Dula Singh vs State of Punjab and Another

Tejinder Singh Dhindsa, J.—The petitioner who was serving on the post of Inspector, Grade-I under the Food and Supplies Department, retired on 28.2.2005 upon attaining the age of superannuation. The instant writ petition has been filed impugning the charge sheet dated 2.9.2005, Annexure P2, and order dated 8.5.2009 issued by the Director, Food, Civil Supply and Consumer Affairs Department, Punjab, Annexure P3, whereby recovery of an amount of Rs. 43,469/- has been directed against him. Further challenge is to the order dated 18.10.2011 passed by the Appellate Authority i.e. Financial Commissioner (Revenue), Annexure P4, affirming the order of recovery against the petitioner. Brief facts of the case are that having retired from service on 28.2.2005, the petitioner was issued a charge sheet dated 2.9.2005, Annexure P2, raising an article of charge that while he was posted at Moga Centre as Inspector, Grade-I, he had dispatched wheat stocks of the year 1998-99 to FCI which was not properly maintained and dispatched as per instructions, causing financial loss. The precise dates with regard to the dispatch of the wheat stocks upon which the allegation of causing financial loss has been raised were 10.5.1999, 11.12.1999, 18.11.2000, 25.1.2001 and 17.6.2001. The petitioner is stated to have submitted the reply to the charge sheet, but in pursuance to departmental proceedings having been initiated, the final order of punishment dated 8.5.2009, Annexure P3, ordering a recovery of Rs. 43,469/- has been imposed upon him. Such order of penalty has been affirmed in the light of impugned order dated 18.10.2011, Annexure P4, passed by the Appellate Authority.

Learned counsel appearing for the petitioner has raised the solitary argument that the very initiation of departmental proceedings against the petitioner in the light of the impugned charge sheet dated 2.9.2005, Annexure P2, would be in violation of Rule 2.2(b) of the Punjab Civil Services Rules, Vol. II. Learned counsel would argue that under such statutory provision, there is an absolute bar from holding an enquiry against a retired employee in respect of any event which took place more than four years prior to the initiation of the enquiry.

Per contra, learned State counsel would submit that the action of the respondents was justified as it was due to the negligence of the petitioner that the State Government has suffered a financial loss. Still further, it has been submitted that the impugned orders of recovery have been passed after following due procedure and having afforded opportunity to the petitioner at each stage. It is finally prayed that the petition be dismissed.

Rule 2.2 of the Punjab Civil Services Rules, Vol. II reads in the following terms:

2.2(b). The Government further reserve to themselves 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 an departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including the period of his service, including rendered upon re-employment after retirement:

Provided that:-

Such departmental proceedings, 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 proceedings under this article 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;

Such departmental proceedings, 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 Government.

ii. Shall not be in respect or 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 in which an order of dismissal from service could be made in relation to the officer during his service.

No such judicial proceedings, 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 four years before such institution; and The Public Service Commission should be consulted before final orders are passed.

Explanation. - For the purpose of this rule -

(a) A departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension from an earlier date, on such date; and

(b) A judicial proceeding shall be deemed to be instituted -

in the case of a criminal proceeding, on the date on which the complaint or report of the police officer on which the Magistrate takes cognizance, is made; and

in the case of a civil proceeding, on the date of presentation of the plaint in the court.

A bare reading of such statutory provision makes it clear that the Government has the right of ordering recovery from the pension of an employee if in departmental proceedings, the pensioner is found guilty of grave mis-conduct or negligence during the period of his service. However, there is an embargo placed on such right with the Government inasmuch as such departmental proceedings cannot be instituted against a retiree in respect of any event which took place more than four years prior to the institution of the same. Explanation to the provision further clarifies that departmental proceedings shall be deemed to be instituted on the date on which statement of charges is issued to the retiree.

The facts of the present case are not in dispute. Admittedly, the date of issuance of impugned charge sheet is 2.9.2005. Such charges are in relation to dispatch of wheat stocks between the period 10.5.1999 till 17.6.2001. As such, the respondent-Department had resorted to the initiation of an enquiry in the light of the impugned charge sheet after retirement of the petitioner in respect of an allegation which pertain to four years prior to the date of issuance of the charge sheet i.e. 2.9.2005. This was clearly impermissible and in violation of Rule 2.2(b) of the Punjab Civil Services Rules extracted hereinabove.

The prohibition contained in sub clause (ii) of sub Rule 2 of Rule 2.2(b) of the Punjab Civil Services Rules came up for consideration before a Division Bench of this Court in Baldhir Singh Vs. State of Punjab and Others, and it was held in the following terms:

A bare perusal of the aforementioned Rule makes it clear that Rules 2.2(b)(ii) places a complete embargo on holding of an enquiry against a retired employee for any event which has happened four years prior to the institution of enquiry. In other words, in case a departmental proceeding is to be initiated against an employee after his retirement, it cannot be in respect of an event, which has taken place more than four years prior to the date of the institution of inquiry. The rationale behind the rule appears to be that a retiree should not be subjected to undue hardship in the evening of his life after having rendered satisfactory service to the State. If old matters which have been settled by afflux of time are permitted to be re-opened after expiry of period of four years then a retiree may not be in a position to defend himself because the evidence in his favour may not be available. The co-employee after retirement might have settled at far flung places and memory may not serve such witnesses and the retiree. The ''Sword of Damocles'' in the shape of departmental inquiry cannot be kept hanging on the head of the retiree for all times to come and he should be allowed to live in peace after the statutory period of four years of his retirement has come to an end. Moreover, the learned State counsel has not been successfully able to controvert the argument and judgments (supra) relied upon by the learned counsel for the petitioner.

In view of the discussion hereinabove, the impugned charge sheet dated 2.9.2005, Annexure P2, cannot sustain.

It would be apposite to notice that it had been categorically averred in para 5 of the petition that the petitioner had submitted his reply to the charge sheet dated 2.9.2005 raising a specific challenge to the same on the ground of Rule 2.2(b) of the Punjab Civil Services Rules, Vol. II. In the reply submitted on behalf of respondents No. 1 and 2, the contents of para 5 of the writ petition stand admitted as a matter of record. Clearly, inspite of the specific bar contained in the statutory provision and such objection having been raised by the petitioner, the respondent-authorities have proceeded to overlook the same which has resulted in the passing of the punishment order of recovery dated 8.5.2009, Annexure P3, as also the impugned order dated 18.10.2011, Annexure P4, passed by the Appellate Authority.

I am of the considered view that if the very initiation of proceedings is bad, the consequential orders also cannot sustain.

For the reasons recorded above, the writ petition is allowed. The charge sheet dated 2.9.2005, Annexure P2, order dated 8.5.2009, Annexure, P3, and order dated 18.10.2011, Annexure P4, are quashed. Consequently, it is directed that in case any recovery has been effected from the petitioner in pursuance to the impugned orders, the same shall be refunded to him within a period of two months from the date of receipt of a certified copy of the order. Petition allowed in the aforesaid terms.