S.D. Chauhan vs Narmada & Water Resources Department

Mr. J.B. Pardiwala, J. (Oral) - By this writ application under Article 226 of the Constitution of India, the writ applicant, a former government employee, has prayed for the following reliefs;

"(A) Your Lordship may be pleased to issue a writ in the nature of mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside entire action of respondents inclusive of penalty order dated 30.1.95.

(B) Your Lordships may be pleased to grant all the consequential reliefs in terms of arrears of pay for the period under suspension and other fiscal reliefs on account of granting prayer A as above.

(C) Your Lordships may be pleased to grant stay against any further implementation and operation of penalty order dated 30.1.95 and be pleased to direct the respondents to allow the petitioner to commute his pension fully without any deduction or reduction and further be pleased to direct the respondents to release all the withheld amount of gratuity etc. as an effective interim relief during the pendency and final disposal of this petition.

(D) Your Lordships may be pleased to grant costs of this petition.

(E) Your Lordships may be pleased to grant any other and further reliefs as may be deemed fit."

The case of the writ applicant may be summarized as under;

2.1 The writ applicant, while serving as the Deputy Executive Engineer, Class-II, was served with a departmental charge sheet dated 28th May, 1986, containing, inter alia, the following charges;

"(a) Shri Chauhan, Dy. Executive Engineer had committed irregularities in the purchase of the following store materials;

Sr. No.

Item

Agreement No.

City

Amount Rs.

M.B. No. Page No.

1

12.3/4 " ERW Pipes

D-34/82-83

2594.24 Rmt.

15,57,328.00

5603 280121

2

8" ERW Pipes

D-1/82-83

4099.57 Rmt.

19,17,418.00

355 017742.

3

8" ERW Pipes

D-4/82-83

4065.76 Rmt.

19,01,605.00

5601 280003

4

Flanges for ERW Pipes 12.3/4"

D-9/81-82

320 Nos.

2,04,080.00

353 017627

5

" "

D-10/81-82

470 Nos.

2,99,742.00

360 017954

6

" "

D-15/81-82

470 Nos.

2,99,742.50

359 017988

7

" "

D-3/82-83

470 Nos.

2,99,742.50

353 017650

8

" "

D-5/82-83

470 Nos.

2,99,472.50

355 017746

9

Flanges for 8" ERW Pipes

D-29/82-83

680 Nos.

2,93,420.00

5694 280168

10

"Flanges for 8" ERW Pipes

D-29/82-83

680 Nos.

2,93,420.00

5694 280168

11

Steel Tabular Platforms

D-27/82-83

222.75 Sq. Mt.

65409

5601 280023

12

-do-

D-28/82-83

228.75 Sq. Mt.

65705

5601 280023

13

-do-

LCB-38

222.75 Sq. Mt.

67012

360 017989

14

-do-

LCB-40

222.75 Sq. Mt.

64553

360 017980

He had recorded the measurements of sub-standard materials without checking the specifications laid down therefore, and recommended the payment of the bills to the Executive Engineer. Thus he has violated the provisions contained in Government Resolution, PWD-M- 2478(95) dated 6.4.1981 and paragraph 198 of PWD Manual Vol I.

(b) Shri Chauhan had irregularity recommended to the Executive Engineer for purchase of materials like 8" dia ERW pipes, 12" dia ERW pipes and flanges as indicated at Sr. No.s.2,4,5,7,8,9 and 10 mentioned in charge No.1 above and thereby violated the provisions of Rule 3 of Gujarat Civil Services (Conduct) Rules 1971.

(c) Shri Chauhan had not asked for specification and test results from the Executive Engineer before recording the measurements in the measurement book and thereby he has shown utter negligence in discharging government duties and he has breached provisions of Rule 3 of the Gujarat Civil Services (Conduct) Rules, 1971."

2.2. The writ applicant was also placed under suspension.

2.3. While the departmental inquiry was in progress, the State Government thought fit to pass an order of compulsory retirement in public interest in exercise of its power under Rule 161 of the Bombay Civil Services Rules, 1959. The order of compulsory retirement passed in public interest has been made a subject matter of challenge by way of an independent writ application being the Special Civil Application No.4750 of 1995.

2.4. The order of compulsory retirement dated 9th November, 1989 passed by the State Government, reads as under;

"Government of Gujarat,

Water Resources Department,

Order No.CSS/1287/10/E.S.

Sachivalaya, Gandhinagar.

Dated : 9 November, 1989.

ORDER:-

Shri S.D. Chauhan, Deputy Executive Engineer (Civil) was suspended vide Government in Narmada Development Department order No.S-9284-122-Part-II-E.4, dated 6.5.1986. As per existing government orders the cases of Government servants for continuance in Government Service beyond the age of 50/55 years are required to be reviewed. Accordingly the Government have reviewed the case of Shri S.D. Chauhan, Deputy Executive Engineer and has decided that in accordance with the clause (aa) (I) (1) of rule 161 (1) of the B.C. S.R.s 1959, as amended from time to time. Shri S.D. Chauhan, Deputy Executive Engineer (Civil) who is currently under suspension and placed under the Administrative control of the superintending Engineer, Narmada Project Main Canal Circle No.1, Vadodara should retired from Government service at once in the interest of public service.

Shri Chauhan, Deputy Executive Engineer (Civil) is hereby paid three month''s pay and allowance in lieu of the notice period as laid down under the clause (aa) (I) of the aforesaid rules.

The pending enquiries against him shall however, be continued against him under the relevant rules of B.C.S.R even after his retirement.

By order and in the name of the Governor of Gujarat.

(Kantilal Gohil)

Under Secretary to the Government of Gujarat.

Water resources Department."

2.5. Although the writ applicant was made to retire compulsorily in public interest in exercise of power under Rule 161 of the Bombay Civil Services Rules, yet the departmental inquiry continued.

2.6. The Inquiry Officer, in his report, held the charges to be proved. The Disciplinary Authority, acting on the report of the Inquiry Officer and other materials on record, thought fit to hold the writ applicant guilty of the alleged misconduct and, accordingly, passed an order, imposing the penalty of deduction of Rs. 500/- per month from the pension for all times to come.

2.7. Being dissatisfied with the action, and the impugned order of imposition of the penalty, the writ applicant has come up with this writ application.

Having heard the learned counsel appearing for the parties and having considered the materials on record, the following question of law falls for my consideration;

"whether the regular departmental inquiry initiated against the writ applicant on the alleged grounds of misconduct could have continued after the State Government thought fit to pass an order of compulsory retirement in public interest under the provisions of the Rule 161 of the Bombay Civil Services Rules 1959."

Rule 161 of the Bombay Civil Services Rules, 1959, reads as under;

"161(1)(a) Except as otherwise provided in the other clauses of this rule, the date of compulsory retirement of a Government servant other than a Class IV servant, is the date of which he attains the age of 58 years.

Provided-

(I) Deleted.

(II) Deleted.

(III) He may be retained in service after the date of compulsory retirement only with the previous sanction of Government on public grounds which must be recorded in writing.

(aa) Notwithstanding anything contained in clause (a)-

(I) An appointing authority shall, if he is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant to whom clause (a) applies by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice;

(1) If he is in Class I or Class II service or post or in any unclassified gazetted post, the age limit for the purpose of direct recruitment to which is below 35 years, on or after the date on which he attains the age of 50 years, and

(2) if he is in any other service or post, the age limit for the purpose of direct recruitment to which is below 40 years, on or after the date on which he attains the age of 55 years.

(ii) any government servant to whom clause (a) applies may, by giving notice of not less than three months, in writing to the Appointing Authority, retire from service after he has attained the age of 50 years, if he is in Class I or Class II service or post or in any unclassified gazetted post, the age limit for the purpose of recruitment to which is below 35 years and in any other case, after he has attained the age of 56 years.

Provided that it shall be open to the Appointing Authority to withhold permission to retire to a Government servant who is under suspension, or against whom Departmental proceedings are pending or contemplated and who seeks to retire under this sub-clause.

(b) A Government servant in Class IV service should be required to retire at the age of 60 years. He may not be retained in service after that age except with the sanction of Government.

(c) The following rules are applicable to particular services;

(I) Except as otherwise provided in the sub-clause, a holder of the post of the Chief Judge of the Court of Small Causes, Ahmedabad, whether he is recruited directly or is promoted from subordinate post, should ordinarily be retained in service till the age of 60 years, if he continues efficient upto that age otherwise he may be required to retire at the age of 58 years or at any time thereafter.

(ii)(1)Except as otherwise provided in this sub-clause, Government servants in the Bombay Services of Engineers, Class I, must retire on reaching the age of 58 years and may be required by Government to retire on reaching the age of 50 years if they have not attained to the rank of Superintending Engineer.

(2)Subject to the requirements of this sub-clause as to reappointment Government may, in special circumstances, which should be recorded in writing, grant an extension of service nor exceeding three months, to a Chief Engineer.

(3) No Chief Engineer shall, without re-appointment, hold the post for more than five years, but reappointment to the post may be made as often and in each case for such period not exceeding five years, as Government may decide, provided that the term of reappointment shall not extend more than three months beyond the date on which he attains the age of 58 years (Officiating service, unless followed by confirmation without interruption in such service, does not count towards the period of five years mentioned in this sub-clause).

(iii) Stipendiary patels appointed under section 16 of the Land Revenue Code 1879, and section 5 of the Village Police Act, 1867 may be required to retire at the age of 58 years but should ordinarily be retained in service if they continue efficient up to the age of 60 years. Extension of service after that ager should not be granted except in cases where no other suitable person is available or when a patel''s work is specially good provided the patel concerned is considered to be still fit for service.

(iv) The Principal Judge, Ahmedabad City Civil and Sessions Court, should be required to retire on attaining the age of 60 years.

(v) The Chief Metropolitan Magistrate for metropolitan area of the city of Ahmedabad should ordinarily be retained in service till the age of 60 years if he continues efficient up to that age, otherwise, he may be required to retire at the age of 58 years or at any time thereafter."

I take notice of an absolute right conferred on the government servant under Rule 161(2)(ii) to retire by giving not less than three months'' notice on his attaining the prescribed age. Such a right is, however, subject to the proviso thereto. Under the proviso, it is open to the Appointing Authority to withhold the permission to retire a government servant when (i) he is under suspension, or (ii) against whom departmental proceedings are pending or contemplated.

However, in the case in hand, the situation is altogether converse. Here, the departmental inquiry was going on and the Government thought fit to pass an order of compulsory retirement in public interest. I fail to understand, having once passed an order of compulsory retirement in the public interest, thereafter, how the regular departmental inquiry could have continued.

The learned AGP appearing for the State Government placed strong reliance in this regard on the resolution of the State Government dated 28th July, 1987 as well as the circular dated 22nd March, 1984. The plain reading of both do not indicate anything as submitted by the learned AGP. It is difficult for me to accept the argument that even after passing the order of compulsory retirement in public interest, the departmental inquiry could have continued and the disciplinary authority was justified in passing the order of penalty of deduction of Rs. 500/- per month from the pension. I have not been shown any provision of law or any rule or regulation, which permits the authority to continue with the departmental inquiry after an order of compulsory retirement in public interest is passed.

In the case of Chandra Singh v. State of Rajasthan & Anr., AIR 2003 SC 2889, the appellants, who were the officers of the Rajasthan Higher Judicial Service, were retired from the service with effect from 31st March, 1999 on attaining the age of superannuation. One of the appellants, namely, Mata Deen Garg had attained the age of 58 years on or about 4th September, 1999. The Supreme Court took the view that all those who had crossed the age of 58 years, their cases could not have been reviewed as on the said date. Despite the same, however, the Review Committee of the High Court considered the question whether having regard to their performance, their services should be extended or not in terms of exception contained in Rule 56 of the Rajasthan Civil Service (Condition) Rules, 1997; although the amended rules had not come into force. They were found ineligible for extension of their services and recommendations were made by the Full Court of the Rajasthan High Court that they be compulsorily retired in public interest. A Government order dated 23rd March, 1999, retiring the appellants with effect from 31st March, 1999 was issued and the same was communicated to them by the Registrar General of the High Court. A contention was put forward by the counsel appearing for the High Court that in the case of Mata Deen Garg, the departmental proceedings which had been initiated prior to the passing of the order of compulsory retirement in public interest could be kept pending despite the passing of the order of compulsory retirement impugned before the Supreme Court. The Supreme Court, while negativing such contention, pronounced as under;

" We also cannot accept the contention of Mr. Rao that in the case of Mata Deen Garg, the departmental proceedings could be kept pending despite the passing of the impugned order. The High Court had not passed any order in the departmental proceedings. It sought to invoke the jurisdiction which was conferred on the High Court and the State by reason of a statutory rule. A departmental proceeding can continue so long as the employee is in service. In the event, a disciplinary proceeding is kept pending by the employer the employee cannot be made to retire. There must exist specific provision in the pension rules in terms whereof, whole or a part of the pension can be withheld or withdrawn where for a proceeding has to be initiated. Furthermore, no rule has also been brought to our notice providing for continuation of such proceeding despite permitting the employee concerned to retire. In absence of such a proceeding, the High Court or the State cannot contend that the departmental proceedings against the appellant Mata Deen Garg could continue."

In the present case also, no rule or any regulation has been shown which permits the State Government to continue the departmental inquiry even after the delinquent is made to retire compulsorily in public interest. In substance, the effect of the order would be that the inquiry has been dropped for some reason or the other and the Government though fit to pass an order of compulsory retirement in public interest which is not in the form of punishment or any stigma. The legality and validity of such order of compulsory retirement would be, altogether, a different issue, which will be examined while deciding the connected writ application.

Although, in the order passed by the State Government of compulsory retirement it has been stated that the pending departmental inquiry shall continue under the relevant rules of the B.C.S.R, yet, no rule has been shown to me which permits or empowers the State Government to continue with the departmental inquiry once the employee is made to retire compulsorily in public interest.

Whether the departmental inquiry can be continued even after the retirement in the absence of any statutory provision providing specifically for that purpose came to be considered by the Supreme Court in Bhagirathi jena v. Board of Directors, OSFC & Ors., AIR 1999 SC 1841. In the said case, a charge sheet was issued to the delinquent employee in respect of the various items of alleged misconduct. The appellant was suspended; the disciplinary inquiry was not concluded before the date of the appellant''s superannuation. In paras- 6 and 7 of the Bhagirathi Jena (supra), the Apex Court held as under;

"6. It will be noticed from the above said regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of departmental enquiry after superannuation.

In view of the absence of such provision in the above said regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on June 30, 1995, there was no authority vested in the corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement."

What follows from the Supreme Court decision referred to above is that in view of the absence of any provision made, for continuance of the departmental inquiry after the superannuation, it must be held that the respondent had no legal authority to continue with the disciplinary inquiry. In the absence of such a provision, the order of punishment is liable to be held bad in law.

In S. Pratap Singh v. State of Punjab, AIR 1964 SC 72 : 1966-I-LLJ-458, it was laid down by the Supreme Court that there has to be a Specific provision under the law to take action against the person who has ceased to be in service.

The Supreme Court, in Bhagirathi Jena (supra), was dealing with a matter wherein the appellant had attained superannuation, whereas in the case in hand, the writ applicant was made to retire compulsorily in public interest. It should not make any difference so far as the proposition of law explained by the Supreme Court is concerned. The proposition is that in the absence of any specific rule or regulation, the departmental inquiry cannot be continued after the retirement, be it on attaining superannuation or compulsory retirement in public interest.

Mr. Raval has canvassed many other points challenging the legality and validity of the impugned order, but since I have thought fit to quash the same on the ground that the inquiry could not have continued, I have not gone into the other submissions canvassed on behalf of the writ applicant.

In view of the aforesaid discussion, this writ application succeeds and is hereby allowed. The impugned order dated 30th January, 1995 is hereby ordered to be quashed. The amount, i.e., Rs. 500/- deducted per month so far from the pension shall be refunded to the writ applicant within a period of eight weeks from the date of the receipt of the writ of the order. Rule is made absolute to the aforesaid extent.