State Of Mp & Others vs Suresh Chandra Shete

Heard.

This order shall govern the disposal of W. A. No.991/2017 also. For the sake of convenience, the facts are borrowed from W. A. No.990/2017.

Heard on I.A. No.14685/2017, which is an application for condonation of delay. The writ appeal is barred by 173 days.

It is submitted that due to procedural delay, the appeal could not be filed in time. Considering the explanation given in para-3 of the application, we

are of the view that the cause shown by the appellants is sufficient to condone the delay of 173 days.  Accordingly, I. A. No.14685/2017 is

allowed and stands closed. Delay in filing the appeal is hereby condoned.

The respondent before this Court had filed W. P. No.2015/2016, being aggrieved by the order dated 24.11.2015, which has been passed after his

retirement directing recovery of Rs.81,784/- from the terminal dues. In fact, punishment of stoppage of 2 increments has been inflicted upon him

and as he is a retired government servant, the amount he has received by virtue of 2 increments has been calculated and a sum of Rs.81,784/- is being

recovered. In the impugned order, recovery of Rs.14.25 lacs has also been ordered against the respondent.

Brief facts of the case are that the respondent was serving on the post of Superintending Engineer in the Public Works Department and while he

was in service, a charge sheet was issued by the appellants. The charge sheet was undisputedly issued under Rule 14 of the M. P. Civil Services

(Classification, Control and Appeal) Rules, 1966 (in short “the Rules of 1966â€) on 19.02.2014. The respondent did not submit a reply to the

amputation of misconduct and while the disciplinary proceedings were pending, the respondent has attained the age of superannuation on

30.04.2015. The appellants have thereafter passed the impugned order inflicting punishment based upon the charge sheet. It is an undisputed fact

that charge sheet was issued under Rule 14 of the Rules of 1966 on the alleged misconduct in the matter of construction of road and the respondent

did submit a reply denying the allegations levelled against him.

The appellants after retirement of the respondent taking into account reply of the respondent which was in respect of Rule 14 charge sheet, has

inflicted a punishment of stoppage of 2 increments and have also inflicted recovery to the tune of Rs.14.25 lacs.

The contention before learned Writ Court was that after retirement, punishment of stoppage of 2 increments cannot be imposed upon the

respondent as he is a retired government servant and, therefore, the impugned order is bad in law.

One of the submission before learned Writ Court was that once Rule 14 charge sheet has been issued, in all fairness, appellants should have

concluded departmental enquiry in the light of Rule 9 of the M. P. Civil Services (Pension) Rules, 1976 (in short “the Rules of 1976â€), the

appellants were competent to impose punishment as provided under Rule 9.

The stand of the appellants/State was that the order was passed by the competent authority and it does not warrant any interference. It was

argued that though charge sheet was issued under Rule 14 of the Rules of 1966, however, punishment of stoppage of 2 increments have been inflicted

which is a minor punishment and the recovery has been ordered which is again minor punishment. The question of holding departmental enquiry, as

contemplated under Rule 14 does not arise. The impugned order has been passed after obtaining necessary permission/approval from the M. P.

Public Service Commission and prayed for dismissal of the writ petition.

Learned Writ Court considered the fact that the respondent was subjected to disciplinary proceedings prior to his retirement and charge sheet was

issued on 19.09.2014 under Rule 14 of the Rules of 1966. The respondent has attained the age of superannuation on 30.04.2015. The impugned

order has been passed by the appellants on 24.11.2015, undisputedly after his retirement.

The respondent is a retired government servant and punishment of stoppage of 2 increments cannot be inflicted upon a government retired

servant. It is also held that procedure as prescribed under Rule 14 of the Rules of 1966 was not followed while issuing order of punishment.Â

Learned Writ Court also held that after retirement of the respondent, the appellants could have certainly concluded the departmental

enquiry/disciplinary proceedings by following the statutory provisions, as contained under Rule 9 of the Rules of 1976 and the same has not been done.

Relevant part of the impugned order dated 06.02.2017 reads as under :-

Undisputed facts of the case reveal that the petitioner was subjected to disciplinary proceedings prior to his retirement and charge sheet was issued on

19/9/2014 under Rule 14 of the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966. The petitioner has attained the age of

superannuation on 30/4/2015. The impugned order has been passed by the respondent on 24/11/2015, undisputedly after his retirement.

It is true that the respondents have inflicted punishment of stoppage of 2 increments in the matter, but the fact remains that the petitioner is a retired

Government servant and the punishment of stoppage of 2 increments cannot be inflicted upon a retired Government servant. The respondents have

passed an order of recovery of Rs.81,784/- which is an amount equivalent to the amount which the petitioner has received on account of grant of 2

increments during his service career. Such type of practice is unheard of in the service jurisprudence.Â

Rule 14 of the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 provides for a procedure which is required to be followed in the

matter for imposition of major penalty. The aforesaid procedure has not been followed. Even if it is assumed that the respondents have inflicted minor

punishment and, therefore, the procedure prescribed under Rule 14 was not required to be followed, but the fact remains that penalty of stoppage of 2

increments could not have been inflicted upon the retired Government servant and, therefore, the impugned order is bad in law.

Rule 9 of the M.P. Civil Services (Pension) Rules, 1976 reads as under :

“9. 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 reemployment 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 [x x x], if instituted while the Government servant was in service whether before his retirement or during his

reemployment, 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 --- 6 ---

his reemployment:-

(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 reemployment,

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 subrule(2), a provisional pension and deathcumretirement

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,â€​ 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 form an earlier date, on such date; and

(b) judicial proceedings shall be deemed to be initiated-

(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.â€​

In the present case, after the retirement of the petitioner the respondents could have certainly conclude the Departmental Enquiry / disciplinary

proceedings by following the statutory provisions as contained under Rule 9 of the M. P. Civil Services (pension) Rules, 1976. The same has not been

done.

Resultantly, this Court is of the considered opinion that the impugned order dt. 24/11/2015 (Annexure P/1) deserves to be quashed and is accordingly

hereby quashed.

The present Writ Petition stands allowed.

A copy of this order be kept in the record of the connected Writ Petitions.

At this stage, learned counsel for the petitioner has informed this Court that the petitioner is an innocent person and he has been victimised at the best

of one M.L.A. for oblique and ulterior motive as he has filed a frivolous complaint against the petitioner.

This Court is of the considered opinion that as the MLA named in the Writ Petition is not before this Court, there is no need to comment upon in

respect of the aforesaid contention.

The Writ Petitions are allowed. No order as to costs.

Learned Government Advocate has submitted that amount of penalty imposed and/or recovery of loss caused to the State Government falls under

the category of minor penalty and as per Rule 14 of the Rules of 1966, no departmental enquiry is required for imposing minor punishment. Learned

Writ Court without appreciating the provisions of Rule 65 of the Rules of 1976 erred in allowing the writ petition.

On due consideration of the arguments of the learned counsel for the parties so also the fact that during pendency of departmental enquiry,

respondent has retired and no proceeding was concluded under Rule 9 of the Rules of 1976, we are of the view that learned Writ Court has rightly

quashed the order and allowed the writ petition. No case to the interfere with the well reasoned order, as prayed is made out. The writ appeal

filed by the appellants has no merit and is accordingly, dismissed.

A copy of this order be kept in the record of W. A. No.991/2017 also.