Full Judgment
(Oral) 1.
2. Heard learned counsel for the parties. The respondent sought voluntary retirement from service on September 24, 2009, which request was accepted on October 26, 2009; resulting in respondent being voluntarily retired from service with effect from the afternoon of October 31, 2009.
3. In what circumstances such request seeking voluntary retirement was accepted need not be commented upon by us for the reason we note that the respondent was a senior IPS officer and at the relevant time, the matter was being processed in the department to initiate departmental proceedings against him for a major penalty.
4. It is but apparent that the respondent had a clout and managed his way, for the reason whenever an officer seeks voluntary retirement his application is processed through the vigilance branch of the department. Only after vigilance clearance is accorded, the matter is processed administratively.
5. In the instant case, the vigilance department had decided to initiate a disciplinary proceedings and had made a reference to the cadre controlling Ministry (Ministry of Home Affairs) to grant approval to the proposed charge sheet. The necessary approval came from the Ministry of Home Affairs on November 10, 2009, on which date simultaneously the charge sheet was issued. By the time the proposals had been sent to the Ministry of Home Affairs seeking sanction to take departmental action against him, the respondent was in service and thus the draft charge sheet was obviously prepared under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969.
6. Realising that the respondent had been permitted to be voluntarily retired before the charge sheet was issued and as a result the disciplinary enquiry could not be conducted against the respondent under Rule 6 of the All India Services (Discipline and Appeal) Rules, 1969, corrective action was taken when order dated January 19, 2010 was issued, recording therein that since the respondent is entitled to pension and is governed by All India Services (Death-cum-Retirement Benefits) Rules, 1958, the enquiry would be treated as also the charge sheet would be deemed to have been issued under Rule 6 of All India Services (Death-cum-Retirement Benefits) Rules, 1958.
7. The respondent challenged the order dated January 19, 2010 before the Central Administrative Tribunal and we find that the view taken by the Tribunal is that the department could not have done so. Quashing the order dated January 19, 2010, the Tribunal has held that the department was at liberty to issue a fresh Memorandum of Charge.
8. The problem which the department faces now is that by the time the Tribunal took the decision on January 19, 2010, the bar imposed by Rule 6(1)(b)(ii) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 has come into play.
9. The sub-clause of the sub-section in question, prohibits any disciplinary proceedings against a retired officer of an All India Services, if it relates to an event which took place more than 4 years before the date when the charge sheet was issued.
10. Now, law is settled. If a power vests to do an act, merely because a wrong provision or a wrong section is quoted, would make no difference to the act.
11. What has happened in the instant case is that a wrong service source of power got referred to when the charge sheet was issued; on the assumption that the respondent was then in service. When this wrongly assumed fact came to the knowledge of the department, taking corrective action, it was indicated that the source of the power for the enquiry and the charge sheet would be under Rule 6 of the All India Services (Death-cumRetirement Benefits) Rules, 1958. It was clarified that the charge sheet would be treated as issued under said Rule.
12. The charge sheet remains the same. The memorandum remains the same. What is correct is only the source of the power.
13. Observing as above, the writ petition stands disposed of quashing the impugned order dated January 7, 2011 passed by the Central Administrative Tribunal and as the consequence, OA No. 2568/2010 filed by the respondent is dismissed.
14. There shall be no order as to costs. CM No. 5700/2011 (stay) Dismissed as infructuous. (PRADEEP NANDRAJOG) JUDGE (PRATIBHA RANI) JUDGE MARCH 12 2013 ss