Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 1403 (MP)

Shyam Sharma v. State of M. P.

2014-10-31

K.K.TRIVEDI

body2014
JUDGMENT : K.K. TRIVEDI, J. 1. In this petition under Article 226 of Constitution of India, the grievance of the petitioner is that while he was in service, a charge sheet was issued to him on 2nd July, 2009 by the Commissioner, Rewa Division, Rewa for the alleged misconduct stating that while he was working as Block Medical Officer in Community Health Centre, Mauganj, he had not maintained the registered in appropriate manner for extending the benefit of 'Janani Suraksha Yojna' to the beneficiaries. The other charge was that the amount, to be paid immediately to the beneficiaries, was not disbursed. As a result, the delay was caused in making payment for a period of six months. The last charge against the petitioner was that even after grant of sanction, though cheques were prepared, the amount was not disbursed to the women beneficiaries, who were entitled to receive the said benefit. It was alleged that the petitioner had not honestly discharged his duties, which earned the bad name to the State and that the conduct of the petitioner was violative of M.P. Civil Services (Conduct) Rules, 1965. 2. A reply was filed by the petitioner stating that he was not the drawing and disbursing authority and, therefore, he was not supposed to maintain the accounts, as was alleged against him. As soon as the sanction was granted, the moment the same was received, the amount was required to be disbursed by the drawing and disbursing authority and since the cheques were not prepared by the said authority, the payment could not be made to the beneficiaries within time. Lastly, it was contended that the moment the sanction was received and the cheques were delivered, the same were disbursed by the petitioner. It was contended that in fact the allegations, which have been levelled against the petitioner, were required to be levelled against Dr.Mamta Soni and Dr. S.N. Singh, who were responsible officers. Since the petitioner was only a Block Medical Officer, he was not in a position to interfere in the work of the aforesaid senior officers. 3. It appears that after conducting enquiry, since the petitioner had retired from service, the matter was referred to the State Government for imposition of proper penalty. S.N. Singh, who were responsible officers. Since the petitioner was only a Block Medical Officer, he was not in a position to interfere in the work of the aforesaid senior officers. 3. It appears that after conducting enquiry, since the petitioner had retired from service, the matter was referred to the State Government for imposition of proper penalty. After considering the aforesaid facts and the findings recorded against the petitioner, by the impugned order, 50% of the pension of the petitioner has been withheld in exercise of powers under Rule 9(1) and (4)(c) of the M.P. Civil Service (Pension) Rules, 1976 (hereinafter referred to as 'the Rules'). Against this order, the present writ petition has been filed. 4. It is contended by the learned counsel for the petitioner that the entire record available will indicate that the misconduct of the petitioner was not found proved, yet the penalty has been imposed on him so as to save the interest of the senior officers, who were responsible to discharge such functions. It is contended that even otherwise the penalty could not have been imposed in such a manner. 5. Per contra it is contended by learned counsel for the respondents that though return is not filed by the respondents but from the documents available on record it is clear that misconduct of petitioner was proved therefore rightly the penalty of withholding 50% pension is imposed on the petitioner as such the petition is liable to be dismissed. 6. Heard learned counsel and perused the record. 7. The provisions of Rule 9 of the Rules aforesaid lay down the circumstances in which after a departmental enquiry is concluded, in case the government servant has retired during the pendency of the departmental enquiry, the penalty can be imposed. The portions of Rule 9 of the Rules are reproduced for appreciation:- "9. 7. The provisions of Rule 9 of the Rules aforesaid lay down the circumstances in which after a departmental enquiry is concluded, in case the government servant has retired during the pendency of the departmental enquiry, the penalty can be imposed. The portions of Rule 9 of the Rules are reproduced for appreciation:- "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 minimum pension as determined by the Government from time to time]; 2(a) The Departmental proceedings [xxx], if 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 proceedings 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 regarding 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]. (3) No judicial proceedings, if not instituted while the Government 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 in respect of an event which took place, more than four years before such institution. (3) No judicial proceedings, if not instituted while the Government 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 in respect of an event which took place, more than four years before such institution. (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 it 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 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]. (5) Where the Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. (6) For the purpose of this rule- (a) 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 form an earlier date, on such date; and (b) judicial proceedings shall be deemed to be initiated- (i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and (ii) In the case of civil proceedings, on the date the plaint is presented in the court." 8. A perusal of the Rule will make it clear that the enquiry which was initiated while the Government servant was in service would continue in the same manner as if the Government servant was in service, in case the said Government servant has attained the age of superannuation during the pendency of enquiry and has retired. However, in such a case how the punishment would be imposed is not clear. In case the enquiry is initiated after retirement, penalty would be imposed as is categorically provided, that in case a misconduct is found proved for which an order of dismissal from service could be made in relation to the Government servant during his service, a proposal can be made for withholding or withdrawing the pension or part thereof whether permanently or for a specified period or if any loss is caused to the public exchequer on account of such a misconduct for recovery of the said loss. However, this provision is not made applicable in case where the enquiry is initiated before the retirement. 9. There is no specific provision made for imposition of penalty if the enquiry was initiated before the retirement. Only such rights of Governor are reserved to withhold or withdraw the part of pension by way of penalty whether permanently or for specified period. 9. There is no specific provision made for imposition of penalty if the enquiry was initiated before the retirement. Only such rights of Governor are reserved to withhold or withdraw the part of pension by way of penalty whether permanently or for specified period. Again there is nothing provided as to what would be nature or gravity of misconduct which is found proved in enquiry on account of which the pension can be forfeited, withheld or withdrawn. It is settled law that pension is proprietary right of the retired Government servant and grant of pension is not dependent on the sweet will of State. If such a proprietary right is to be withdrawn there must be strong justified reasons for the same. 10. To ascertain what would be the appropriate penalty to be imposed in case a misconduct is found proved in a departmental enquiry, in respect of an officer or employee, who has retired during the pendency of the departmental enquiry, certain provisions are to be examined. The penalties are prescribed under Rule 10 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as 'Rules of 1966'). The minor penalties are censure, withholding of promotion, recovery from the salary of any pecuniary loss caused by the Government servant and withholding of increments of pay. The major penalties are reduction to a lower stage in the time scale of pay for a specified period, reduction to a lower time scale of pay which shall ordinarily be a bar to the promotion to the Government servant, compulsory retirement, removal from service and dismissal from service. The minor penalties can be imposed after a summary enquiry whereas a detailed procedure is to be followed in case major penalty is to be imposed. However, aforesaid penalties cannot be imposed on a Government servant, who has retired, before conclusion of the departmental enquiry. This being the situation, the rule making authority has specifically prescribed in Rule 9 (2)(b) of the Pension Rules that in case in a departmental enquiry the misconduct is proved, which is such of a nature that a penalty of dismissal could be imposed on the Government servant had he remained in the employment, the Governor may impose a penalty of withholding or withdrawing the pension or part thereof. This provision is specifically made for imposition of penalty where departmental enquiry is initiated after the retirement of Government servant. Similar would be the situation in case the departmental enquiry is initiated before the retirement, which remained continue after the retirement of the Government servant. If that analogy is made applicable, not only the charges are to be levelled in such manner indicating such a grave misconduct, but a finding is also to be recorded that such a grave misconduct is found proved so that the power of withdrawing or withholding the pension of a retired Government servant may be exercised. This would be more necessary to be held so because a proprietary right is not to be withdrawn without there being a strong justified reason. 11. The law is well settled that in case where the judicial review of the penalty imposed after a departmental enquiry is held by the courts, the correctness of the order of penalty is to be tested only on the anvil that the penalty imposed should not be shockingly disproportionate to the gravity or nature of the alleged misconduct. The Apex Court in several cases has held that it is not open to the courts to sit as appellate authority in the matter of disciplinary proceedings and to decide what would be the appropriate punishment for the proved misconduct. However, it has been held that a penalty can be interfered by the courts if it is shockingly disproportionate to the alleged misconduct. Over all consideration is to be done whether the penalty has rightly been imposed or not and whether the proceedings in the departmental enquiry were rightly held or not? 12. It was the responsibility on the respondents-State to produce the relevant record to show that the departmental enquiry was properly conducted and the charges levelled against the petitioner were appropriately proved which were constituting a misconduct of such a magnitude that penalty of dismissal could have been imposed on the petitioner, had he remained in the service, on account of such proved misconduct. As has been pointed out, nothing has been placed on record by the respondents in this respect. A perusal of the enquiry report (Annexure P-4) filed along with the writ petition indicates that the charges against the petitioner were found proved by the enquiry officer. As has been pointed out, nothing has been placed on record by the respondents in this respect. A perusal of the enquiry report (Annexure P-4) filed along with the writ petition indicates that the charges against the petitioner were found proved by the enquiry officer. However, there is no denial of the fact that the senior of the petitioner was in fact given the charge of the post with a direction to exercise the power of drawing and disbursing and that order was subsequently withdrawn, the said officer was shifted from the said place and the charge was given to some one else. Probably this was done because complaints were received against Smt. Mamta Soni, who was earlier made to function as drawing and disbursing officer and a report was made to that respect against her on 13.4.2009 by the Block Medical Officer of the Community Health Centre. It was the specific stand taken by the petitioner in his reply to the charge sheet that he was not required to make the drawal and disbursement. In the entire report submitted by the enquiry officer there is no whisper of meeting out such allegations made by the petitioner and, therefore, it has to be held safely that the material evidence was withheld by the respondents while conducting the enquiry against the petitioner. In case of State of Haryana and Another Vs. Rattan Singh, (1977) 2 SCC 491 , the Apex Court has held that if the material evidence is available to prove the charges or to rebut the allegations in the defence of delinquent employee, but the same is not deliberately produced, this fact will go against the disciplinary authority and it has to be held that the enquiry was not properly conduct. This aspect is required to be kept in mind while considering the other material available against the petitioner. 13. From the charge sheet the charges levelled against the petitioner were in respect of dereliction of duties when he was in service. The defence of the petitioner was that he was not authorized to make drawal and disbursement of amount on the other hand his senior officers were required to discharge such functions. For the proof of such contentions he has placed on record, the orders issued in this respect. There is nothing available to remotely suggest that such a stand of the petitioner was incorrect. For the proof of such contentions he has placed on record, the orders issued in this respect. There is nothing available to remotely suggest that such a stand of the petitioner was incorrect. Those officials have not been examined. The allegations against the petitioner were with respect to delayed payment of amount to the beneficiaries, but it was not the allegation that despite sanction and availability of amount the same was not disbursed by the petitioner. If the petitioner was not the drawing and disbursing authority and drawal itself was made after a considerable delay by the competent authority, how the petitioner could be solely held responsible for the delay. On the contrary all the beneficiaries have deposed that they were paid the amount without raising any demand by the petitioner and they have no complaint against him. In fact all the findings were recorded against the petitioner to save those who were the drawing authorities and who have unnecessary delayed the payments to beneficiaries. 14. As has been pointed out, after retirement of a Government servant what would be circumstances on account of which pension can be withdrawn, are not indicated in the rules. Only in such case where the enquiry is initiated after retirement the circumstances are shown in Rule 9(2)(b) of the Rules. If the said analogy is applied in the present case, the misconduct of the petitioner even if proved, would not attract a major penalty of removal or dismissal from service had the petitioner remained in service. Even otherwise, there is no charge of financial irregularity levelled against the petitioner and loss to the Government. Therefore, provisions of Rule 9(4)(c) of Rules would not be attracted. As such the order of withholding 50% pension of the petitioner cannot be sustained. 15. On the aforesaid premises, the writ petition is allowed. The impugned order dated 23.4.2012 (Annexure P/1) is hereby quashed. The respondents are directed to restore the full pension of the petitioner from the date the respondents withheld the same along with arrears within a period of three months from the date of receipt of the certified copy of the order passed today, failing which the petitioner will get interest @6% per annum on the said amount from the respondents. 16. The writ petition stands allowed and disposed of, with the aforesaid.