Ranjan Gogoi, J.
1. The validity of a departmental proceeding initiated against the petitioner after his retirement from service in exercise of the powers under the Assam Services (Pension) Rules, 1969 (hereinafter referred to as the Pension Rules) is the subject-matter of the present writ petition.
2. The writ petitioner, who was a substantive member of the Assam Civil Service, was at the relevant point of time, working as the Project Director, District Rural Development Agency, Dibrugarh. He was transferred to the said post on 8.11.1996 from Nalbari where he had earlier worked as the Project Director of the District Rural Development Agency of the Nalbari District. His tenure of service in Nalbari was from the year 1992. The petitioner was asked to explain certain irregularities allegedly committed by him while working at Nalbari. This was by a letter dated 23.4.1997. The petitioner retired from service on superannuation with effect from 31.7.1998. After the petitioner submitted his reply to the letter dated 23.4.1997 a show cause notice dated 15.3.1999 was issued to the petitioner under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (hereinafter referred to as the Rules) read with Article 311 of the Constitution of India and Rule 2(b) of the Pension Rules. By the aforesaid show cause notice the petitioner was asked to show cause as to why any of the penalties prescribed by the relevant Rules should not be imposed on him on account of as many as 5 different allegations/charges levelled as specifically mentioned in the show cause notice dated 15.3.1999. The allegations against the petitioner, in short, were with regard to commission of financial irregularities by the petitioner while working at Nalbari which was also the subject-matter of the earlier letter dated 23.4.1997.
The petitioner showed cause and the same having been considered not satisfactory the authority decided to hold an enquiry in respect of the charges levelled. By another order dated 16.8.1999 an Enquiry Officer was appointed to enquire into the charges levelled against the petitioner and it is at that stage that the petitioner had instituted the present proceeding calling into question the actions of the authority including the withholding the pensionary benefits of the petitioner on the ground of pendency of the departmental proceeding.
3. The rival submissions advanced on behalf of the contesting parties having centered around the validity of the departmental proceeding initiated against the petitioner by the show cause notice dated 15.3.1999, the Court has identified the aforesaid to be core issue arising for its decision in the instant matter.
4. Mr. P. P. Baruah, learned Counsel for the petitioner, in course of his elaborate argument, has contended that in the present case, admittedly, the disciplinary proceeding against the petitioner was initiated after his retirement. It is the contention of the learned Counsel for the petitioner that such a course of action is permissible under the provisions of the Pension Rules, i.e., Rule 2(b) only with the sanction of the Governor of the State. Learned Counsel for the petitioner, by relying on two judgments of the Apex Court in the case J.P. Bansal v. State of Rajasthan and Anr. reported in : [2003]2SCR933 and in the case of State of Madhya Pradesh and Ors. v. Dr. Yashwant Trimbak reported in : AIR1996SC765 , has submitted that in the present case the departmental proceeding against the petitioner has been initiated without the requisite sanction of the Governor of the State as mandated by Rule 21(b) of the Pension Rules. The sanction contemplated by the Pension Rules, according to the learned Counsel, is the sanction of the Government of the State acting in his own discretion and not the sanction of the Executive Government. It is, therefore, contended that the departmental proceeding against the petitioner would not be legally maintainable. On the above basis the further argument advanced is that the withholding of the pensionary entitlement of the petitioner on the ground of pendency of the departmental proceeding would be equally unauthorized in law. Reliance has also been placed on a Division Bench Judgment of the Apex Court in the case of Eyakub Hussain v. The Secretary to the Government of Assam, Public Works Department, Dispur and Ors. reported in (1984) 2 GLR 424.
5. The submissions advanced by the learned Counsel for the petitioner have met with stiff resistance offered by Mr. H. K. Mahanta, learned Government Advocate, Assam. Relying on the averments made in the counter-affidavit filed by the official respondents and also by placing before the Court the records in original, Sri Mahanta, learned Government Advocate, has contended that the initiation of the departmental proceeding against the petitioner was with the previous sanction of the Chief Minister of the State as revealed by the notings in the file. According to Sri Mahanta, the sanction of the Governor mandated by Rule 21(b) of the Pension Rules would mean the sanction of the State Government, which in accordance with the Assam Rules of Executive Business, 1968, framed in exercise of powers under Article 166(2) and 166(3) of the Constitution, would be the sanction of the Governor as contemplated in Rule 21(b) of the Pension Rules. According to the learned State Counsel, Rule 21(b) of the Pension Rules does not vest in the Governor any power that is required to be exercised in his discretion. It is a power vested in the executive Government to be exercised in the name of the Governor and that is precisely what has been done in the present case. In this regard, the recitals contained in the order dated 16th of August, 1999 (Annexure-D to the writ petition) initiating the proceeding against the petitioner in the name of the Governor has been placed before the Court by Sri Mahanta, learned Government Advocate.
6. Before proceeding to consider the rival submissions advanced on behalf of the parties it must be put on record, at this stage, that the records in original placed before the Court reveal that prior to the initiation of the departmental proceeding against the petitioner the prior sanction of the Chief Minister was obtained in the file and only thereafter the process of enquiry was initiated. The rival submissions, as already noticed, having raised a question with regard to the purport and effect of the power conferred by Rule 21(b) of the Pension Rules, it may be convenient to extract the provisions of Rule 21 for a better appreciation of the controversy that has arisen.
21. The Governor of Assam reserves to himself 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 found guilty of grave misconduct or negligence during the period of his service, including, service rendered upon re-employment after retirement provided that -
(a) such departmental proceeding, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the officer, 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 officer had continued in service ;
Explanation. - The continuation of the proceeding after the final retirement of the officer shall be automatic under Sub-rule (a) of Rule 21 and no fresh decision of the Governor and/or the Appointing Authority nor any show cause notice to the person concerned shall be necessary.
The powers under Rule 21 shall be exercisable not only in case of causing pecuniary loss to Government but also in all other cases.
(b) such departmental proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment -
(i) shall not be instituted save with the sanction of the Governor of Assam;
(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 of Assam may direct and in accordance with procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service ;
(c) no such judicial proceeding, if not instituted while the officer 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 only;
(d) the Assam Service Commission shall be consulted before final orders are passed.
Explanation. -....
7. Article 163 of the Constitution contemplates that for each State of the Indian Union there shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except in such cases where by or under the Constitution the Governor is required to act in his own discretion. Article 166(1) of the Constitution provides that all executive actions of the Government of a State shall be taken in the name of the Governor. Article 166(2) provides that orders made and executed in the name of the Governor shall be authenticated in the manner provided by the Rules and that the validity of an order which is so authenticated in accordance with the Rules framed shall not be called into question on the ground that it is not an order made or executed by the Governor. Article 166(3) has empowered the Governor to make Rules for convenient transaction of the business of the Government of a State and for allocation, amongst the Ministers, such business insofar as the same is not in respect of matters over which the Governor is required to act in his own discretion by or under the Constitution.
In exercise of the power conferred by Article 166(3) of the Constitution, the Assam Rules of Executive Business, 1968 have been framed which elaborately lays down the matters that are required to be dealt with by individual Ministers; by the Chief Minister and by the Cabinet. Under Rule 11 of the said Rules all orders or instruments made or executed by or on behalf of the Government of Assam is required to be made or executed in the name of the Governor.
8. The sanction required to be accorded by the Governor for initiation of a departmental proceeding after retirement of an incumbent in Government service has nowhere been expressly made a part of such functions of the Governor which is required to be exercised by the Governor in his own discretion. Mere mention of the word 'Governor' in Rule 2(b) cannot lead to such a conclusion. The scheme discernible from the constitutional framework is that the President or the Governor, as the case may be, is the constitutional or formal head of the State and all executive actions, except those which are specifically required by or under the Constitution to be dealt with by the President or the Governor in their individual discretion, are required to be executed by the Government ; in the name of the Governor. In State of Madhya Pradesh (supra) the position was succinctly explained by the Apex Court while dealing with a similar issue. In the above case the validity of a departmental proceeding initiated after retirement of the Government servant under the provisions of the Madhya Pradesh Pension Rules was called into question. The purport and effect of Rule 9(2)(b) of the Madhya Pradesh Pension Rules which is peri materia with the provisions of Rule 2(b) of the Assam Pension Rules was considered by the Apex Court. A similar argument as has been advanced in the present case, i.e., that the power of sanction is to be exercised by the Governor in his own discretion was raised in that case. The argument was negated by the Apex Court and the observations contained in paragraphs 14 and 19 of the aforesaid judgment which are conveniently extracted below would amply sum up the situation.
14. The Rule in question no doubt provides that departmental proceedings if not instituted while the Government servant was in service whether before his retirement or during his re-employment shall not be instituted save with the sanction of the Governor. The question that arises for consideration is whether it requires the sanction of the Governor himself or the Council of Ministers in whose favour the Governor under the Rules of Business has allocated the matter, can also sanction. It is undisputed that under Article 166(3) of the Constitution the Governor has made rule for convenient transaction of the business of the Government and the question of sanction to prosecute in the case in hand was dealt with by the Council of Ministers in accordance with the Rule of Business. Under Article 154 of the Constitution the executive power of the State vests in the Governor and is exercised by him either directly or through officers subordinate to him in accordance with the Constitution. The expression 'executive power'is wide enough to connote the residue of the governmental function that remain after the legislative and judicial functions are taken away,
19. Mr. Jain's contention is solely based on the ground that in the Rule itself both the expressions 'Governor' and 'Government' have been used and, therefore, the expression 'sanction of the Governor' in Rule 9(2)(b)(i) would mean the personal sanction of the Governor. We are unable to accept this contention. The power to sanction is nothing but an executive action of the Government provided under the Rules. This is not a matter with respect to which the Governor is required under the Constitution to act in his discretion. In this view of the matter when the Governor has framed rules of business under Article 166(3) of the Constitution allocating his functions and it is the Council of Ministers which has taken the decision to sanction prosecution of the respondent, we see no legal infirmity in the same. The Tribunal erred in law in coming to the conclusion that the sanction required under the rule is a sanction of the Governor.
In coming to the aforesaid conclusion as recorded in para 19 of the judgment in State of Madhya Pradesh (supra) the Apex Court relied on the following passage contained in an earlier decision in the case of Samsher Singh v. State of Punjab reported in : (1974)IILLJ465SC .
The President as well as the Governor is the Constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Whenever the Constitution requires the satisfaction of the President or the Governor for any exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or the Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any Minister or Officer under Rules of Business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. The articles did not provide any delegation. Therefore, the decision of Minister or officer under the rules of business is the decision of the President or the Governor.
9. In J. P. Bansal (supra) relied upon by the learned Counsel for the petitioner, the Apex Court was considering a question as to whether in the absence of any Government order in terms of Article 166 of the Constitution a mere Cabinet decision would be enforceable in law so as to vest in the beneficiary of such decision any right or benefit flowing from such Cabinet decision. The Apex Court after taking note of the fact that there was a dispute as to whether there was, in fact, any such Cabinet decision proceeded to negate the claim made in the absence of any Government order in terms of Article 166 of the Constitution. This Court fails to understand how the aforesaid decision could be of any assistance to the petitioner. The decision of this Court in the case of Eyakub Hussain (supra) not being an authority for the proposition as to whether the power under Rule 2(b) of the Pension Rules is required to be exercised by the Governor in his own discretion, the aforesaid judgment also cannot assist the petitioner.
10. In view of the foregoing discussions, this writ petition must be held to be without any merit and or substance. It will now be open for disciplinary authority to conclude the departmental proceeding against the petitioner if the same has not been concluded in the meantime and thereafter decide the entitlement of the petitioner to pensionary benefits.
11. The writ petition is accordingly dismissed. However, having regard to the facts and circumstances of the case, there shall be no order as to cost.