State of
Maharashtra Vs. M.H. Mazumdar [1988] INSC 54 (24 February 1988)
Singh,
K.N. (J) Singh, K.N. (J) Venkataramiah, E.S. (J) Ojha, N.D. (J)
CITATION:
1988 AIR 842 1988 SCR (3) 31 1988 SCC (2) 52 JT 1988 (1) 432 1988 SCALE (1)402
CITATOR
INFO : R 1989 SC1843 (23)
ACT:
Bombay
Civil Services Rules, 1959: Rules 188 and 18
Pension-Reduction/withdrawal-Whether permissible.
Government
servant-After retirement of attaining the age of superannuation-Whether liable
to departmental action for misconduct, negligence or financial irregularities
committed during service period - Whether pension can be reduced.
HEAD NOTE:
% The
respondent retired from State Government service on September 1, 1987, on attaining the age of superannuation.
About
a year after his retirement, the respondent was served with a chargesheet
containing allegations of misconduct and negligence for the period he was in
service. Enquiry into the charges was held and respondent was afforded full
opportunity to defend himself. On the conclusion of the enquiry a report was
submitted by the Collector, holding that one of the two charges was established
while the other charge was partly proved, and that the respondent's action was
helpful to one of the parties which amounted to a serious default on his part
as a Government servant, and it was recommended that since the respondent has
already retired from service, a lenient view should be taken and reduction in
pension to the extent of Re. 1 per month be made. The State Government accepted
the findings and issued orders reducing the amount of pension payable to the
respondent by 50% permanently under Rule 188 of the Bombay Civil Services
Rules.
The
respondent challenged the validity of the Government order before the High
Court. A Division Bench of the High Court allowed the writ petition and quashed
State Government's order on the ground that the State Government had no
authority in law to take any disciplinary proceedings against respondent as he
had already retired from service and the initiation of disciplinary enquiry and
the order of punishment were unauthorised and illegal.
Allowing
the appeal by the State. partly, 32 ^
HELD:
1.1 Rule 188 of the Bombay Civil Services Rules empowers the Government to
reduce the amount of pension of a Government servant whose service has not been
thoroughly satisfactory. Rule 189 expressly confers power on the Government to
withhold or withdraw any part of the pension payable to Government servant for
misconduct which he may have committed while in service, after giving
opportunity of defence in accordance with the procedure specified in Note I of
Rule 33 of the Bombay Civil Services Conduct Discipline and Appeal Rules. The
State Government's power to reduce or withhold pension by taking proceedings
against Government servant even after retirement is thus expressly preserved by
the aforesaid rules. [34C, F-H]
1.2
The High Court committed a serious error in holding that the State Government
had no authority to initiate any proceedings against the respondent. The purpose
of the enquiry was not to inflict any punishment, and the proceedings were
initiated for determining respondent's pension. The proceedings were taken in
accordance with the Rules 188 and 189 of the Rules. [35C-E]
1.3
The Government had power to reduce the pension payable to the respondent but
having regard to the facts and circumstances of the case, the reduction of
pension by 50% was too harsh and disproportion ate to the misconduct proved
against the respondent. The State Government should have taken into
consideration the fact that the respondent had retired from service and the
reduction of pension by 50% would seriously affect his living. The order of the
High Court and the State Government's order reducing pension by 50% are set
aside and the State Government is directed to reconsider the question of
reduction of respondent's pension. [35E-F; 36E-G] B. J. Shelet v. State of Gujarat & ors., [1978] 2 SCC 202,
distinguished.
M. Narasimhachar
v. The State of Mysore, [1960] 1 SCR 981 and State of Uttar Pradesh v. Brahm Datt Sharma & Anr.,
[1987] 2 SCC 179, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 573 of 1988 From the Judgment and
order dated 13.2.1987 of the Bombay High Court in W.P. No. 613 of 1984.
33
A.M. Khanwilkar and A.S. Bhasme for the Appellant.
B.N. Singhvi
and A.K. Gupta for the Respondent.
The
Judgment of the Court was delivered by SINGH, J. Special leave granted.
This
appeal raises an important question of law whether a Government servant after
his retirement on attaining the age of superannuation is liable to be dealt
with departmentally for any misconduct, negligence or financial irregularities
committed by him during the period of his service.
Necessary
facts giving rise to this appeal are that M.H. Mazumdar, the Respondent was in
the service of the State of Maharashtra as
Supply Inspector and he retired from service on attaining the age of
superannuation on September
1, 1977. After his
retirement the respondent was served with a charge-sheet on October 16, 1978 containing allegations of
misconduct and negligence against him for the period he was in service. Enquiry
into those charges was held and the respondent was afforded full opportunity to
defend himself.
On the
conclusion of the enquiry the State Government issued orders on December 4, 1982 reducing the amount of pension
payable to the respondent by 50 per cent permanently under Rule 188 of the
Bombay Civil Services Rules. The respondent challenged the validity of the
Government's order by means of a writ petition under Article 226 of the
Constitution before the High Court of Bombay. A Division Bench of that Court
allowed the writ petition and quashed the State Government's order dated December 4, 1982 on the ground that the State
Government had no authority in law to take any disciplinary proceedings against
the respondent as he had already retired from service. Placing reliance on a
decision of this Court in B.J. Shelet v. State of Gujarat & Ors.
[1978]
2 SCC 202 the High Court held that the initiation of disciplinary enquiry and
the order of punishment was unauthorised and illegal. The State of Maharashtra has preferred this appeal against
the judgment of the High Court.
There
is no dispute that the respondent had retired from service on attaining the age
of superannuation on September
1, 1977 and charges
were served on him on October
16, 1978 after about a
year of his retirement. Undisputably the proceedings against the respondent
were initiated after the respondent ceased to be in service of the State 34 Government.
The proceedings culminated into an order of the State Government reducing the
respondent's pension by 50 per cent. The question is whether the State
Government was competent to take action against the respondent by reducing his
pension. Conditions for grant of pension to a Government servant of the State
of Maharashtra are regulated by the Bombay Civil
Services Rules (hereinafter referred to as the Rules). Rule 184 provides for
grant of pension admissible under the rules to Government servant who is borne
on its establishment. Rules 188 and 189 relevant for our purpose are as under:
"188.
Government may make such reduction as it may think fit in the amount of the
pension of a Government servant whose service has not been thoroughly
satisfactory." "189. Good conduct is an implied condition of every
grant of pension. Government may withhold or withdraw a pension or any part of
it if the pensioner be convicted of serious crime or be found to have been
guilty of grave misconduct either during or after the completion of his
service, provided that before any order to this effect is issued, the procedure
referred to in Note I to Rule 33 of Bombay Civil Services Conduct, Discipline
and Appeal Rules shall be followed." The aforesaid two Rules empower Government
to reduce or withdraw a pension. Rule 189 contemplates withholding or
withdrawing of a pension or any part of it if the pensioner is found guilty of
grave misconduct while he was in service or after the completion of his
service. Grant of pension and its continuance to a Government servant depend
upon the good conduct of the Government servant. Rendering satisfactory service
maintaining good conduct is a necessary condition for the grant and continuance
of pension. Rule 189 expressly confers power on the Government to withhold or
withdraw any part of the pension payable to a Government servant for misconduct
which he may have committed while in service.
This
Rule further provides that before any order reducing or withdrawing any part of
the pension is made by the competent authority the pensioner must be given
opportunity of defence in accordance to the procedure specified in Note I to
Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal Rules. The
State Government's power to reduce or withhold pension by taking proceedings
against a Government servant even after his retirement is expressly preserved
by the aforesaid Rules.
35 The
validity of the Rules was not challenged either before the High Court or before
this Court. In this view, the Government has power to reduce the amount of
pension payable to the respondent. In M. Narasimhachar v. The State of Mysore,
[1960] 1 SCR 981 and State of Uttar Pradesh v. Brahm Datt Sharma & Anr.,
[1987] 2 SCC 179 similar Rules authorising the Government to withhold or reduce
the pension granted to the Government servant were interpreted and this Court
held that merely because a Government servant retired from service on attaining
the age of superannuation he could not escape the liability for misconduct and
negligence or financial irregularities which he may have committed during the
period of his service and the Government was entitled to withhold or reduce the
pension granted to a Government servant.
The
High Court in our view committed serious error in holding that the State
Government had no authority to initiate any proceedings against the respondent.
In B. J. Shelat v. State of Gujarat & Ors. disciplinary proceedings had
been initiated against the Government Servant for purpose of awarding punishment
to him after he had retired from service. The ratio of that decision is not
applicable to the instant case as in the present case the purpose of the
enquiry was not to inflict any punishment; instead the proceedings were
initiated for determining the respondent's pension. The proceedings were taken
in accordance with Rules 188 and 189 of the Rules. It appears that the
attention of the High Court was not drawn to these Rules.
The
State Government had power to reduce the pension payable to respondent but having
regard to the facts and circumstances, of the case we are of the opinion that
the reduction of pension by 50 per cent was disproportionate to the charges
proved against the respondent. Two charges were framed against the respondent
which are as under:
"Charge
No. 1.
He has
made a farce of an enquiry, collected 6 permits from the Kolhapur Central
Co-operative Consumers Stores including the permit No. 007314 issued to Shri
K.P. Khatavane with malafide intention after passing a receipt thereof to the Godown
Keeper, of the said stores on 12.6.1974 and thereby tried to shield Shri K.P. Khatavane
and his sons Baban Khatavane from criminal prosecution.
Charge
No. 2.
He has
deliberately and intentionally denied to have made 36 any enquiry regarding unauthorisedly
lifting of 10 bags of Sugar on bogus or forged permit by Shri Baban Khatavane
even though he was deputed for such enquiry by Shri A.R. Mane District Supply
officer, Kolhapur and he had actually recorded the statement of Shri S.L. More,
Godown Keeper of the said stores and Shri Hari Santu Pande, Cart driver and
also collected above mentioned 6 permits from Shri More after passing a receipt
thereof. By denying the above fact he has helped Shri A.R. Mane, District
Supply officer, Kolhapur for suppressing the case. His
failure in this regard leads to belief that he has conspired with Shri K.P. Khatavane
and his son Shri Baban Khatavane with some ulterior motive and abatted them in
the disposal of sugar in black market." On conclusion of the enquiry charge
No. 1 was found to have been established while charge No. 2 was partially
proved. In his report to the State Government the Collector of Kolhapur held
that the respondent's action was helpful to Shri Khatavane to sell the sugar in
the black market, and it amounted to a serious default on his part as a
Government servant. He recommended that since the respondent had already
retired from service a lenient view should be taken and reduction in pension to
the extent of Re. 1 per month be made The State Government accepted the
findings and passed the impugned order reducing the pension by 50 per cent In
our view the reduction of pension 50 per cent was too harsh and
disproportionate to the misconduct proved against the respondent. The State
Government should have taken into consideration the fact that the respondent
had retired from service and the reduction of pension by 50 per cent would
seriously affect his living.
Accordingly,
we allow the appeal partly, and set aside the order of the High Court dated February 13, 1987, and the State Government's order
dated December 4, 1982 and direct the State Government to
reconsider the question of reduction of respondent's pension. There will be no
order regarding costs.
N.P.V.
Appeal allowed.
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