Full Judgment
2. In the body of the application though the order directing continuance of the inquiry has been challenged, in para I (a) as well as in para 8(i), the relief sought for is to quash the order No.0.1760/Disc./1 dated 12.8.1997 at Annexure-A1. Annexure-A1 is the Memorandum of charges issued to the applicant on 12.8.1987. It would appear that reference to annexure-A1 dated 12.8.1987 in the relief column and in para 1(a) is a mistake. A reading of the entire application would indicate that the applicant is actually challenging Annexure-A4 dated 11.4.1997 by which further inquiry was ordered to be held in respect of the charge already framed. Even during arguments, the learned counsel for the applicant questioned the validity of only Annexure-A4.
3. The main grounds urged by the learned counsel for the applicant are that the applicant having retired from service, the Disciplinary Authority could not have ordered continuance of the disciplinary proceedings under the 1965 Rules as no penalty under those Rules could be imposed against the retired employee, that even if the proceedings are to be continued for the purpose of taking action under Rule 9 of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as the Pension Rules), that could not be done without the sanction of the President, that as the charge pertained to an event which took place more than 4 years prior to the date of Annexure-A4 and even 4 years prior to the date of retirement of the applicant, the proceedings could not have been continued that even if action is to be taken under Rule 9 of the Pension Rules that could be done only in respect of a grave misconduct, that in this case the charge is not in respect of a grave misconduct and that in any event before passing the impugned order the Disciplinary Authority should have issued a show cause notice to the applicant and it is only after hearing his objections if any, an order could have been passed by the authority. Relying on some authorities to which we will refer a little later, he contended that the conditions mentioned in Sub-rule (2)(b) should be imported while interpreting Sub-rule (2)(a) of Rule 9 of the Pension Rules.
4. The learned Senior Standing Counsel appearing for the respondents contended that the Tribunal had given liberty to the respondents to continue the proceedings in accordance with law inasmuch as the Tribunal found that the inquiry proceedings were vitiated, that the Tribunal has not quashed the charge framed against the applicant, that under Sub-rule (2)(a) of Rule 9, the proceedings which had already been initiated before the retirement of the official can be continued by the Disciplinary Authority without any sanction from the President and that for that purpose the rule creates a fiction that the Government servant shall be deemed to be continued in service and that the conditions in Sub-rule 2(b) which applies to a case where the proceedings are initiated after the retirement of the Government servant cannot be read into Sub-rule (2)(a). He further submitted that the question whether the misconduct is a grave misconduct or not will have to be determined at the stage of recording the finding after the completion of the inquiry and that for the purpose of continuation of the inquiry it is not necessary to hold that the misconduct is a grave misconduct. He submitted that the case of the respondents is that the applicant remained continuously absent from 21-11-1986 till date and that misconduct would be a grave misconduct, if established and action under Rule 9 of the Pension Rules could be taken.
5. Before adverting to the main point in controversy, we may mention here that in Annexure-A4 it is mentioned that copy of memo No. Q.412/8 dated 18.11.1986 from SDOT, Sirsi was enclosed for information. Relying on this portion of Annexure-A4, the learned counsel for the applicant submitted that this memo dated 18.11.1986 is in respect of another charge which had been framed against the applicant as per Annexure-A2 and that by sending copy of that charge sheet it is made to appear that the respondents were trying to continue the inquiry in respect of that charge and not in respect of charge Annexure-A1. As there was some ambiguity in this regard, we had directed the respondents to produce the relevant file. From the file it is clear that this Annexure-A4 order is passed regarding continuance of the inquiry in respect of Charge Annexure-A1 and not in respect of the charge Annexure-A2. In fact, the body of the order (Annexure-A4) also clearly shows that the further inquiry is to be held on the allegations which had led to his removal from service. It is only in respect of Annexure-A1, the earlier order of removal from service had been passed. It would appear that by mistake the copy of the other charge sheet has been enclosed to Annexure-A4.
1. Whether the sanction of the President has to be obtained for continuing the disciplinary proceedings which had been initiated prior to the retirement of the Government servant after his retirement for the purpose of taking action under Rule 9 of the Pension Rules?
2. Whether there is any bar for continuing the disciplinary proceedings initiated prior to the retirement of the Government servant after his retirement if the charge pertains to an event which took place 4 years prior to the date of his retirement?
3. Whether any show cause notice has to be issued to the Government servant before continuing the proceedings under Sub-rule (2)(a) of Rule 9?
4. Whether on the facts and circumstances of this case the order Annexure-A4 calls for interference?
(1) The President reserves to himself 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 is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement : (2)(a) The 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 proceedings 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 where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President.
(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment,-- (ii) shall not be in respect of any event which took place more than four years before such institution, and (iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.
(a) departmental proceedings 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 : The learned counsel for the applicant strongly relied on the decision of Gauhati High Court in Girija Kumar Phukan v. State of Assam and Ors., 1986(1) SLJ 178] to contend that even for the purpose of continuing the departmental proceedings after retirement though they were initiated when the Government servant was in service, the sanction of the President was necessary. That was a case where the High Court was considering the provisions of the Assam Services Pension Rules, 1969 which contained provisions similar to Rule 9. In those Rules there is reference to Governor instead to President. The Gauhati High Court with reference to Rule 21 of the Assam Rules has held as hereunder : "..... We do not, and indeed cannot, read Clause (a) to mean, therefore, that in virtue thereof there shall be an automatic continuation of a pending disciplinary proceeding against an ex-employee. This provision is not meant, according to us, to resurrect a dead proceeding, a proceeding which could only be co extensive with the tenure of service of the employee. If Clause (a) is construed to mean that in virtue thereof a pending proceeding against an ex-employee must be continued then in all cases in all pending proceedings this must be done in anticipation of action to taken under Rule 21 by the competent authority whether or not such action is warranted thereunder. This construction would certainly produce an absurd result. Besides, there will be scope for complaints of arbitrary action if such proceedings are not continued in all cases and the disciplinary authority at its whim decides to pick and choose. Such a construction must, therefore, be ruled out as it would be unconstitutional. We must view this matter also from another angle. Rule 21 expressly confers power on the Governor of Assam to take action thereunder. Unless, therefore, such action is contemplated by him the authority which was holding the enquiry prior to the retirement of the Government servant will have no jurisdiction to continue the proceeding. If he does so it will tantament to his exercising the power under Rule 21 which expressly is conferred, not on him, but on the Governor of Assam. The fact that Clause (b) mandates sanction of the Governor to be obtained for ade novo proceeding supports this view. So also the fact that Clause (b) bars action in respect of events (beyond 4 years) which also can be similarly considered by the Governor. Indeed, express omission of this requirement in Clause (a) makes it constitutionally fragile and only by interpolating consideration of the same circumstance by the Governor in taking decision, the virus of unreasonable nexus can be removed to prevent challenge on this score." In that decision it has also been held that before a pending proceeding can be continued after retirement of a Government servant, a show cause notice must be served on him apprising of the decision and of the action proposed to be taken in terms of Clause (a) of Rule 21, we find it difficult to agree with the view taken by the Gauhati High Court in this regard. A plain reading of Rule 9 shows that Sub-rule (2)(a) and Sub-rule (2)(b) are intended to apply for two different sets of cases.
Though disciplinary proceedings for the purpose of imposing penalty under the 1965 Rules cannot be continued once the Government servant retires from service, a statutory fiction is created by Sub-rule (2) (a) and it is provided that in respect of proceedings instituted while the Government servant was still in service should be deemed to be proceedings under Sub-rule (1)) and that those proceedings shall be continued and concluded as if the Government servant had continued in service. In the explanation the point as to when the departmental proceedings can be said to be have been instituted is clarified.
Sub-rule (2) (b) is intended to apply only to cases where proceedings under Sub-rule (1) have to be instituted after the retirement of the Government servant. It is very clear that if already proceedings had been instituted when the Government servant was in service, those proceedings can be continued even after the retirement of the Government servant, though not for the purpose of imposing the penalty under the 1965 Rules, but for the purpose of taking action under Sub-rule (1) of Rule 9 and for that limited purpose the proceedings could be continued as if the Government servant had continued in service. After the retirement of the Government servant, the question of initiating proceedings under the 1965 Rules does not arise. It is only for the purpose of Sub-rule (1), the proceedings would have to be initiated and Sub-rule (2) (b) is made applicable to such a case. If we are to hold that sanction of the President is necessary even to continue the proceedings which had been initiated earlier for the purpose of taking action under Sub-rule (1) after the retirement of the Government servant, then Sub-rule (2)(a) becomes nugatory. It is significant to note that Sub-rule (2)(a) specifically provides that the proceedings "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". When the Rule, specifically provides that the very authority which had initiated the proceedings can continue and conclude the inquiry as if the Government servant had continued in service, there is no scope for reading into that provision a further condition that prior sanction of the President should be obtained for continuing the proceedings. We do not see anything arbitrary in Sub-rule (2)(a). In fact, the constitutional validity of Sub-rule (2)(a) has not been questioned by the applicant. While purporting to interpret a rule, we cannot render one portion of the rule otiose. The very object of making Sub-rule (2)(a) is to ensure that the very authority which had initiated the departmental proceedings while the Government servant was in service continues those proceedings and concludes it and subsequently sends the report to the President so that the President can decide whether action under Sub-rule (1) can be taken. If it was the intention of the rule making authority that even for continuation of proceedings initiated before the retirement of the Government servant sanction of the President should be obtained, there would have been no need to make different provisions with regard to the proceedings instituted while the Government servant was in service and proceedings instituted after the retirement of the Government servant.
8. The Full Bench of the Tribunal in Amarjit Singh v. Union of India and Ors., ATR 1988(2) CAT 637, was dealing with paras 2308 and 2308A of Indian Railway Establishment Code as Well as Rule 9 of the Pension Rules and has held at page 648 that the condition precedent for the continuance of the proceedings is that disciplinary proceedings should have been instituted while the Railway servant was in service, that is enough to attract the fiction created by the proviso in Clause (a) to the proviso of Article 2308. It has been further held that upon the conclusion of the inquiry depending upon the charges and facts and circumstances of each case an order under the main provision could be made provided the officer is found guilty of grave misconduct or negligence.In State of U.P. and Anr. v. Shri Krishna Pandey, 1996 (2) SCC (L and S) 1250 which was also cited by the learned counsel for the applicant in support of his contention that President's sanction is required even to continue the proceedings already initiated, the provision involved was Regulation 351-A of the Civil Services Regulations. The Supreme Court fund that there was no provision in those Regulations by which proceedings initiated as a disciplinary measure and the action initiated earlier would remain unabated after retirement. It is for that reason the Supreme Court held that if Regulation 351-A is to be operative in respect of pending proceedings, by necessary implication prior sanction of the Governor to continue the proceedings against him is required. That decision cannot be of much help to the applicant as Pension Rules contains a clear provision as in Sub-rule (2)(a) which provision is not found in the Civil Services Regulations.In D.V. Kapoor v. Union of India and Ors., (1990) 14 ATC 306 the Supreme Court referring to Rule 9 (2) of the Pension Rules has held as hereunder:-- "... Rule 9(2) of the Rules provided that the departmental proceedings 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 proceedings 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.
Therefore, merely because the appellant was allowed to retire, the government is not lacking jurisdiction or power to continue the proceedings already initiated to the logical conclusion thereto. The disciplinary proceedings initiated under the Conduct Rules must be deemed to be proceedings under the rules and shall be continued and concluded by the authorities by which the proceedings have been commenced in the same manner as if the government servant had continued in service. The only inhibition thereafter is as provided in the proviso namely "provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President."...." The above decision clearly shows that the authority which initiated proceedings while the Government servant was in service has jurisdiction to continue the same even after his retirement and those proceedings will have to be treated as proceedings under the Pension Rules. When statute confers jurisdiction on the authority to continue the proceedings even after retirement a condition for exercise of that jurisdiction cannot be imposed by us. In view of the above decision of the Supreme Court and also for the reasons we have mentioned above, we are unable to follow the ruling of the Gauhati High Court.
11. With regard to the necessity of issuing show cause notice, there is no warrant for such a course of action. When the statute itself authorises the competent authority to continue the proceedings even after retirement of the Government servant as if he had continued in service and the authority is not required to take any other factors into consideration for the purpose of continuing the proceedings, we fail to see the necessity of issuing a show cause notice.
12. The learned counsel for the applicant submitted that action under Sub-rule (1) can be taken only if the Government servant is found guilty of grave misconduct or negligence and that as such before the competent authority decides to continue the proceedings he has to determine whether the subject matter of the charge pertains to grave misconduct or negligence and it is only after holding that the charge pertains to a grave misconduct or negligence he can decide to continue the proceedings. Before arriving at such decision, the Government servant shall also be heard in that matter, is what is contended by the learned counsel.
13. It is no doubt true that Sub-rule (2)(a) applies to departmental proceedings referred to in Sub-rule (1). Sub-rule (1) authorises the President to withhold pension or gratuity or both if in any departmental proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service. Necessarily, the proceedings which can be continued and concluded on the strength of the fiction created by Sub-rule (2) (a) are proceedings pertaining to grave misconduct or negligence. It, therefore, follows that proceedings in respect of misconduct which are taken for imposing minor penalty cannot be continued under Sub-rule (2)(a) as those proceedings would not be proceedings in respect of grave misconduct. But, where proceedings for imposing major penalties are initiated the question is whether for the purpose of continuing those proceedings after retirement of the Government servant the authority will have to take a decision that the charge is in respect of a grave misconduct. Though in Rule 8 there is an explanation of the expression "grave misconduct" that is only an inclusive explanation. What is "grave misconduct" is not defined. The question whether a particular misconduct is a grave misconduct or not will have to be decided on the basis of the facts and circumstances established in a case. Sub-rule (1) only states that the Government servant must have been found guilty of a grave misconduct.
As such, it is at the stage of recording a finding on proved facts, the question whether the misconduct is grave or not will have to be decided. In this connection we may refer to the decision of the Supreme Court in Union of India and Ors. v. B. Dev, JT 1998 (5) SC 480. That was a case where an inquiry had been initiated when the respondent was in service and he was charged under Rule 3(1)(ii) and (iii) of the Central Civil Services (Conduct) Rules. That was also a case where the respondent had remained unauthorisedly absent. The respondent was found guilty and action had been taken by the President withholding full pensionary benefits. The Tribunal had quashed that order on the ground that no finding had been recorded in the departmental inquiry that grave and serious misconduct as envisaged in Rule 9 had been committed by the respondent. The apex Court dealing with that aspect has observed that it would not be correct to say that a Government servant who is not maintaining devotion to duty or is guilty of conduct unbecoming of a Government servant cannot be held guilty of a grave misconduct and that the gravity of the misconduct would depend upon the nature of the conduct. As such, in respect of major penalty proceedings which had been initiated when the Government servant was in service, the question of deciding whether the Government servant was guilty of grave misconduct or negligence which would attract sub-rule (1) would arise after the conclusion of the inquiry and at the stage of recording findings. At any rate, in this case the charge clearly states that the conduct of the applicant showed lack of devotion to duty. The question as to whether the conduct of unauthorised absence if established would amount to grave misconduct will have to be decided at a later stage and not at the stage of continuing the proceedings.
14. In support of his contention that if the departmental proceedings pertain to an event which took place more than 4 years prior to the date of retirement the sanction of the President has to be obtained even to continue such proceedings, the learned counsel for the applicant has relied on the decision of the Delhi High Court in O.P.Gupta v. Union of India and Anr. [1981 (3) SLR 778]. In that case, as the departmental inquiry was more than 20 years old a question arose as to whether such an inquiry could be continued even after retirement.
Dealing with that question the Delhi High Court has held as hereunder:-- ",.... We have here the lapse of more than 20 years. If Rule 9 is to be saved from the attack of arbitrariness it must be read in a reasonable and just manner. A guideline is available in Rule 9 (2) (b). A fresh inquiry cannot be started "in respect of any event which took place more than four years before such institution." This statutory limitation embodies sound principle of equity and justice.
It also recognises the principle of finality and repose. I do not find any difference in principle from the point of view of public interest, in continuation of pending proceeding and starting a fresh proceeding. I, therefore, hold that in case of an event more than four years old on the date of retirement a departmental proceeding cannot be continued after retirement under Rule 9(2) of the Pension Rules, 1972." Following the above decision that Andhra Pradesh Administrative Tribunal had held that inasmuch as the event on which the charge was based in that case was beyond four years prior to the retirement, the proceedings could not be continued. That decision was challenged before the Supreme Court in Chief Secretary to Govt. of Andhra Pradesh, Hyderabad v. R. Veerabhadram, 1992 SCC (L and S) 985. It was contended before the Supreme Court that the language of Rule 9 was not susceptible of this construction, that the construction virtually places an indirect limitation on the duration of an inquiry and that, however, desirable such a limitation might otherwise be, it cannot be supplied by interpretation. The Supreme Court while observing that those contentions merit consideration, left the question open in the light of the view it was taking on another point. The learned counsel for the applicant also cited before us the decision of the Patna Bench of this Tribunal in Umesh Prasad Sinha v. Union of India and Ors.
[(1997) 35 ATC 329] on the above point. In that case, the Tribunal came to the conclusion that in order to avoid obtaining sanction of the President to initiate proceedings after retirement of the employee, the authority had issued charge memo just 6 months prior to his retirement and that there was no explanation for not proceeding with the disciplinary proceedings with speed and that there was an inordinate delay in issuing the charge sheet. On those facts, the single member of the Tribunal quashed the charge sheet. That decision does not lay down any legal principle. It would appear that because the Tribunal came to the conclusion that the charge sheet had been issued in mala fide exercise of the power to get over the necessity of obtaining sanction of the President once the employee retired, the charge was quashed. : 15. We find it difficult to agree with the view taken by the Delhi High Court that limitation of 4 years will have to be read into Sub-rule (2) (a). If it is to be held that the provisions of Sub-rule 2 (a) would not be applicable if the event in respect of which the charge is framed had taken place four years prior to the retirement, then it would lead to anomalous results. Employees facing serious charges could stall the proceedings by resorting to legal ^proceedings or by not co-operating in the completion of departmental inquiry and thereby go scot free without even under going the liability under Rule 9(1). There may be cases where due to some technical difficulty the penalty order is set aside by the Appellate Authority or by the Tribunal and fresh inquiry is ordered to be held. In all such cases if the employees retire before the proceedings are concluded, no action can be taken under Rule 9(1).
Under Sub-rule (2)(b) the condition prescribed is that the proceedings should not be initiated after retirement in respect of an event which had taken place four years earlier to such initiation. If the proceedings are initiated within that period of 4 years, no period is fixed for the completion of the proceedings. If the view of the Delhi High Court is accepted then, even though the charge sheet is issued within a few months after the event, the proceedings will have to be stopped without continuing the same under Sub-rule (2)(a) for the purpose of taking action under Sub-rule (1) if the proceedings are not completed within 4 years and the official retires. There is no justification for bringing about such a result while interpreting Rule 9(2)(a) which is unambiguous. There may be cases where the proceedings are prolonged for a long time without any justification in which event it is open to the Government servant to seek the quashing of the proceedings on the ground of such inordinate delay. But, there is no warrant for limiting the applicability of Sub-rule (2)(a) only to cases where the event in respect of which the charge is framed has taken place within 4 years prior to the date of retirement. There may also be cases where event in respect of which the charge is framed does not taken place on a particular date and the misconduct is a continuing misconduct. In this case, the charge is that the applicant remained unauthorisedly absent from a particular day till the date of charge and it is the respondents case that he continued to be absent till the final order was passed. In such a case, it is unintelligible as to how the principle laid down by the Delhi High Court could be followed.
16. Dr. Nagaraja sought to make a distinction between cases where the inquiry is pending on the date of retirement of government servant and cases in which the proceedings have been completed and a penalty order is passed and which penalty order is subsequently set aside on the ground of defect in the inquiry after the retirement of the Government employee. According to him even if in the first class of cases the proceedings could be continued under Sub-rule (2)(a) without the sanction of the President, in the second class of cases, the proceedings cannot be re-started even if liberty is given by the Tribunal to do so, without the sanction of the President. He contended that to revive the proceedings which had once come to an end, after the retirement of the Government servant for the purpose of taking action under Sub-rule (1), the sanction of the President will have to be obtained.
17. When the penalty order is set aside by the Tribunal or in an appeal on account of an irregularity in the inquiry and liberty is given to the competent authority to continue the proceedings from the stage at which the irregularity occurred, then for all practical purposes, that part of the proceedings which has been held to be void should be treated as non est and the result would be that the proceedings must be deemed to have been pending when the employees retired from service.
Sub-rule (2)(b) indicates that it is only where the proceedings are to be instituted after the retirement, the sanction of the President is required. We are unable to hold that any distinction can be made between the two classes of cases referred to by the learned counsel.
When once it is held that sanction of the President is not necessary in respect of first class of cases it necessarily follows that such a sanction would not be necessary even in the second class as what is required to be done after the quashing of the penalty order on account of defect in the proceedings is to continue the same proceedings from that particular stage and not initiate any fresh proceedings.
18. It was pointed out that in Annexure-A4 the authority has stated that further inquiry would be held under the provisions of the 1965 Rules and the question of holding inquiry under those rules after the retirement of the applicant does not arise. What is stated in Annexure-A4 is that further inquiry would be held in accordance with the provisions contained in the 1965 Rules. That does not mean that proceedings would be continued for the purpose of imposing the penalty under those Rules. Even in respect of proceedings which are continued under Sub-rule (2) (a) of Rule 9 the procedure prescribed under the 1965 Rules will have to be followed except for the fact that no order imposing the penalty can be passed by the Disciplinary Authority and he has only to submit his report to the President. When proceedings which have been initiated prior to the retirement of an employee are continued after his retirement, it is obvious that the proceedings are continued for the purpose of Rule 9. There is no need to specifically mention that fact while continuing the proceedings.
19. After careful consideration of all the points urged by the learned counsel for the applicant and the relevant provisions of law, we do not think that the impugned order can be quashed on the ground that either the President's sanction is not obtained or on the ground that the charge pertains to an event which took place four years prior to the date of retirement of the applicant. The application, therefore, fails and the same is dismissed. Parties to their own costs.