B. Malsawma vs State Of Manipur And Others

Kh. Nobin Singh, J

[1] Heard Shri Kh. Tarunkumar, learned counsel appearing for the petitioner and Shri Niranjan Sanasam, learned Government Advocate appearing for the respondents.

[2] By the instant writ petition, the petitioner has prayed for issuing a writ of certiorari to quash/ set aside the impugned notice dated 10/1/2018 issued by the Deputy Secretary (Finance/PIC), Government of Manipur.

[3] According to the petitioner, while he was serving as Head Clerk in the Department of Minorities and Other Backward Classes (MOBC), Government of Manipur, he retired from service on 29/2/2012 for which an order dated 19/12/2011 was issued by the Director (MOBC), Government of Manipur. After a gap of about 6 (six) years from the date of his retirement, the Deputy Secretary (Finance/PIC), Government of Manipur issued a notice under Rule 9(7) of the Manipur Public Servants' Personal Liability Rules, 2006 (hereinafter referred to as "the Rules") in contemplation of an enquiry which will be held against him for his irregularity of action and accordingly, he was asked to submit his written statement of defence within 15 (fifteen) days therefrom. Although the said notice was issued on 10/1/2018, the same was received by him only on 16/2/2018 as it being sent to him by speed post from Imphal on 14/2/2018. Being aggrieved by the said notice dated 10/1/2018, the instant writ petition has been filed by the petitioner on the inter-alia grounds that since the petitioner had already retired from service, the provisions of the Manipur Public Servant's Personal Liabilities Act, 2006 (hereafter referred to as "the Act") would not apply to him.

[4] An affidavit-in-opposition on behalf of Respondent Nos. 2 & 3 has been filed wherein the contention of the petitioner that the Act is not applicable to the retired person, has been denied and it has been stated that the said Act has been passed with a view to provide for personal liability through irregular actions in the form of appointment, engagement of persons etc.; that the enquiry is relevant with respect to the irregular actions of the public servant during his service under the State Government and that if it is not enquired into the irregularities committed by the public servants during his service before retirement, the provisions of the Act would become redundant and the loss of public money would remain unrecoverable.

[5] Admittedly, the subject matter in issue relates to the interpretation of various provisions of the Act and the relevant provisions of the Act are given as under:-

" Section 2(g) "public servant" means all functionaries, officers and employees of the State of Manipur appointed by and in the name of the Governor and includes Ministers, officers and employees of the State Government and its agencies and the autonomous bodies including statutory bodies, public sector undertakings, companies, aided institutions, societies and bodies receiving grant-in-aid from the Government;"

"Section 4. Liability for irregular action of Public Servant:-Any Public Servant who appoints or engages a person or persons, enters into a contract or Memorandum of Undertaking with another person, awards a work, places a supply order, or grants or commits to grant a benefit, relief, grant-in-aid or compensation or payment of a sum for any bill, work, supply, entitlement, benefit, relief, grant-in-aid or compensation on behalf of the Government to any person or a body of persons whether in exercise of a power conferred under a Statute or otherwise, in violation of the existing instructions and orders of the Government and procedures as laid down, and without approval of the competent authority will be entirely and personally liable for payment and liquidation of the financial liability arising out of his action."

"Rule 4. Liability for irregular actions.- (1) The unauthorized liability resulting from irregular action of a public servant shall be recovered from the salary, entitlements and incomes of the public servant.

Explanation: "Income" includes the value of the private properties and assets of the public servant and his family members for the purpose of these Rules.

(2) The unauthorized liability, when arising from irregular action of a public servant entirely in pursuance of an order or instruction of another public servant or Administrative Head or competent authority, the liability for the irregular action will rest with such public servant or Administrative Head or competent authority who passed the relevant order or instruction.

(3) The unauthorized liability, when arising from irregular action of one or more public servants, falling within the meaning of sub-rule (2) or (3) of rule 3 or otherwise, shall be recovered from the salary, entitlements and incomes of the public servants in such proportion as determined by the High Powered Committee.

(4) Where an irregular action of a public servant or Administrative Head or competent authority has been rectified by a subsequent action of the public servant or the Administrative Head or the competent authority without causing financial burden on the State Government, the liability shall be treated as having been closed.

(5) Where an irregular action of a public servant or Administrative Head or competent authority has been rectified by an ex-post fact approval of the State Government, the liability shall be mitigated to the extent of the approvals obtained and conveyed through a due process.

(6) The closure of the liability against a public servant under these Rules will, however, be without prejudice to the criminal, disciplinary, and or other legal action for which a public servant may be liable under any other relevant laws for the time being in force."

"Rule 6. Recovery of the unauthorized liability.- (1) Recovery of the unauthorized financial liability arising from an irregular action shall be made from the salary and entitlements payable to a public servant by the Government or his incomes at any time before or after superannuation or completion of the period of employment, or holding of office by the public servant as the case may be.

(2) Where the financial liability cannot be fully recovered from the salary and entitlements payable to the public servant by the State Government, the State Government shall take suitable measures to recover the liabilities from other incomes of a public servant either through institution of a suit in a court of law or any other means available as per law."

[6] It has been vehemently submitted by Shri Kh. Tarunkumar, the learned counsel appearing for the petitioner that the provisions of the Act would have no application to a retired employee for the reason that a retired employee will not come within the meaning of the expression "public servant" as defined in Section 2 (g) of the Act and moreover, the expression "retired employee" is nowhere mentioned in any provision of the Act. On the other hand, Shri Niranjan Sanasam, the learned Government Advocate has submitted that the provisions of the Act would apply to a retired employee also because the recovery of sums can be made from the salary and /or other incomes and entitlement of Government officials towards his liabilities by referring to the provisions of Section 11(2) (c) and Rule 6, in particular, wherein it has been provided that the recovery shall be made from the salary and entitlements or his income at any time before or after superannuation or completion of the period of employment. The learned Government Advocate has emphasized the expression "after superannuation or completion of the period of employment" used in Rule 6. In support of his contention, he has placed reliance on the decisions rendered by the Hon'ble Supreme Court in the case of St. Johns Teachers Training Institute Vs. Regional Director, National Council for the Teachers Education & anr, (2003) 3 SCC 321 and Riju Prasad sarma & ors Vs. State of Assam & ors, (2015) 9 SCC 461. But the learned counsel appearing for the petitioner has disagreed with the contention of the learned Government Advocate by submitting that the recovery of money from a retired employee towards his liabilities is permissible only when the liability of the retired employee had been determined while in service. In other words, it has been submitted by him that Rule 6 talks of recovery only but not of proceedings for the purpose of determining the liability.

[7] From the aforesaid rival contentions, the short question that arises for consideration by this court, is as to whether the provisions of the Act, will apply to a retired employee or not. As has been stated in the affidavit-in-opposition, the main object and reason behind the enactment of the Act, 2006 is the recovery of Government money misappropriated by the public servant and it has been enacted with effect from 17-04-2006 to provide for personal liability through irregular actions in the form of appointment or engagement of persons, award of works, supply orders, payment of bills, signing and execution of contracts etc. and recovery of such amounts from the personal income including salary and other entitlements of the public servants responsible for creation such liabilities. In exercise of powers conferred under Section 11 of the Act, the Rules, 2006 have been framed vide Notification dated 23-05-2006. It is not in dispute that the expression "public servant" is defined in Section 2 (g) of the Act. Section 4 provides that a public servant shall be liable for payment and liquidation of financial liability provided he is found to have indulged in any of the irregular actions as detailed therein. On perusal of the said provisions, it is seen that the expression "retired employee" is nowhere referred to therein. In Rule 6 also which contains the expression "after superannuation or completion of the period of employment" and relied upon by the learned Government Advocate, the expression "retired employee" is not mentioned at all. It may be noted that it is the State Government which has enacted the Act and if the Act is intended to apply to the retired employee also, the State Government could have specifically provided it in the Act itself and nothing prevented the State Government from doing that. From the perusal of the provisions of the Act as a whole, the State Government appears to have deliberately omitted the expression "retired employee" for certain reasons. When an employee retires from service, the relation between the employer and employee has virtually come to an end except in respect of the payment of pension and the retiral benefits. These days, even the scheme of pension has been done away with and it has been replaced by a new scheme. After retirement, the employee is no longer the public servant for all practical purposes and is not required to attend office and no work can be assigned to him by the employer. No action can be taken against him for his absence in the office. Therefore, the contention of the learned counsel appearing for the petitioner appears to be correct. Rule 6 has nothing to do with the procedure for determining the guilt of the public servant and it is meant for recovery of money towards liability which arises only when a public servant is found to be guilty. The question of recovery will not arise as long as the liability of the public servant is not established by the High Power Committee in accordance with law. It is in that context only that the expression "after superannuation or completion of the period of employment" has been used in Rule 6. The decisions relied by the learned Government Advocate will not help him at all for the reason that the facts of that cases are not similar to that of the present case. In St. Johns Teachers Training Institute case (supra), the question was as to whether Regulations 5(e) and (f) framed by the National Council for Teachers Education were ultra vires the provisions of the NCTE Act, 1993. The said regulations which were challenged by the appellant as unconstitutional, required the appellant to obtain a "no-objection certificate" from the State Government before its application could be considered by the Council. The Hon'ble Supreme Court found the said regulations to be perfectly valid and intra vires the Act. In Riju Prasad Sarma Case (supra), the subject matter in issue relates to the width and scope of Section 25-A of the Assam State Acquisitions of Lands Belonging to Religious or Charitable Institution of Public Nature Act, 1959. The terms "Deories" and "Bordeories" are not defined in the Act. However, under Section 30 of the Act, the State Government is empowered to make rules for carrying out the purpose of the Act and accordingly, the Rules, 2012 were farmed. The Hon'ble Supreme Court has held that the rules supplement the provisions of the Act and do not run counter to the intention of the legislature. Such rules must be treated as part of the Act and in absence of any conflict, it has to be held that the rules only explain the real intention of the legislature in using the slash (/) between the words Deories and Bordeories in clause

(b) of Section 25-A of the Act. Relying upon the said decisions, the learned Government Advocate has submitted that in exercise of power conferred under Section 11 of the Act, the Rules, 2006 have been framed wherein the expression "after superannuation or completion of the period of employment" has been incorporated. His contention is not acceptable to this court for the reason that in the Act itself, the expression "public servant' has been defined but it does not talk anything about the retired employee at all and the rules cannot go beyond the scope of the Act. As has been stated hereinabove, the recovery as mentioned in Rule 6 will have to be made from the public servant only as defined in Section 2 (g) of the Act. The definition of "public servant" which is plain, simple and unambiguous, will require no interpretation at all. Having heard the learned counsels appearing for the parties, this court is of the view that the notice dated 10-01-2018 has been issued by the State Government without any jurisdiction and is liable to be quashed and set aside.

[8] In view of the above and for the reasons stated hereinabove, the instant writ petition is allowed and consequently, the notice dated 10-01-2018, impugned herein, issued by the Deputy Secretary (Finance/PIC), Government of Manipur, is quashed and set aside with no order as to costs.