Dilip Das VsThe State of Tripura

Deepak Gupta, C.J.—The main grievance of the petitioner is that the disciplinary proceedings initiated against him are barred by limitation under rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972.

Briefly stated, the facts of the case are that a certificate was issued on 30-10-1976 in favour of the petitioner in which he was shown to be belonging to the Scheduled Castes (hereinafter referred to as SC). On the basis of this SC certificate, the petitioner was appointed as lower division clerk (LDC) by the Government of Tripura on 10-05-1982. Thereafter, he was promoted as Accountant as a SC candidate on 09-07-1998. In the latter part of 2004, a complaint was made to the State that the petitioner had obtained employment on the basis of a false SC certificate. The Vigilance Department of the State submitted a report to the State Level Scrutiny Committee on 13-01-2005 and it was proposed that the SC certificate in favour of the petitioner be cancelled. According to the report of the Vigilance, the petitioner belonged to the "Kayastha" community and was not a SC. In the said report, it is also mentioned that the present petitioner was also associated with the inquiry and that the petitioner stated to the Inquiring Officer that he had obtained the SC certificate on the basis of a similar certificate issued to his uncle Sri Santi Ranjan Das. Since his uncle and cousin sister had surrendered their certificates, he (the petitioner) realized that his certificate was also false. In the mean time, on 30-01-2005, the petitioner applied for voluntary retirement and he was allowed to proceed on voluntary retirement w.e.f. 01-05-2005. No action was taken against him while he was in service. On 10-06-2005 a show-cause notice was issued to the petitioner as to why his certificate should not be cancelled. In reply thereto, the petitioner surrendered his SC certificate. Thereafter, the State Level Scrutiny Committee came to the conclusion that the petitioner does not belong to SC.

On 29-02-2008, disciplinary proceedings were initiated against the petitioner and he was served with the memo along with Articles of Charges in April, 2008. He filed reply thereto and his main grievance is that the proceedings are barred in terms of section 9(2)(b)(ii) of the Pension Rules. In any event, the inquiry was completed and the Inquiring Officer found the petitioner guilty. Thereafter, the petitioner was supplied copy of the inquiry report and was issued memorandum dated 02-11-2011 by the disciplinary authority. This memorandum is under challenge mainly on the ground that the entire proceedings are time barred.

Relevant portion of Rule 9 of the Pension Rules reads as follows:-

. Right of President to withhold or withdraw pension

(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement:

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(2)(a) 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 as if the Government servant had continued in service:

Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President.

(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 President,

(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 President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.

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It is contended on behalf of the petitioner that in terms of sub-clause (ii) of clause (b) of sub-rule (2) of Rule 9, since the alleged misconduct took place in the year 1982 when the petitioner obtained service on the basis of the wrong SC certificate, no disciplinary proceedings can be carried out against the petitioner. In this behalf, Sri S. Deb, learned Senior Counsel for the petitioner, has relied upon the judgment of a Division Bench of this Court in WP(C) 240 of 2013 wherein interpreting Rule 9(2)(b) this Court held as follows:-

"From a bare perusal of Rule 9(2)(b) above, it is apparent that if departmental proceedings are not initiated against a government servant before his retirement then 3 conditions must be fulfilled if such departmental proceedings are to be started after his retirement. The first is that the departmental proceedings cannot be initiated save with the sanction of the President. In the present case the word ''President'' would be read as ''Governor''. Therefore, though otherwise disciplinary proceedings can be started by disciplinary authority but in the case of a retired person the sanction of the President or the Governor is necessary. The President or the Governor may also give direction(s) as to who should conduct the inquiry and where such inquiry should be conducted. Therefore, the departmental rules with regard to inquiries are subject to the provisions of Rule 9 in this behalf.

We are mainly concerned with Rule 9(2)(b)(ii) which provides that no inquiry shall be conducted in respect of any event which took place more than four years before such institution. Obviously the institution refers to the date of institution of the inquiry and the event would relate to the misconduct regarding which the inquiry is to be conducted. If the misconduct has occurred more than four years prior to the inquiry being initiated then there the same is barred under law. We may make it clear that though this is a wide proposition in certain circumstances this limitation of four years will not apply like in the cases of discovery of fraud at a later stage. However, in the present case we are not concerned with that because there is no allegation of fraud whatsoever."

Though this Court has held that if the misconduct took place more than four years back, no proceedings can be initiated but this Court has also clarified that in certain circumstances this limitation of four years will not apply like in cases of discovery of fraud at a later stage.

Reliance has also been placed on the judgment of a learned Single Judge of this Court in Sri Braja Gopal Dhar vs. The State of Tripura and others, [WP(C) 122 of 2008] wherein it is held as follows:-

"It is apparent that unless the events, relevant for the departmental proceeding against any officer who retired from the service occurred within four years from the date of the sanction for the departmental action, no proceeding can be instituted. Thus the sanction as granted by the order dated 01.03.2008 (Annexure-P-7 to the writ petition) is without authority and per contra the Rule 9(2)(b) of the CCS (CCA) Rules, 1965, thus the said order dated 01.03.2008 stands quashed."

We are of the view that this judgment will not be applicable to the facts of the present case.

On the other hand, Ms. A. Sarma Lodh, learned Addl. G.A. appearing for the respondents, has placed reliance on the judgment of a Division Bench of the Agartala Bench of the Gauhati High Court in Sri Arabinda Biswas vs. The State of Tripura and others, [WP(C) 398 of 2010] wherein it was held as follows:-

"12. As regards the next embargo that such proceeding shall not be in respect of any event which took place more than 4(four) years before such institution, we confirm from record that the Scheduled Caste Certificate in question submitted by the petitioner was scrutinised by the State Level Scrutiny Committee constituted by the Govt. for the purpose. Upon such scrutiny the scrutiny committee vide order dated 12.3.07 found that the petitioner does not belong to Scheduled Caste category as claimed by him and hence the certificate issued by the Sub Divisional Officer, Agartala dated 16.11.69 was cancelled.

The seal as regards the invalidity of the Scheduled Caste Certificate of the petitioner was put by the State Level Scrutiny Committee on 12.3.07 and prior to that date the said certificate was treated as genuine and proper for all intents and purpose. Thus the event that arose for initiation of the departmental proceeding was on 12.3.07 and the proceeding having been instituted vide impugned Memorandum dated 20.7.10 is within the period of four(4) years, thus satisfying the requirement of Rule (2)(b)(ii) of the CCS(Pension) Rules."

We have carefully gone through all the judgments as well as Rule 9(2)(b)(ii). We are clearly of the view that after four years of the occurrence, no disciplinary proceedings can be initiated in respect of a retired Government official. It is for the Government to see at the time of retirement whether the official should be permitted to retire or not. At the same time, it is a well known principle of law that fraud vitiates everything. If an employee has obtained service by fraud, even if this fraud is discovered at the time of his retirement, then in our opinion the limitation will start from the date of discovery of the fraud. Therefore, though we are not in total agreement with the judgment of the Agartala Bench in Sri Arabinda Biswas''s case that limitation will start from the date of order passed by the State Level Scrutiny Committee, in our considered view, the limitation will start from the date when the State comes to know that the employee had committed a fraud. Therefore, if a complaint is made that an employee has obtained service on the basis of a fraudulently obtained certificate, the limitation for taking action will not be the date of getting employment but the date when the State comes to know that the employment was obtained on the basis of a forged certificate. Where a complaint is made and the matter is got investigated, the limitation would start either from the date of the complaint or latest from the date when the preliminary inquiry revealed that the SC certificate was fraudulently obtained. In the present case, this information came only in the year 2004 or 2005 and, therefore, the fraud could not have been discovered prior thereto and as such, the proceedings which were initiated against the petitioner on 29-02-2008 are well within the period of four years and hence, within limitation.

In this view of the matter, the petition is dismissed and now the disciplinary authority shall proceed in accordance with law.