Manipur High Court
Shri S. Manglemjao Singh vs The Union Of India Represent By The ... on 12 February, 2021
MAYANG Digitally signed
by [1]
LAMBAM MAYANGLAMBA
M CHANU
CHANU NANDINI
Date: 2021.02.12
NANDINI 14:28:32 +05'30' IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C) No. 999 of 2019
Shri S. Manglemjao Singh, aged about 64 years, Son of (L) S.
Ibomcha Singh, resident of Palace Gate, New Checkon Road,
P.O. Imphal, P.S. Porompat, Imphal East, Manipur, PIN- 795001.
... Petitioner
-Versus-
1. The Union of India represent by the Secretary to the
Government of India, Ministry of Home Affairs, New Delhi-
110001.
2. The Chief Secretary (DP), Govt. of Manipur, Manipur
Secretariat, South Block, Imphal, Manipur - 795001.
3. The Principal Secretary, Departmental Enquiry, Govt. of
Manipur, Manipur Secretariat, South Block, Imphal, Manipur-
795001.
4. The Joint Secretary (DP), Govt. of Manipur, Manipur
Secretariat, South Block, Imphal, Manipur- 795001.
... Respondents
B E F O R E
HON'BLE MR. JUSTICE KH. NOBIN SINGH
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the petitioner ∷ Shri Anjan Prasad Sahu, Advocate
For the respondents ∷ Shri Niranjan Sanasam, GA; Shri W.
Darakishwor, Sr. PCCG
Date of Hearing ∷ 29-01-2021
Date of Judgment & Order ∷ 12-02-2021
JUDGMENT AND ORDER
Kh. Nobin Singh, J.
[1] Heard Shri Anjan Prasad Sahu, learned Advocate appearing for
the petitioner; Shri Niranjan Sanasam, learned GA appearing for the
WP(C) No. 999 of 2019 Contd.../-
[2]
State respondents and Shri W. Darakishwor, learned Sr. PCCG
appearing for the Union of India.
[2] The validity and correctness of the order dated 04-11-2019
passed by the Hon'ble Tribunal in O.A. No.042/00338 of 2019 is under
challenge in this writ petition and in addition thereto, the petitioner has
prayed for issuing a writ of certiorari or any other appropriate writ to
quash and set aside the impugned departmental enquiry pending for
more than one year and also to issue a writ of mandamus or any other
appropriate writ to direct the respondents to release the pensionary
benefits of the petitioner.
[3.1] Facts and circumstances as narrated in the writ petition are, in
short, that the petitioner is an ex-IPS Officer who had served as the
Inspector General of Police (Zone-III), Government of Manipur and had
retired on attaining the age of superannuation on 29-02-2016. After a
lapse of more than two years from the date of his retirement, a
departmental enquiry was ordered to be initiated against him and
accordingly, an Enquiry Officer was appointed to conduct the enquiry into
the charges framed against him vide order dated 09-04-2018 issued by
the Department of Personnel & Administrative Reforms (Personnel
Division), Government of Manipur. Thereafter, a letter dated 05-05-2018
was issued informing him that a preliminary/ regular hearing would be
held on 18-05-2018 and that the petitioner should attend the same.
[3.2] On 06-06-2018, the Enquiry Officer passed an order to the effect
WP(C) No. 999 of 2019 Contd.../-
[3]
that the Presenting Officer should submit his written brief within ten days
with a copy to be furnished to the Defence Assistance who could submit
his written brief within ten days thereafter. The Presenting Officer failed to
submit his written brief, even though the extension of time was granted,
because of which the Enquiry Officer vide its letter dated 26-07-2018
advised the petitioner to submit his written brief within ten days. In
response to the said letter, the petitioner submitted his written brief vide
his letter dated 06-08-2018 explaining the allegations with necessary
documents as regards the supply of Leather Belt Black with Crest
numbering 20000 which were procured during the year, 2013-2014 and
were received by the 1st MR Store and had been fully issued to the
Manipur Rifle Units with nothing left unissued in the stock register. It has
further been stated that the stock which were found by the Hon'ble Chief
Minister, Manipur during the surprise inspection, were the belts from
another stock which were subsequently ordered and were received by the
1st MR Imphal on 16-05-2016 for which the present petitioner was not
responsible, as at that point of time, he was not the Chairman of the
Committee nor was he related in any manner.
[3.3] After the written brief having been submitted by the petitioner,
there was no subsequent development at all in the departmental enquiry
nor was any final report submitted by the Enquiry Officer. Being highly
aggrieved, the petitioner submitted a representation dated 05-09-2019 to
the Chief Secretary, Manipur stating that even after a lapse of about a
year, there was no conclusion of the enquiry nor was any final report
WP(C) No. 999 of 2019 Contd.../-
[4]
submitted, because of which his pensionary benefits were withheld and in
the representation, it has also been stated that since the petitioner having
been diagnosed with non alcoholic liver cirrhosis due to buddchairi
syndrome in the month of January, 2019, he had to undergo liver
transplant at Fortis Hospital, Noida in the month of April, 2019 and
therefore, he requested the authority to close the enquiry and release the
pensionary benefits which the authority failed to do so.
[4] Being aggrieved by the inaction on the part of the respondents,
the petitioner approached the Hon'ble Central Administrative Tribunal,
Guwahati Bench, by way of the said O.A. on the inter-alia grounds that as
per the notification dated 02-06-2017 published by the DoPT, the inquiry
authority should conclude the enquiry and submit his report within a
period of six months from the date of receipt of the order of his
appointment but even after a lapse of more than a year, the Enquiry
Officer failed to conclude the enquiry and therefore, the departmental
enquiry was liable to be quashed and set aside. Without considering the
case on merit and the grounds taken by the petitioner, the Hon'ble
Tribunal passed an order dated 04-11-2019 directing the respondents to
complete the enquiry proceedings within a period of two months from the
date of receipt of a copy of the order.
[5] Being aggrieved by the said order dated 04-11-2019 of the
Hon'ble Administrative Tribunal, the instant writ petition has been filed by
the petitioner on the inter-alia grounds that the Hon'ble Tribunal
WP(C) No. 999 of 2019 Contd.../-
[5]
completely ignored the prayer made by the petitioner in the application
and on the contrary, it had passed an order granting two months' time for
completing the enquiry proceedings. The Hon'ble Tribunal had exceeded
its jurisdiction and supplemented the rule of the departmental enquiry as
provided in the notification dated 02-06-2017 which is against the law of
adjudication and cannot be done by any Court of law, unless such
provisions are challenged. To withhold the departmental enquiry by the
authority for more than a year without any application for extension of
time, had clearly shown the illegal, arbitrary and mala fide intention of the
authority to harass the petitioner and to withhold his pensionary benefits.
From the written brief dated 06-08-2018 submitted by the petitioner, it is
clearly demonstrated that the petitioner was in no way involved in any
misconduct and the allegations leveled against him were false and
fabricated. The denial of his pensionary benefits has caused great
financial hardship to him and therefore, if the direction for immediate
release of the pensionary benefits is not granted, it will cause great
prejudice to the petitioner which cannot be compensated later on by any
other means. In view of the pendency of the said departmental enquiry,
the non-payment of the pensionary benefits to the petitioner is illegal,
unlawful, arbitrary, mala fide, discriminatory, vindictive and capricious
being violative of fundamental rights guaranteed by the Constitution of
India.
[6] The stand of the State Government as indicated in the affidavit
filed on behalf of respondent Nos. 2 & 4, is that the petitioner being the
WP(C) No. 999 of 2019 Contd.../-
[6]
ex- member of the All India Services, the provisions of the Central Civil
Services (CCA) Rules, 1965 and in particular, the notification dated 02-
06-2017 are not applicable to him as is evident from Rule 3 thereof. It has
further been stated that the case of the petitioner is regulated by the
Rules, 1969 wherein Rule 3(1B) & 3(IC) provide that the enquiry on
charges other than corruption/ on charges of corruption shall be
completed and appropriate order shall be issued within one year/ two
years from the date of suspension as the case may be, failing whic h the
suspension order shall automatically stand revoked. However, the said
rules do not provide that the disciplinary proceedings/ DEs beyond the
prescribed one year/ two years shall be rendered invalid automatically.
[7] An additional affidavit has been filed by the petitioner stating that
the provisions of the Rules, 1958 are not applicable to the case of the
petitioner as the same do not apply to the members of the All India
Services who were promoted to the service from the State service as is
evident from Rule 1(2)(b) which provides that the said rules do not apply
to the members of All India Services who were promoted to the service
from the State services. The 2nd proviso thereto further states that the
Rules, 1958 do not apply to the persons appointed to the service on or
after the 1st day of January, 2004 and since the petitioner herein was
appointed to the service after 2004, they do not apply to him. It has
further been stated that DoPT wrote a letter dated 08-09-2009 to the
Chief Secretaries of all the state governments/ UTs notifying that State
service officers who were appointed to the IAS /IPS /IFS, by way of
WP(C) No. 999 of 2019 Contd.../-
[7]
promotion/ selection, who were already covered by the old pension
scheme would continue to be governed by it. Since the old pension
scheme was in operation prior to 2004, the petitioner was covered by the
said scheme and not the by Rules, 1958. An OM dated 04-11-2015 was
issued by DoPT clarifying that the Rules, 1958 were inapplicable to the
members of the services who were appointed on or after 1-1-2004. It has
further been stated that Rules 1969 are only applicable to the members of
All India Services who are still in service. It is thus clear that both the
provisions which have been invoked to initiate the disciplinary
proceedings, are not applicable and therefore, the disciplinary enquiry
suffered from lack of maintainability and is liable to be quashed. A reply
affidavit on behalf of respondent Nos. 2 & 4 has been filed wherein it has
been stated that the contention of the petitioner that both the rules do not
apply to his case, is false and misleading for the reason that the above
rules shall apply to the petitioner who is a retired member of the All India
Services. The contention of the petitioner amounts to selective
interpretation of the rules as per his convenience. The petitioner has
conveniently ignored the later part of Rule (1)(2)(b) of the Rules, 1958
which provides for exercise of option which were never given to the
petitioner nor had he chosen to be governed by the pensionary rules of
the State and hence, the Rules, 1958 shall be applied to the petitioner.
The departmental enquiry was initiated against him with the sanction of
the Central Government vide its letter dated 30-1-2018 and therefore,
there is onus on the Central Government to make a reply as to whether
WP(C) No. 999 of 2019 Contd.../-
[8]
the Rules, 1958 are applicable to the petitioner or not. Old non-
contribution pension scheme in respect of the All India Services shall
mean the old defined benefit pension scheme under the Rules, 1958 and
therefore, Rule 6 of the Rules, 1958 shall be applied to the petitioner.
Under Rule 6(1)(b)(iii) of the Rules, 1958, the departmental proceedings
against the pensioner shall be conducted by such authority and in such
place or places as the Central Government may direct and in accordance
with the procedure applicable to the proceedings on which an order of
dismissal from service being made. Any disciplinary proceedings against
the petitioner under Rule 6 of the Rules, 1958 should follow the
procedure of disciplinary proceedings under Rule 8 of the Rules, 1969 as
provided thereon. It is the contention of the State Government that both
the provisions under Rule 6 of the Rules, 1958 and Rule 8 of the Rules
1969 are applicable to the petitioner and therefore, the departmental
enquiry does not suffer from any lack of maintainability.
[8] The impugned order reads as under:
"GOVERNMENT OF MANIPUR
DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE
REFORMS
(PERSONNEL DIVISION)
-------
MEMORANDUM
Imphal, the 27th February, 2018
No. 10/1/2017-IPS/DP(Pt.): The Governor of Manipur proposes to
hold an enquiry against Shri S. Manglemjao Singh, IPS (retire)
under the provisions of Rule 6 of the AIS (DCRB) Rules, 1958
read with rule 8 of the All India Service (Discipline & Appeal)
Rules, 1969. The substance of the imputation of misconduct or
misbehavior in respect of the which the enquiry is proposed to be
WP(C) No. 999 of 2019 Contd.../-
[9]
held is set out in the enclosed statement of Articles of Charges
(Annexure-I). A Statement of imputations of misconduct or
misbehavior in support of each Article of Charges is enclosed
(Annexure-II). A list of document by which, and list of Witnesses
by whom the Articles of Charges are proposed to be sustained
are also enclosed at (Annexure-III & IV) respectively.
2. Shri S. Manglemjao Singh, IPS (retired) is directed to submit
within 15 (fifteen) days of the receipt of this Memorandum a
written statement of his defence and also to state whether he
desires to be heard in person.
3. Shri S. Manglemjao Singh, IPS (retired) is informed that an
enquiry will be held only in respect of those Articles of charge as
are not admitted. He should, therefore, specifically admit or deny
each Article of charge.
4. Shri S. Manglemjao Singh, IPS (retired) is further informed that
if he does not submit his written statement of defence on or
before the date specified in para 2 above, or does not appear in
person before the Inquiry Authority, the Inquiry Authority may hold
the inquiry against him ex-parte.
Receipt of this Memorandum may be acknowledged.
Sd/-
(R.R. Rashmi)
Chief Secretary (DP),
Government of Manipur
Shri S. Manglemjao Singh, IPS (retired)
Ex-IGP, Manipur.
(L. Bikram)
Joint Secretary (DP)
Government of Manipur"
[9] It has been submitted by Shri Anjan Sahu, the learned counsel
appearing for the petitioner that Rule 6 of the Rules, 1958 and Rules 8 of
the Rules, 1969 are not applicable to the facts and circumstances of the
present case and therefore, the order dated 27-02-2018 by which the
disciplinary proceedings were initiated against him, is bad in law and is
liable to be quashed and set aside by this Court. On the other hand, the
stand of the respondents is contrary to his submission. The short
question that arises for consideration by this Court is as to whether Rule
WP(C) No. 999 of 2019 Contd.../-
[10]
6 of the Rules, 1958 and Rules 8 of the Rules, 1969 are applicable to the
facts and circumstances of the present case. The answer to this question
lies on the interpretation of Rule 6 of the Rules, 1958 and Rules 8 of the
Rules, 1969 which read as under:
The All India Services (Death-Cum-Retirement Benefits),
Rules, 1958
"6. Recovery from pension.-[(1)The Central Government
reserves to itself the right of withholding a pension or gratuity, or
both, either in full or in part, whether permanently or for a
specified period, and of ordering recovery from pension or
gratuity.] the whole or part of any pecuniary loss caused to the
Central or a State Government, if the pensioner is found in a
departmental or judicial proceedings to have been guilty of grave
misconduct or to have caused pecuniary loss to the Central or a
State Government by misconduct or negligence during his
service, including service rendered on re-employment after
retirement:
Provided that no such order shall be passed without consulting
the Union Public Service Commission:
Provided further that-
(a) Such departmental proceeding, if instituted while the
pensioner was in service, whether before his retirement or
during his re-employment, shall, after the final retirement
of the pensioner, be deemed to be a proceeding under
this sub-rule and shall be continued and concluded by the
authority by which it was commenced in the same manner
as if the pensioner had continued in service;
(b) Such departmental proceeding, if not instituted while the
pensioner was in service, whether before his retirement or
during his re-employment;
(i) shall not be instituted save with the sanction of
the Central Government;
(ii) shall be in respect of an event which took place
not more than four years before the institution of
WP(C) No. 999 of 2019 Contd.../-
[11]
such proceedings; and
(iii) shall be conducted by such authority and in such
place or places as the Central Government may
direct and in accordance with the procedure
applicable to proceeding on which an order of
dismissal from service may be made;
(c) Such judicial proceeding, if not instituted while the
pensioner was in service, whether before his retirement or
during his re-employment, shall not be instituted in
respect of a cause of action which arose or an event
which took place more than four years before such
institution.
Explanation.-For the purpose of this rule-
(a) a departmental proceeding shall be deemed to be
instituted when the charges framed against the
pensioner are issued to him or, if he has been placed
under suspension from an earlier date, on such date;
and
(b) a judicial proceeding shall be deemed to be instituted-
(i) in the case of criminal proceedings, on the date on
which a complaint is made or a charge-sheet is
submitted, to the Criminal Court; and
(ii) in the case of a civil proceedings, on the date on
which the plaint is presented or, as the case may be,
an application is made, to a Civil Court.
[Note1.-Where a part of the pension is withheld or withdrawn
the amount of such pension shall not be reduced below the
amount of rupees three thousand and seventy five per
mensem.
Note 2.-Where Central Government decides not to withhold
or withdraw pension but orders recovery of any pecuniary
loss from pension. The recovery shall not ordinarily be made
at a rate exceeding one third of the pension admissible on
the date of retirement of the member of the service.]
(2) Where any departmental or judicial proceeding is instituted
under sub-rule (1), or where a departmental proceeding is
continued under clause (a) of the proviso, there to against an
officer who has retired on attaining the age of compulsory
retirement or otherwise, 2 he shall be sanctioned by the
Government which instituted such proceedings, during the period
WP(C) No. 999 of 2019 Contd.../-
[12]
commencing from the date of his retirement to the date on which,
upon conclusion of such proceeding, final orders are passed, a
provisional pension not exceeding the maximum pension which
would have been admissible on the basis of his qualifying service,
upto the date of retirement, or if he was under suspension on the
date of retirement, upto date immediately preceding the date on
which he was placed under suspension; but no gratuity or death-
cum-retirement gratuity shall be paid to him until the conclusion of
such proceedings and the issue of final orders thereto:
Provided that where disciplinary proceeding has been instituted
against a member of the service before his retirement from
service under rule 10 of the All India Services (Discipline and
Appeal) Rules, 1969, for imposing any of the penalties specified
in clauses (i), (ii) and (iv) of sub-rule (1) of Rule 6 of the said rules
and continuing such proceeding under sub-rule (1) of this rule
after his retirement from service, the payment of gratuity or death-
cum-retirement gratuity shall not be withheld.
(3) Payment of provisional pension made under sub-rule (2) shall
be adjusted against the final retirement benefits sanctioned to the
pensioner upon conclusion of the aforesaid proceeding, but no
recovery shall be made where the pension finally sanctioned is
less than the provisional pension or the pension is reduced or
withheld either permanently or for a specified period."
The All India Services (Discipline & Appeal) Rules, 1969
8. Procedure for imposing major penalties.--(1) No order
imposing any of the major penalties specified in Rule 6 shall be
made except after an inquiry is held as far as may be, in the
manner provided in this rule and Rule 10, or, provided by the
Public Servants (Inquiries) Act 1850 (37 of 1850) where such
inquiry is held under that Act.
(2) Whenever the disciplinary authority is of the opinion that
there are grounds for inquiring into the truth of any imputation of
misconduct or misbehaviour against a member of the Service, it
may appoint under this rule or under the provisions of the Public
Servants (Inquiries) Act, 1850, as the case may be, an authority
to inquire into the truth thereof.
[Provided that, where there is a complaint of sexual harassment
within the meaning of Rule 3 of the All India Services (Prevention
of Sexual Harassment) Regulations, 1998, the Complaints
WP(C) No. 999 of 2019 Contd.../-
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Committee established in each Ministry or Department or Office
for inquiring into such complaints, shall be deemed to be the
inquiring authority appointed by the disciplinary authority for the
purpose of these rules and the Complaints Committee shall hold,
if separate procedure has not been made for the Complaints
Committee for holding the inquiry into the complaints of sexual
harassment, the inquiry as far as practicable, in accordance with
the procedure laid down in these rules.]
(3) Where a Board is appointed as the inquiring authority it shall
consist of not less than two senior officers provided that at least
one member of such a Board shall be an officer of the service to
which the member of the Service belongs.
(4) Where it is proposed to hold an inquiry against a member of
the Service under this rule and/or Rule 10, the disciplinary
authority shall draw up or caused to be drawn up-
(i) the substance of the imputations of misconduct or
misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour
in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or
confession made by the member of the Service;
(b) a list of documents by which, and a list of witnesses by
whom the articles of charge are proposed to be sustained.
(5) The disciplinary authority shall deliver or cause to be delivered
to the member of the Service a copy of the articles of charge, the
statement of the imputations of misconduct or misbehaviour and a
list of documents and witnesses by which each article of charge is
proposed to be sustained and shall require the member of the
Service to submit, within such time as may be specified, a written
statement of his defence and to state whether he desires to be
heard in person.
(6)(a) On receipt of the written statement of defence the
disciplinary authority may appoint, under sub-rule (2), an inquiring
authority for the purpose of inquiring into such of the articles of
charge as are not admitted, and, where all the articles of charge
have been admitted by the member of the Service in his written
statement of defence, the disciplinary authority shall record its
finding on each charge and shall act in the manner laid down in
Rule 9.
WP(C) No. 999 of 2019 Contd.../-
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(b) If no written statement of defence is submitted by the member
of the Service, the disciplinary authority may, if it considers it
necessary to do so, appoint under sub-rule (2), an inquiring
authority for the purpose.
(c) Where the disciplinary authority appoints an inquiring authority
for holding an inquiry into such charge it may by an order, appoint
a Government Servant or a legal practitioner, to be known as the
"Presenting Officer" to present on its behalf the case in support of
the articles of charge.
(7) The disciplinary authority shall forward to the inquiring
authority-
(i) a copy of the articles of charge and the statement of
imputations of misconduct or misbehaviour.
(ii) a copy of the written statement of defence, if any,
submitted by the member of the Service;
(iii) a copy of the 1[statements] of witness, if any, referred to
in sub-rule (4);
(iv) evidence proving the delivery of the documents referred
to in sub-rule (4) to the member of the Service; and
(v) a copy of the order appointing the "Presenting Officer".
(8) The member of the Service shall be required to appear in
person before the inquiring authority at any time prescribed after
the expiry of ten working days from the date of receipt of the
articles of charge and the statement of imputations of misconduct
or misbehaviour, or within such further time, not exceeding ten
days, as the inquiring authority may allow.
(9) (a) The member of the Service may take the assistance of any
other Government servant to present the case on his behalf but
may not engage a legal practitioner for the purpose unless the
Presenting Officer appointed by the disciplinary authority is a legal
practitioner, or, the disciplinary authority, having regard to the
circumstances of the case, so permits.
(b) A member of the Service may also take the assistance of a
retired Government servant to present the case on his behalf
subject to such conditions as may be specified by the President
from time to time by general or special order in this behalf.
NOTE.-The member of the Service shall not take the assistance
of any other Government servant who has two or more pending
disciplinary cases on hand in which he has to give assistance.
WP(C) No. 999 of 2019 Contd.../-
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(10) If the member of the Service who has not admitted any of the
articles of charge in his written statement of defence or has not
submitted any written statement of defence appears before the
inquiring authority, such authority shall ask him whether he is
guilty or has any defence to make and if he pleads guilty to any of
the article of charge, the inquiring authority shall record the plea,
sign the record and obtain the signature of the member of the
Service thereon.
(11) The inquiring authority shall return a finding of guilt in respect
of (those) articles of charge to which the member of the Service
pleads guilty.
(12) The inquiring authority shall, if the member of the Service
fails to appear within the specified time or refuses or omits to
plead, require the Presenting Officer to produce the evidence by
which he proposes to prove the articles of charge and shall
adjourn the case to a later date, not exceeding thirty days, after
recording an order that the member of the Service may, for the
purpose of preparing his defence:
(i) inspect, within five days of the order or, within such further
time not exceeding five days as the inquiring authority may
allow, the document specified in the list referred to in sub-
rule (4);
(ii) submit a list of witness to be examined on his behalf.
NOTE.-If the member of the Service applies orally or in written for
the supply of copies of the statement of witnesses mentioned in
the list referred to in sub-rule (4), the inquiring authority shall
furnish him with such copies as early as possible and in any case
not later than three days before the commencement of the
examination of the witnesses on behalf of the disciplinary
authority.
(iii)give a notice within ten days of the order or, within such further
time not exceeding ten days as the inquiring authority may allow,
for the discovery of production of any documents which are in the
possession of Government but not mentioned in the list referred
to in sub-rule (4).
NOTE.-The member of the Service shall indicate the relevance of
the documents required by him to be discovered or produced by
the Government.
(13) The inquiring authority shall, on receipt of the notice for the
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discovery or production of documents, forward the same or copies
thereof to the authority in whose custody or possession, the
documents are kept with a requisition for the production of the
document by such date as may be specified in such requisition:
Provided that the inquiring authority may, for reasons to be
recorded by it in writing, refuse to requisition such of the
documents are, in its opinion, not relevant to the case.
(14) On receipt of the requisition referred to in sub-rule (13), every
authority having the custody or possession of the requisitioned
documents shall produce the same before the inquiring authority:
Provided that if the authority having the custody or possession of
the requisitioned documents is satisfied, for reasons to be
recorded by it in writing, that the production of all or any of such
documents would be against the public interest or security of the
State, it shall inform the inquiring authority accordingly and the
inquiring authority shall, on being so informed, communicate the
information to the member of the Service and withdraw the
requisition made by it for the production or discovery of such
documents.
(15) On the date fixed for the inquiry, the oral and documentary
evidence by which the articles of charge are proposed to be
proved shall be produced by, on behalf of, the disciplinary
authority. The witnesses shall be examined by, or on behalf of,
the Presenting Officer and may be cross-examined by, or on
behalf of, the member of the Service. The Presenting Officer shall
be entitled to re-examine the witnesses on any point, on which
they have been cross-examined, but not on any new matter,
without the leave of the inquiring authority. The inquiring authority
may also put such questions to the witnesses as it thinks fit.
(16) If it shall appear necessary before the close of the case on
behalf of the disciplinary authority, the inquiring authority may, in
its discretion, allow the Presenting Officer to produce evidence
not included in the list given to the member of the Service or may
itself call for new evidence or recall and re-examine any witness
and, in such case, the member of the Service shall be entitled to
have, if he demands it, a copy of the list of further evidence
proposed to be produced and an adjournment of the inquiry for
three clear days before the production of such new evidence,
exclusive of the day of adjournment and the day to which the
inquiry is adjourned. The inquiring authority shall give to the
WP(C) No. 999 of 2019 Contd.../-
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member of the Service an opportunity of inspecting such
documents before they are taken on the record. The inquiring
authority may also allow the member of the Service to produce
new evidence, if it is of opinion that the production of such
evidence is necessary in the interests of justice.
NOTE.-New evidence shall not be permitted or called for or any
witness shall not be recalled to fill up any gap in the evidence.
Such evidence may be called for only when there is an inherent
lacuna or defect in the evidence which has been produced
originally.
(17) When the case for the disciplinary authority is closed, the
member of the Service shall be required to state his defence,
orally or in writing, as he may prefer. If the defence is made orally,
it shall be recorded and the member of the Service shall be
required to sign the record. In either case, a copy of the statement
of defence shall be given to the Presenting Officer, if any
appointed.
(18) The evidence on behalf of the member of the Service shall
then be produced. The member of the Service may examine
himself in his own behalf if he so prefers. The witnesses produced
by the member of the Service shall then be examined and shall
be liable to cross-examination, re-examination and examination
by the inquiring authority according to the provisions applicable to
the witnesses for the disciplinary authority.
(19) The inquiring authority may, after the member of the Service
closes his case, and shall, if the member of the Service has not
examined himself, generally question him on the circumstances
appearing against him in the evidence for the purpose of enabling
the member of the Service to explain any circumstances
appearing in the evidence against him.
(20) The inquiring authority may, after the completion of the
production of evidence, hear the Presenting Officer, if any
appointed, and the member of the Service or permit them to file
written briefs of their respective cases, if they so desire.
(21) If the member of the Service, to whom a copy of the articles
of charge has been delivered, does not submit the written
statement of defence on or before the date specified for the
purpose or does not appear in person before the inquiring
authority or otherwise fails or refuses to comply with the
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provisions of this rule, the inquiring authority may hold the inquiry
ex-parte.
(22) (a) Where a State Government which has caused to be
inquired into the articles of any charge and, having regard to its
decision on any of the findings of any inquiring authority
appointed by it, is of the opinion that the penalties specified in
clauses (vii) to (ix) of Rule 6 should be imposed on the member of
the Service, the State Government shall forward the records of
the inquiry to the Central Government suggesting imposition of
the penalties specified in clauses (vii) to (ix) of Rule 6 as is
competent to impose the last mention penalty.
(b) The Central Government may act on the evidence on the
record or may, if it is of the opinion that further examination of any
of the witness is necessary in the interest of justice, recall the
witness and examine, cross-examine and re-examine such
witnesses. If the Central Government do not find justification for
imposing one of the penalties specified in clauses (viii) to (ix) of
Rule 6 in a case referred to it by a State Government, then it shall
refer it back to the State Government.
(23) Whenever an inquiring authority, after having heard and
recorded the whole or any part of the evidence in an inquiry,
ceases to exercise jurisdiction therein and is succeeded by
another inquiring authority which has, and which exercises, such
jurisdiction, the inquiring authority so succeeding may act on the
evidence so recorded by its predecessor, or partly recorded by its
predecessor and partly recorded by itself:
Provided that, if the succeeding inquiring authority is of the
opinion that further examination of any of the witnesses whose
evidence has already been recorded is necessary in the interest
of justice, it may recall, examine, cross-examine and re-examine
any such witness as here in before provided.
(24) (i) After the conclusion of the inquiry, a report shall be
prepared and it shall contain-
(a) the articles of charge and the statement of imputations of
misconduct or misbehaviour;
(b) the defence of the member of the Service in respect of
each article of charge;
(c) an assessment of the evidence in respect of each article of
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charge; and
(d) the findings on each article of charge and the reasons
therefor.
Explanation,-If in the opinion of the inquiring authority the
proceedings of the inquiry establish any article of charge different
from the original articles of charge, it may record its findings on
such article of charge:
Provided that the findings on such article of charge shall not be
recorded unless the member of the Service has either admitted
the facts on which such article of charge is based or has had a
reasonable opportunity of defending himself against such article
of charge.
(ii) the inquiring authority shall forward to the disciplinary
authority the records of inquiry which shall include--
(a) the report prepared by it under clause (i);
(b) the written statement of defence, if any, submitted by the
member of the Service;
(c) the oral and documentary evidence produced in the course
of the inquiry;
(d) written briefs, if any, filed by the Presenting Officer or the
member of the Service or both during the course of the
inquiry; and
(e) the orders, if any, made by the disciplinary authority and
the inquiring authority in regard to the inquiry.
[10.1] The All India Services Act, 1951 (hereinafter referred to as "the
Act, 1951" was enacted by the Parliament and the expression "All India
Service" is defined in Section 2 thereof as the Indian Administrative
Service or the service known as the Indian Police Service or any other
service specified in Section 2A which is not relevant for the present case.
It is not specified in Section 2 that a member of the All India Service will
also mean a member of the service who has retired from the service. In
exercise of power conferred by Section 3(1) of the All India Services Act,
1951, the rules called "the All India Services (Discipline & Appeal)
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Rules, 1969" (hereinafter referred as "the Rules, 1969" were made by
the Central Government. Rule 2 (d) states that a member of the service
means a member of the All India Service as defined in Section 2 of the
Act, 1951. Rule 3 provides for the manner in which a me mber of the
service can be placed under suspension, when the disciplinary
proceedings are contemplated or are pending. The question of
suspension arises only in respect of a member of the service who is in
service. Rule 4 provides that a member of the service who is under
suspension, is entitled to subsistence allowance. Rule 7 empowered the
disciplinary authorities to initiate disciplinary proceedings against a
member of the service, if he has committed any act or omission which
renders him liable to any penalty specified in Rules 6 viz. minor penalties
and major penalties which include removal and dismissal from the
services. The penalties as specified in Rule 6 are such penalties which
can be imposed against a member of the service while he is in service. It
is not stated anywhere in Rule 6 that any of the penalties specified
therein can still be imposed against a member of the service after his
retirement. Rule 5 provides for the benefits that can be given to him, if he
is re-instated as a result of the appeal or review. Rule 8 provides for the
procedure to be followed for imposing major penalties, of which mention
may be made are inter-alia reduction of scale, compulsory retirement,
removal from service, dismissal from service etc. No order of imposing
any of the major penalties shall be made except after an enquiry. If the
disciplinary authority is of the opinion that there are grounds for holding
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an enquiry against a member of the service, it may appoint an authority to
inquire into it. The Disciplinary authority shall draw up or caused to be
drawn up article of charges, imputation of misconduct etc. to be delivered
to the member of the service. The member of the service shall be given
an opportunity of being heard in the enquiry. After the enquiry is over, the
inquiring authority shall forward the details thereof to the disciplinary
authority. What is the use of the procedure as mentioned above, when
none of the penalties specified in Rule 6 can be imposed against a
member of the service after his retirement. Only the minor penalty (iii)
talks about the recovery of any pecuniary loss caused to the Government
from the pay of the member of the service. The word "pay" is very
significant which means pay drawn by the member of the service and is
different from the word "pension". After a member of the service having
retired on attaining the age of superannuation, he is not entitled to draw
any pay except pension.
[10.2] In exercise of power conferred by Section 3(1) of the Act, 1951,
the rules called "the All India Services (Death-Cum-Retirement
benefits) Rules, 1958" (hereinafter referred to as "the Rules, 1958")
were made by the Central Government. Rule 2(a) provides that the
provisions of these rules shall apply to all persons who retired from the
service on or after 29-10-1951 subject to sub-rule (b) thereof. Sub-rule (b)
provides that the provisions of the Rules, 1958 shall not apply to those
members of the service who were promoted to the service from the State
services or were appointed to the under the India Administrative Service
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(Extension to States) Scheme or the Indian Police Service (Extension to
States) Scheme. Further, it provides that the provisions of the Rule, 1958
shall not apply to those who, in exercise of option, had chosen to be
governed by the Superior Civil services Rules etc. before coming into
force of these rules. Rule 3 provides that future good conduct of the
pensioner is an implied condition of every grant of pension and its
continuance. If after retirement a pensioner is convicted of a serious
crime or be guilty of grave misconduct, the Central Government may
withhold or withdraw any pension or part thereof in the manner mentioned
therein. As per Rule 5, no retirement benefits may be granted to a person
who has been dismissed or removed from the service or who has
resigned from the service. Rule 6 provides for the recovery of any
pecuniary loss caused to the Government from the pension, if the
pensioner is found in a departmental or judicial proceedings to have been
guilty of grave misconduct or to have caused pecuniary loss to the
Government by misconduct or negligence during his service. Recovery of
pecuniary loss from the pension depends upon the findings of an inquiry
initiated against the pensioner. The first proviso states that no such order
shall be passed without consulting the Union Public Service Commission.
The second proviso (a) states that such departmental proceedings, if
instituted while the pensioner was in service, shall be deemed to be a
proceeding under this sub-rule and shall be continued and concluded the
authority. In terms of second proviso (b), such proceedings, if not
instituted while the pensioner was in service, shall not be instituted save
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with the sanction of the Central Government and shall be only in respect
of an event which took place not more than four years before the
institution of such proceedings. From the aforesaid second proviso, it is
seen that the departmental proceedings can be instituted against a
member of the service after his retirement subject to the conditions
mentioned therein.
[11] The conjoint reading of Rule 2(b) and Rule 6 appears to have
shown that the provisions of Rule, 1958 do not apply to those members of
the service who were promoted to the service from the State services. In
other words, Rule 6 of the Rule, 1958 appears to be inapplicable to a
member of the service who was promoted from the State services and
had retired from the service. The contention of the learned counsel
appearing for the petitioner appears to be in tune with the above
observation and on the other hand, it has been submitted by the
Government Advocate that Rule 1(2)(b) shall be read as a whole in order
to understand its true meaning. If the contention of the counsel appearing
for the petitioner is accepted, there is no provision in the Rule, 1958
which will have an application to the member of the service who was
promoted from the State service and had retired from the service. This
appears to be not the intention of the Union of India. Be that as it may, it
is the Union of India which has made the rules and in order to enable this
Court to give a correct and proper interpretation thereof, the Union of
India was called upon to make its stand clear to this Court on the issue
relating to the interpretation of the Rule 1(2)(b) in relation to Rule 6. This
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[24]
Court vide its order dated 30-11-2020 granted three weeks time to the
counsel appearing for the Union of India for seeking instruction. As the
counsel for the Union of India was unable to get the instruction, further
time for a month was granted to him. On 29-01-2021 when this matter
was taken up for consideration, it was submitted by the counsel
appearing for the Union of India that he ha d not received the instruction.
For want of the assistance from the Union of India, this Court felt that
there was no need of expressing any opinion as regards the interpretation
of Rule 1(2)(b) in relation to Rule 6. Therefore, this Court is of the view
that this issue as regards the interpretation of Rule 1(2)(b) in relation to
Rule 6 will be kept open so that it can be decided in an appropriate case
in future. However, so far as the instant writ petition is concerned, it can
be disposed in terms of the second proviso to Rule 1(2)(b) which states
that nothing contained in these rules shall be applied to the persons
appointed to the service on or after the 1 st day of January, 2004. This
proviso came to be inserted vide Notification dated 06-02-2004 which is
unambiguous and needs no interpretation at all. In the present case,
since the petitioner was admittedly appointed to the service after the year,
2004, the provisions of Rules, 1958 will have no application to his case at
all. If that be so, the order dated 27-02-2018 can be said to have been
issued by the State Government without any authority of law. Thus, it is
seen that the Hon'ble Tribunal has committed an error in directing the
respondent No.2 therein to complete the proceedings within two months
from the date receipt of a copy of the order without going into the merit of
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the case.
[12] In view of the above and for the reasons stated hereinabove, the
writ petition stands allowed with the following directions:
(a) The order dated 04-11-2019 passed by the Hon'ble Central
Administrative Tribunal, Guwahati Bench in OA No.
040/00338/2019 is quashed and set aside;
(b) The order dated 27-02-2018 issued by the Chief Secretary (DP),
Government and the enquiry proceedings initiated pursuant
thereto, are quashed and set aside;
(c) The respondents are directed to release the pension and
pensionary benefits of the petitioner within three months from
today after deducting any amount, if already paid to the
petitioner.
There shall be no order as to costs.
JUDGE JUDGE
FR / NFR
Victoria
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