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2013 DIGILAW 244 (GAU)

Tileswar Dutta v. State of Assam and Ors.

2013-04-03

UJJAL BHUYAN

body2013
Heard Mr. P. Kataki, learned counsel for the petitioner. Also heard Mr. B. Gogoi, learned Standing Counsel, Finance Department, Mr. C. Baruah, learned Standing Counsel, Accountant General and Mr. A. Chetry, learned Standing Counsel, Pension and Public Grievances Department, Government of Assam. 2. By way of this petition under article 226 of the Constitution of India, petitioner seeks a direction to the respondents to pay him full pensionary benefits w.e.f. the date of his retirement. 3. Case of the petitioner is that he was serving as Treasury Officer under the Finance Department, Government of Assam. While serving as Treasury Officer, Nagaon, petitioner was placed under suspension vide Government notification, dated 17.7.1993. Thereafter, show cause notice under rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 read with article 311 of the Constitution of India was issued to the petitioner by the disciplinary authority on 09.12.1993 on the following charges : "1. That while you were the Treasury Officer of Nagaon Treasury, you permitted withdrawal of Government money in excess of L.O.C. to the tune of Rs.47,99,557 as detailed in the Statement of Allegations, against the bills presented by the Officer-in-charge of ICDP, Nagaon under the head "2403-A.H. & Vety. etc." causing thereby colossal loss on the Public Exchequer and upsetting budgetary provision in respect of the head of account as cited above during the period from May 1991 to October 1992. You, are, therefore, charged with committing financial irregularities in violation of instructions issued by Government regarding L.O.C. from time-to-time and connivance with the Drawing and Disbursing Officer to misappropriate the Government money. 2. That while you were Treasury Officer of Nagaon Treasury you passed bills presented by Officer-in-charge, ICDP, Nagaon on the strength of forged L.O.C. to the tone of Rs.40,41,000 as detailed in the Statement of Allegations. You are, therefore, charged with passing fraudulent and fictitious bills and negligence of duty leading to loss of huge public money. 3. That while you were Treasury Officer of Nagaon Treasury, you did not take any steps to get the L.O.C. Register of ICDP, Nagaon properly maintained by your office as detailed in the Statement of Allegations. You are, therefore, charged with dereliction of duty 4. That on 31.3.1993 while you were Treasury Officer of Nagaon Treasury you permitted withdrawal of Government money to the tune of Rs. You are, therefore, charged with dereliction of duty 4. That on 31.3.1993 while you were Treasury Officer of Nagaon Treasury you permitted withdrawal of Government money to the tune of Rs. 6,63,486 without L.O.C. as detailed in the Statement of Allegations during March 1992 under the head "2403-A.H. and Vety. Deptt., etc., Decentalised Planning." There were clear instructions of Government of Assam in the Finance Department from time-to-time to all the Treasury Officers among others, one of which, for example, was No.BB.95/89/78, dated 16.5.190 that no bill should be passed for payment without valid L.O.C. But while allowing payment of the above amount you ignored the Government instructions/orders/directions resulting in unauthorized permission for withdrawal of an amount of Rs.6,63,486 from the Treasury and thereby upsetting budgetary provision in respect of the head of account as cited above. You are, therefore, charged with violation of the Government instructions so far as L.O.C. is concerned as well as allowing unauthorized withdrawal of Government money form Treasury resulting financial loss to Government." 4. Petitioner submitted his written statement on 8.3.1994 denying the charges levelled against him. 5. It appears that the disciplinary proceeding was not proceeded further and instead, the Government invoked power under FR 56(b) to retire the petitioner from service with immediate effect in public interest. 3 months gross salary was paid to the petitioner in lieu of notice of 3 months as provided under FR 56(b) vide order dated 11.4.1994. 6. Thereafter, Government of Assam vide order dated 31.5.1995 granted provisional pension to the petitioner Rs. 1180 p.m. plus relief and medical allowances with effect from 12.7.1994 after taking into account the 3 months salary period from 11.4.1994. Provisional pension was granted as per rule 22 of the Assam Services (Pension) Rules, 1969. 7. By communication dated 17.6.1999, Finance Establishment (B) Department, Government of Assam informed the Accountant General that petitioner had been allowed to draw his provisional pension in the revised rate w.e.f. 1.1.1996 till conclusion of the judicial proceeding instituted against him. 8. It may be mentioned that the judicial proceeding referred to in the communication dated 17.6.1999 is the two criminal cases pending in the Court of Special Judge, CBI, Guwahati where the petitioner is one of the accused. 9. 8. It may be mentioned that the judicial proceeding referred to in the communication dated 17.6.1999 is the two criminal cases pending in the Court of Special Judge, CBI, Guwahati where the petitioner is one of the accused. 9. Petitioner submitted a representation dated 2.9.2000 before the Pension and Public Grievances Department for release of his provisional pension in the revised rate as per Government communication dated 17.6.1999. 10. Grievance of the petitioner is that he is still drawing only provisional pension under rule 22 of the Assam Services (Pension) Rules, 1969 (Pension Rules) and not regular pension. According to the petitioner, cause of action in respect of the two criminal cases pending against him relates to the period from May 1991 to October 1992 as is reflected in the show cause notice dated 9.12.1993. Cognizance in the criminal cases were taken after 4 years. Therefore, as per provision of rule 21(c) read with Explanation (b)(i) of the Pension Rules, no judicial proceeding would be deemed to be pending against the petitioner which would enable the Government to withhold payment of his regular pension. 11. Respondent No. 1 has filed affidavit. Stand taken in the affidavit is that the petitioner during his tenure as Treasury Officer, Nagaon from April 1991 to October 1992 was allegedly found responsible for fraudulently passing bills for a total amount of Rs. 47,01,025 in excess of Letter of Credit (LOG). Accordingly, petitioner was placed under suspension on 17.7.1993. Subsequently, petitioner was compulsorily retired w.e.f. 11.4.1994. Criminal proceedings were also initiated wherein petitioner was also named as accused. Government accorded sanction under section 197 of the Code of Criminal Procedure on 17.12.1996 for prosecution of the petitioner. However, in view of the provisions contained in rule 22 of the Pension Rules, provisional pension has been sanctioned and granted to the petitioner. Petitioner's pension matter has not been finalized because of non-conclusion of the criminal cases. 12. Mr. P. Kataki, learned counsel for the petitioner has referred to rule 21 of the Pension Rules and contends that the Government has right to withhold the pension of a retired Government employee if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service. 12. Mr. P. Kataki, learned counsel for the petitioner has referred to rule 21 of the Pension Rules and contends that the Government has right to withhold the pension of a retired Government employee if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service. But no such judicial proceeding, if not instituted while an officer was in service, can be instituted in respect of a cause of action which arose or in respect of an event which took place more than four years before such institution. He submits that as per Explanation (b)(i) to the said rule, a judicial proceeding in the ease of a criminal proceeding shall be deemed to be instituted on the date on which a complaint or report of police officer on which the Magistrate takes cognizance is made. According to the learned counsel, the cause of action in the present case is relatable to the period from May 1991 to October 1992. Cognizance was taken by the Criminal Court on 3.1.1997 and 25.4.1997 which is beyond the period of four years. In that view of the matter, it cannot be said that any judicial proceeding is pending against the petitioner within the meaning of rule 21(c) Explanation (b)(i) of the Pension Rules. Therefore, the action of the respondents in withholding regular pension of the petitioner is without justification and necessary direction may be issued to the respondents to pay full pension and other retirement dues to the petitioner. 13. Mr. B. Gogoi, learned Standing Counsel, Finance Department on the other hand submits that cause of action as mentioned in clause (c) of rule 21 of the Pension Rules would mean the date of filing of FIR which in this case was 22.7.1993. Since cognizance was taken on 3.1.1997 and 25.4.1997, it was well within the period of four, years and, therefore, it is evident that a judicial proceeding in the form of a criminal proceeding is pending against the petitioner. Respondents are, therefore, justified in withholding payment of regular pension to the petitioner. 13. Mr. C. Baruah, learned counsel for the Accountant General and Mr. A. Chetry, learned Standing Counsel, Pension and Public Grievances Department have adopted the stand taken by Mr. Gogoi. 14. Submissions made have been considered. 15. Respondents are, therefore, justified in withholding payment of regular pension to the petitioner. 13. Mr. C. Baruah, learned counsel for the Accountant General and Mr. A. Chetry, learned Standing Counsel, Pension and Public Grievances Department have adopted the stand taken by Mr. Gogoi. 14. Submissions made have been considered. 15. It is seen from the averments made in the writ petition, particularly in paragraph-8 thereof, that FIR was lodged before the Anti-Corruption Bureau of the State Police on 22.7.1993 regarding illegal drawal of money from Nagaon Treasury, which was registered as ACB PS Case No. 7/1993. Subsequently, Government of Assam decided to hand over the case to the CBI. After completion of investigation, CBI submitted charge sheets, being charge sheet No. 1/1997 and charge sheet No. 3/1997, wherein petitioner has been named as accused. Charge sheet No. 1/1997 has given rise to Special Case No. 17/2004 and charge sheet No. 3/1997 has given rise to Special Case No. 67/2004, both pending in the court of Special Judge, CBI, Guwahati. 16. This court while hearing the matter on 13.3.2013 directed the learned counsel for the petitioner to produce copies of the charge sheets and the orders of cognizance in the criminal cases. Today, when the matter is taken up for hearing, Mr. Kataki, learned counsel for the petitioner has placed before the court copies of two charge sheets, being charge sheet No. 1/1997 and charge sheet No. 3/1997 and the orders of cognizance dated 3.1.1997 and 25.4.1997. 17. It is seen that Special Case No. 17/2004 has been registered in the court of Special Judge, CBI, Guwahati in respect of the aforesaid charge sheet No. 1/1997 wherein petitioner has been arrayed as accused No. 3. In this case, the criminal court had taken cognizance on 3.1.1997. In case of Special Case No. 67/2004 relating to charge sheet No. 3/1997, wherein petitioner is the accused No. 2, the date of taking cognizance is 25.4.1997. From a perusal of charge sheet No. 1/1997, it is seen that the offence against which petitioner has been charged related to May 1991 and from the charge sheet No. 3/1997, the period in question is the year 1992. This two periods correspond to the period mentioned in the show cause notice dated 9.12.1993 wherein the charge against the petitioner was for the period from May 1991 to October 1992. 18. This two periods correspond to the period mentioned in the show cause notice dated 9.12.1993 wherein the charge against the petitioner was for the period from May 1991 to October 1992. 18. In this case, though show-cause notice was issued, no departmental proceeding as such was initiated against the petitioner and he was ultimately retired from service as an administrative measure, by exercising power under FR 56(b). Therefore, in the present case, admittedly neither any departmental proceeding was initiated nor is pending against the petitioner. 19. The only proceedings that are pending against the petitioner are the two criminal cases, being Special Case Nos. 17/2004 and 67/2004 in the Court of Special Judge, CBI, Guwahati. 20. We may now refer to the provisions of rule 21 of the Pension Rules on which much emphasis has been placed by learned counsel for the petitioner. 21. Rule 21 provides that the Government of Assam has the power to withhold or withdraw a pension or any part of it, whether permanently or for a specified period and also has the right of ordering recovery from pension the 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 his service, including service rendered upon re-employment. As already noticed, no departmental proceeding was initiated or is pending against the petitioner. Therefore, there is no administrative finding of grave misconduct or negligence recorded against the petitioner following a departmental proceeding, Only two criminal cases are pending against the petitioner. Clause (c) of rule 21 provides that no such judicial proceeding, if not instituted while the officer was in service, shall be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution. As per Explanation (b)(i) below the rule, a judicial proceeding shall be deemed to be instituted in the case of a criminal proceeding on the date on which the complaint or report of a police officer on which the Magistrate takes cognizance, is made. 22. A careful reading of the above Explanation (b)(i) would indicate that a judicial proceeding in the case of a criminal proceeding shall be deemed to be instituted on the date when the court takes cognizance of the offence alleged. 22. A careful reading of the above Explanation (b)(i) would indicate that a judicial proceeding in the case of a criminal proceeding shall be deemed to be instituted on the date when the court takes cognizance of the offence alleged. This court in the case of Madan Mohan Baruah v. State of Assam and Ors., (2006) 2 GLR 736, while examining the aforesaid provision, held that such a criminal proceeding may be deemed to have been instituted on the date when the court takes cognizance of the offence alleged. In the present case, the reports of the police officer in the form of charge sheets were made on 2.1.1997 (charge sheet No. 1/1997) and 25.4.1997 (charge sheet No. 3/1997). On the basis thereof, the criminal court took cognizance on 3.1.1997 and 25.4.1997, respectively. 23. Thus, for the offence charged relatable to May 1991 and the year 1992, the charge sheet were submitted on 2.1.1997 and 25.4.1997, on the basis of which cognizance were taken on 3.1.1997 and 25.4.1997, which is clearly beyond four years from the date of the event in respect of which cognizance has been taken by the criminal court. That being the position, there is no judicial proceeding within the meaning of rule 21(c) Explanation (b)(i) of the Pension Rules pending against the petitioner. Therefore, the respondents would not be justified in withholding regular pension and other retirement dues of the petitioner. 24. Accordingly, respondent No. 1 is directed to prepare the pension papers of the petitioner for payment of regular pension and other pensionary dues and submit the same to the office of respondent No. 2 within a period of two months from the date of receipt of a certified copy of this order. Respondent No. 2 shall thereafter finalize the pension case of the petitioned within a period of two months from the date of receipt of the pension papers from the office of respondent No. 1 25. Writ petition is allowed. 26. No costs.