Gous Ali Beg vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—Challenge in this petition is to the order dated 24-11-2011 (Annexure P/1), passed by the Principal Chief Conservator of Forest whereunder, the appeal against the order dated 17-2-2010 (Annexure P/2), passed by the Conservator of Forest, Jagdalpur, Circle Jagdalpur, was rejected, and also the original order dated 17-2-2010 (Annexure P/2) which has merged, with the appellate order dated 24-11-2011 (Annexure P/1). The petitioner further challenges the legality and validity of the order dated 7-10-2010 (Annexure P/3) passed by the Director, Forest School, Jagdalpur, whereby a recovery to the tune of Rs. 8,95,909.85 from the retiral dues of the petitioner was calculated after adjustment of leave encashment to the tune of Rs. 89,046.00 and 90% of the gratuity amount to the tune of Rs. 2,44,877.00 and the remaining amount of Rs. 5,61,986.85 was recoverable from the pensionary benefits of the petitioner. The facts, in brief, as projected by the petitioner are that the petitioner was working on the post of Ranger in the Forest Department. A departmental enquiry was initiated on 2-6-2006 and the petitioner was placed under suspension. During pendency of the enquiry, the suspension of the petitioner was revoked by order dated 10-4-2007. In the meantime, the petitioner retired from service on 31-3-2008. After proper enquiry, all the charges leveled against the petitioner were found proved in the enquiry. The Conservator of Forest, being the competent authority, examined all the documents and agreeing with the enquiry report, passed the order dated 17-2-2010 (Annexure P/2) holding the loss to the public exchequer to the extent of Rs. 8,95,909.85. The period of suspension was directed to be treated as suspension period. There against, an appeal was preferred before the Principal Chief Conservator of Forest. The appellate authority, after having considered and examined all the facts of the case, rejected the appeal of the petitioner vide the order dated 24-11-2011 (Annexure P/1). Recovery of Rs. 8,95,909/- after adjusting the amount of leave encashment and gratuity, remaining amount to the tune of Rs. 5,61,986.85 as aforestated, was directed by the impugned order dated 7-10-2010 (Annexure P/3) from the pensionary benefits of the petitioner. Thus, this petition.

The petitioner, without questioning the legality and validity of the enquiry report and the order passed thereon, challenges the impugned orders, as aforestated, on the ground that there was violation of Rule 9 of the Chhattisgarh Civil Services (Pension) Rules, 1976 (for short, ''the Rules, 1976'') on the ground that the enquiry was not completed within a period of two years from the date of its initiation and also the order of recovery of the amount, as aforestated, was not passed by the Governor, as contemplated under the provisions of Rule 9 of the Rules, 1976 Shri Shrivastava, learned counsel for the petitioner would submit that the impugned order has been passed by the Conservator of Forest, which is not sustainable in view of the restriction imposed under the provisions of Rule 9(2)(a) of the Rule, 1976.

Per contra, Shri Sao, learned counsel appearing for the State/respondents would submit that prior to retirement of the petitioner, a departmental enquiry was initiated and after a detailed enquiry, the Conservator of Forest, Jagdalpur passed the order dated 17-2-2010 whereby it was directed to recover a sum of Rs. 8,95,909.85 from the retiral dues as per Rule 65 of the Rules, 1976. It was further directed that the period of suspension from 2-6-2006 to 9-4-2007 shall be treated as suspension period as per the provisions of the Chhattisgarh Fundamental Rules. The order of the Conservator of Forest dated 17-2-2010 was challenged before the Principal Chief Conservator of Forest, which was dismissed, after providing due opportunity of hearing to the parties. There is no infirmity or procedural irregularity in the departmental enquiry. The proviso to sub rule (4) of Rule 9 of the Rules, 1976 is not applicable to the instant case as the pension was not finally sanctioned to him prior to institution of the departmental proceedings. The departmental proceedings were initiated prior to the retirement of the petitioner, therefore, the contention of the petitioner is not sustainable. Rule 9(2)(a) of the Rules, 1976 does not prohibit the Conservator of Forest for passing the final order after full fledged departmental enquiry. There is no infirmity or illegality in the impugned orders as every government servant, before his retirement, has to clear all his dues.

Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.

Rule 9 of the Rules provides for right of the Governor to withhold or withdraw the pension under sub rule (1) of Rule 9 of the Rules, 1976. For ready reference, Rule 9 of the Rules, 1976 is quoted below, which reads as under:

Right of Governor to withhold or withdraw pension.--(1) The Governor reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from pension of the whole or part of any pecuniary loss caused to the Government if, in any 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 the State Public Service Commission shall be consulted before any final orders are passed:

Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the minimum pension as determined by the Government from time to time;

(2) (a) The departmental proceedings 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 Governor, that authority shall submit a report regarding its findings to the Governor.

(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 Governor;

(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 Government may direct and in accordance with the procedure applicable to departmental proceedings:

(a) in which an order of dismissal from service could be made in relation to the Government servant during his service in case it is proposed to withhold or withdraw a pension or part thereof whether permanently or for a specified period; or

(b) in which an order of recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders could be made in relation to the Government servant during his service if it is proposed to order recovery from his pension of the whole or part of any pecuniary loss caused to the Government.

(3) No judicial proceedings, if not instituted while the Government servant 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 in respect of an event which took place, more than four years before such institution.

(4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension and death-cum-retirement gratuity as provided in Rule 64, as the case may be, shall be sanctioned:

Provided that where pension has already been finally sanctioned to a Government servant prior to institution of departmental proceedings, the Governor may, by order in writing, withhold, with effect from the date of institution of such departmental proceedings fifty per cent of the pension so sanctioned subject however that the pension payable after such withholding is not reduced to less than the minimum pension as determined by the Government from time to time:

Provided further that where departmental proceedings have been instituted prior to the 25th October, 1978, the first proviso shall have effect as it for the words "with effect from the date of institution of such proceedings" the words "with effect from a date not later than thirty days from the date aforementioned, had been substituted:

Provided also that-

(a) If the departmental proceedings are not completed within a period of one year from the date of institution thereof, fifty per cent of the pension withheld shall stand restored on the expiration of the aforesaid period of one year;

(b) If the departmental proceedings are not completed within a period of two years from the date of institution the entire amount of pension so withheld shall stand restored on the expiration of the aforesaid period of two years; and

(c) If in the departmental proceedings final order is passed to withhold or withdraw the pension or any recovery is ordered, the order shall be deemed to take effect from the date of the institution of departmental proceedings and the amount of pension since withheld shall be adjusted in terms of the final order subject to the limit specified in sub-rule (5) of Rule 43.

(5) Where the Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.

(6) For the purpose of this rule-

(a) 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; and

(b) Judicial proceedings shall be deemed to be instituted-

(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and

(ii) in the case of civil proceedings, on the date the plaint is presented in the Court.

A bare reading of the provisions of Rule 9(1) of the Rules, 1976, as quoted above, the Governor reserves to himself the right to withhold or withdraw pension or a part thereof, for any specified period or permanently and order recovery from pension whole or part of any pecuniary loss caused to the Government if the pensioner is found guilty of grave misconduct or negligence during the period of his service. Under sub-rule 2(a) of Rule 9 of the Rules, 1976, if a departmental proceeding is instituted while the government servant was in service, whether before his retirement or during his re-employment, shall be deemed to be a proceeding under the 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.

Proviso to sub-rule 2(a) of Rule 9 of the Rules, 1976 provides that if the departmental proceedings are instituted by an authority subordinate to the Governor, that authority shall submit a report regarding its findings to the Governor. Sub-rule 2(b) of Rule 9 of the Rules, 1976 is not relevant to the facts of the case. Sub-rule (4) of Rule 9 of the Rules, 1976 provides for payment of provisional pension and death-cum-retirement gratuity as provided under Rule 64. Proviso to sub rule (4) of Rule 9 of the Rules, 1976 provides that where pension has already been finally sanctioned to a Government servant prior to institution of departmental proceedings, the Governor may, by order in writing, withthold, with effect from the date of institution of such departmental proceedings 50% of the pension so sanctioned. However, the pension payable after such withholding is not reduced to less than the minimum pension as determined by the Government from time to time.

Challenge in this petition is on the ground that no other authority, except the Governor himself has right to withhold or withdraw the pension or a part thereof. Secondly, the departmental proceedings were instituted by authority subordinate to the Governor and that authority should have submitted a report regarding its findings to the Governor. Without submitting a report, no order by the concerned authority subordinate to the Governor, could have been passed.

The Supreme Court in State of Madhya Pradesh and others Vs. Dr. Yashwant Trimbak, considered the import and scope of Rule 9 (2) (b) (i) of M.P. Civil Services (Pension) Rules, 1976. All the provisions of Rules, 1976, had been adapted by the State of Chhattisgarh, as it is. It was held that if the order is expressed in the name of the Governor and is duly authenticated, the same cannot be questioned in any Court on the ground that it is not made or executed by the Governor. The signature of the Secretary or the Under Secretary concerned, who is authorized under the authentication rules to sign the document, signifies the consent of the Governor as well as the acceptance of the advice rendered by the minister concerned. It was further held that the word ''Governor'' used under provisions of Rule 9(2)(b) of the Rules, 1976 does not mean the Governor himself but the order by the Governor, duly authenticated as prescribed under Article 166(2) of the Constitution of India. It was held as under:

Therefore, excepting the matters with respect to which the Governor is required by or under the Constitution to act in his discretion, the personal satisfaction of the Governor is not required and any function may be allocated to Ministers.

Mr. Jain''s contention is solely based on the ground that in the Rule itself both the expressions ''Governor'' and ''Government'' have been used and therefore the expression "sanction of the Governor" in Rule 9 (2) (b) (i) would mean the personal sanction of the Governor. We are unable to accept this contention. The power to sanction is nothing but an executive action of the Government provided under the Rules. This is not a matter with respect to which the Governor is required under the Constitution to act in his discretion. In this view of the matter when the Governor has framed Rules of Business under Article 166(3) of the Constitution allocating his functions and it is the Council of Ministers which has taken the decision to sanction prosecution of the respondent, we see no legal infirmity in the same. The Tribunal erred in law in coming to the conclusion that the sanction required under the rule is a sanction of the Governor.

In our considered opinion, in the facts and circumstances of the present case the power of the Governor under Rule 9(2)(b)(i) has been duly allocated in favour of the Council of Ministers under Article 166(3) of the Constitution and the said Council of Ministers has taken the decision to grant sanction for prosecution of the respondent.

In State of M.P. and Others Vs. R.L. Ogale and Others, , cited by learned counsel for the petitioner, the Division Bench of the High Court of Madhya Pradesh, held as under:

...The proviso of sub-rule (2)(a) of Rule 9 of the Rules 1976, however, makes it amply clear that where the departmental proceedings are instituted by the Authority subordinate to the Governor, that Authority shall submit a report regarding its findings to the Governor. In the present case, therefore the Conservator of Forest having initiated the departmental proceedings, before the retirement of the original respondent, was only entitled to continue and complete the same and submit a report to the Governor regarding his findings in the departmental proceedings, but was not entitled to pass a final order for recovery of the loss of Rs. 4,10,071.84 from the original respondent.

The ratio laid down by the Supreme Court in State of M.P. and others v. Dr. Yashwant Trimbak (supra), was not placed before the learned Division Bench. Thus, the learned Division Bench has not considered the other aspect that if an order is passed duly authenticated under Article 166 (2) of the Constitution of India in the name of the Governor, whether the same is deemed to have been passed by the Governor, as contemplated under Rule 9 of the Rules, 1976.

Thus, it is clear from bare reading of the provisions of Rules 9(1), 9(2)(a), the proviso to Rule 9(2)(a) and 9(4) of the Rules, 1976 that the departmental enquiry initiated before retirement of an employee is deemed to be a proceeding under the Rule and shall continue and be concluded by the authority by which they were commenced as if the government servant continues in service. However, after conclusion of the departmental enquiry, the authority i.e. the Conservator of Forest, who is subordinate to the Governor cannot pass the order, but to submit a report to the Government (Governor) and the Government, as well settled by the Supreme Court in State of M.P. and others v. Dr. Yashwant Trimbak (supra) in accordance with Article 166(2) of the Constitution of India, is competent to pass the order. In the case on hand, since no order was expressed in the name of the Governor and duly authenticated, the impugned order cannot sustain in the eyes of law and no recovery can be made.

The final order has been passed by the Conservator of Forest directing recovery of the amount from the pensionary benefits. There is no indication from any document and it is also not the case of the respondents that the order was passed by the Government, duly authenticated under Article 166(2) of the Constitution of India. Thus, if the order passed by the Secretary or Under Secretary as prescribed under the Rules of Business, duly authenticated as provided under Article 166(2) of the Constitution of India, it is deemed that the order has been passed by the Governor as contemplated under Rule 9 of the Rules, 1976. Thus, the impugned order dated 24-11-2011 (Annexure P/1), 17-2-2010 (Annexure P/2) and 7-10-2010 (Annexure P/3) are quashed. Resultantly, the writ petition is allowed with no order asto costs.