Writ Petition Stamp No.41833 of 2002,Writ Petition No.1357 of 2003

27th February, 2003

Petitioner Counsel: Shri. R.S. APTE, Shri. A.A. KHUMBHAKONI
Respondent Counsel: Smt. NEETA P. KARNIK

Cases Cited:
State of Maharashtra Vs. M.H. Mazumdar, (1998)2 SCC 52 [Para 4]
State of Uttar Pradesh Vs. Brahm Datt Sharma, (1987)2 SCC 179 [Para 4]
Takhartray Shivadattray Mankad Vs. State of Gujarat, 1989 Supp (2) SCC 110 [Para 4]
Bhagirathi Jena Vs. Board of Directors, O.S.F.C., 1999(1) CLR 1074 [Para 5,15]
Assaram Raibhah Dhage Vs. Executive Engineer, 1988 CLR 331 [Para 5]
B.J. Shelat Vs. State of Gujarat, 1978(2) SCC 202 [Para 6]

JUDGMENT

JUDGMENT :- Heard. Rule. By consent, the rule is made returnable forthwith. Heard the learned advocates for the parties. Perused the records.

2. The petitioners challenge the judgment and order dated 26th August 2002 passed by the Presiding Officer, College Tribunal, Pune whereby the appeal filed by the respondent against the order of termination and imposition of punishment has been allowed and the said order passed by the Management on 29th May 1999 has been set aside along with the findings recorded in the regular enquiry held preceding the said order and has further held that the respondent, having retired on attaining the age of superannuation, is entitled for all the benefits which a retired employee is entitled to under the provisions of law. The impugned order is sought to be challenged on the ground that the tribunal has totally ignored the provisions of Maharashtra Civil Services (Pension) Rules, 1982 (hereinafter called as "the Pension Rules") which, according to the petitioner, empower the management to hold disciplinary inquiry and impose punishment including reduction in the pension once such an inquiry had commenced by service of charge sheet while the employee was still in service or in case employee was suspended prior to the date of retirement.

3. The facts relevant for the decision are that the respondent was the employee of the petitioners' institution and, on the ground of misconduct he was suspended from his service from 24.11.1992. The charge sheet was served upon the respondent on 11.7.1994. The alleged inquiry was conducted and findings were submitted on 28.8.1995 which were sought to be challenged by way of petition being Writ Petition No.24 of 1994 and by an order dated 19.9.1995 passed by this Court, the inquiry was quashed and set aside and, the management was directed to complete preliminary inquiry before proceeding to hold disciplinary inquiry. Proposal of three names for appointment as the Inquiry Officer was submitted by the management of the petitioner's institution to the University on 2.5.1996 and approval thereof was granted on 4.5.1996. The respondent attained the age of superannuation on 31.5.1996. The preliminary inquiry was allegedly conducted during the period from 15.8.1996 to 2.8.1997 and the management accepted the report on 9.8.1997. The proposal is stated to have been submitted to the University in terms of Resolutions of the management on 14.8.1997 and, the University is stated to have granted permission to proceed with the regular inquiry on 13.10.1997. The management appointed inquiry officer for holding inquiry on 20.10.1997. It is stated to have been approved by the University on 17.12.1997. The charge sheet was served upon the respondent on 17.2.1998 and the inquiry was commenced on 15.4.1998. The management took decision for removal of the respondent with effect from 24.11.1992 by a Resolution dated 25.9.1999. Being aggrieved by the said decision the respondent filed an appeal being Appeal No.20 of 1999 before the College Tribunal which came to be allowed by the impugned order as stated above. The challenge before the Tribunal to the action taken by the petitioners was mainly on two counts viz. (1) that the respondent having attained the age of superannuation on 31.5.1996, the petitioners could not have initiated disciplinary action after the said day, and (2) that the termination of service cannot be with retrospective date. The respondent's contentions were accepted by the Tribunal and the order of termination of service was set aside.

4. Relying upon the decision of the Apex Court in State of Maharashtra Vs. M.H. Mazumdar reported in (1998)2 SCC 52; State of Uttar Pradesh Vs. Brahm Datt Sharma and another reported in (1987)2 SCC 179 and; Takhartray Shivadattray Mankad Vs. State of Gujarat reported in 1989 Supp (2) SCC 110 and drawing attention to Rule 27 of the Pension Rules, it was sought to be argued by the learned advocate for the petitioners that the said rule clearly empowers the management to hold inquiry and departmental proceedings and, accordingly the same were held and the respondent was found guilty and hence, on the charges being established against the respondent, the management was entitled to impose the punishment and, accordingly had imposed the punishment including the reduction of pension and being so, the Tribunal could not have set aside the said order. It is further contended that the provisions of sub-rule (6) of Rule 27 have been either totally ignored or misconstrued by the Tribunal and the impugned judgment suffers from illegality in exercise of its jurisdiction on the part of the tribunal and, therefore, warrants interference by this Court in writ jurisdiction.

5. The learned advocate for the respondent on the other hand placing reliance on the decision of Apex Court in Bhagirathi Jena Vs. Board of Directors, O.S.F.C. & ors., reported in 1999(1) CLR 1074 and that of Division Bench of this Court in Assaram Raibhah Dhage Vs. Executive Engineer & ors., reported in 1988 CLR 331 has submitted that neither the provisions of Rule 27 empowers the management to hold disciplinary inquiry after retirement of the respondent, nor the decisions sought to be relied upon justify the action on the part of the petitioners, and, therefore, no fault can be found with the order passed by the tribunal.

6. The Apex Court in M.H. Mazumdar's case referring to Rules 188 and 189 of the Bombay Civil Services Rules has held that "The State Government's power to reduce or withhold pension by taking proceedings against a government servant even after his retirement is expressly preserved by the aforesaid rules." Referring to its earlier decision in B.J. Shelat Vs. State of Gujarat reported in 1978(2) SCC 202 it was held that :-

"In the said case, disciplinary proceedings had been initiated against the government servant for purposes of awarding punishment to him after he had retired from service. The ratio of that decision is not applicable to the instant case as in the present case the purpose of the enquiry was not to inflict any punishment; instead the proceedings were initiated for determining the respondent's pension. The proceedings were taken in accordance with Rules 188 and 189 Rules."

The issue which arose for consideration in the said case before the Apex Court was, whether a Government Servant, after his retirement on attaining the age of superannuation was liable to be dealt with departmentally for any misconduct, negligence or financial irregularities committed by him during the period of his service. In relation to the said issue and considering the facts of the case to the effect that the said Mazumdar had retired from his service on attaining the age of superannuation on September 1, 1997 and inquiry having been held thereafter pursuant to the charge sheet served upon him on October 16, 1978 and on the conclusion of the enquiry the State Government issued orders on December 4, 1982 reducing the amount of pension payable to the respondent by 50 per cent permanently under Rule 188 of the Bombay Civil Services Rules, it was held that the State Government's power to reduce or withhold pension by taking proceedings against a Government servant even after his retirement is expressly preserved by Rule nos.188 and 189 of the Bombay Civil Services Rules and, therefore, the State Government had authority to initiate the proceedings against Mujumdar even after his retirement. In that connection, the decision of the Apex Court in B.J. Shelat Vs. State of Gujarat reported in (1978)2 S.C.C. 202 was distinguished by observing that in B.J. Shelat's case, the disciplinary proceedings had been initiated against the Government servant for the purpose of awarding punishment to him after he had retired from service and the ratio of the said decision was not applicable to the case of Mujumdar as in latter's case the purpose of enquiry was not to inflict any punishment, instead the proceedings were initiated for determining the respondent's pension and, therefore, they were the proceedings under Rule 188 & 189 of the Bombay Civil Services Rules.

7. The above ruling in B.J. Shelat's case was followed in Brahm Datt Sharma' case wherein the Apex Court held thus :-

"If disciplinary proceedings against an employee of the government are initiated in respect of misconduct committed by him and if he retires from service on attaining the age of superannuation, before the completion of the proceedings but the charges of serious allegations are established, which may have bearing on the question of rendering efficient and satisfactory service, it would be open to the Government to take proceedings against the government servant in accordance with rules for the reduction of pension and gratuity."

8. Apparently, the Apex Court has held that in case the disciplinary proceedings, which have commenced before the age of superannuation, if could not be completed before the employee attains superannuation, and in the course of inquiry the allegations against the employee are found to be established, certainly the government is empowered to take action against such employee even after his retirement in accordance with rules for the reduction of pension and gratuity. The said ruling was given in a case where notices issued by the Government on January 29, 1986 under Article 470(b) of the U.P. Civil Service Regulations were quashed by the High Court of Allahabad on the ground that the notice on sole ground that the allegations specified in the show cause notices were same which had been the subject matter of the departmental inquiry resulting in respondent's dismissal from service. The same order had been quashed in writ petition. The Apex Court disagreed with the view taken by the High Court while making the above quoted observations. Apparently, Article 470 of the U.P. Civil Service Regulations in force in the State of Uttar Pradesh provided that (a) the full pension admissible under the Rules is not to be given as a matter of course or unless the service rendered has been really approved and (b) if the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amounts as it thinks proper. Besides, Rule 348A of the said Rules provided that the pension shall be granted subject to the conditions contained in the said regulation. Referring to the said Rules, the Apex Court further observed that :-

"A plain reading of the regulation indicates that the full pension is not awarded as a matter of course to a government servant on his retirement instead; it is awarded to him if his satisfactory service is approved. If the service of a government servant has not been thoroughly satisfactory the authority competent to sanction the pension is empowered to make such reduction in the amount of pension as it may think proper. Proviso to the regulation lays down that no order regarding reduction in the amount of pension shall be made without the approval of the appointing authority. Though the Regulations do not expressly provide for affording opportunity to the government servant before order for the reduction in the pension is issued, but the principles of natural justice ordain that opportunity of hearing must be afforded to the government servant before any order is passed. Article 311(2) is not attracted, nonetheless the government servant is entitled to opportunity of hearing as the order of reduction in pension affects his right to receive full pension."

9. In Takhatray Mankad's case the Apex Court while rejecting the contention that after dropping disciplinary inquires on the ground that the same has become infructuous, the government had no right and was not justified in reducing the pension and gratuity on the same charges which were the subject matter of the enquiries, held that the charges against Mankad were not made use of for awarding any punishment after his retirement from service but only for determining the quantum of his pension in accordance with the Rules relating to the payment of pension and gratuity. The facts of the said case disclosed that Mankad was compulsorily retired on 12-1-1961 and the two other proceedings were initiated in the year 1963 but prior to attaining the age of superannuation on 14-1-1964. The said proceedings were stated to have become infructuous consequent to his retirement on attaining the age of superannuation but the show-cause notice for inflicting reduction in pension and gratuity was issued on 17.7.1997. In those facts, the above ruling was given by the Apex Court while reiterating its earlier decision in Brahma Dutta case.

10. The above quoted ruling apparently discloses that mere dropping of departmental proceedings or discontinuation thereof on account of employee's attaining age of superannuation would not debar the Government from taking appropriate action in relation to reduction of pension payable to such employee in case allegations against him in disciplinary inquires are found to be of substance and established during such proceedings. Undoubtedly, the action for such reduction of pension, however, has to be in accordance with the provisions of law contained in the Pension Rules and more particularly Rule 27 thereof.

11. The contention of the petitioner, however, is that Rule 27 does not speak only about the inquiry in relation to reduction of pension, but contemplates that such an order of reduction of pension can be passed along with disciplinary action in the proceedings which were already commenced prior to the retirement of employee and, even though they are continued there after, and that for the purpose of continuation and conclusion of disciplinary proceedings even after superannuation, it is sufficient that either the employee must be suspended prior to the date of his retirement or charge sheet must have been served upon him in relation to the inquiry prior to his retirement and in that connection heavy reliance sought to be placed on Sub-rule 6 of Rule (27) of the Pension Rules.

12. Rule 27(1) of the Pension Rules provides that :-

"Government may, by order in writing, withhold or withdraw a pension or any part of it, whether permanently or for a specified period, and also order the recovery from such pension, the whole or part of any pecuniary loss caused to Government, if, in any departmental or judicial proceedings, 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 Maharashtra Public Service Commission shall be consulted before any final orders are passed in respect of officers holding posts within their purview :

Provided further that where a part of pension is withheld or withdrawn, the amount of remaining pension shall not be reduced below the minimum fixed by Government."

Apparently, the provision of law contained in Sub-rule (1) of Rule 27 of the Pension Rules, therefore, empowers the Government to pass an order withholding or withdrawing a pension if in any departmental or judicial proceedings the pensioner is found to be guilty of grave misconduct or negligence either during the period of his service or during the period of his re-employment. Apparently, Rule 27(1) is comprised of two parts. The first part speaks of power of the Government to pass an order regarding reduction or withdrawl of pension. The second part deals with the circumstances in which such an order can be passed. The Rule nowhere empowers the Government to initiate or continue the disciplinary proceedings after the employee attains the age of superannuation. The Rule is meant for and confined to the power of Government to reduce or withdraw the pension of a pensioner on account of proved grave misconduct or negligence of such pensioner while he was in service. Besides, the Rule 2(a) of Rule 27 clarifies that the proceedings spoken of for the purpose of order relating to pension under Rule 27(1) though initially may be for disciplinary action while the pensioner was in service, those proceedings would be deemed to have been continued only for the purpose of action under Rule 27(1) relating to the pension and not for disciplinary action. Sub-rule (2)(a) of Rule 27 of the Pension Rules reads thus :-

"The departmental proceedings referred to in sub-rule (1), 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 if the Government servant had continued in service."

The above clause, therefore, in clear terms provides that the departmental proceedings initiated for disciplinary action can be continued after the employee attains the age of superannuation only for the purposes of reduction or withdrawal of the pension and gratuity and not for the purpose of disciplinary action. Further, clause (a) of sub-rule (6) thereof provides that "for the purpose of the said rule, 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, on such date.

13. All these provisions, read together, would apparently disclose that the departmental proceedings spoken of in Rule 27 of the Pension Rules are wholly and solely in relation to the issue pertaining to the payment of pension. Those proceedings do not relate to disciplinary inquiry which can otherwise be initiated against the employee for any misconduct on his part and continued till the employee attains the age of superannuation. Undoubtedly sub-rule (1) refers to an event wherein the pensioner is found guilty of grave misconduct or negligence during the period of his service or during his re-employment in any departmental proceedings. However, it does not specify to be the departmental proceedings for disciplinary action with the intention to impose punishment if the employee is found guilty, but it speaks of misconduct or negligence having been established and nothing beyond that. Being so, the proceedings spoken of in Rule 27 of the Pension Rules are those proceedings conducted specifically with the intention of deciding the issue pertaining to payment of pension on the employee attaining the age of superannuation, even though those proceedings might have been commenced as disciplinary proceedings while the employee was yet to attain the age of superannuation. The fact that the proceedings are continued after retirement only with the intention to take appropriate decision in relation to the payment of pension must be made known to the employee immediately after he attains the age of superannuation and, in the absence thereof the disciplinary proceedings continued for imposing punishment without reference to the intention to deal with the issue of payment of pension alone cannot be considered as the proceedings within the meaning of said expression under Rule 27 of the Pension Rules.

14. The fact that the proceedings are continued only to deal with the issue of reduction or withdrawal of pension is necessarily required to be made known to the employee even though there is no specific provision in that regard in Rule 27. The observations by the Apex Court in Brahm Sharma's case are to the effect that the opportunity of hearing in that regard to the employee is necessary as any order of reduction or withdrawal of pension could affect the right of the employee to receive full pension. Principles of natural justice, therefore, need to be complied with in all the proceedings under Rule 27, to the extent that an opportunity of being heard must be offered to the employee before an order under Rule 27(1) is passed.

15. In the case in hand, as already seen above, it is not in dispute that the respondent was suspended on 24.11.1992. It is also not in dispute that charge sheet for preliminary inquiry held against the respondent was served upon the respondent on 28.12.1996. It is also not in dispute that the suspension was with the intention to initiate disciplinary proceedings on the ground of misconduct on the part of respondent. It is also undisputed fact that the charge sheet served upon the respondent on 28.12.1996 was in relation to the disciplinary proceedings. Besides the same was served after the respondent had attained the age of superannuation. In the background of undisputed facts if one reads the provisions contained in sub-rule (6)(a) of Rule 27 and bearing in mind the expression "departmental proceedings" relates to the continuation of such proceedings only for the purpose of decision pertaining to the payment of pension, neither any requiry was held under Rule 27(1) nor the disciplinary proceedings allegedly commenced during the service tenure of the respondent were continued for the purpose of order relating to pension alone. It is pertinent to note that the petitioners have not brought to the notice of this court any other provision either in the Disciplinary Rules or otherwise empowering the petitioners to commence disciplinary proceedings or to continue the same after the employee attained age of superannuation and, the reliance in that regard was placed only on the provisions contained in Rule 27 of the Pension Rules. For the reasons stated above the provisions contained in Rule 27 cannot be of help to the petitioners either to justify initiation of disciplinary proceedings or continuation thereof after the respondent had attained the age of superannuation. The Apex Court in Bhagarathi Jena's case (Supra) while dealing with the issue as to whether continuation of disciplinary inquiry for the purpose of decision regarding reduction of retiral benefits payable to the employee clearly ruled that in the absence of provisions for conducting disciplinary inquiry after retirement of employee, the corporation therein had no legal authority to make any reduction in the retiral benefits of the employee on the basis of findings in such inquiry. The decision apparently rules that for the purpose of initiation or continuation of disciplinary proceedings or inquiry in that regard on attainment of age of superannuation by employee, there must be specific provision of law in that regard. In the absence of any such authority, the inquiry, even if is initiated during the tenure of service or before the employee attains the age of superannuation, the same is to be deemed to have been lapsed on the employee attaining the age of superannuation. The relevant observation of the Apex Court in the decision of Bhagirathi Jena's case which reveals this ruling reads thus:-

"In view of the absence of such provision in the above said regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.6.1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement."

Undoubtedly, in case where the provision of law permits imposition of reduction on the payment of pension by holding necessary inquiry in that regard or continuing the departmental inquiry only for that purpose, certainly the employer can order reduction or withdrawal of the pension, as is the case under Rule 27 of the Pension Rules in force in the State of Maharashtra. However, as already observed above those proceedings after attaining the age of superannuation can be only for the purpose of deciding the issue of pension and can not have any link with the disciplinary proceedings. Once the disciplinary proceedings, in the absence of authority to continue the same after the retirement of the employee, are to be held as lapsed, such proceedings cannot enure to the benefit of the employer to impose penalty under Rule 27 in relation to the pension without adhering to the procedure prescribed under the said Rule 27 itself.

16. In the facts and circumstances of the case and considering the law laid down by the Apex Court referred to above on relevant issue, it is clear that whatever may be the reasoning given by the College Tribunal to arrive at the finding about the illegality of the order passed by the management, the conclusion arrived at in the impugned order cannot be found fault with. The interference sought for in the impugned order in exercise of powers under Article 227 of the Constitution of India merely because the reasons to arrive at the findings being either improper or incorrect cannot be a justification for interference, once it is found that the ultimate order passed by the tribunal cannot be found fault with.

17. It was also contended on behalf of the petitioners that liberty should be granted to the petitioners to initiate action in terms of Rule 27 of the Pension Rules which was objected to on behalf of the respondent. The question of granting any liberty for initiation of such action does not arise at all. In case, the petitioners are entitled to invoke the powers under Rule 27 of the Pension Rules and desires to invoke those powers, it would not depend upon the liberty being granted by this Court in that regard. When the statute itself empowers the authority to take appropriate decision regarding payment of pension subject to fulfillment of certain conditions, it does not require Court's sanction to exercise such power.

18. In the result, therefore, there is no case made out for interference in the impugned order and hence, the petition fails. It is dismissed. The rule is discharged with no order as to costs.

19. At this stage, the learned counsel for the petitioners requested for stay of the order passed by the Tribunal for a period of eight weeks. Prayer for stay of the order passed by the Tribunal is opposed by the learned counsel for the respondent. However, I am inclined to grant such stay subject to deposit of Rs.Two lakhs by the petitioners within a period of two weeks from today in this Court with liberty to the respondent to withdraw the same. In case petitioners fail to deposit the said amount of Rs.Two lakhs within two weeks, the stay granted today to the order passed by the Tribunal shall stand automatically vacated without being referred to this Court.

Petition dismissed.