T.S. Prakash Rao, Vs. Visakhapatnam Port Trust, Visakhapatnam - Court Judgment

Excerpt:
service - departmental enquiry - rules 9 (2), 56 and 69 of central civil services pension rules, 1972 and visakhapatnam port employees (classification, control and appeal) regulations, 1969 - departmental proceedings started and charges framed against petitioner after his retirement - petition filed for quashing proceedings as not permissible in law - under rule 9 (2) departmental proceedings can be instituted within four years from date when event took place - no rule prohibits initiation of proceedings after retirement if they are within four years from date of event - held, impugned proceedings cannot be said to be illegal and without jurisdiction. - order1. this writ petition is filed for quashing the proceedings dated 12-9-1994 vide memorandum no.c1/pgtspr/94 and also the other proceedings dated 15-5-1995 vide order no.c1/potspr/95.2. learned counsel appearing for the petitioner contended that by the impugned proceedings dated 12-9-1994 the charges are framed against the petitioner for holding a departmental enquiry and vide proceedings dated 15-5-1995 the enquiry officer and the presenting officer were appointed and these proceedings are illegal, since the proceedings are initiated after the retirement of the petitioner which is impermissible in law. elaborating his contention, he stated that the petitioner retired with effect from 30-11-1993 and from the date of his retirement the relationship of the petitioner with the respondent-visakhapatnam port trust as employer and employee ceases to exist; therefore, these proceedings cannot go on. he relied upon two judgments of this court in c. ramalinga reddy v. non-conventional energy development corporation of a.f. ltd, : 1994(2)alt422 and k. agarwat v. bhagwat bai montessori school, 1997 (6) ald 188. he further submitted that in both the judgments the learned single judges of this court have followed the judgment of the supreme court in state of assam & another v. j.n. roy biswar, : (1976)iillj17sc and in view ofthis law holding the field the present impugned proceedings cannot be allowed to go on since the petitioner has already retired with effect from 30th november, 1993; therefore, the writ petition deserves to be allowed.3. a detailed counter is filed by the respondent-visakhapatnam port trust. learned counsel for the respondent, ms. sudha, relying on the counter filed by the respondent contended that the petitioner has been allowed to retire with effect from 30th november, 1993 on attaining the age of superannuation, without prejudice to the disciplinary action contemplated against him. she further submitted that the order of retirement itself states that the petitioner was retired subject to the disciplinary proceedings already contemplated. therefore., in terms of rule 9 (2) (a) of central civil services (pension) rules, 1972 the departmental proceedings shall be deemed to be the proceedings under this rule and shall be continued and concluded by the authority even after retirement. she further stated that in terms of rule 9 (2) (b) of the said rules, even where the departmental proceedings were not instituted before the retirement of an employee the same could be instituted within 4 years of the event or events. she further submitted that the c.c.s. (pension) rules, 1972 have been adopted under visakhapatnam port employees (classification, control & appeal) regulations, 1969. thus, rule 9 of the c.c.s. (pension) rules would be applicable to the facts of this case, and even if the proceedings are taken as if instituted after the retirement, the same could be done within four years of the events that had happened. she further submitted that admittedly in this case the event had happened in the years 1990-91 and 1991-92 and that would be within four years of the institution of the proceedings. in the instant case, the proceedings were instituted with a memo along with the charge sheet and other particulars on 12-9-1994 and as such the proceedings are in time; therefore, there are no merits in the writ petition and the same is liable to be dismissed. she further submitted that the two judgments of the learned single judges of this court are not applicable to the facts of this case in the sense that the rules of the type involved in this case were not considered by those two learned single judges. she further submitted that in state of assam v. padma ram, air 1965 sc 473, which was relied upon by the two learned single judges of this court, the supreme court was interpreting the rules framed in assam--particularly rule 56--and in view of the said rule the hon'ble supreme court held that after retirement of a person on 6-1-1991 and after granting extension for three months from 1-1-1961 to 31-3-1961, there could be no further extension of services only because the departmental enquiry was not concluded. thus, she submitted that the said judgment cannot be taken as the law laying down that after retirement no proceedings can be initiated at all. she stated that even in a case in which charge of misappropriation is held proved, the misappropriated amount could be recovered from the pensionery benefits and, therefore, for that purpose the departmental enquiry could be continued even after retirement. at any rate, she stated that in the instant case the institution of the proceedings vide memo dated 12-9-1994 was within four years of the events that took place in the years 1990-91 and 1991-52 and, therefore, this rule is applicable to the facts of this case. thus, she submitted that the judgments relied upon by the learned counsel for the petitioner cannot assist the case of the petitioner and therefore the writ petition is liable to be dismissed.4. now the short point for my consideration would be whether the departmental enquiry could be continued after retirement of an employee in view of rule 9 of ccs (pension) rules, 1972, which according to both the parties apply to the port trust in question5. from the facts narrated above it is clear that the petitioner retired with effect from 30th november, 1993 on attaining the age of superannuation, without prejudice to the disciplinary action contemplated against him. the order of retirement dated 30th november, 1993 reads as under:'' visakhapatnam port trustpersonnel department n.c1/pgtspr/93 dated: 30-11-93

Judgment:
ORDER

1. This writ petition is filed for quashing the proceedings dated 12-9-1994 vide Memorandum No.C1/PGTSPR/94 and also the other proceedings dated 15-5-1995 vide Order No.C1/POTSPR/95.

2. Learned Counsel appearing for the petitioner contended that by the impugned proceedings dated 12-9-1994 the charges are framed against the petitioner for holding a departmental enquiry and vide proceedings dated 15-5-1995 the Enquiry Officer and the Presenting Officer were appointed and these proceedings are illegal, since the proceedings are initiated after the retirement of the petitioner which is impermissible in law. Elaborating his contention, he stated that the petitioner retired with effect from 30-11-1993 and from the date of his retirement the relationship of the petitioner with the respondent-Visakhapatnam Port Trust as Employer and Employee ceases to exist; therefore, these proceedings cannot go on. He relied upon two judgments of this Court in C. Ramalinga Reddy v. Non-Conventional Energy Development Corporation of A.F. Ltd, : 1994(2)ALT422 and K. Agarwat v. Bhagwat Bai Montessori School, 1997 (6) ALD 188. He further submitted that in both the judgments the learned Single Judges of this Court have followed the judgment of the Supreme Court in State of Assam & another v. J.N. Roy Biswar, : (1976)IILLJ17SC and in view ofthis law holding the field the present impugned proceedings cannot be allowed to go on since the petitioner has already retired with effect from 30th November, 1993; therefore, the writ petition deserves to be allowed.

3. A detailed counter is filed by the respondent-Visakhapatnam Port Trust. Learned Counsel for the respondent, Ms. Sudha, relying on the counter filed by the respondent contended that the petitioner has been allowed to retire with effect from 30th November, 1993 on attaining the age of superannuation, without prejudice to the disciplinary action contemplated against him. She further submitted that the order of retirement itself states that the petitioner was retired subject to the disciplinary proceedings already contemplated. Therefore., in terms of Rule 9 (2) (a) of Central Civil Services (Pension) Rules, 1972 the departmental proceedings shall be deemed to be the proceedings under this Rule and shall be continued and concluded by the authority even after retirement. She further stated that in terms of Rule 9 (2) (b) of the said rules, even where the departmental proceedings were not instituted before the retirement of an employee the same could be instituted within 4 years of the event or events. She further submitted that the C.C.S. (Pension) Rules, 1972 have been adopted under Visakhapatnam Port Employees (Classification, Control & Appeal) Regulations, 1969. Thus, Rule 9 of the C.C.S. (Pension) Rules would be applicable to the facts of this case, and even if the proceedings are taken as if instituted after the retirement, the same could be done within four years of the events that had happened. She further submitted that admittedly in this case the event had happened in the years 1990-91 and 1991-92 and that would be within four years of the institution of the proceedings. In the instant case, the proceedings were instituted with a memo along with the charge sheet and other particulars on 12-9-1994 and as such the proceedings are in time; therefore, there are no merits in the writ petition and the same is liable to be dismissed. She further submitted that the two judgments of the learned single Judges of this Court are not applicable to the facts of this case in the sense that the Rules of the type involved in this case were not considered by those two learned single Judges. She further submitted that in State of Assam v. Padma Ram, AIR 1965 SC 473, which was relied upon by the two learned Single Judges of this Court, the Supreme Court was interpreting the Rules framed in Assam--particularly Rule 56--and in view of the said Rule the Hon'ble Supreme Court held that after retirement of a person on 6-1-1991 and after granting extension for three months from 1-1-1961 to 31-3-1961, there could be no further extension of services only because the departmental enquiry was not concluded. Thus, she submitted that the said judgment cannot be taken as the law laying down that after retirement no proceedings can be initiated at all. She stated that even in a case in which charge of misappropriation is held proved, the misappropriated amount could be recovered from the pensionery benefits and, therefore, for that purpose the departmental enquiry could be continued even after retirement. At any rate, she stated that in the instant case the institution of the proceedings vide Memo dated 12-9-1994 was within four years of the events that took place in the years 1990-91 and 1991-52 and, therefore, this Rule is applicable to the facts of this case. Thus, she submitted that the judgments relied upon by the learned Counsel for the petitioner cannot assist the case of the petitioner and therefore the writ petition is liable to be dismissed.

4. Now the short point for my consideration would be whether the departmental enquiry could be continued after retirement of an employee in view of Rule 9 of CCS (Pension) Rules, 1972, which according to both the parties apply to the Port Trust in question

5. From the facts narrated above it is clear that the petitioner retired with effect from 30th November, 1993 on attaining the age of superannuation, without prejudice to the disciplinary action contemplated against him. The order of retirement dated 30th November, 1993 reads as under:

'' VISAKHAPATNAM PORT TRUST

PERSONNEL DEPARTMENT

N.C1/PGTSPR/93 Dated: 30-11-93