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Judgment
The petitioner has filed the present petition seeking direction to the respondents to pay full pay, allowances and other consequential benefits by
treating him reinstated, by quashing the disciplinary proceedings and also the order dated 17th August, 2012 passed by the Chief Engineer, PWD
(Roads), Meghalaya, Shillong.
Briefly stated, the facts leading to the filing of the present petition are that the petitioner joined as Junior Engineer, PWD, Tura Sub-Division,
Meghalaya on 1st October, 1976. The petitioner stated that he rendered the service diligently, faithfully and without any blemish.
It is further stated by the petitioner that after serving the respondents for 18 years, he was placed under suspension vide order dated 25th
August, 1994. After a gap of about more than one year, a show cause notice dated 8th September, 1995 was served upon the petitioner under
Rule 9 of the Assam Service (Discipline & Appeal) Rules, 1964 (as adopted by the Government of Meghalaya) read with Article 311 of the
Constitution of India.
Feeling dissatisfied by the suspension order and the show cause notice, the petitioner filed a writ petition being WP(C) No. 202 (SH) of 2006
for quashing the suspension order dated 25th August, 1994 and the show cause notice dated 8th September, 1995.
The aforesaid writ petition was disposed of by this Court vide order dated 10th June, 2009 with several directions, including a direction that the
respondents were to complete the departmental enquiry initiated against the petitioner within a period of six months.
It is stated that since the petitioner was not furnished with the required documents by the respondents, he could not participate in the
departmental enquiry proceedings. The enquiry proceedings were held ex parte in the absence of the petitioner and were concluded, holding the
petitioner guilty of various charges.
It is also stated that the petitioner was communicated about the findings of the Enquiry Officer vide letter dated 1st June, 2010 requiring him to
submit his statement of defence within a period of two weeks. The petitioner, accordingly filed his representation dated 5th August, 2010
requesting the authorities to drop the entire departmental proceedings against him, as he has retired from service on superannuation, during the
pendency of the departmental proceedings initiated against him, and to release his outstanding salary, gratuity and other retiral benefits.
It is further stated that though the representation of the petitioner was received by the respondents, but they did nothing to dispose of the same,
despite having lapse of a period of more than one and a half year.
The petitioner again approached this Court by way of writ petition No. 49 (SH) of 2012 with certain prayers, reference of which will be made
in the later part of this judgment. The said petition was disposed of vide order dated 7th March, 2012 directing the respondents to dispose of the
representation of the petitioner dated 5th August, 2010 within a period of three months from the date of receipt of the copy of the order. The
petitioner was also granted liberty to approach this Court once again if aggrieved by the order passed by the respondent authorities.
It is also stated by the petitioner that the respondent No. 2 by order dated 17th August, 2012 disposed of the representation of the petitioner
dated 5th August, 2010, whereby the departmental proceedings initiated against the petitioner was dropped on the ground of his retirement from
service with effect from 28th February, 2007. The petitioner was treated as on duty w.e.f. 23rd August, 1994 till the date of his retirement.
However, the petitioner was subjected to the entitlement of pay and other allowances without any increment benefit, starting from the last pay
drawn prior to the issuance of the suspension order dated 23rd August, 1994 and further recovery in a single instalment of Rs. 2,78,948/- (Rupees
Two Lakhs Seventy Eight Thousand Nine Hundred and Forty Eight only) being the value of materials as per the list of unaccounted stock materials
under Chokpot Sub-Division from arrear pay, allowances and pensionary benefits.
Being aggrieved by the aforesaid order dated 17th August, 2012, the petitioner has preferred the present petition.
The petition has been opposed by the respondents by filing an affidavit-in-opposition. The respondents have denied the allegations made in the
writ petition. The respondents stated that there was no violation committed by the respondent authorities and the order was passed after complying
with prescribed procedure.
Learned counsel for the petitioner submitted that the order impugned was passed without assigning any cogent reason and without considering
the contents of his representation.
Learned counsel for the petitioner also contended that since the prescribed procedure was not adopted by the respondents in conducting the
departmental enquiry, no penalty, either minor or major, can be inflicted upon the petitioner within the meaning of Rule 9 of the Assam Service
(Discipline & Appeal) Rules, 1964.
It was further contended on behalf of the petitioner that the finding of withholding incremental benefits and payment of value of materials by the
respondents is without jurisdiction and is arbitrary. The impugned order was passed in a mechanical manner and without considering the grounds
taken by the petitioner in his representation dated 5th August, 2010.
Learned counsel for the petitioner also contended that since the petitioner retired on 28th February, 2007 no disciplinary proceedings can be
allowed to be continued and as such the same are liable to be quashed.
Per contra, learned counsel for the respondents contended that proper procedure was followed in conducting the departmental enquiry against
the petitioner. Enquiry Officer was appointed and departmental proceeding initiated against the petitioner and he was asked to submit his statement
of defence against the Allegations/Articles of Charges levelled against him. The petitioner was also asked to appear in person and was granted
permission to inspect the documents.
It is further contended on behalf of the respondents that in compliance of the order dated 7th March, 2012 passed by Shillong Bench of the
Gauhati High Court, the departmental proceedings and the representation of the petitioner dated 5th August, 2010 was thoroughly examined and
considered and finally disposed of vide impugned order dated 17th August, 2012. It is further submitted that according to the findings and
recommendations of the Enquiry Committee, as accepted and approved by the Government, penalties as per Rule 7 (ii) and (iii) of the Assam
Service (Discipline & Appeal) Rules, 1964 (as adopted by the Government of Meghalaya) were imposed on the petitioner, resulting in denial of
the incremental benefits and recovery of Rs. 2,78,948/- in one single instalment from the arrear pay of the petitioner and the same is within the
Government Rules and Regulations.
Learned counsel for the respondents further contended that the allegations against the petitioner were serious in nature and his conduct resulted
in huge loss to the Government funds and that the Government could not allow the same to go unaccounted at the cost of the State exchequer.
I have given my thoughtful consideration to the rival submissions made by learned counsel for both the parties. I have also carefully gone
through the material available on record.
The following six charges were considered by the Enquiry Officer against the petitioner:-
Charge No. 1) In-subordination
Charge No. 2) Gross negligence of duty
Charge No. 3) Misappropriation of Government property
Charge No. 4) Recording of false measurement
Charge No. 5) Submission of inflated bills causing financial loss to Government
Charge No. 6) Non-maintenance of integrity.
A perusal of the enquiry report submitted by Shri C.W. Momin, Additional Chief Engineer, P.W.D. (Roads), Western Zone, Meghalaya, Tura
shows that all the charges together with a statement of all the allegations were communicated in writing to the petitioner, and as per Rule 9 of the
Assam Service (Discipline & Appeal) Rules, 1964, the petitioner was required to submit a written statement of his defence. It is further stated in
the enquiry report that Shri Benulal Dutta (petitioner herein) was found to be reluctant to submit a written statement of his defence and this has
caused an inordinate delay in the investigation of the case.
Insofar as Charge No. 3 regarding the misappropriation of Government property is concerned, it was found that the material valued at Rs.
2,78,948/- pertaining to stock account of Chokpot Section remain unaccounted for, and the charge of misappropriation of Government property
hold good.
After giving findings of all the charges, the Enquiry Officer concluded as under:-
Following minor penalties may be contemplate-
i) Since the Government servant has already retired on superannuation while under suspension, the period of suspension may be
treated as duty and he may be exonerated retrospectively with full pay and allowances to which he would have been entitled, had he
not been suspended prior to retirement.
ii) Incremental benefit should not be considered.
iii) The value of the materials as per list of unaccounted Stock materials under Chokpot Sub-division should be recovered in a single
instalment from the incumbent''s arrear pay and allowance, leave salary etc.
Judicial review over the decision of the authorities holding departmental enquiry against its employees and officers is very much limited. The
Hon''ble Supreme Court in the case of ''State of Andhra Pradesh and others v. S. Sree Rama Rao'', AIR 1963 SC 1723 was pleased to observe
as under:-
7.......... The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision
of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by
an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice
are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and
which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the
High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence.
The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a
manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the
authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits
of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so
wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the
departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on
which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed
before the High Court in a proceeding for a writ under Article 226 of the Constitution.
The Shillong Bench of Gauhati High Court while disposing of the writ petition filed by the petitioner being WP(C) No. 202 (SH) of 2006, vide
order dated 10th June , 2009 also noted that the petitioner was charged with unaccounted loss of 14000 cement bags worth Rs. 3,87,274/-
(Rupees Three Lakhs Eighty Seven Thousand Two Hundred Seventy Four only) and further observed as under:-
Normally, a departmental enquiry is quashed by the Court in exercise of its jurisdiction under Article 226 of the Constitution when
the departmental authorities are found to be negligent in proceeding with the enquiry resulting in inordinate delay. However, keeping in
mind the fact that the charges levelled against the petitioner are serious in nature, the ends of justice will not be served by quashing the
departmental proceeding against the petitioner. Looking at the matter from all angles, I am of the view that the suggestion made by the
learned State counsel appears to be reasonable, which would serve the ends of justice.
In the result, this writ petition is disposed of with the following directions:
1) The State respondents are directed to speedup the departmental enquiry pending against the petitioner and complete
the same within a period of six months from today;
2) The petitioner shall be entitled to file his written statement of defence against the statement of allegations/articles of
charges levelled against him in the meantime;
3) The State respondents shall also release the subsistence allowance to the petitioner as admissible under the law within
a period of two months from today;
4) It is made clear that completion of the departmental enquiry against the petitioner will be subject to the cooperation
extended by the petitioner in the proceeding for speedy completion of the enquiry.
5) The State respondents shall also pay provisional pension to the petitioner within two months from today as the same
is admissible under the relevant rules.
It is worthwhile to mention here that the directions were given irrespective of the fact that the petitioner had retired in the year 2008.
Since the petitioner did not participate in the enquiry, the respondents proceeded to hold the enquiry in his absence, and the petitioner was
found guilty of several charges, including the charge of misappropriation of Government property. The findings of the Enquiry Officer were
communicated to the petitioner requiring him to submit his para-wise views in defence, which the petitioner submitted vide representation dated 5th
August, 2010. However, since no action was taken by the respondents on the said representation, the petitioner again approached the Court by
way of WP(C) No. (SH) 49 of 2012 with the following prayers:-
(i)Since the Govt. servant has already retired on superannuation while under suspension, the period of suspension may be treated as
duty and he may be exonerated retrospectively with full pay and allowances to which he would have been entitled, had he not been
suspended prior to retirement.
(ii) Incremental benefit should not be considered.
(iii) The value of materials as per list of unaccounted stock materials under Chakpot Sub-Division should be recovered in a single
instalment from the incumbents arrear pay and allowance, have salary etc.
From a perusal of the prayers as quoted herein above, it is clear that the petitioner himself prayed for exoneration retrospectively with full pay
and allowances to which he would have been entitled, had he not been suspended prior to retirement for not granting him incremental benefit and
for recovery of the value of materials as per list of unaccounted stock material under Chokpot Sub-Division in a single instalment from his arrear
pay and allowance, leave salary etc. Now, the petitioner took a summersault and has taken a contrary stand in the petition by challenging the
recovery and claiming all benefits.
The said petition was disposed vide order dated 7th March, 2012 and the respondents No. 2 and 3 were directed to dispose the
representation dated 5th August, 2010 within a period of three months from the date of receipt of the copy of the order.
After the direction of the Court vide order dated 7th March, 2012, the respondents considered the representation of the petitioner and passed
the order dated 17th August, 2012 thereby dropping the departmental proceedings against the petitioner and his services were treated to be on
duty w.e.f. 23rd August, 1994 till the date of his retirement i.e. 28th February, 2007. The petitioner was, however, held entitled to pay and
allowances without any incremental benefits and in view of the finding of the enquiry report of the Enquiry Officer, the value of materials amounting
to Rs. 2,78, 948/- (Rupees Two Lakhs Seventy Eight Thousand Nine Hundred Forty Eight only) as per list of unaccounted stock materials under
Chokpot Sub-Division was ordered to be recovered in single instalment from the arrear pay and allowances to be drawn by the petitioner.
As per the findings arrived at by the Enquiry Officer, the petitioner had caused loss to the exchequer, which is to be recovered from him.
In the case of ''State of U.P. and others v. Harihar Bholenath'' (2006) 13 SCC 460, the Hon''ble Supreme Court held as under:-
A departmental proceeding can be initiated for recovery of amount suffered by the State exchequer owing to the acts of
omission or commission of a delinquent employee in three different situations:
(i) when a disciplinary proceedings is initiated and concluded against a delinquent employee before he reaches his age of
superannuation;
(ii) when a proceeding is initiated before the delinquent officer reached his age of superannuation but the same has not
been concluded and despite the superannuation of the employee, an order of recovery of the amount from the pension
and gratuity is passed; and
(iii) an enquiry is initiated after the delinquent employee reaches his age of superannuation.
Further, in the case of ''State of West Bengal v. Haresh C. Banerjee and Others'', (2006) 7 SCC 651, the Hon''ble Supreme court observed
that if the Government incurs pecuniary loss on account of the misconduct or negligence of a Government servant, and if he retires from service
before any departmental proceeding is taken against him, it is open to the State Government to initiate departmental proceedings. Thus, the
argument of the counsel for the petitioner that since the petitioner had retired, hence, no disciplinary proceedings can be allowed to be continued,
falls to the ground.
It is a settled legal position that with the retirement of the employee, the employer employee relationship snaps. Therefore, unless there is an
allegation of Government suffering financial loss on account of the misconduct or negligence of the retired employee, the departmental proceedings
after his retirement cannot continue.
In another case ''State of Uttar Pradesh v. Brhama Datt Sharma and Anr.'' (1987) 2 SCR 444, the Hon''ble Supreme Court observed that if
the Government incurs pecuniary loss on account of the misconduct or negligence of a Government servant, and if he retires from service before
any departmental proceedings are taken against him, it is open to the State Government to initiate departmental proceeding, and if in those
proceedings, he is found guilty of misconduct, negligence or any other such act or omission, as a result of which the Government is put to pecuniary
loss, the State Government is entitled to withhold, reduce or recover the loss suffered by it by forfeiture or reduction of pension. It was also held
that merely because a Government servant retires from service on attaining the age of superannuation he cannot escape the liability of misconduct
and negligence or financial irregularities. Thus, there is nothing wrong on the part of the respondents to recover the loss from the retiral benefits of
the petitioner even after his retirement.
In the case in hand, the petitioner was found to have caused loss to the State exchequer and he was also ready to reimburse the said loss by
making a prayer in the earlier writ petition, thus, he cannot be allowed to go unpunished on the plea that he has retired and that the proceedings
against him were dropped.
In view of the foregoing discussion, I do not find any ground to interfere with the impugned order dated 17th August, 2012 passed by the
respondents. The writ petition, therefore, fails and deserves to be dismissed and the same is hereby dismissed.
No order as to costs.