S. Manglemjao Singh vs Union Of India

Kh. Nobin Singh, J

[1] Heard Shri Anjan Prasad Sahu, learned Advocate appearing for the petitioner; Shri Niranjan Sanasam, learned GA appearing for the State

respondents and Shri W. Darakishwor, learned Sr. PCCG appearing for the Union of India.

[2] The validity and correctness of the order dated 04-11-2019 passed by the Hon’ble Tribunal in O.A. No.042/00338 of 2019 is under challenge

in this writ petition and in addition thereto, the petitioner has prayed for issuing a writ of certiorari or any other appropriate writ to quash and set aside

the impugned departmental enquiry pending for more than one year and also to issue a writ of mandamus or any other appropriate writ to direct the

respondents to release the pensionary benefits of the petitioner.

[3.1] Facts and circumstances as narrated in the writ petition are, in short, that the petitioner is an ex-IPS Officer who had served as the Inspector

General of Police (Zoneâ€"III), Government of Manipur and had retired on attaining the age of superannuation on 29-02-2016. After a lapse of more

than two years from the date of his retirement, a departmental enquiry was ordered to be initiated against him and accordingly, an Enquiry Officer

was appointed to conduct the enquiry into the charges framed against him vide order dated 09-04-2018 issued by the Department of Personnel &

Administrative Reforms (Personnel Division), Government of Manipur. Thereafter, a letter dated 05-05-2018 was issued informing him that a

preliminary/ regular hearing would be held on 18-05-2018 and that the petitioner should attend the same.

[3.2] On 06-06-2018, the Enquiry Officer passed an order to the effect that the Presenting Officer should submit his written brief within ten days with

a copy to be furnished to the Defence Assistance who could submit his written brief within ten days thereafter. The Presenting Officer failed to

submit his written brief, even though the extension of time was granted, because of which the Enquiry Officer vide its letter dated 26-07-2018 advised

the petitioner to submit his written brief within ten days. In response to the said letter, the petitioner submitted his written brief vide his letter dated 06-

08-2018 explaining the allegations with necessary documents as regards the supply of Leather Belt Black with Crest numbering 20000 which were

procured during the year, 2013-2014 and were received by the 1st MR Store and had been fully issued to the Manipur Rifle Units with nothing left

unissued in the stock register. It has further been stated that the stock which were found by the Hon’ble Chief Minister, Manipur during the

surprise inspection, were the belts from another stock which were subsequently ordered and were received by the 1st MR Imphal on 16-05-2016 for

which the present petitioner was not responsible, as at that point of time, he was not the Chairman of the Committee nor was he related in any

manner.

[3.3] After the written brief having been submitted by the petitioner, there was no subsequent development at all in the departmental enquiry nor was

any final report submitted by the Enquiry Officer. Being highly aggrieved, the petitioner submitted a representation dated 05-09-2019 to the Chief

Secretary, Manipur stating that even after a lapse of about a year, there was no conclusion of the enquiry nor was any final report submitted, because

of which his pensionary benefits were withheld and in the representation, it has also been stated that since the petitioner having been diagnosed with

non alcoholic liver cirrhosis due to buddchairi syndrome in the month of January, 2019, he had to undergo liver transplant at Fortis Hospital, Noida in

the month of April, 2019 and therefore, he requested the authority to close the enquiry and release the pensionary benefits which the authority failed to

do so.

[4] Being aggrieved by the inaction on the part of the respondents, the petitioner approached the Hon’ble Central Administrative Tribunal,

Guwahati Bench, by way of the said O.A. on the inter-alia grounds that as per the notification dated 02-06-2017 published by the DoPT, the inquiry

authority should conclude the enquiry and submit his report within a period of six months from the date of receipt of the order of his appointment but

even after a lapse of more than a year, the Enquiry Officer failed to conclude the enquiry and therefore, the departmental enquiry was liable to be

quashed and set aside. Without considering the case on merit and the grounds taken by the petitioner, the Hon’ble Tribunal passed an order dated

04-11-2019 directing the respondents to complete the enquiry proceedings within a period of two months from the date of receipt of a copy of the

order.

[5] Being aggrieved by the said order dated 04-11-2019 of the Hon’ble Administrative Tribunal, the instant writ petition has been filed by the

petitioner on the inter-alia grounds that the Hon’ble Tribunal completely ignored the prayer made by the petitioner in the application and on the

contrary, it had passed an order granting two months’ time for completing the enquiry proceedings. The Hon’ble Tribunal had exceeded its

jurisdiction and supplemented the rule of the departmental enquiry as provided in the notification dated 02-06-2017 which is against the law of

adjudication and cannot be done by any Court of law, unless such provisions are challenged. To withhold the departmental enquiry by the authority for

more than a year without any application for extension of time, had clearly shown the illegal, arbitrary and mala fide intention of the authority to harass

the petitioner and to withhold his pensionary benefits. From the written brief dated 06-08-2018 submitted by the petitioner, it is clearly demonstrated

that the petitioner was in no way involved in any misconduct and the allegations leveled against him were false and fabricated. The denial of his

pensionary benefits has caused great financial hardship to him and therefore, if the direction for immediate release of the pensionary benefits is not

granted, it will cause great prejudice to the petitioner which cannot be compensated later on by any other means. In view of the pendency of the said

departmental enquiry, the non-payment of the pensionary benefits to the petitioner is illegal, unlawful, arbitrary, mala fide, discriminatory, vindictive and

capricious being violative of fundamental rights guaranteed by the Constitution of India.

[6] The stand of the State Government as indicated in the affidavit filed on behalf of respondent Nos. 2 & 4, is that the petitioner being the ex-

member of the All India Services, the provisions of the Central Civil Services (CCA) Rules, 1965 and in particular, the notification dated 02-06-2017

are not applicable to him as is evident from Rule 3 thereof. It has further been stated that the case of the petitioner is regulated by the Rules, 1969

wherein Rule 3(1B) & 3(IC) provide that the enquiry on charges other than corruption/ on charges of corruption shall be completed and appropriate

order shall be issued within one year/ two years from the date of suspension as the case may be, failing which the suspension order shall automatically

stand revoked. However, the said rules do not provide that the disciplinary proceedings/ DEs beyond the prescribed one year/ two years shall be

rendered invalid automatically.

[7] An additional affidavit has been filed by the petitioner stating that the provisions of the Rules, 1958 are not applicable to the case of the petitioner

as the same do not apply to the members of the All India Services who were promoted to the service from the State service as is evident from Rule

1(2)(b) which provides that the said rules do not apply to the members of All India Services who were promoted to the service from the State

services. The 2nd proviso thereto further states that the Rules, 1958 do not apply to the persons appointed to the service on or after the 1st day of

January, 2004 and since the petitioner herein was appointed to the service after 2004, they do not apply to him. It has further been stated that DoPT

wrote a letter dated 08-09-2009 to the Chief Secretaries of all the state governments/ UTs notifying that State service officers who were appointed to

the IAS /IPS /IFS, by way of promotion/ selection, who were already covered by the old pension scheme would continue to be governed by it. Since

the old pension scheme was in operation prior to 2004, the petitioner was covered by the said scheme and not the by Rules, 1958. An OM dated 04-

11-2015 was issued by DoPT clarifying that the Rules, 1958 were inapplicable to the members of the services who were appointed on or after 1-1-

2004. It has further been stated that Rules 1969 are only applicable to the members of All India Services who are still in service. It is thus clear that

both the provisions which have been invoked to initiate the disciplinary proceedings, are not applicable and therefore, the disciplinary enquiry suffered

from lack of maintainability and is liable to be quashed. A reply affidavit on behalf of respondent Nos. 2 & 4 has been filed wherein it has been stated

that the contention of the petitioner that both the rules do not apply to his case, is false and misleading for the reason that the above rules shall apply to

the petitioner who is a retired member of the All India Services. The contention of the petitioner amounts to selective interpretation of the rules as per

his convenience. The petitioner has conveniently ignored the later part of Rule (1)(2)(b) of the Rules, 1958 which provides for exercise of option

which were never given to the petitioner nor had he chosen to be governed by the pensionary rules of the State and hence, the Rules, 1958 shall be

applied to the petitioner. The departmental enquiry was initiated against him with the sanction of the Central Government vide its letter dated 30-1-

2018 and therefore, there is onus on the Central Government to make a reply as to whether the Rules, 1958 are applicable to the petitioner or not. Old

non-contribution pension scheme in respect of the All India Services shall mean the old defined benefit pension scheme under the Rules, 1958 and

therefore, Rule 6 of the Rules, 1958 shall be applied to the petitioner. Under Rule 6(1)(b)(iii) of the Rules, 1958, the departmental proceedings against

the pensioner shall be conducted by such authority and in such place or places as the Central Government may direct and in accordance with the

procedure applicable to the proceedings on which an order of dismissal from service being made. Any disciplinary proceedings against the petitioner

under Rule 6 of the Rules, 1958 should follow the procedure of disciplinary proceedings under Rule 8 of the Rules, 1969 as provided thereon. It is the

contention of the State Government that both the provisions under Rule 6 of the Rules, 1958 and Rule 8 of the Rules 1969 are applicable to the

petitioner and therefore, the departmental enquiry does not suffer from any lack of maintainability.

[8] The impugned order reads as under:

“GOVERNMENT OF MANIPUR

DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE

REFORMS

(PERSONNEL DIVISION)

-------

MEMORANDUM

Imphal, the 27th February, 2018

No. 10/1/2017-IPS/DP(Pt.): The Governor of Manipur proposes to hold an enquiry against Shri S. Manglemjao Singh, IPS (retire) under the provisions

of Rule 6 of the AIS (DCRB) Rules, 1958 read with rule 8 of the All India Service (Discipline & Appeal) Rules, 1969. The substance of the

imputation of misconduct or misbehavior in respect of the which the enquiry is proposed to be held is set out in the enclosed statement of Articles of

Charges (Annexure-I). A Statement of imputations of misconduct or misbehavior in support of each Article of Charges is enclosed (Annexure-II). A

list of document by which, and list of Witnesses by whom the Articles of Charges are proposed to be sustained are also enclosed at (Annexure-III &

IV) respectively.

Shri S. Manglemjao Singh, IPS (retired) is directed to submit within 15 (fifteen) days of the receipt of this Memorandum a written statement of his

defence and also to state whether he desires to be heard in person.

Shri S. Manglemjao Singh, IPS (retired) is informed that an enquiry will be held only in respect of those Articles of charge as are not admitted. He

should, therefore, specifically admit or deny each Article of charge.

Shri S. Manglemjao Singh, IPS (retired) is further informed that if he does not submit his written statement of defence on or before the date

specified in para 2 above, or does not appear in person before the Inquiry Authority, the Inquiry Authority may hold the inquiry against him ex-parte.

Receipt of this Memorandum may be acknowledged.

Sd/-

(R.R. Rashmi)

Chief Secretary (DP),

Government of Manipur

Shri S. Manglemjao Singh, IPS (retired)

Ex-IGP, Manipur.

(L. Bikram)

Joint Secretary (DP)

Government of Manipurâ€​

[9] It has been submitted by Shri Anjan Sahu, the learned counsel appearing for the petitioner that Rule 6 of the Rules, 1958 and Rules 8 of the Rules,

1969 are not applicable to the facts and circumstances of the present case and therefore, the order dated 27-02-2018 by which the disciplinary

proceedings were initiated against him, is bad in law and is liable to be quashed and set aside by this Court. On the other hand, the stand of the

respondents is contrary to his submission. The short question that arises for consideration by this Court is as to whether Rule 6 of the Rules, 1958 and

Rules 8 of the Rules, 1969 are applicable to the facts and circumstances of the present case. The answer to this question lies on the interpretation of

Rule 6 of the Rules, 1958 and Rules 8 of the Rules, 1969 which read as under:

The All India Services (Death-Cum-Retirement Benefits), Rules, 1958

“6. Recovery from pension.-[(1)The Central Government reserves to itself the right of withholding a pension or gratuity, or both, either in full or in

part, whether permanently or for a specified period, and of ordering recovery from pension or gratuity.] the whole or part of any pecuniary loss caused

to the Central or a State Government, if the pensioner is found in a departmental or judicial proceedings to have been guilty of grave misconduct or to

have caused pecuniary loss to the Central or a State Government by misconduct or negligence during his service, including service rendered on re-

employment after retirement:

Provided that no such order shall be passed without consulting the Union Public Service Commission:

Provided further that-

(a) Such departmental proceeding, if instituted while the pensioner was in service, whether before his retirement or during his re-employment, shall,

after the final retirement of the pensioner, be deemed to be a proceeding under this sub-rule and shall be continued and concluded by the authority by

which it was commenced in the same manner as if the pensioner had continued in service;

(b) Such departmental proceeding, if not instituted while the pensioner was in service, whether before his retirement or during his re-employment;

(i) shall not be instituted save with the sanction of the Central Government;

(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and

(iii) shall be conducted by such authority and in such place or places as the Central Government may direct and in accordance with the procedure

applicable to proceeding on which an order of dismissal from service may be made;

(c) Such judicial proceeding, if not instituted while the pensioner was in service, whether before his retirement or during his re-employment, shall not

be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution.

Explanation.-For the purpose of this rule-

(a) a departmental proceeding shall be deemed to be instituted when the charges framed against the pensioner are issued to him or, if he has been

placed under suspension from an earlier date, on such date; and

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

(i) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to the Criminal Court; and

(ii) in the case of a civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made, to a Civil Court.

[Note1.-Where a part of the pension is withheld or withdrawn the amount of such pension shall not be reduced below the amount of rupees three

thousand and seventy five per mensem.

Note 2.-Where Central Government decides not to withhold or withdraw pension but orders recovery of any pecuniary loss from pension. The

recovery shall not ordinarily be made at a rate exceeding one third of the pension admissible on the date of retirement of the member of the service.]

(2) Where any departmental or judicial proceeding is instituted under sub-rule (1), or where a departmental proceeding is continued under clause (a) of

the proviso, there to against an officer who has retired on attaining the age of compulsory retirement or otherwise,2 he shall be sanctioned by the

Government which instituted such proceedings, during the period commencing from the date of his retirement to the date on which, upon conclusion of

such proceeding, final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of

his qualifying service, upto the date of retirement, or if he was under suspension on the date of retirement, upto date immediately preceding the date on

which he was placed under suspension; but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceedings

and the issue of final orders thereto:

1Provided that where disciplinary proceeding has been instituted against a member of the service before his retirement from service under rule 10 of

the All India Services (Discipline and Appeal) Rules, 1969, for imposing any of the penalties specified in clauses (i), (ii) and (iv) of sub-rule (1) of Rule

6 of the said rules and continuing such proceeding under sub-rule (1) of this rule after his retirement from service, the payment of gratuity or death-

cum-retirement gratuity shall not be withheld.

(3) Payment of provisional pension made under sub-rule (2) shall be adjusted against the final retirement benefits sanctioned to the pensioner upon

conclusion of the aforesaid proceeding, but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the

pension is reduced or withheld either permanently or for a specified period.

The All India Services (Discipline & Appeal) Rules, 1969

Procedure for imposing major penalties.â€"(1) No order imposing any of the major penalties specified in Rule 6 shall be made except after an

inquiry is held as far as may be, in the manner provided in this rule and Rule 10, or, provided by the Public Servants (Inquiries) Act 1850 (37 of 1850)

where such inquiry is held under that Act.

(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or

misbehaviour against a member of the Service, it may appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as

the case may be, an authority to inquire into the truth thereof.

[Provided that, where there is a complaint of sexual harassment within the meaning of Rule 3 of the All India Services (Prevention of Sexual

Harassment) Regulations, 1998, the Complaints

Committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority

appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been

made for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable, in accordance

with the procedure laid down in these rules.]

(3) Where a Board is appointed as the inquiring authority it shall consist of not less than two senior officers provided that at least one member of such

a Board shall be an officer of the service to which the member of the Service belongs.

(4) Where it is proposed to hold an inquiry against a member of the Service under this rule and/or Rule 10, the disciplinary authority shall draw up or

caused to be drawn up-

(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;

(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-

(a) a statement of all relevant facts including any admission or confession made by the member of the Service;

(b) a list of documents by which, and a list of witnesses by whom the articles of charge are proposed to be sustained.

(5) The disciplinary authority shall deliver or cause to be delivered to the member of the Service a copy of the articles of charge, the statement of the

imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall

require the member of the Service to submit, within such time as may be specified, a written statement of his defence and to state whether he desires

to be heard in person.

(6)(a) On receipt of the written statement of defence the disciplinary authority may appoint, under sub-rule (2), an inquiring authority for the purpose

of inquiring into such of the articles of charge as are not admitted, and, where all the articles of charge have been admitted by the member of the

Service in his written statement of defence, the disciplinary authority shall record its finding on each charge and shall act in the manner laid down in

Rule 9.

(b) If no written statement of defence is submitted by the member of the Service, the disciplinary authority may, if it considers it necessary to do so,

appoint under sub-rule (2), an inquiring authority for the purpose.

(c) Where the disciplinary authority appoints an inquiring authority for holding an inquiry into such charge it may by an order, appoint a Government

Servant or a legal practitioner, to be known as the

“Presenting Officerâ€​ to present on its behalf the case in support of the articles of charge.

(7) The disciplinary authority shall forward to the inquiring authority-

(i) a copy of the articles of charge and the statement of imputations of misconduct or misbehaviour.

(ii) a copy of the written statement of defence, if any, submitted by the member of the Service;

(iii) a copy of the 1[statements] of witness, if any, referred to in sub-rule (4);

(iv) evidence proving the delivery of the documents referred to in sub-rule (4) to the member of the Service; and

(v) a copy of the order appointing the “Presenting Officerâ€​.

(8) The member of the Service shall be required to appear in person before the inquiring authority at any time prescribed after the expiry of ten

working days from the date of receipt of the articles of charge and the statement of imputations of misconduct or misbehaviour, or within such further

time, not exceeding ten days, as the inquiring authority may allow.

(9) (a) The member of the Service may take the assistance of any other Government servant to present the case on his behalf but may not engage a

legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary

authority, having regard to the circumstances of the case, so permits.

(b) A member of the Service may also take the assistance of a retired Government servant to present the case on his behalf subject to such conditions

as may be specified by the President from time to time by general or special order in this behalf.

NOTE.-The member of the Service shall not take the assistance of any other Government servant who has two or more pending disciplinary cases on

hand in which he has to give assistance.

(10) If the member of the Service who has not admitted any of the articles of charge in his written statement of defence or has not submitted any

written statement of defence appears before the inquiring authority, such authority shall ask him whether he is guilty or has any defence to make and

if he pleads guilty to any of the article of charge, the inquiring authority shall record the plea, sign the record and obtain the signature of the member of

the Service thereon.

(11) The inquiring authority shall return a finding of guilt in respect of (those) articles of charge to which the member of the Service pleads guilty.

(12) The inquiring authority shall, if the member of the Service fails to appear within the specified time or refuses or omits to plead, require the

Presenting Officer to produce the evidence by which he proposes to prove the articles of charge and shall adjourn the case to a later date, not

exceeding thirty days, after recording an order that the member of the Service may, for the purpose of preparing his defence:

(i) inspect, within five days of the order or, within such further time not exceeding five days as the inquiring authority may allow, the document

specified in the list referred to in sub-rule (4);

(ii) submit a list of witness to be examined on his behalf.

NOTE.-If the member of the Service applies orally or in written for the supply of copies of the statement of witnesses mentioned in the list referred to

in sub-rule (4), the inquiring authority shall furnish him with such copies as early as possible and in any case not later than three days before the

commencement of the examination of the witnesses on behalf of the disciplinary authority.

(iii) give a notice within ten days of the order or, within such further time not exceeding ten days as the inquiring authority may allow, for the discovery

of production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-rule (4).

NOTE.-The member of the Service shall indicate the relevance of the documents required by him to be discovered or produced by the Government.

(13) The inquiring authority shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the

authority in whose custody or possession, the documents are kept with a requisition for the production of the document by such date as may be

specified in such requisition:

Provided that the inquiring authority may, for reasons to be recorded by it in writing, refuse to requisition such of the documents are, in its opinion, not

relevant to the case.

(14) On receipt of the requisition referred to in sub-rule (13), every authority having the custody or possession of the requisitioned documents shall

produce the same before the inquiring authority:

Provided that if the authority having the custody or possession of the requisitioned documents is satisfied, for reasons to be recorded by it in writing,

that the production of all or any of such documents would be against the public interest or security of the State, it shall inform the inquiring authority

accordingly and the inquiring authority shall, on being so informed, communicate the information to the member of the Service and withdraw the

requisition made by it for the production or discovery of such documents.

(15) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced

by, on behalf of, the disciplinary authority. The witnesses shall be examined by, or on behalf of, the Presenting Officer and may be cross-examined by,

or on behalf of, the member of the Service. The Presenting Officer shall be entitled to re-examine the witnesses on any point, on which they have

been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to

the witnesses as it thinks fit.

(16) If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow

the Presenting Officer to produce evidence not included in the list given to the member of the Service or may itself call for new evidence or recall and

re-examine any witness and, in such case, the member of the Service shall be entitled to have, if he demands it, a copy of the list of further evidence

proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of

adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give to the member of the Service an opportunity of inspecting

such documents before they are taken on the record. The inquiring authority may also allow the member of the Service to produce new evidence, if it

is of opinion that the production of such evidence is necessary in the interests of justice.

NOTE.-New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be

called for only when there is an inherent lacuna or defect in the evidence which has been produced originally.

(17) When the case for the disciplinary authority is closed, the member of the Service shall be required to state his defence, orally or in writing, as he

may prefer. If the defence is made orally, it shall be recorded and the member of the Service shall be required to sign the record. In either case, a

copy of the statement of defence shall be given to the Presenting Officer, if any appointed.

(18) The evidence on behalf of the member of the Service shall then be produced. The member of the Service may examine himself in his own behalf

if he so prefers. The witnesses produced by the member of the Service shall then be examined and shall be liable to cross-examination, re-examination

and examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority.

(19) The inquiring authority may, after the member of the Service closes his case, and shall, if the member of the Service has not examined himself,

generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the member of the Service to explain

any circumstances appearing in the evidence against him.

(20) The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any appointed, and the member of

the Service or permit them to file written briefs of their respective cases, if they so desire.

(21) If the member of the Service, to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on

or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the

provisions of this rule, the inquiring authority may hold the inquiry ex-parte.

(22) (a) Where a State Government which has caused to be inquired into the articles of any charge and, having regard to its decision on any of the

findings of any inquiring authority appointed by it, is of the opinion that the penalties specified in clauses (vii) to (ix) of Rule 6 should be imposed on the

member of the Service, the State Government shall forward the records of the inquiry to the Central Government suggesting imposition of the

penalties specified in clauses (vii) to (ix) of Rule 6 as is competent to impose the last mention penalty.

(b) The Central Government may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witness is

necessary in the interest of justice, recall the witness and examine, cross-examine and re-examine such witnesses. If the Central Government do not

find justification for imposing one of the penalties specified in clauses (viii) to (ix) of Rule 6 in a case referred to it by a State Government, then it shall

refer it back to the State Government.

(23) Whenever an inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry, ceases to exercise

jurisdiction therein and is succeeded by another inquiring authority which has, and which exercises, such jurisdiction, the inquiring authority so

succeeding may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor and partly recorded by itself:

Provided that, if the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been

recorded is necessary in the interest of justice, it may recall, examine, cross-examine and re-examine any such witness as here in before provided.

(24) (i) After the conclusion of the inquiry, a report shall be prepared and it shall contain-

(a) the articles of charge and the statement of imputations of misconduct or misbehaviour;

(b) the defence of the member of the Service in respect of each article of charge;

(c) an assessment of the evidence in respect of each article of charge; and

(d) the findings on each article of charge and the reasons therefor.

Explanation,-If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles

of charge, it may record its findings on such article of charge:

Provided that the findings on such article of charge shall not be recorded unless the member of the Service has either admitted the facts on which

such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.

(ii) the inquiring authority shall forward to the disciplinary authority the records of inquiry which shall includeâ€

(a) the report prepared by it under clause (i);

(b) the written statement of defence, if any, submitted by the member of the Service;

(c) the oral and documentary evidence produced in the course of the inquiry;

(d) written briefs, if any, filed by the Presenting Officer or the member of the Service or both during the course of the inquiry; and

(e) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry.

[10.1] The All India Services Act, 1951 (hereinafter referred to as “the Act, 1951†was enacted by the Parliament and the expression “All

India Service†is defined in Section 2 thereof as the Indian Administrative Service or the service known as the Indian Police Service or any other

service specified in Section 2A which is not relevant for the present case. It is not specified in Section 2 that a member of the All India Service will

also mean a member of the service who has retired from the service. In exercise of power conferred by Section 3(1) of the All India Services Act,

1951, the rules called “the All India Services (Discipline & Appeal) Rules, 1969†(hereinafter referred as “the Rules, 1969†were made by

the Central Government. Rule 2 (d) states that a member of the service means a member of the All India Service as defined in Section 2 of the Act,

1951. Rule 3 provides for the manner in which a me mber of the service can be placed under suspension, when the disciplinary proceedings are

contemplated or are pending. The question of suspension arises only in respect of a member of the service who is in service. Rule 4 provides that a

member of the service who is under suspension, is entitled to subsistence allowance. Rule 7 empowered the disciplinary authorities to initiate

disciplinary proceedings against a member of the service, if he has committed any act or omission which renders him liable to any penalty specified in

Rules 6 viz. minor penalties and major penalties which include removal and dismissal from the services. The penalties as specified in Rule 6 are such

penalties which can be imposed against a member of the service while he is in service. It is not stated anywhere in Rule 6 that any of the penalties

specified therein can still be imposed against a member of the service after his retirement. Rule 5 provides for the benefits that can be given to him, if

he is re-instated as a result of the appeal or review. Rule 8 provides for the procedure to be followed for imposing major penalties, of which mention

may be made are inter-alia reduction of scale, compulsory retirement, removal from service, dismissal from service etc. No order of imposing any of

the major penalties shall be made except after an enquiry. If the disciplinary authority is of the opinion that there are grounds for holding an enquiry

against a member of the service, it may appoint an authority to inquire into it. The Disciplinary authority shall draw up or caused to be drawn up article

of charges, imputation of misconduct etc. to be delivered to the member of the service. The member of the service shall be given an opportunity of

being heard in the enquiry. After the enquiry is over, the inquiring authority shall forward the details thereof to the disciplinary authority. What is the

use of the procedure as mentioned above, when none of the penalties specified in Rule 6 can be imposed against a member of the service after his

retirement. Only the minor penalty (iii) talks about the recovery of any pecuniary loss caused to the Government from the pay of the member of the

service. The word “pay†is very significant which means pay drawn by the member of the service and is different from the word “pensionâ€.

After a member of the service having retired on attaining the age of superannuation, he is not entitled to draw any pay except pension.

[10.2] In exercise of power conferred by Section 3(1) of the Act, 1951, the rules called “the All India Services (Death-Cum-Retirement benefits)

Rules, 1958†(hereinafter referred to as “the Rules, 1958â€) were made by the Central Government. Rule 2(a) provides that the provisions of

these rules shall apply to all persons who retired from the service on or after 29-10-1951 subject to sub-rule (b) thereof. Sub-rule (b) provides that the

provisions of the Rules, 1958 shall not apply to those members of the service who were promoted to the service from the State services or were

appointed to the under the India Administrative Service

(Extension to States) Scheme or the Indian Police Service (Extension to States) Scheme. Further, it provides that the provisions of the Rule, 1958 shall

not apply to those who, in exercise of option, had chosen to be governed by the Superior Civil services Rules etc. before coming into force of these

rules. Rule 3 provides that future good conduct of the pensioner is an implied condition of every grant of pension and its continuance. If after

retirement a pensioner is convicted of a serious crime or be guilty of grave misconduct, the Central Government may withhold or withdraw any

pension or part thereof in the manner mentioned therein. As per Rule 5, no retirement benefits may be granted to a person who has been dismissed or

removed from the service or who has resigned from the service. Rule 6 provides for the recovery of any pecuniary loss caused to the Government

from the pension, if the pensioner is found in a departmental or judicial proceedings to have been guilty of grave misconduct or to have caused

pecuniary loss to the Government by misconduct or negligence during his service. Recovery of pecuniary loss from the pension depends upon the

findings of an inquiry initiated against the pensioner. The first proviso states that no such order shall be passed without consulting the Union Public

Service Commission. The second proviso (a) states that such departmental proceedings, if instituted while the pensioner was in service, shall be

deemed to be a proceeding under this sub-rule and shall be continued and concluded the authority. In terms of second proviso (b), such proceedings, if

not instituted while the pensioner was in service, shall not be instituted save with the sanction of the Central Government and shall be only in respect

of an event which took place not more than four years before the institution of such proceedings. From the aforesaid second proviso, it is seen that the

departmental proceedings can be instituted against a member of the service after his retirement subject to the conditions mentioned therein.

[11] The conjoint reading of Rule 2(b) and Rule 6 appears to have shown that the provisions of Rule, 1958 do not apply to those members of the

service who were promoted to the service from the State services. In other words, Rule 6 of the Rule, 1958 appears to be inapplicable to a member of

the service who was promoted from the State services and had retired from the service. The contention of the learned counsel appearing for the

petitioner appears to be in tune with the above observation and on the other hand, it has been submitted by the Government Advocate that Rule 1(2)

(b) shall be read as a whole in order to understand its true meaning. If the contention of the counsel appearing for the petitioner is accepted, there is

no provision in the Rule, 1958 which will have an application to the member of the service who was promoted from the State service and had retired

from the service. This appears to be not the intention of the Union of India. Be that as it may, it is the Union of India which has made the rules and in

order to enable this Court to give a correct and proper interpretation thereof, the Union of India was called upon to make its stand clear to this Court

on the issue relating to the interpretation of the Rule 1(2)(b) in relation to Rule 6. This Court vide its order dated 30-11-2020 granted three weeks time

to the counsel appearing for the Union of India for seeking instruction. As the counsel for the Union of India was unable to get the instruction, further

time for a month was granted to him. On 29-01-2021 when this matter was taken up for consideration, it was submitted by the counsel appearing for

the Union of India that he ha d not received the instruction. For want of the assistance from the Union of India, this Court felt that there was no need

of expressing any opinion as regards the interpretation of Rule 1(2)(b) in relation to Rule 6. Therefore, this Court is of the view that this issue as

regards the interpretation of Rule 1(2)(b) in relation to Rule 6 will be kept open so that it can be decided in an appropriate case in future. However, so

far as the instant writ petition is concerned, it can be disposed in terms of the second proviso to Rule 1(2)(b) which states that nothing contained in

these rules shall be applied to the persons appointed to the service on or after the 1st day of January, 2004. This proviso came to be inserted vide

Notification dated 06-02-2004 which is unambiguous and needs no interpretation at all. In the present case, since the petitioner was admittedly

appointed to the service after the year, 2004, the provisions of Rules, 1958 will have no application to his case at all. If that be so, the order dated 27-

02-2018 can be said to have been issued by the State Government without any authority of law. Thus, it is seen that the Hon’ble Tribunal has

committed an error in directing the respondent No.2 therein to complete the proceedings within two months from the date receipt of a copy of the

order without going into the merit of the case.

[12] In view of the above and for the reasons stated hereinabove, the writ petition stands allowed with the following directions:

(a) The order dated 04-11-2019 passed by the Hon’ble Central Administrative Tribunal, Guwahati Bench in OA No. 040/00338/2019 is quashed

and set aside;

(b) The order dated 27-02-2018 issued by the Chief Secretary (DP), Government and the enquiry proceedings initiated pursuant thereto, are quashed

and set aside;

(c) The respondents are directed to release the pension and pensionary benefits of the petitioner within three months from today after deducting any

amount, if already paid to the petitioner.

There shall be no order as to costs.