Takhatry
Shivadattray Mankad Vs. State of Gujarat [1989] INSC 180 (5
May 1989)
Pandian,
S.R. (J) Pandian, S.R. (J) Oza, G.L. (J)
CITATION:
1989 AIR 1843 1989 SCR (3) 214 1989 SCC Supl. (2) 110 JT 1989 (3) 33 1989 SCALE
(1)1244
ACT:
Bombay
Civil Services Conduct, Discipline and Appeal Rules, 1958--Rules 188 &
189--Pension and gratuity--Reduction of--Proceedings--Whether can be taken
after a Government servant's retirement.
Junagadh
State Pension & Parwashi Rules 1932--Rule 241A, Clauses 3, 13 and 15--Government
servant--Reduction in pension and gratuity--Whether permissible.
HEAD NOTE:
This
appeal is directed against the order of the Gujarat High Court upholding the
order dated the 15th
November, 1977 passed
by the State of Gujarat whereby the amounts of gratuity and
pension payable to the appellant on superannuation were reduced by 50 per cent.
The
appellant was born on January 15, 1909 and after obtaining a Degree in Bachelor
of Engineering (Civil) joined the service in the former State of Junagarh and
as such was governed by the Junagadh State Pension and Parwashi Allowances
Rules of 1932 which were duly codified and published in the Junagadh State
Account Code, State of Junagadh was integrated into the State of Saurashtra on
20.1.1949 and the services of the appellant were absorbed in the State of Saurashtra.
The conditions of service of the absorbed servants were duly protected and a
proclamation providing a guarantee that the service conditions of absorbed
servants could not be varied to their disadvantage was issued on 20.1.49--that
being the date of merger of the State.
The
State of Saurashtra made the Saurashtra Covenanting
State Servants (Superannuation Age) Rules, 1955. Rule 3(i) thereof provided
that a Government servant shall, unless for special reasons otherwise directed
by Government retire from service on his completing 55 years of age. After the
merger of the State of Saurashtra with State of Bombay the old Bombay
Civil Service Rules, 1959 were made applicable to Saurashtra area and on 1.7.59
the Bombay Civil Service Rules, 1959 were promulgated. As per clause (c)(2)(ii)(1)
of Rule 161, Government servants in the Bombay Service of Engineers Class I
were to retire on reaching the age of 55 years.
215
The appellant was compulsorily retired by the State on 12.10.1961 with effect
from 12.1.1962 when he had completed the age of 53 years. The appellant
challenged that order by means of writ before the High Court and having
remained unsuccessful he took up the matter before this Court and this Court by
its judgment dated 9.4.69 allowed the appeal and declared that the appellant
was entitled to remain in service until he attained the age of 55 years and
that the impugned order compulsorily retiring him at the age of 53 years was
invalid and ineffective.
In
order to give effect to this Court's order mentioned above, the Government of
Gujarat on 4.8.69 intimated the appellant that he will be deemed to have
remained in service uptil 14.1.64, when he attained the age of 55 years. as he
had attained that age prior to the decision of this Court.
In the
meantime the age of superannuation of the employees of the State of Gujarat had been raised from 55 years to 58
years. The appellant in order to take benefit of the change moved a writ
petition before the High Court of Gujarat but remained unsuccessful. Thereupon
he filed a special leave petition before this Court. This Court by its order
dated 21.7.1975 declined to interfere. Thus the appellant was not entitled to
continue in service beyond 55 years of age.
It may
be mentioned that prior to his compulsory retirement there were three
departmental inquiries pending against the appellant, on grounds of slackness
in supervision.
overpayment
to contractors and loss to the Government and payment in advance of the receipt
of goods. The first inquiry was initiated on 6.2.61. second on 11.4.1963 and
the third on 17.8.63. These inquiries remained pending against the appellant
till 1971.
The
appellant filed yet another Special Civil Application No. 504 of 1971 before
the High Court praying for issue of a writ of mandamus directing the State to
pay to the appellant all his outstanding salary. allowances. including due
increments after the efficiency bar from 12.1. 1902 to 14.1. 1964 together with
6% interest. An application for interim relief was also filed but was withdrawn
later on the representation perhaps made by the State that the enquiries had
become infructuous consequent to appellant's retirement.
In the
meanwhile the State of Gujarat issued a show cause notice dated 17.7.1971 to
the appellant intimating him that the Government 216 considered his service
record and did not find the same thoroughly satisfactory for the reasons
mentioned in the said notice and accordingly the Government proposed to make
50% reduction both in the payment of Gratuity and Pension admissible to him.
The appellant submitted his reply and these proceedings due to laches on the
part of the appellant went on for a considerable time and the Government passed
the final order on 15.11.1977 reducing the Pension and Gratuity by 50 per cent.
To
challenge this Order the appellant again filed Special Civil Application before
the High Court for quashing the order reducing his Pension and gratuity. The
High Court dismissed the application in limine on 8.3.1978 observing that in
the present case the Government recorded reasons why it came to the conclusion
that the petitioner's Service was unsatisfactory and therefore, put a
proportionate cut in the Pension. as no case of discrimination was made out.
The appellant, preferred Letters Patent Appeal. against the order passed by the
Single Judge. His contention before the Division Bench was that he continued to
be governed by the Junagadh Rules in spite of the fact that the Bombay Rules
were sought to be made applicable to him. His alternative contention was that
even if the Bombay Rules were to be made applicable, so far as the question of
payment was concerned, inasmuch as they were not less advantageous on
compulsory retirement. proportionate pension was payable to the appellant under
the Bombay Rules of 1959. The Division Bench held that under either set of
Rules, it was open to the State Government to reduce the amount of pension
payable to the petitioner as his service had not been found satisfactory by the
State under Junagadh Rules as also under Bombay Civil Service Rules. The High
Court accordingly dismissed the Letter Patent Appeal. Hence this appeal.
It was
contended on behalf of the appellant that the High Court went wrong in
upholding the impugned order reducing the amounts of pension & gratuity in
exercise of its power under Rules 188 and 189 of the Bombay Rules, as it had
already been ruled by this Court in its judgment in Civil Appeal No. 409 of
1966, that Bombay Rules could not be made applicable to the appellant. It was
urged that the appellant was not governed by Saurashtra Rules either, and it
was asserted that either in the show cause notice or in the impugned order. it
Is nowhere specifically stated as to under what set of Rules, the impugned
order Imposing a cut in the Pension or Gratuity has been passed. A contention
was also raised based on clauses 3, 13 & 15 of Rule 241 -A of Junagadh
Rules stating that they operate in different fields. It was added that no
inquiry as contemplated under Rule 189 had been made and admittedly the State
had stated before the High Court that 217 the departmental inquiries had become
infructuous consequent upon the retirement of the appellant.
According
to the counsel for the State the appellant having been retired in pursuance of
a judicial order passed by this Court, he cannot now be heard that his
retirement at the age of 55 years should be construed as compulsory
retirement--the superannuation age having been increased to 60 years under Junagadh
Rules, that the retirement of the appellant is normal one; he was entitled to
pension under Rule 241 of the Junagadh Rules and the State has passed the
impugned order after complying with the provisions of Rules
or
gratuity be not reduced.
Dismissing
the appeal. this Court,
HELD:
Rules 188 and 189 have expressly preserved the State Government's power to
reduce or withhold pension by taking proceedings against a Government Servant
even after his retirement. [229H; 230A] In the instant case, in accordance with
the procedure specified in Note I to Rule 33 of the Bombay Civil Services
Conduct, Discipline and Appeal Rules a show cause notice had been issued to the
appellant on 17.7.71 calling upon him to show cause within 30 days from the
date of the receipt of the notice as to why the proposed reduction should not
be made in the Pension and death-cum-retirement gratuity. The appellant failed
to avail that opportunity to disprove the allegations and satisfy his
appointing authority that he rendered satisfactory service throughout. It was
in those circumstances the appointing authority thought fit to impose reduction
on the Pension and gratuity in accordance with Rules 188 and 189 of the Bombay
Rules on the ground that the appellant had not rendered satisfactory service.
The appellant is not entitled to take advantage of clause (b)(ii) of the
proviso to Rule 189-A since the proceedings had been instituted long before his
retirement. Further as per clause (a) of the said proviso the proceedings were
already instituted long before his retirement. Further as per clause (a) of the
said proviso, the proceedings already instituted while the Government servant
was in service could be continued and concluded even after his retirement.
Therefore the order dated 15.11.1977 reducing the pension and gratuity cannot
be said to contravene the Bombay Rules. [231A-E] A combined reading of clauses
3, 13 and 15 of Rule 241-A of 218 Junagadh Rules shows that clause 3 is an
exception to the general scheme laid down in clauses 13 and 15. [228C] Bholanath
J. Thakar v. State of Saurashtra, AIR 1954 SC 680; Dalip Singh v. State of
Punjab, [1961] 1 SCR 88; Moti Ram Deka etc. v. General Manager NEF Railways, Maligaon,
Pandu etc., [1964] 5 SCR 683; State of Maharashtra v. M.H. Mazumdar, [1988] 2
SCC 52 and M. Narasimhachar v. State of Mysore, [1960] 1 SCR 981, referred to.
State
of U.P. v. Brahm Datt Sharma, [1987] 2 SCC
179, followed.
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3726 of 1984.
From
the Judgment and Order dated 8.8.1981 of the Gujarat High Court in L.P.A. No.
145 of 1978.
B.K.
Mehta and M.V. Goswami for the Appellant.
G.A.
Shah and M.N. Shroff for the Respondent.
The
Judgment of the Court was delivered by RATNAVEL PANDIAN, J. This is an appeal
by special leave from the judgment of the Gujarat High Court dismissing the
appeal made in Letters Patent Appeal No. 145 of 1978 arising from the order
passed in Special Civil Application No. 268 of 1978 of the said High Court.
As
this case has a chequerred history spreading over decades, we feel that the
relevant facts that are necessary for the disposal of this appeal are to be
stated in brief.
The
appellant was born on 15th
January, 1909 and he
obtained the Degree of Bachelor of Engineering (Civil). He joined the service
of the erstwhile State of Junagadh in Saurashtra
region on 1st August,
1934. While the
appellant was in the service of Junagadh State, he was governed by the Junagadh
State Pension & Parwashi Allowances Rules of 1932 (hereinafter called as
"Junagadh Rules) which had been published in the official Gazette of that
State and which were subsequently codified and published in the Jugagadh State
Account Code. Rule 241-A of the aforesaid Junagadh Rules provided for pension
and Parwashi Allowances. The State of Junagadh was integrated into the State of Saurashtra on 20th
January, 1949.
Thereafter the appellant was absorbed in the service of the State 219 of Saurashtra.
The supplementary Covenant which brought about the integration read with Art.
16 of the main Covenant expressly protected the conditions of the service of
the absorbed servants and the protection was also statutorily recognised by the
Saurashtra Ordinance 3 of the 1949 read with Ordinance 1 of 1948. A
proclamation providing a guarantee that the conditions of service could not be
varied to the disadvantage of the Covenanting State servants was also issued in that
behalf on 20th January
1949 which was the
date of the merger of the State into the State of Saurashtra.
Based
on the decision of this Court in Bholanath J.
Thakar
v. State of Saurashtra, A.I.R. 1954 S.C. 680 wherein it was held that the rules
as regards the age of superannuation which prevailed in the covenanting State
which in that case was the State of Wadhwan, continued to cover those
Government servants who had come from that State and had been absorbed in the
services of the State of Saurashtra.
The
State of Saurashtra made the Saurashtra Covenanting
State Servants (Superannuation Age) Rules 1955 (hereinafter called as "Saurashtra
Rules") in exercise of the powers conferred by Art. 309 of the
Constitution of India. Rule 3(i) provided:
"A
Govt. servant shall, unless for special reasons otherwise directed by
Government retire from service on his completing 55 years of age." After
the integration of the Saurashtra State into the State of Bombay a resolution was passed by the
Government on 7th
January 1957 applying
the old Bombay Civil Service Rules to Saurashtra area. On 1st July 1959 the Bombay Civil Services Rules
1959, (hereinafter called the "Bombay Rules") were promulgated under
Art. 309 of the Constitution. Clause (c)(2)(ii)(1) of Rule 161 is as follows:
"Except
as otherwise provided in this Subclause, Government servants in the Bombay
Service of Engineers, Class 1, must retire on reaching the age of 55 years, and
may be required by the Government to retire on reaching the age of 50 years, if
they have attained to the rank of Superintending Engineer." The appellant
was compulsorily retired from service under the above rule by an order passed by
the State of Gujarat on 12.10.1961 with effect from 12.1.1962 when he had
completed the age of 53 years. This order of retirement was unsuccessfully
challenged by the appellant 220 before the Gujarat High Court by a writ
petition under Art.
226 of
the Constitution. Not being satisfied, the appellant took up the matter before
this Court which by its judgment dated 9.4.1969 allowed the appeal and declared
"that the appellant was entitled to remain in service until he attained
the age of 55 years and that the impugned order directing his retirement was
invalid and ineffective." This judgment is reported in 1970 1 SCR 244--AIR
1970 S.C. 143, Takhatray Shivdatray Mankad v. State of Gujarat,. As per this
decision, the appellant had the right to continue in service till he attained
the age of 55 years. It may be noted that the appellant had already completed
the age of 55 years by the time the judgment was pronounced by the Supreme
Court. In due compliance of the above judgment of this court, the Government of
Gujarat by its order dated 4.8.1969 intimated the appellant that he should be
deemed to have remained in service upto the date on which he attained the age
of 55 years, that its upto 14.1.1964. In other words, by this order the
appellant was retired on his attaining the age of 55 years on 14.1.1964. Prior
to this decision of the Supreme Court, the age of superannuation for Government
servants of the Government of Gujarat was raised to 58 years with reservation
of power to the State Government to compulsorily retire a Government servant at
55 years by serving a notice. The appellant in order to avail of this benefit
of the changed circumstances filed a Special Civil Application No. 70 of 1970
before the High Court of Gujarat, but became unsuccessful. Being dissatisfied
with that judgment of the High Court, he filed a Special Leave Petition No. 977
of 1975 before this court which by its order dated 21.7.1975 declined to
interfere with the decision of the High Court under Art. 136 of the
Constitution of India. The resultant effect is that the
matter came to a finality to the effect that the appellant was not entitled to
continue in service beyond the age of 55 years.
Even
before he was compulsorily retired by the Government's Order dated 12.10.1961,
a departmental enquiry on the ground of slackness of supervision had been
initiated on 6.2.1961. Thereafter, a second departmental enquiry was ordered
against the appellant on charges of over-payment to contractors and consequent
loss to the Government on 11.4.1963. A third enquiry was ordered against him on
17.8.1963 on charges Of payment in advance before the receipt of goods. Thus
there were three departmental enquiries before his retirement on attaining the
age of 55 years, that is on 14.1.1964. These enquiries were pending against the
appellant till 1971.
Be
that as it may, the appellant filed a Special Civil Application 221 No. 504 of
197 1 before the High Court of Gujarat seeking issue of a writ of mandamus
against the State of Gujarat to direct the State to pay the appellant all the
outstanding salary, allowances as well as the revised. pay and allowances
including increment subsequent to the stage of efficiency bar falling due from
12.1.1962 to 14.1.1964 together with interest @ 6% per annum from the date of
payment withheld till the date of actual payment thereof to him. The State
defended this action of withholding the pension on the ground that the
departmental enquiries initiated against him were pending. The appellant,
therefore, filed a Civil Application No. 2304 of 1972 in the above said Special
Civil Application No. 504 of 1971 for interim relief, which application he
withdrew subsequently. According to the appellant, he withdrew the application
on the representation made on behalf of the respondent therein that the
departmental enquiries had become infructuous consequent upon the retirement of
the appellant.
In the
meanwhile, the State of Gujarat issued a show cause notice dated 17.7.1971 to
the appellant informing him that the Government had considered that his service
had not been found thoroughly satisfactory on account of the reasons mentioned
in the said show cause notice, and therefore, the Government had proposed to
make reduction of 50 per cent both in the amount of pension and
death-cum-retirement gratuity admissible to him. We shall now reproduce the
relevant portion of the show cause notice (Annexure 'C'):
"Government
therefore proposes, in exercise of the powers vested in it under: (i) Para
241(E)(3) and (3) of the Junagadh Account Code or (ii) Rule 76 of the Ex-Saurashtra
Pension Rules, as contained in Saurashtra Government Resolution, Finance
Department No. 121/40 dated 19.10.1949 or (iii) Rule 188 of Bombay Civil
Services Rules, as may be applicable to you, to make a reduction of 50% (fifty
per cent) both in the amount of pension and Death-cum-Retirement Gratuity
admissible to you." The appellant submitted his reply and the proceedings
went on before the Government for a considerable length of time. Ultimately,
the final order was passed on 15.11.1977 reducing the pension and gratuity by
50 per cent. Being aggrieved by the said order, the appellant filed Special
Civil Application No. 268 of 1978 before the High Court of Gujarat for quashing
the order reducing his pension and gratuity. The learned single Judge of
Gujarat High Court rejected the said civil application in limine by his order
dated 8.3.1978 concluding 222 "In the present case the Government recorded
reasons why it came to the conclusion that the petitioner's service were
unsatisfactory and, therefore, put a proportionate cut on the petitioner's
right to pension. No case of discrimination is made out." As against this
order, the appellant filed the Letters Patent Appeal No. 145 of 1978 before a
Division Bench of the High Court contending that he was governed by the Junagadh
Rules and he continued to be governed by those rules in spite of the fact that
the Bombay Rules were sought to be made applicable to him. In the alternative
it was submitted that even if the Bombay Rules were to be made applicable, so
far as the question of payment was concerned, inasmuch as they were not less
advantageous on compulsory retirement, proportionate pension was payable to the
appellant under the Bombay Rules of 1959. The Division Bench examined both the
alternative contentions with reference to the concerned rules and ultimately
concluded thus:
"Under
either set of rules, therefore, it was open to the State Government to reduce
the amount of pension payable to the petitioner since his service had not been
found satisfactory by the State Government under the Junagadh State Rules or,
in the alternative, under the Bombay Civil Services Rules, his service has not
been found thoroughly satisfactory. In view of these conclusions, we agree with
the conclusion reached by A.D. Desai, 3. though he did not examine the
alternative case from the point of view of the Bombay Civil Services
Rules." On the basis of the above findings, the appeal was dismissed.
Hence the present appeal.
Shri
B.K. Mehta, learned counsel appearing on behalf of the, appellant assailed the
impugned judgment of the Division Bench of the High Court inter-alia contending
(1) that the High Court had clearly gone wrong in upholding the impugned order
of reduction in pension made in the purported exercise of power under Rules 188
and 189 of the Bombay Rules in view of the finding of this Court in C.A. No.
409 of 1966, Takhatray Shivdatray Mankad's, case (supra), wherein it was held
that the Bombay Rules could not be made applicable to the appellant; (2) that the
appellant is not governed by the Saurashtra Rules because the said rules do not
provide for compulsory retirement as pointed out by the Supreme Court in C.A.
No. 409 of 1966 and (3) 223 that the State Government has not specifically
stated in the show cause notice dated 17.7.1971 (Annexure C) as well as in the
impugned order for reducing the pension (Annexure A) as to under what set of
rules, namely, whether under the Junagadh Rules or the Saurashtra Rules or the
Bombay Rules they were exercising the power for reducing the pension and
gratuity.
It has
been further urged that clauses 3, 13 and 15 of Rule 241-A of Junagadh Rules
operate in different fields in that while Rule 3 applies to cases of normal
superannuation, Rule 13 applies to cases of compulsory retirement and,
therefore, the observation of the Division Bench of the High Court in the
Letters Patent Appeal approving the view taken by the learned single judge that
Rule 3 controls Rule 13, would practically render Rule 13 as ultra vires Art.
311 of the Constitution of India, since compulsory retirement together with
reduction of pension would amount to penalty in the absence of procedural
safeguards. Further it is urged that during the pendency of the appeal (C.A.
No. 409/66) before this court, the Bombay Rules were extended to the Saurashtra
State Covenanting servants and the superannuation age was raised to 58 years
and therefore the appellant in any case was entitled to continue upto 60 years
of age under the Junagadh Rules or upto 58 years of age under the Bombay Rules.
When it was so, the retirement of the appellant on attaining the age of 55
years should be construed as a case of compulsory retirement before the normal
age of superannuation which coupled with the order of reduction in pension would
amount to penalty which could not have been imposed without following the
prescribed procedure under the Conduct. Discipline and Appeal Rules. In support
of this last submission, reliance was placed on the decision of this Court in Dalip
Singh v. State of Punjab, [1961] I SCR 88 and Moti Ram Deka Etc. v. General
Manager, N.E.F. Railways, Maligaon, Pandu, Etc., [1964] 5 SCR 683.
In the
alternative, he submitted assuming that the Bombay Rules apply to the case of
the appellant, the enquiry as prescribed under Rule 189 of the Bombay Rules was
not followed. further if the case of the appellant is to be governed by the Saurashtra
Rules, there was no provision for compulsory retirement as pointed out by the
Supreme Court in C.A, No. 409 of 1966. Finally he submitted that the impugned
order for reduction of pension is bad in law and void because (1) no enquiry
for the reasons as contemplated under Rule 189 of the Bombay Rules had been
conducted and (2) admittedly the State had stated before the High Court in the
course of hearing of the Civil Application on 24.10.1972 that the departmental
enquiry had become 224 infructuous and was dropped as the appellant had already
retired. In any case, no enquiry could be held in pursuance to the show cause
notice dated 17.7.1971 after a lapse of 4 years in view of the prohibition
under proviso (b)(ii) of Rule 189-A of the Bombay Rules. Therefore, the
reduction of pension and gratuity by 50% is wholly unreasonable, unwarranted
and arbitrary.
Mr.
C.A. Shah, learned counsel appearing on behalf of the respondent, stoutly
opposed the submissions made on behalf of the appellant stating that the
appellant was directed to retire on attaining the age of 55 years as per the
judicial pronouncement of this court in C.A. No. 409/66 fixing his age of
retirement at 55 years and hence the appellant cannot be permitted to be heard
that his retirement at the age of 55 should be construed as compulsory
retirement, in view of the fact that the age of retirement was increased to 60
years under the Junagadh Rules and 58 years under the Bombay Rules. According
to Mr. Shah after the dismissal of the Special Civil Application No. 70 of 1970
by the Gujarat High Court holding that the right of the appellant to continue
in service was judicially determined by this court and so it cannot be said
that the State Government had discriminated the appellant, which decision of
the High Court was upheld by this court by the order of dismissal of the
Special Leave Petition on 21.1.1979. It is urged by the learned counsel for the
respondent that the appellant's retirement having been a normal one, he was
entitled to pension under Rule 241-A of the Junagadh Rules and as such the
State Government in exercise of the powers under the said rules had passed the
order dated 15.11.1977 reducing the pension and gratuity to 50% after affording
an opportunity to him by issuing a show cause notice alleging several acts of
misconduct to which notice the appellant did not give any explanation in spite
of several opportunities afforded for over 6 years. Hence the order of the
Government reducing the pension and gratuity to 50% on the finding that the
allegations of misconduct are proved is justified.
According
to him Rules 188 and 189 of the Bombay Rules are inapplicable to the case of
the appellant. Moreover, these rules are in pari materia to Rule 241-A of the Junagadh
Rules and therefore as held by the Division Bench of the High Court under
either of the Rules, the Government is competent to reduce the pension for
misconduct. Coming to Rule 189-A which was introduced on 29.10.1971 after the
issue of show cause notice in this case, it is said that this Rule provides
that the proceedings already initiated shall be deemed to be a proceeding under
this rule and continued and concluded by the authority. In the present case,
the proceedings were initiated even while the appellant was in service and they
were 225 dropped after his retirement. Therefore, the appellant is not
justified in contending that those proceedings relate to misconduct which had
occurred 4 years prior to the institution and therefore they are not
sustainable as per proviso (b)(ii) of Sec. 189-A of the Bombay Rules.
We
shall scrutinize the respective contentions of the learned counsel with
reference to the facts of this case and the position of law with reference to
the relevant rules and the various judicial pronouncements of this court in a
series of decisions dealing with powers vested in the appointing authority to
reduce the pension and gratuity on proof of allegations of misconduct or
negligence committed by the employee or on the proof of inefficiency and
unsatisfactory service. The appellant who was retired compulsory on 12.1.1962
in pursuance of the order of the Public Works Department, State of Gujarat dated
12.10.1961 under the Bombay Rules when he had completed the age of 53 years,
successfully contested that matter and obtained the order in his favour from
this court in C.A. No. 409 of 1966 by the judgment dated 9.4.69 quashing the
order of compulsory retirement and declaring "that the appellant was
entitled to remain in service until he attained the age of 55 years" In
pursuance of the above judgment of this court, the Government passed the
following order on 4.8.1969, the relevant portion of which reads as under:
"Shri
T.S. Mankad should be deemed to have remained in service as Executive Engineer upto
the date on which he had attained the age of 55 years i.e. upto 14.1.64 (A.N.)
The orders issued in Government Order, Public Works Department No. DPA 1861-E dated
12.10.61 should be treated to have been cancelled." The aforesaid order
was challenged by the appellant in Special Civil Application No. 70 of 1970
before the Gujarat High Court with a prayer to declare this order dated
4.8.1969 as illegal, void, ultra vires, bad in law and inoperative and the same
was not binding on the appellant, besides challenging the constitutional
validity of the latter part of the amended Rules 161(ii)(1) of the Bombay
Rules. But this Special Civil Application No. 70 of 1970 was rejected holding
that the right of the appellant to continue in service was judicially
determined by this court and that judicial determination was given effect to by
the State Government by its order dated 4.8.1969. As against this judg226 ment,
the appellant preferred Special Leave Petition before this court which was
dismissed on 21.1.1979. Thus the controversy was put to an end and the result
was that the appellant was not entitled to continue in service beyond 55 years
of age. Hence the contention of the learned counsel for the appellant that the
appellant is entitled to avail the benefit of the increase of age of
superannuation fixing it at 60 years under the Junagadh Rules or at 58 years
under the Bombay Rules cannot be accepted. The further submission made on
behalf of the appellant that his retirement should be construed only as
compulsory retirement coupled with the order of reduction in pension and
gratuity amounting to penalty without following the procedures prescribed under
the Conduct, Discipline and Appeal Rules, is also equally to be dismissed as
devoid of any merit since the appellant was retired only in accordance with the
pronouncement of this court.
We
have now to examine whether the propositions of law expatiated in the decisions
cited by Mr. B.K. Mehta can be made applicable to the facts of this instant
case. In Dalip Singh v. State of Punjab, [1961] 1 SCR 88 the appellant therein
namely, Dalip Singh was retired from service for 'administrative reasons'. He
brought a suit on a plea that the order of his retirement amounted to removal
from service within the meaning of Art. 311(2) of the Constitution. The Trial
Court decreed the suit in his favour. On appeal by the State, the High Court
dismissed the suit holding that the order of compulsory retirement in that case
did not amount to removal from service within the meaning of Art. 3 11 of the
Constitution. As against this, Dalip Singh approached this court. This Court
held that there were no basis for saying that the order of retirement contained
any imputation or charge against the officer and that he had been allowed full
pension as provided in Rule 278 of the Patiala State Regulations, on the
strength of which Dalip Singh was retired and that the order of retirement was
hardly by way of punishment. In that view, this court agreed with the view
taken by the High Court and dismissed the appeal.
In Moti
Ram Deka Etc. Iv. General Manager, N.E.F. Railways, Maligaon, Pandu, Etc.,
[1964] 5 SCR 683 the only question for consideration was whether the
termination of services of a permanent Railway servant (Civil) under Rule
148(3) and 149(3) of the Indian Railway Establishment Code amounted to removal
under Art. 311(2) of the Constitution of India. Majority of the seven judges
Bench having regard to the facts therein held that the termination of services
of a permanent servant otherwise than on ground of superannuation or compulsory
retirement, must per se amount to his removed and if by 227 Rule 148(3) or Rule
149(3), such a termination is brought about, the Rule clearly contravenes Art.
311(2) and so it must be held to be invalid. On carefully going through both
the decisions, we are of the firm view that these two decisions cannot be of
any assistance to the case of the appellant since in the present case, the
appellant's retirement on attaining the age of 55 years, pursuant to the
declaration of this Court was a normal retirement on reaching the age of
superannuation and not a compulsory retirement by way of punishment for
misconduct as contended by the appellant.
Next
we shall deal with the respective contentions of both the parties with
reference to the Junagadh Rules and the Bombay Rules. It may be mentioned here
that the appellant himself under the ground (h) of his Special Leave Petition
had stated that his services were to be governed by the Junagadh Rules. It was
also urged on behalf of the respondent that the appellant's retirement being a
normal one, he is entitled to pension under Junagadh Rules and the State
Government in exercise of the power vested in it had passed the order dated
15.11. 1977 reducing the pension and gratuity to 50%. As pointed out by the
Division Bench of the High Court, under the scheme of the Junagadh Rules as per
clause 10 of Rule 241~A, the pensions are admissible for superior service of
not less than 10 years and they are divided into 4 classes, namely,
(1) compensation
pension;
(2) invalid
pension;
(3) superannuation
pension; and
(4) retiring
pension.
As we
are concerned only with the superannuation pension in the present' case, we
would refer to the relevant clause which reads as follows:
"(13)
Superannuation pension is admissible only on attaining the age of 60 years,
except in cases in which the authorities consider it desirable in the interest
of the State an officer should retire on attaining the age of 55 years or at
any time thereafter on such superannuation pension as he may have earned at the
time of retirement." A bare perusal of the above clause shows that
superannuation pension is admissible to the State Government servant on his
attaining the age of 60 years, save in cases in which the authorities consider
in the interest of the State to retire an officer on attaining the age of 55
years or at any time thereafter on such superannuation pension as he may have
earned at the time of his retirement.
Clause
15 of Rule 24'1-A deals with the proportionate pension. As clause 3 of Rule
241-A is material for our purpose, that clause is reproduced hereunder:
228
"The full amount of pension or gratuity admissible under the rules will
not be granted unless the service is proved from State records on receipt of an
application for pension or gratuity from the retired officer in Form No. 53 and
will be liable to reduction in the absence of such proof or if the service is
not reported by the Head of the Department to have been satisfactory." As
per this clause, the Government servant will be entitled to full amount of
pension or gratuity only if his service is proved from the records satisfactory
lest the pension will be liable to reduction. A combined reading of clauses 3,
13 and 15 shows that clause 3 is an exception to the general scheme laid down
in clauses 13 and 15. On careful consideration of this rule, we see no merit in
the submissions made by the learned counsel that these clauses operate in
different fields and therefore observations of the High Court that Rule 3
controls Rule 13 would render Rule 13 as ultra vires Art. 311 of the
Constitution of India, since compulsory retirement together with reduction of
pension would amount to penalty in the absence of the procedural safeguards.
The Government in its detailed order dated 15.11.1977 has set out the reasons
for reducing the amount of pension and gratuity. The relevant portion of the
order reads thus:
"Government
is satisfied that the services of Shri T.S. Mankad, Executive Engineer have not
been found to be thoroughly satisfactory.
Accordingly
Government hereby orders that the pension and Death-cum-Retirement Gratuity,
which may be accepted by the Accountant General, Ahmedabad as admissible under
the rules shall be reduced by the specified extents aS under:
(i)
Amount of reduction in pension = 50% (Fifty percent) (ii) Amount of reduction
in gratuity = 50% (Fifty percent)." According to the respondent, the
appellant instead of giving a proper explanation to the show cause notice dated
17.7.1971 entered into long correspondence with respondent raising all sorts of
irrelevant questions and seeking several adjournments thereby adopting delayed
tactics and further the appellant though informed the authorities that he would
inspect certain documents in the Department for making his 229 reply, he would
not do so and therefore according to the learned counsel it was in those
circumstances, the Government was constrained to pass this order dated
15.11.1977 after a lapse of more than 6 years taking into consideration that
his service had not been found thoroughly satisfactory for the reasons
mentioned in the show cause notice to which he had not given any reply. We see
much force in the above submission, made by Mr. Shah the learned counsel
appearing for the respondent.
In
view of the above position, we are of the view that the impugned order dated
15.11.1977 cannot' be said to contravene the Junagadh Rules.
Now we
shall pass on to the alternative contention on the assumption that Bombay Rules
would apply to the case of the appellant. The relevant Rules are Rules 188 and
189 which are reproduced below:
"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 1 to Rule 33 of the Bombay Civil Services Conduct,
Discipline and Appeal Rules shall be followed." An examination of Rule 188
shows that the Government may reduce the amount of pension of a Government
servant as it may think fit if the service of the Government servant has not
been thoroughly satisfactory. As per Rule 189 the Government may withhold or
withdraw a pension or part of it if the petitioner is convicted of severe crime
or found to have been guilty of misconduct during or after the completion of
service provided that before any order to this effect is issued, the procedure
referred to the Bombay Civil Services Conduct, Discipline and Appeal Rules are
followed. These Rules thus, have expressly preserved the State Government's
power to reduce or withhold pen230 sion by taking proceedings against a
Government servant even after his retirement. The validity of these rules have
not been challenged. These two rules came for interpretation before this court
in State of Maharashtra v. M.H. Mazumdar, [1988] 2 SCC 52
and this Court expressed its view with reference to these rules as follows:
"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 with 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.
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. State of Mysore,
[1960] 1 SCR 981: AIR 1960 SC 247 and State of Uttar Pradesh v. Brahm Datt
Sharma, [1987] 2 SCC 179 similar rules authorising the Government to withhold
or reduce the pension granted to 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." 231 In
compliance with the principle of natural justice requiring an opportunity of
hearing to be afforded to a Government servant before an order affecting his
fight is passed and in accordance with the procedure specified in Note-I to
Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal Rules a
show cause notice as pointed out earlier had been issued to the appellant on
17.7.197 1 calling upon him to show cause within 30 days from the date of the receipt
of the notice as to why the proposed reduction should not be made in the
pension and death-cum-retirement gratuity. But the appellant failed avail that
opportunity to disprove the allegations and satisfy appointing authority that
he rendered satisfactory service throughout. It was in those circumstances the
appointing authority taking into consideration of the serious allegations levelled
against him in the disciplinary proceedings had thought it fit to impose
reduction in the pension and gratuity in accordance with Rules 188 and 189 of
the Bombay Rules on the ground that the appellant had not rendered satisfactory
service. The appellant is not entitled to take advantage of clause (b)(ii) of
the proviso to Section 189-A of the Bombay Rules since the proceedings had been
instituted long before his retirement.
Further
as per clause (a) of the said proviso, the proceedings already instituted while
the Government servant was in service could be continued and concluded even
after his retirement. Hence for the reasons stated above the impugned order
dated 15.11.1977 reducing the pension and gratuity cannot be said to contravene
the Bombay Rules.
At the
risk of repetition, we may point out that three departmental proceedings
containing serious allegations of misconduct were instituted against the
appellant of which one was instituted even before he was compulsorily retired
on 12.1.1961 and other two proceedings were instituted in the year 1963 that is
much earlier the appellant attaining the age of superannuation on 14.1.1964.
These departmental proceedings are stated to have become infructuous consequent
upon the retirement of the appellant on attaining the age of superannuation. To
the show cause notice dated 17.7.1971 proposing to inflict reduction in pension
and gratuity the appellant, instead of giving a proper reply, disproving the
charges and satisfying the appointing authority that he rendered satisfactory
service throughout had delayed the matter for over a period of six years. It
was in that situation that the impugned order dated 15.11.1977 happened to be
passed.
The
learned counsel for the appellant strenuously contended that after the
disciplinary inquiries had been dropped on the ground that they had become infructuous,
the Government was not right and 232 justified in reducing the pension and
gratuity on the same charges which were the subject matter of the enquiries.
This argument of the learned counsel, in our opinion, does not merit
consideration because the charges against the appellant were not made use of
for awarding any punishment after his retirement from service but only for
determining the quantum of the appellant's pension in accordance with the rules
relating to the payment of pension and gratuity. In this connection it would be
apposite to refer the observation of the Supreme Court in State of Uttar
Pradesh v. Brahm Datt Sharma & Anr., [1987] 2 SCC 179 which we quote below:
"If
disciplinary proceedings against an employee of the Government are initiated in
respect of misconduct committed by him and if he retires from service on
attaining the age of superannuation, before the completion of the proceedings,
it is open to the State Government to direct deduction in his pension on the
proof of the allegations made against him. If the charges are not established
during the disciplinary proceedings or if the disciplinary proceedings are
quashed it is not permissible to the State Government to direct reduction in
the pension on the same allegations but if the disciplinary proceedings could
not be completed and if the charges of serious allegations are established,
which may have bearing on the question of rendering efficient and satisfactory
service, it would be open to the Government to take proceedings against the
Government servant in accordance with rules for the deduction of pension and
gratuity." The above principle laid down in that case squarely applies to
the facts of the present case.
For
all the reasons hereinbefore stated we hold that the order of State Government
dated 15-11-1977 reducing the amount of pension and the gratuity on the ground
that the service of the appellant had not been found thoroughly satisfactory by
the appointing authority cannot be assailed.
In
that view of the matter we see no reason to interfere with the impugned
judgment of the High Court. In the result, the appeal is dismissed but without
any order as to costs.
Y.L.
Appeal dismissed.
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