Delhi High Court
Mcd vs Bhagwan Dass on 13 December, 2011
Author: A.K.Sikri
* THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 13th December, 2011
+ W.P.(C) 1212/2011
MCD ..... Petitioner
Through: Ms. Shobhaa Gupta, Advocate
Versus
BHAGWAN DASS ..... Respondent
Through: Mr. Puneet Bajaj, Advocate
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
A.K. SIKRI, ACTING CHIEF JUSTICE (ORAL)
1. The admitted facts in this case are that the respondent, on attaining
the age of superannuation, retired from service on 30th June, 2002.
However, vide order dated 28th June, 2002 (i.e., two days before his
retirement) served on the respondent on 29th June, 2002, he was
placed under suspension. Thereafter, chargesheet was issued leveling
the allegations that the respondent had, sometime in May, 1995,
fraudulently withdrawn money as loan from the GPF accounts of two
other employees namely Ganga Popli and Maya Devi. According to
the petitioner, the respondent did not accept the chargesheet when it
was sought to be served upon him, and therefore, notice thereof was
published in the newspapers 'The Statesman' (English) and 'Qaumi
Awaz' (Urdu) on 15th September, 2006 and 'Punjab Kesari' (Hindi)
on 16.9.2006. It resulted in the punishment order dated 26th February,
2007 whereby the Disciplinary Authority imposed penalty of 66% cut
for life time from the pension of the respondent.
2. O.A. No.551/2010 preferred by the respondent has been allowed by
the Tribunal vide impugned order dated 17th September, 2010 holding
that the service of chargesheet in 2005, i.e., after the retirement of the
respondent, relating to an event which took place much earlier than
four years, was time barred. For this purpose the learned Tribunal has
referred to Rule 9 of the CCS (Pension) Rules. Rule 9 (2) (b) (ii) in
this behalf stipulates limitation period of four years. This Rule
mandates that the departmental proceedings if not instituted while the
Govt. servant was in service, whether before his retirement or during
his re-employment shall not be in respect of any event which took
place more than four years before such institution.
3. Admittedly, the incident/event for which the respondent was charged
relates to the year 1995 and the chargesheet dated 15th July, 2005
(served on 18th July, 2005), therefore, related to an event which
occurred more than 10 years before issuance/service of chargesheet.
Further, this chargesheet was also served after the retirement,
therefore, on the application of the aforesaid provisions contained in
Rule 9, the chargesheet was clearly time barred.
4. The submission of learned counsel for the petitioner is that the
complaint was received by the petitioner from the aforesaid two
ladies on 17th February, 2002 and 18th February, 2002, and therefore,
four years' period should be reckoned from these dates. On that basis,
it is argued that chargesheet served on 18th July, 2005 would be
within four years. She argues that since the misconduct came to the
notice of the petitioner only when the complaints were received in
February, 2002 and the petitioner had no knowledge about this
misconduct committed by the respondent earlier, the period of
limitation should be counted from these dates.
5. We are not convinced with the aforesaid argument. Having regard to
plain language of Rule 9 (2) (b) (ii) the departmental proceedings
cannot be instituted in respect of an event which took place more than
four years before the institution of the departmental proceedings. The
date of knowledge of the event has no place under the said Rule. Had
the intention been to provide for the limitation of four years from the
date of knowledge, the Rule would have provided so. Moreover, we
find such an argument, i.e., that the period from the date of
commission of irregularity to the date such irregularity comes to the
knowledge cannot be reckoned for ascertaining whether there was
any delay in initiating disciplinary proceedings, to have been negated
by the Supreme Court in P.V. Mahadevan v. M.D., Tamil Nadu
Housing Board, AIR 2006 SC 207. Similarly, in State of Bihar v.
Mohd. Idris Ansari, 1995 Suppl. (3) SCC 56 it was held that the
period prescribed for initiation of disciplinary proceedings is to be
computed from the date of happening of the event in relation whereto
proceedings are initiated.
6. Even when we look into the facts of the case, the complaint was
received in February, 2002, the petitioner must have been fully aware
of the fact that the respondent was going to retire on 30th June, 2002.
If the petitioner wanted, it could have acted with promptitude by
issuing chargesheet before the retirement of the respondent to avoid
recourse of Rule 9. If that was not done, it is the petitioner who is to
be blamed for its own inaction.
7. We find another interesting argument, raised in the writ petition. It is
contended that the CCS (Pension) Rules are not applicable and the
petitioner has its own DMC Services (Control and Appeal)
Regulations, 1959 and the chargesheet was served under these Rules.
On this basis, it is sought to be argued that the period of limitation
provided under Rule 9 shall not be applicable. If we accept this
contention, then the impugned penalty order is, in any case, without
jurisdiction. As mentioned above, by the impugned orders dated 7 th
May, 2007, cut of 66% in the pension of the respondent was imposed
as penalty. However, we find from the reading of the aforesaid
Regulation that no such penalty is prescribed. Rule 6 stipulates
different kinds of penalties which can be imposed. These are 'Minor
Penalties' and 'Major Penalties' but it does not include any penalty of
forfeiture or cut in pension. Thus, such a penalty could not have been
imposed at all. In fact, if CCS (Pension) Rules are not applicable and
only DMC Services (Control and Appeal) Regulations, 1959 are
applicable, then there cannot be any chargesheet against an employee
who has already retired and the penalties which are provided in Rule
6 are of the nature which can be imposed only on a serving employee.
It has been held in Chandra Singh v. State of Rajasthan, (2003) 6
SCC 545 that there must exist a specific provision before whole or
part of the pension can be withheld or withdrawn.
8. Thus, from whatever angle, the matter is to be looked into, the
respondent could not have been proceeded against departmentally.
This writ petition is devoid of any merit and is, accordingly,
dismissed.
ACTING CHIEF JUSTICE
RAJIV SAHAI ENDLAW, J
DECEMBER 13, 2011
'raj'
