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2016 DIGILAW 992 (GAU)

Mamata Ghosh v. State of Assam

2016-11-09

MICHAEL ZOTHANKHUMA

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JUDGMENT AND ORDER : Michael Zothankhuma, J. 1. Heard Mr. H.R.A. Choudhury, learned Senior Counsel appearing for the petitioner. Also heard Mrs. S. Sarma, learned counsel appearing for the Health Department. 2. The petitioner's case in brief is that the petitioner retired from service on 31.07.2014 as Senior Assistant from the office of the Joint Director, Health Services, Cachar. Learned Senior counsel for the petitioner submits that the respondent No. 2 issued a show cause notice dated 30.07.2014 to the petitioner and the same was communicated to the petitioner on 23.09.2014. 3. The petitioner's counsel submits that the petitioner has not been given her pensionery benefits till date, which is illegal and arbitrary. 4. Learned Senior counsel for the petitioner submits that a perusal of the show cause notice dated 30.07.2014 goes to show that the date of incident in respect of which there has been alleged misappropriation of money committed by the petitioner relates to the year 2009. Learned Senior counsel for the petitioner submits that as per Rule 21 of the Assam Services (Pension) Rules, 1969, hereinafter referred to as the 1969 Rules, the Governor of Assam has to give his sanction before initiating a departmental proceeding against the petitioner for withholding an employees pensionery benefits. 5. Mrs. S. Sarma, learned counsel appearing for the Health Department submits that there were various complaints regarding misappropriation of money against three officers, which included the petitioner. She submits that these complaints were submitted on 15.11.2012 and it was on the basis of these complaints and the enquiry made in pursuance to the said complaint, that the show cause notice was issued to the petitioner. 6. I have heard the learned counsels appearing for the parties and have also perused the materials available on record. 7. Rule 21 of the 1969 Rules states as follows:- "21. 6. I have heard the learned counsels appearing for the parties and have also perused the materials available on record. 7. Rule 21 of the 1969 Rules states as follows:- "21. The Governor of Assam reserves to himself 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 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 after retirement provided that- (a) such departmental proceeding, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the officer, 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 officer had continued in service; Explanation: The continuation of the proceeding after the final retirement of the officer shall be automatic under Sub-rule (a) of Rule 21 and no fresh decision of the Governor and/or the Appointing Authority nor any show cause notice to the person concerned shall be necessary. The powers under Rule 21 shall be exercisable not only in case of causing pecuniary loss to Government but also in all other cases. The powers under Rule 21 shall be exercisable not only in case of causing pecuniary loss to Government but also in all other cases. (b) such departmental proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment- (i) shall not be instituted save with the sanction of the Governor of Assam; (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 of Assam may direct and in accordance with procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service; (c) no such judicial proceeding, if not instituted while the officer 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 Assam Service Commission shall be consulted before final orders are passed". 8. A perusal of the 1969 Rules clearly goes to show that if a departmental proceeding is to be initiated against a retired person, the sanction of the Governor is necessary. Rule 21 of the 1969 Rules gives power to the Governor to withhold or withdraw a part or whole of an employee's pension. However, the said power is contingent upon certain conditions, that a finding is made in the department or judicial proceeding that the Government employees has caused pecuniary loss to the Government on account of grave misconduct or negligence. 9. In the present case, there has been no finding that pecuniary loss has been caused to the Government by the petitioner's misconduct or negligence. In fact, the disciplinary proceeding has not been initiated/ completed. In any event, even for initiating a departmental proceeding against the petitioner, the provisions of Rule 21 of the 1969 Rules has to be applied. 10. In the affidavit-in-opposition filed by the State respondents, there is nothing to show that the Governor has accorded sanction for initiating a departmental proceeding against the retired petitioner. 11. The incident of misappropriation as reflected in the show cause notice dated 30.07.2014 shows that the incident allegedly occurred in the year 2009, while the petitioner retired on 31.07.2014. 10. In the affidavit-in-opposition filed by the State respondents, there is nothing to show that the Governor has accorded sanction for initiating a departmental proceeding against the retired petitioner. 11. The incident of misappropriation as reflected in the show cause notice dated 30.07.2014 shows that the incident allegedly occurred in the year 2009, while the petitioner retired on 31.07.2014. Thus the issuance of the show cause notice is also hit by Rule 21 (b) (ii) of the 1969 Rules. 12. On a perusal of the documents on records, it is clear that the petitioner has retired on 31.07.2014. The show cause notice has been issued vide Memo No. HSE/Susp/478/2012/9972-74 dated 30.07.2014. Interestingly, the said show cause notice has been signed only on 22.08.2014. Thus while the notice was issued vide the above Memo No. in the month of July 2014, the Director of Health Services has signed the show cause notice in the month of August 2014. 13. The above facts clearly goes to show that the show cause notice was signed only after the petitioner had retired and the date of issue, as reflected in the show cause notice seems to be a fabricated date. Be that as it may, the show cause notice was sent to the petitioner vide Memo No. DHE/Esstt.2014/11665-666 dated 23.09.2014. This issuance of the show cause notice has been done in the month of September 2014, while the petitioner retired in the month of July 2014. 14. In the case of Ganesh Sarma (Dr.) v. State of Assam & Ors., reported in 2006 (2) GLT 34 and in the case of Sushil Kumar Baruah v. State of Assam & Ors., reported in 2007 (1) GLT 533, this Court has held that a departmental proceeding initiated against a officer, after his retirement, has to be done with the sanction of the Governor and that a departmental enquiry cannot be initiated or conducted by the authority, in respect of an event, which took place more than four years before such institution. 15. In view of the violation of the provisions of Rule 21 of the 1969 Rules and the law laid down by this Court in the cases cited above, I find that withholding of the retirement benefits of the petitioner is illegal and not as per Rule 21 of the 1969 Rules. 15. In view of the violation of the provisions of Rule 21 of the 1969 Rules and the law laid down by this Court in the cases cited above, I find that withholding of the retirement benefits of the petitioner is illegal and not as per Rule 21 of the 1969 Rules. It is thus clear that unless the provisions of Rule 21 (b) (i) (ii) (iii) of the 1969 Rules are followed, no departmental proceeding can be held against the petitioner. 16. Writ petition is accordingly allowed. 17. Consequently, the respondents are directed to release all the pensionery benefits payable to the petitioner, including his pension, within a period of 3 (three) months from the date of receipt of a certified copy of this order.