case of delinquent employee against whom disciplinary proceedings are initiated after his retirement which are not concluded within two years from the date of its institution. However, the learned Advocate General fairly submitted that question No.1 formulated by the Division Bench does not arise for consideration. In support of his submissions, learned Advocate General has made reference to an order dated 25.8.2011 passed by the Division Bench of this Court in Writ Appeal No.627/2011 as well as order dated 13.5.2011 and 26.8.2011 passed by the learned Single Judge in Writ Petition No. 6294/2008 (S). 4. On the other hand, Shri D.K. Dixit, learned counsel for the respondent also fairly submitted that question No.1 framed by the Division Bench does not arise for consideration in the facts of the case and the decision relied on by the Division Bench of this Court in R.L. Ogale’s case (supra), lays down the correct proposition of law. 5. We have considered the submissions made on both sides. At this stage, it is appropriate to notice well settled rules of statutory interpretation. It is an elementary rule which has been referred by Viscount Simonds in AG v. HRH Prince Ernest Augustus [(1957)1 All. ER 49], “as compelling rule” that intention of Legislature must be found by reading the statute as a whole. In K.S. Paripooran v. State of Kerala [AIR 1955 SC 1012], it has been that “no rule of construction can require that when the words of one part of a statute convey a clear meaning it shall be necessary to introduce another part of a statute for the purpose of controlling or disminishing the efficacy of the first part”. Moreover, these observations have no application in the interpretation of related provisions. [See : “Principles of Statutory Interpretation, Justice G.P. Singh, 13th Ed. pp. 35 and 37]. The principle that the statute must be read as a whole is equally applicable to different parts of the same section. Moreover, these observations have no application in the interpretation of related provisions. [See : “Principles of Statutory Interpretation, Justice G.P. Singh, 13th Ed. pp. 35 and 37]. The principle that the statute must be read as a whole is equally applicable to different parts of the same section. The section must be construed as a whole whether or not one of the parts is a saving clause or a proviso. Subbarao, J. calls it “an elementary rule that construction of a section is to be made of all the parts together” and that “it is not permissible to omit any part of it; the whole section should be read together”. Sub-section in a section must be read as parts of an integral whole and as being interdependent, “each portion throwing light, if need be, on the rest”. [See : Principles of Statutory Interpretation, Justice G.P. Singh, 13th Ed. pp.42 and 43]. 6. It is equally settled rule of sttutory interpretation that where language of a statute in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be to open it, which modifies the meaning of the words, and the structure of the sentence. See : Tirath Singh v. Bachittar Singh [ AIR 1955 SC 830 ], Molarmal v. Kay Iron Works (P) Ltd. [ AIR 2000 SC 1261 ], and Modern Singh v. Union of India [AIR 2044 SC 2236]. The sub-section must be read as parts of an integral whole as being inter-dependent, an attempt should be made in construing them to reconcile them if it is reasonably possible to do so and to avoid repugnancy. See : “Principles of Statutory Interpretation”, Justice G.P. Singh, 13th Ed. p.145. 7. Rule 9 of the Rules deals with right of Governor to withhold or withdraw the pension. Rule 9(4) deals with the case of a Government servant who has retired on attaining the age of superannuation or otherwise against whom any departmental or judicial proceedings are instituted. See : “Principles of Statutory Interpretation”, Justice G.P. Singh, 13th Ed. p.145. 7. Rule 9 of the Rules deals with right of Governor to withhold or withdraw the pension. Rule 9(4) deals with the case of a Government servant who has retired on attaining the age of superannuation or otherwise against whom any departmental or judicial proceedings are instituted. Rule 9(4) is reproduced below : “9.(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 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 the minimum pension as determined by the Government from time to time : 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 of 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 the 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.” 8. The Division Bench in R.L. Ogale’s case (supra), by taking into account clause (b) of third proviso to rule 9(4) held that if the Departmental Enquiry is not concluded within a period of two years from the date of its institution, no further order on completion of the aforesaid period could be passed by the Governor and it would not be possible for the Governor to pass any final order for recovery. 9. The provisos and the clauses of rule 9(4) are inter-related provisions and have to be read together as a whole. The intention of the Legislature is primarily to be gathered from the language used which means that attention should be paid to what has been said as also to what not has been said. See : Nagar Palika Nigam v. Krishi Upaj Mandi Samiti [ AIR 2009 SC 187 , Principles of Statutory Interpretation, Justice G.P. Singh, 13th Ed., p.64]. From careful scrutiny of clauses (a) and (b) of third proviso to rule 9(4), it is apparent that aforesaid clauses no where provide that if the departmental proceeding is not concluded within the period of two years, the same would come to an end automatically. The aforesaid clauses only provide that if departmental proceeding is not concluded within a period of one year or two years, 50% of the amount of pension and entire amount of pension withheld shall stand restored to the delinquent employee, respectively. If the meaning of clause (b) of third proviso to rule 9(4) is expanded to mean that Governor would not have any right to pass final order with regard to imposition of punishment as prescribed under clause (c), such an interpretation would bring clause (c) in conflict with clause (b) of third proviso to rule 9(4) of the 1976 Rules and, therefore, such an interpretation cannot be accepted. Clauses of third proviso to rule 9(4) have to be read as a whole and an attempt has to be made to reconcile them so that any repugnancy can be avoided. Thus, clauses (a) and (b) of third proviso to rule 9(4) have to be read subject to clause (c) of third proviso to rule 9(4). Clauses of third proviso to rule 9(4) have to be read as a whole and an attempt has to be made to reconcile them so that any repugnancy can be avoided. Thus, clauses (a) and (b) of third proviso to rule 9(4) have to be read subject to clause (c) of third proviso to rule 9(4). In other words, the withholding of pension as provided in clauses (a) and (b) of third proviso to rule 9(4) of the Rules is provisional and tentative and is subject to the final order which may be passed by the Governor under clause (c) of third proviso to rule 9(4). 10. In view of preceding analysis, our answer to the questions referred for opinion are as follows : (a) In view of submissions made by learned Advocate General as well as learned counsel for the respondent that Question No.1 formulated by the Division Bench does not arise for consideration in the facts of the case, it is not necessary for us to answer the same. (b) The disciplinary proceeding initiated by the State Government against a Government employee after his retirement, does not automatically come to an end in case the enquiry is not concluded within two years of its inception and can continue beyond the period of two years. (c) The Governor is not precluded from passing final order in relation to payment of pension to a Government employee against whom disciplinary proceeding is initiated after his retirement and is not concluded within two years from its institution. (d) The proposition of law laid down in State of M.P. v. R.L. Ogale [ 2006(3) JLJ 218 = 2006(1) MPLJ 412 ], that in view of clause (b) of third proviso to rule 9(4) of the Rules, if the departmental proceedings is not concluded against a retired Government servant within a period of two years, the Governor does not have the right to impose the penalty, does not lay down the correct proposition of law. (e) The second question of law referred by the learned Single Judge in Writ Petition No.3494/2011(S) has already been answered by us while answering the third question of law. 11. Let the writ appeal and the writ petition be placed for orders before the appropriate Benches. .............