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K.B. Desai Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1984)1GLR556
AppellantK.B. Desai
RespondentState and anr.
Cases ReferredB.J. Shelat v. State of Gujarat and Ors
Excerpt:
- - the appointing authority had, therefore, no jurisdiction to take disciplinary proceedings against a government servant who had effectively retired......learned advocate appearing on behalf of the petitioner relied upon rule 189-a of the bombay civil services rules, (hereinafter referred to as 'bcsr') which being relevant is reproduced as under:189-a. the governor reserves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to government, if in a departmental or judicial proceeding, the pensioner is round guilty of grave misconduct or negligence during the period of his service, including services rendered upon re-employment after retirement:provided that:(a) such departmental proceeding, if instituted while the government servant was in service, whether before his.....
Judgment:

S.A. Shah, J.

1. The petitioner joined the State Government as a clerk in the Revenue Department, and reached the post of Mamlatdar in the year 1965. The petitioner had put in 34 years' service and was duly retired on 6th February, 1972 on attaining superannuation. There is no dispute regarding the retirement of the petitioner on February 6, 1972.

2. On September 12, 1972, the petitioner was served with charge-sheet for alleged delinquences committed by him in the year 1968 when he was godown manager at Navsari. Various charges had been levelled against him among which it was pointed out that he had occasioned loss of Rs. 777.74 to the Government.

3. The petitioner denied the charges and contended that since he has retired in February 1972 the Collector was not competent to initiate departmental proceedings against him. The only question which arises for my consideration is as to whether the State Government or the Collector who is the competent authority has any power to initiate departmental proceedings against the petitioner after his retirement. There is no doubt that the charge-sheet was served for the first time on September 12, 1973. Mr. S.M. Mazgaonkar appearing for Mr. S.N. Shelat, learned advocate appearing on behalf of the petitioner relied upon Rule 189-A of the Bombay Civil Services Rules, (hereinafter referred to as 'BCSR') which being relevant is reproduced as under:

189-A. The Governor reserves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding, the pensioner is Round guilty of grave misconduct or negligence during the period of his service, including services rendered upon re-employment after retirement:

Provided that:

(a) such departmental proceeding, if instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall after, the final retirement of the Government servant be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the Government servant had continued in service;

(b) such departmental proceeding, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment-

(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 4 years before such institution; and

(iii)shall be conducted by such authority and in such place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relations to the Government servant during his service;

(c) no such judicial proceeding, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution; and

(d) the Gujarat Public Service Commission shall be consulted before final orders are passed.

Explanation - For the purpose of this rule-

(a) a departmental proceeding 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 from an earlier date, on such date; and

(b) a judicial proceeding shall be deemed to be instituted-

(i) in the case of criminal proceeding, on the date on which the complaint or report of the police officer on which the Magistrate takes cognizance, is made, and

(ii) in the case of a Civil proceeding, on the date of presentation of the plaint in the court.

4. By close reading of the rules, the position appears to be as under Rule 189-A empowers the Government to recover the pecuniary loss caused to the Government by an officer from his pension, provided the officer is found guilty of grave misconduct or negligence during the period of his service. However, proviso to that rule restrict the power of the Government as under:

(a) If the departmental proceedings are instituted while the Government servant was in service before his retirement the same can be continued and final decision can be taken.

(b) if such departmental proceedings are not instituted while the Government servant was in service before the retirement or during re-employment it shall not be instituted without the sanction of the Government.

5. The power is further restricted by Sub-clause (2) of Clause 8 to the effect that even if the sanction is granted by the Government the said sanction cannot be in respect of any event which took place more than four years before such institution and such enquiry can be conducted only by such authority at such place as the Governor may direct.

6. We are not concerned with the other provisions of the rule. Suffice it to say that in the instant case no show-cause notice had been served upon the petitioner while he was in service. Again, the alleged delinquency of the petitioner is for the period when he was Depot Manager in the year 1968 whereas the proceedings have been instituted in the year 1973, obviously after a lapse of four years. Therefore, Mr. Mazgaonkar has rightly relied upon Rule 189-A and raised the contention that the enquiry suffers from three infirmities, namely:

(1) that the enquiry has been instituted after the petitioner had retired;

(2) that it is not shown that the Governor has given sanction to hold the enquiry; and

(3) that the enquiry has been instituted in respect of the delinquency having been alleged to have committed before four years of the institution of the enquiry.

7. However, Mr. Jadeja, learned advocate appearing for the State Government has submitted that some notice had been issued to the petitioner for the alleged misconduct prior to his retirement. I am afraid, the submission of Mr. Jadeja cannot be accepted because any notice for the purpose of getting explanation of the delinquent officer is not relevant. The material date for attracting provisions of Rule 189-A is initiation of the departmental enquiry. It has been settled by numerous decisions of this Court and the Supreme Court that a departmental enquiry can be said to have been initiated when the show-cause notice is served upon the delinquent officer. However, Rule 189-A itself provides the clear answer to the submission of Mr. Jadeja. Explanation to Rule 189-A, reproduced above, is material for this purpose.

8. It is nobody's case that the petitioner was placed under suspension. Therefore, by provision of explanation Clause (a) it leaves no doubt that the proceedings can be said to have been instituted when the statement of charge is issued to the delinquent officer or pensioner as the case may be. In the instant case there is no doubt that the charge-sheet Annexure-D was issued on 12-9-1973 and, therefore, there is no scope for any argument that departmental proceedings were instituted earlier than 12-9-1973.

9. In the above view of the matter it is not necessary to enter into the merits of the case of the petitioner when it is clear that the respondents have no power to initiate the proceedings under provision of B.C.S.R. 181-A. However, Mr. Mazgaonkar has relied upon the decision of the Supreme Court in the case of B.J. Shelat v. State of Gujarat and Ors 19 G.L.R. 793, the relevant portion of which is reproduced as under:

The appointing authority had, therefore, no jurisdiction to take disciplinary proceedings against a Government servant who had effectively retired. As the disciplinary action cannot be taken after the date of his retirement, there is no need for expressing any opinion on the correctness of the decision taken by the appointing authority.

9.1. In view of the aforesaid settled position unless the government shows that they have power to initiate such proceedings, the general law is very clear that once the Government servant retires, his bondage as Government servant is severed and the master loses all his power over the servant. Mr. Jadeja was not able to point out any provision except Rule 189-A of B.C.S.R. and, therefore, the departmental proceedings initiated and concluded against the petitioner shall have to be quashed and set aside.

10. In result the petition is allowed. The orders passed by the second respondent at Annexure-F (collectively) dated 15-1-1975 and the order passed by the first respondent at Annexure-H dated 2-8-1976 are quashed and set aside. The respondents are directed to pay the arrears of pension and gratuity due to the petitioner to the extent retained by them on account of their orders at Annexures-F and H within four months from the date of receipt of the writ of this Court. Rule is made absolute with costs.


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