Bombay High Court
Shivdas Vithu Pednekar vs State Of Goa Thr. Chief Secretary And 3 ... on 12 September, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-GOA:1735-DB
2024:BHC-GOA:1735-DB
6-WP 337-24.doc
Amrut
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 337 OF 2024
Shri Shivdas Vithu Pednekar
Son of Shri Vithu Pednekar
Aged 55 years,
R/o H.No.89/12, Amuli Wada,
Khorlim, Mapusa Bardez Goa. ... Petitioner
Versus
1 State of Goa,
Through Chief Secretary,
Porvorim Goa.
2 The Secretary (GA)
Government of Goa
Secretariate Porvorim Goa
3 The Under Secretary (GA-I)
General Administration Department
Secretariate Porvorim Goa.
4 The Under Secretary (GA-II)
General Administration Department -II
SEcretariate Porvorim Goa. ... Respondents
Ms Apeksha Kalokhe, Advocate for the petitioner.
Mr Shubham Priolkar, Additional Government Advocate for the
Respondents.
CORAM: M. S. KARNIK &
VALMIKI MENEZES, JJ.
DATED: 12th September 2024
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JUDGMENT (Per M. S. Karnik, J.)
1. This petition under Article 226 of the Constitution of India
seeks to quash and set aside the Memorandum dated 24.03.2021 issued
by respondent No.4 denying the petitioner pensionary benefits
consequent to imposing penalty of compulsory retirement and
forfeiting past service. It is prayed that respondents be directed to grant
pensionary benefits in accordance with Rule 40 of the CCS (Pension)
Rules, 1972 to the petitioner.
2. The facts of the case in brief are as follows:
The petitioner was appointed as a Peon in the secretariat on a
temporary basis w.e.f. 09.04.1996. After completing the probation
period, the petitioner was confirmed in the post of Peon on 31.03.1999
and thereafter was promoted to the post of Junior Assistant on
02.08.2002. The petitioner was promoted on regular basis to the post
of Assistant from 10.05.2010. The petitioner absented himself from
attending duties w.e.f. 02.05.2012. A Memorandum dated 05.12.2012
was issued by respondent No.3-Under Secretary (GA-I), General
Administration Department, Secretariat, Porvorim Goa, by virtue of
which the period of absence was treated as a break in service having the
effect of interruption in service thereby forfeiting the past service of the
petitioner in terms of Rule 27 of CCS (Pension) Rules, 1972. By
Memorandum dated 28.12.2012 the petitioner was informed that the
competent authorities have decided to initiate disciplinary proceedings
against him under Rule 14 of Central Civil Services (Classification,
Control and Appeal) Rules, 1965 (hereinafter called CCS (CCA) Rules
for short). The order imposing a major penalty of compulsory
retirement on the petitioner was passed by respondent No.2 on
17.10.2019.
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3. Respondent No.4 -Under Secretary (GA-II), General
Administration Department -II, Secretariat, Porvorim Goa, forwarded
necessary documents to the Director of Accounts, Pension Section for
the grant of gratuity/pension to the petitioner. The petitioner was
informed that he is not entitled to any pensionary benefits due to the
imposition of the penalty of compulsory retirement and forfeiture of
past service. An appeal was filed before respondent No.1 -Chief
Secretary, State of Goa, against the decision taken by the competent
authorities denying pensionary benefits to the petitioner. The appeal
preferred by the petitioner came to be rejected by order dated
14.12.2021.
4. The petitioner was issued a Memorandum of Charges dated
28.12.2012 in which two charges were proposed against the petitioner.
The said charges read as follows: -
ARTICLE -I
That the said Shri Shivdas V. Pednekar,
Assistant in the Secretariat posted in the Central
Registry/GAD-III absented himself from attending his
duties with effect from 02/05/2012 till date
(28.12.2012). His absence from 02/05/2012 till
05/12/2012 has been treated as break in service which
shall have effect of interruption in service thereby
forfeiting his past service in terms of Rule 27 of CCS
(Pension) Rules, 1972 vide Memorandum
No.PER/20/23/91-GA&C dated 05/12/2012. Shri
Shivdas V. Pednekar, Assistant, has not reported for
his duties till date. By the aforesaid act, the said Shri
Shivdas V. Pednekar, Assistant failed to maintain
absolute integrity, devotion to duty and acted in a
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manner unbecoming of a Government Servant
thereby violating Rule 3(1) Sub-Rules (i),(ii) and (iii)
of the Central Civil Services (Conduct) Rules, 1964.
ARTICLE -II
During the aforesaid period and while
functioning in the aforesaid post, the said Shri
Shivdas V. Pednekar, Assistant, remained
unauthorisedly absent from 02/05/2012 to till date.
By the above acts, the said Shri Shivdas V.
Pednekar, Assistant, exhibited lack of devotion to
duty, and acted in a manner unbecoming of a
Government Servant, thereby violating Rule 3(1) Sub-
Rules (i), (ii) and (iii) of the Central Civil Services
(Conduct) Rules, 1964.
5. The inquiry authority submitted a report dated 11.03.2016
holding that the charges of remaining absent without justification for
such a long spell or by not applying for leave as required under the
Leave Rules are proved. During the course of inquiry, it was the defence
of the petitioner that the reason for not attending duty was because on
26.03.2012, the Hon'ble Minister in collusion with one person and in
his presence forcefully detained him in the secretariat conference hall
and took a handwritten note from him that he will pay back the amount
of Rs.4,00,000/- to the said person. It was the case of the petitioner
that, in turn, a blank cheque was forcibly taken from him so that the
concerned person can illegally recover the amount by initiating false
legal proceedings against him. It is alleged that the Minister had
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threatened the petitioner. It was on account of this fear the petitioner
requested police protection as he was working in the secretariat.
6. The inquiry officer did not consider the aforesaid defence to be
justification for remaining absent on duty. The inquiry officer held that
the petitioner was not entitled to police protection as the petitioner
does not perform any duties which attracted public reaction and his
duties were not of executive nature. Furthermore, the inquiry officer
observed that he is not empowered to decide about the matter of the
loan of Rs.4,00,000/- as it does not form part of the charges, which
relates only to absenteeism. The inquiry officer thus held that the
justification of the petitioner to remain absent by contravening the
provisions of leave rules and conduct rules for such a long period
inspite of various opportunities given to him to rejoin duties is not at all
acceptable. In such circumstances, it was held that the charges of
remaining absent without justification for such a long spell or by not
applying for leave as required under the Leave Rules are proved.
7. Mr Priolkar, learned Additional Government Advocate
submitted that the impugned order does not call for any interference. It
is submitted that by a memorandum dated 05.12.2012, the competent
authority treated the period of unauthorized absence from 02.05.2012
to 05.12.2012 as break in service which shall have the effect of
interruption in service thereby resulting in forfeiture of his past service
in terms of Rule 27 of CCS (Pension) Rules, 1972. It is submitted that
the memorandum dated 05.12.2012 was never challenged by the
petitioner and the same has attained finality. According to the learned
Additional Government Advocate, once past service has been forfeited,
then no question entitling the petitioner to any pensionary benefits will
arise, as any forfeiture has the effect of rendering the period spent on
duty inconsequential for the purpose of pension and gratuity. It is
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further submitted that the penalty of compulsory retirement dated
17.10.2019 was not challenged by the petitioner which has attained
finality. Learned Additional Government Advocate relied upon the
decision in Chennai Metropolitan Water Supply and
Sewerage Board and others Vs T. T. Murali Babu1 to contend
that it is not an absolute proposition in law that whenever there is long
unauthorized absence, it is obligatory on the part of disciplinary
authority to record finding of willful absence even when employee
failed to show compelling circumstances for remaining absent. In any
case, it is submitted that as the order of compulsory retirement is not
under challenge, the petitioner cannot assail the findings of the inquiry
officer. Reliance is placed on the State of Punjab and others Vs
Gurbaran Singh2 in support of the proposition that in case of
resignation from service or a post, unless the matter was covered under
sub-rule (2) of Rule 26 of the CCS Rules, it would entail forfeiture of
past service. He submits that since the past service stand forfeited, the
same would be excluded from the qualifying period of service, and as
such for deciding the question of entitlement to pension, the employee
would not have 'the qualifying period of service'. The thrust of Mr
Priolkar's submission is that for deciding the question of entitlement to
pension, the employee must have 'the qualifying period of service'
which in the present case he does not have on account of forfeiture of
his past service. Mr Priolkar then relied upon the decision in
Chatrapal Vs State of Uttar Pradesh and another 3 to contend
that ordinarily the findings recorded by the inquiry officer should not
be interfered with by the appellate authority or by the writ court. It is
only when the finding of guilt recorded by the inquiry officer is based
(2014) 4 SCC 108
(2019) 4 SCC 805
2024 SCC OnLine SC 146
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on perverse finding the same can always be interfered with. Therefore,
he prayed that the petition be dismissed. Learned Additional
Government Advocate has also invited our attention to the affidavit in
reply filed on behalf of the respondents.
8. Heard learned counsel for the parties.
9. In Chatrapal Vs State of Uttar Pradesh and another (supra)
Their Lordships observed that it is trite law that ordinarily the findings
recorded by the inquiry officer should not be interfered with by the
appellate authority or by the writ court except when the finding is
perverse. The scope of interference by the Court in the findings
recorded by the inquiry officer is elaborated. However, as the order of
compulsory retirement is not under challenge, it is not open for us to go
into the question of the perversity of the finding recorded by the
inquiry officer. This aspect we had to briefly touch as the learned
counsel for the petitioner made an attempt to justify the compelling
reason for the petitioner's absenteeism. We therefore proceed on the
footing that the order of compulsory retirement dated 17.10.2019 has
attained finality.
10. It is pertinent to note that by memorandum dated 05.12.2012 the
period of unauthorized absence from 02.05.2012 to 05.12.2012 was
treated as a break in service having the effect of interruption in service
thereby forfeiting the past service in terms of Rules 27 of CCS (Pension)
Rules, 1972. Even this order was never challenged and has attained
finality.
11. The decision relied upon by learned Additional Government
Advocate in the State of Punjab and others Vs Gurbaran Singh (supra)
lays down that if the past service stands forfeited, the same would be
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excluded from the period of qualifying service and as such for deciding
the question of entitlement to pension, the employee would not have
the qualifying period of service. The decision was rendered in the
context of forfeiting of past service under Rule 26.
12. As indicated earlier, for the period of absenteeism from
02.05.2012 till 05.12.2012, the same is treated as break in service
having effect of interruption thereby forfeiting the petitioner's past
service. By memorandum dated 28.12.2012, the statement of Article of
charges was framed against the petitioner for unauthorized absence.
Article I specifically makes a reference to the forfeiture of service. The
service has been forfeited in terms of Rule 27 of the CCS (Pension)
Rules which reads thus: -
"27. Effect of interruption in service.-
(1) An interruption in the service of a Government
servant entails forfeiture of his past service, except
in the following cases :-
(a) authorised leave of absence ;
(b) unauthorised absence in continuation of
authorised leave of absence so long as the post of
absentee is not filled substantively ;
(c) suspension, where it is immediately followed by
reinstatement, whether in the same or a different
post, or where the Government servant dies or is
permitted to retire or is retired on attaining the age
of compulsory retirement while under suspension;
(d) transfer to non-qualifying service in an
establishment under the control of the Government if
such transfer has been ordered by a competent
authority in the public interest ;
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(e) joining time while on transfer from one post to
another.
(2) Notwithstanding anything contained in sub-rule
(1), the [appointing authority] may, by order,
commute retrospectively the periods of absence
without leave as extraordinary leave."
13. Rule 3(q) of the CCS (Pension) Rules defines "qualifying service"
to be service rendered while on duty or otherwise which shall be taken
into account for the purpose of pensions and gratuities admissible
under these rules. Much emphasis is placed by learned Additional
Government Advocate on Rule 26 which reads thus:-
"26. Forfeiture of service on resignation. - (1)
Resignation from a service or a post, unless it is
allowed to be withdrawn in the public interest by the
appointing authority, entails forfeiture of past
service.
(2) A resignation shall entail forfeiture of past service
if it has been submitted to take up with proper
permission, another appointment, whether
temporary or permanent, under the Government
where service qualifies.
(3) Interruption in service in a case falling under
sub-rule (2), due to the two appointments being at
different stations not exceeding the joining time
permissible under the rules of transfer, shall be
covered by grant of leave of any kind due to the
Government servant on the date of relief or by
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formal condonation to the extent to which the period
is not covered by leave due to him.
(4) The appointing authority may permit a person to
withdraw his resignation in the public interest on the
following conditions, namely:-
(i) that the resignation was tendered by the
Government servant for some compelling reasons
which did not involve any reflection in his
integrity, efficiency or conduct and the request
for withdrawal of the resignation has been made
as a result of a material change in the
circumstances which originally compelled him to
tender the resignation;
(ii) that during the period intervening between
the date on which the resignation became
effective and the date from on which the request
for withdrawal was made, the conduct of the
person concerned was in no way improper;
(iii) that the period of absence from duty between
the date on which the resignation became
effective and the date which the person is allowed
to resume duty as a result of permission to
withdraw the resignation is not more than ninety
days;
(iv) that the post, which was vacated by the
Government servant on the acceptance of his
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resignation or any other comparable post, is
available.
(5) Request for withdrawal of a resignation shall not
be accepted by the appointing authority where a
Government servant resigns his service or post with
a view to taking up an appointment in or under a
private commercial company or in or under a
corporation or company wholly or substantially
owned or controlled by the Government or in or
under a body controlled or financed by the
Government.
(6) When an order is passed by the appointing
authority allowing a person to withdraw his
resignation and to resume duty, the order shall be
deemed to include the condonation of interruption in
service but the period of interruption shall not count
as qualifying service.
[(7) A resignation submitted for the purpose of Rule
37 shall not entail forfeiture of past service under the
Government.]"
14. The submission of the learned Additional Government Advocate
is that the consequence of forfeiture of past service in the context of
resignation under Rule 26 of the Pension Rules will similarly apply in
respect of cases falling under Rule 27. Therefore, we have to be
mindful of the decision in the State of Punjab and others Vs Gurbaran
Singh (supra) holding that if past service would stand forfeited, the
same would be excluded from the period of qualifying service.
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15. Perusal of Rule 26 indicates that resignation from a service or a
post entail forfeiture of past service unless it is allowed to be withdrawn
in public interest. Such resignation may be permitted to be withdrawn
by the appointing authority in public interest on satisfaction of the
conditions contained in clause (4) of Rule 26. Thus a resignation entails
the consequence of forfeiture of past service unless it is allowed to be
withdrawn. So far as Rule 27 is concerned, it ordains that interruption
in the service of a Government servant entails forfeiture of past service
except in the cases provided by clause (1) of Rule 27. Moreover, clause
(2) empowers the appointing authority to commute retrospectively by
ordering the periods of absence without leave as extraordinary leave.
To some extent, having regard to the purport of Rule 27, the
consequence of forfeiture of service provided by Rules 26 and 27 will
have to be looked differently in the contextual facts of each case. Rule
27 empowers condoning the periods of absence.
16. Learned Additional Government Advocate relied upon F.R. 17(1)
to contend that the officer who is absent from duty without any
authority shall not be entitled to any pay and allowance during the
period of absence. F. R. 17(1) reads thus: -
"F.R. 17. (1)- Subject to any exceptions specifically
made in these rules and to the provisions of sub-rule
(2), an officer shall begin to draw the pay and
allowances attached to his tenure of a post with
effect from the date when he assumes the duties of
that post, and shall cease to draw them as soon as
he ceases to discharge those duties:
Provided that an officer who is absent from duty
without any authority shall not be entitled to any pay
and allowances during the period of such absence."
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17. In our opinion, nothing turns on F.R. 17(1) as the petitioner is
not claiming any pay and allowances during the period of such absence.
18. Now let us consider Rule 40 of CCS (Pension) Rules which
provides for compulsory retirement pension which reads thus:
"40. Compulsory retirement pension.-
(1) A Government servant compulsorily retired from
service as a penalty may be granted, by the authority
competent to impose such penalty, pension or gratuity
or both at a rate not less than two-thirds and not more
than [full compensation pension] or gratuity or both
admissible to him on the date of his compulsory
retirement.
2[ ]
(2) Whenever in the case of a Government servant the
President passes an order (whether original, appellate
or in exercise of power of review) awarding a pension
less than the [full compensation pension] admissible
under these rules, the Union Public Service
Commission shall be consulted before such order is
passed.
Explanation. - In this sub-rule, the expression
"pension" includes gratuity.
(3) A pension granted or awarded under sub-rule (1)
or, as the case may be under sub-rule (2), shall not be
less than the [amount of Rupees (three hundred and
seventy-five] per mensem]."
19. Rule 11 of the C.C.S. (C.C.A.) Rules provides for compulsory
retirement as a major penalty which may for good and sufficient
reasons be imposed on the Government servant. As indicated earlier,
the order imposing penalty of compulsory retirement is not under
challenge. No doubt, by the order dated 05.12.2012, the period from
02.05.2012 till 05.12.2012 was treated as a break in service having the
effect of interruption in service thereby forfeiting the past service of the
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petitioner from 09.04.1996 to 05.12.2012. Consequent to the order
dated 05.12.2012, as the petitioner continued to remain absent, the
disciplinary authority decided to hold an inquiry and proceeded to
charge sheet the petitioner on 28.12.2012. The petitioner maintained
the stand that he was requesting for security due to the threats from the
Hon'ble Minister which was the reason for his not reporting for work.
As the order of compulsory retirement is not challenged, no doubt, we
cannot give much weightage to this submission of the learned counsel
for the petitioner which according to him was a compelling
circumstance preventing him from reporting to work.
20. It is pertinent to note that the inquiry which was initiated against
the petitioner in the year 2012 has resulted in the order of compulsory
retirement dated 17.10.2019. This order was passed after a period of
seven years since the date of initiating the inquiry. The period from
05.12.2012 up to 17.10.2019 is treated as unauthorized absenteeism
resulting penalty of compulsory retirement. In the order dated
17.10.2019, a specific reference is made to the order dated 05.12.2012
forfeiting his past service in terms of Rule 27 of CCS (Pension) Rules
1972 for not attending his duty w.e.f. 02.05.2012 up to 05.12.2012.
Factually there is no order suspending the petitioner during the
pendency of the inquiry. The order of compulsory retirement dated
17.10.2019 does not say anything as to whether the period from
06.12.2012 to 17.10.2019 has the effect of forfeiting past service. As
indicated earlier, the appointing authority has the power to commute
retrospectively the periods of absence without leave as extraordinary
leave.
21. Under Rule 40, a Government servant compulsorily retired from
service as a penalty may be granted by the authority competent to
impose such penalty, pension or gratuity or both at a rate not less than
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two-thirds and not more than full compensation pension or gratuity or
both admissible to him on the date of his compulsory retirement. We
find that in view of the order dated 05.12.2012 forfeiting the past
service for unauthorized absence from 02.05.2012 to 05.12.2012, the
entire past service of the petitioner till the order of compulsory
retirement is forfeited. The inquiry proceedings went on for almost
seven years. There is nothing on record to indicate that it is solely the
petitioner who was responsible for such delay in concluding the
inquiry. The said period has been treated as without the benefit of pay
and allowances. It is in these facts and circumstances, we are inclined
to hold that it would be harsh and unfair to deny the petitioner pension
and gratuity in terms of Rule 40 of the CCS (Pension) Rules as the
period has actually worked for 16 years. It is not the case that the
petitioner has no leave to his credit. He did not apply for condonation
of the period of absenteeism in which case the appointing authority was
empowered under clause (2) of Rule 27 to commute the periods of
absence without leave as extraordinary leave. The power under clause
(2) of Rule 27 can be exercised notwithstanding anything contained in
clause (1) of Rule 27. Considering that the petitioner prays for pension
and gratuity in terms of Rule 40, at this distance of time, it would be
unjust to deprive him the benefit only for want of an order under clause
(2) of Rule 27. We are of the view that for the purpose of Rule 3(q) the
period from 09.04.1996 to 05.12.2012 be regarded as qualifying service
entitling the petitioner to the benefit of pension and gratuity in terms of
Rule 40.
22. The petitioner is held entitled to pension, gratuity and other
benefits in terms of Rule 40 of the CCS (Pension) Rules. So far as the
relief in terms of prayer clause (c) is concerned, the petitioner may
make representation to the respondents within a period of four weeks
from the date of uploading of the order which shall be considered in
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accordance with law expeditiously. The arrears be paid to the petitioner
within a period of three months from the date of uploading of this
order. The petition is disposed of. No costs.
VALMIKI MENEZES, J. M. S. KARNIK, J.
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