Judgment:
I.M. Quddusi, J.
1. This writ application has been filed against the judgment and order dated 4.11.2004 passed by the Central Administrative Tribunal, Cuttack Bench in O.A. No. 220 of 2004 which was filed by the opposite party No. 1, inter alia, praying for setting aside the Disciplinary Proceeding initiated against him on the ground that the same were initiated after four years from the date of the alleged cause of action. The Tribunal allowed the O.A. and quashed the departmental proceedings.
2. The brief facts of the case are that opposite party No. 1 was selected through the Union Public Service Commission in the year 1967 as a Member of Indian Forest Service and was allocated Orissa State Cadre on 1.7.1968. During his service period, he was posted as Managing Director of Orissa Forest Development Corporation Ltd. with effect from 24.10.1996 and continued till 24.8.1999. Thereafter he was transferred to the regular cadre and was superannuated from service on 31.8.2001. After about four years and four months, a memorandum of charges dated 23.12.2003 with a forwarding letter of the Principal Chief Conservator of Forests of Government of Orissa, Bhubaneswa; dated 31.12.2003 was served upon him for the alleged irregularities committed by him during the period between 24.10.1996 and 24.8.1999, during which he had held the post of Managing Director of Orissa Forest Development Corporation Ltd.
3. Being aggrieved he filed the above mentioned O.A. on the ground that the initiation of the D,P. was barred by limitation in view of Rule 6(1) & 6(1) (b)(ii) of the All India Services (Death-cum-Retirement Benefit) Rules, 1958 (for short 'the Rules 1958') wherein Central Government reserves to itself the right of withholding a pension or gratuity, or both, either in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Central or a State Government, if the pensioner is found in a departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Central or a State Government by misconduct or negligence during his service. But if the departmental proceedings were not instituted against the pensioner while in service, the same shall not be instituted in respect of an event which took place not more than four years before the institution of such proceedings.
4. In view of this, the Tribunal has allowed the O.A. and quashed the impugned charge-sheet dated 23.12.2003. Being aggrieved, the' State has filed the instant writ application.
5. It is not disputed that the opposite party No. 1 was a member of India Forest Service and the Rules, 1958 were application to his service. Therefore the limitation prescribed for initiation of the proceedings in Rules 6(1)(b) & (c) would be equally applicable to him. The relevant portion of Rules 6 of the Rules, 1958 are reproduced as under:
6. Recovery from pension :- (1) The Central Government reserves to itself the right of withholding a pension or gratuity, or both, either in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Central or a State Government, if the pensioner is found in a departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Central or a State Government by misconduct or negligence during his service.
Provided that no such order shall be passed without consulting the Union Public Service Commission.
Provided further that-
(a) xx xxx xx(b) such departmental proceeding, if not instituted while the pensioner was in service, whether before his retirement or during his re-employment;
(i) shall not be instituted save with the sanction of the Central Government;
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceeding; and
(iii) shall be conducted by such authority and in such place or places as the Central Government may direct and in accordance with the procedure applicable to proceeding on which an order of dismissal from service may be made;
(c) such judicial proceeding, if not instituted while the pensioner was in service, whether before his retirement or during his re-employment, shall not be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution.
6. Besides the above, it is to be noticed that in the Orissa Civil Services (Pension Rules) 1992 (hereinafter referred to as 'the Rules, 1992') which are statutory rules applicable to the Government servants appointed in posts and services in connection with the affairs of the State which are borne on pensionable establishment, also provided the limitation of four years as has been provided in Rule 6(1)(b)(ii) of the Rules, 1958. Rule 7 of Rules 1992 is also quoted as under :
7. Right of Government to withhold or withdraw pension- (1) The Government reserve to themselves the right of withholding a pension or gratuity, or both either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner found guilty of grave misconduct or negligence in duty during the period of his service including service rendered on re-employment after retirement :
(2) (a) Such departmental proceedings referred to in Sub-rule (1) 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 they were commenced in the same manner as if the Government servant had continued in service;
Provided that when the departmental proceedings are instituted by an authority, subordinate to Government that authority shall submit a report recording its finding to the Government.
(b) Such departmental proceedings as referred to in Sub-rule (1) 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 Government;
(ii) shall not be in respect of any event which took place more than four years before such instruction;
(c) No judicial proceedings, 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 in respect of an event which took place, more than four years before such institution.
7. It is not disputed that the cause of action for initiation of departmental proceedings against opposite party No. 1 allegedly accrued during the period between 24.10.1996 and 24.8.1999. Even though it is presumed that the cause of action had arisen on the last day, i.e., 24.8.1999, the four years' period had expired on 23.8.2003. But the charge-sheet was issued on 31.12.2003, i.e., after about four years and four months from the date of such cause of action. Since it was not permissible under the law to initiate proceedings after four years from the date of cause of action, the charge-sheet was not liable to be issued against opposite party No. 1. The intention to provide period of limitation in the statute by the legislature is perhaps due to the reason that a retired Government servant is not expected to face departmental proceedings any time during his life time. Therefore, the legislature has fixed a time limit to initiate such proceedings so that after that particular period, a retired Government servant may lead a peaceful life and may not spend rest of the period of his life with tension.
8. In the case of State of Bihar and Ors. v. Idrish Ansari reported in : (1995)IILLJ705SC , the Hon'ble apex Court has held :
So far as the second type of cases is concerned the proof of grave misconduct on the part of the concerned Government servant during his service tenure will have to be culled out by the revisional authority from the departmental proceedings or judicial proceedings which might have taken place during his service tenure or from departmental proceedings which may be initiated even after his retirement in such type of cases. But such departmental proceedings will have to comply with the requirements of Rule 43(b). Consequently a retired Government servant can be found guilty of grave misconduct during his service career pursuant to the departmental proceedings conducted against him even after his retirement, but such proceedings could be initiated in connection with only such misconduct which might have taken place within 4 years of the initiation of such departmental proceedings against him. In the present case, the respondent retired on 3T. 1.1993 and the show-cause notice was issued on the ground of grave misconduct on 27.9.1993 and not on the ground that service record of the pensioner was not thoroughly satisfactory. It was issued by the State Government as sanctioning authority. It had, therefore, to be read with Rule 43(b). Such notice therefore, could cover any misconduct if committed within 4 years prior to 27.9.1993 meaning thereby it should have been committed during the period from 26.9.1989 up to 31.1.1993 when respondent retired. Only in case of such a misconduct, departmental proceedings could have been initiated against the respondent under Rule 43(b). In such proceedings, if he was found guilty of misconduct he could have been properly proceeded against under Rule 139(a) and (b). On the facts of the present case it must be held, agreeing with the High Court that the notice dated 27.9.1993 invoking powers under Rule 139(a) and (b) was issued wholly on the ground of alleged past misconduct and was not based on the ground that service record of the respondent was not thoroughly satisfactory. So far as that ground was concerned, on a conjoint reading of Rule 43(b) and Rule 139(a) there is no escape from the conclusion that as the alleged misconduct was committed by the retired Government servant (respondent in the case) prior to four years from the date on which show-cause notice was issued, the appellant authority had no power to invoke rule 139(a) and (b) against the respondent on the ground of proved misconduct. Consequently, it had to be held that the proceedings under Rule 139 were wholly incompetent. The High Court was equally justified in quashing the final order dated 13.12.1993 as there is no proof of such a misconduct. No question of remanding the proceedings under Rule 139(a) and (b) would survive as the alleged grave misconduct could not be established in any departmental proceedings after expiry of four years from 1986-87 as such proceedings would be clearly barred by Rule 43(b) proviso (a)(ii). Consequently the show cause notice dated 27.9.1993 will have to be treated as still born and ineffective from its inception. Such a notice cannot be resorted to for supporting any fresh proceedings by way of remand. For all these reasons no case is made for our interference in this appeal. In the result, appeal fails and is dismissed. There is no order as to costs.
9. Rule 43(b) of the Bihar Pension Rules referred to in the above case provide that the limitation of four years to initiate the departmental proceedings from the date of cause of action in respect of a retired Government servant is pari materia to the provisions of above quoted Rule-6(1)(b) (ii) & 6(1)(c) of the Rules, 1958 and Rule 7(2) of the Rules, 1992.
10. In view of the above mentioned facts and circumstances, it is clear that the petitioners had no jurisdiction to initiate the departmental proceedings in respect of cause of action which allegedly took place more than four years.
11. In result, we are of the opinion that the Tribunal has rightly quashed the departmental proceedings and there is no impropriety or manifest error of law in the impugned order by the Tribunal.
Therefore, the writ application is devoid of merit and is dismissed as such.
N. Prusty, J.