Rajasthan High Court
Braj Mohan Singh Bareth vs State And Anr (2024:Rj-Jp:38777-Db) on 11 September, 2024
Bench: Manindra Mohan Shrivastava, Ashutosh Kumar
[2024:RJ-JP:38777-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 659/2015
Braj Mohan Singh Bareth S/o Shri B.D. Bareth, aged about 76
years, R/o 277, Prem Nagar, Jagatpura, Jaipur
----Appellant
Versus
1. State of Rajasthan through Secretary, Department of
Personnel, Secretariat, Jaipur.
2. Director Pensions Department, Government Of Rajasthan,
Jaipur.
----Respondents
For Appellant(s) : Mr. Tribhuvan Narayan Singh
For Respondent(s) : Mr. Yash Joshi &
Mr. Pulkit Bhardwaj on behalf of
Mr. Vigyan Shah, AAG
HON'BLE THE CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
Order
REPORTABLE
11/09/2024
1. Heard.
2. The order passed by the learned Single Judge is assailed in
this appeal. The learned Single Judge, by the impugned order, has
dismissed the writ petition filed by the appellant in the matter of
challenge to the order dated 08.12.2000, by which the competent
authority directed withholding 100% pension of the appellant on
the basis of charges of negligence/misconduct in a departmental
enquiry, which was initiated before retirement while the appellant/
delinquent employee was in service.
3. Quintessential facts necessary for deciding instant appeal
and the legal issues arising for consideration are that while the
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appellant was continuing in services of State Government as
member of RAS (Selection Scale), a charge-sheet was issued to
him on 30.03.1993, levelling as many as nine charges. After
appointment of Enquiry Officer, the enquiry continued. However,
before it could be concluded, the appellant retired upon attaining
the age of superannuation on 29.02.1996. The Enquiry Officer
submitted his enquiry report to the disciplinary authority on
31.07.1996. During the period after the date of retirement, the
appellant was getting provisional pension from 01.03.1996. The
Enquiry Officer found the charges proved and the disciplinary
authority proceeded to issue a show-cause notice to the appellant
on 12.11.1997, requiring the appellant to show cause against
proposed penalty/punishment of withholding 100% pension for
five years. The appellant submitted his reply to the show-cause
notice. Thereafter, a fresh show-cause notice came to be issued on
10.04.1999, which now proposed withholding of 100% pension for
lifetime. The appellant again replied to the show-cause notice.
However, the competent authority, dissatisfied with the reply and
concurring with the findings of the Enquiry Officer on various
charges levelled against the appellant, passed order of penalty on
08.12.2000. Aggrieved by the said order, the appellant preferred
writ petition, which came to be dismissed by the impugned order,
giving rise to instant appeal.
4. Learned counsel for the appellant, assailing correctness and
validity of the order passed by learned Single Judge as also by the
Governor, contends that the impugned order is liable to be set
aside on the ground that necessary satisfaction required to be
arrived at to invoke power under Rule 170 of the Rajasthan
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Service Rules, 1951 (for short 'the Rules of 1951', as it existed on
the date of exercise of power), has not been recorded by the
disciplinary authority much less any reasons for such satisfaction.
It is argued that power under Rule 170 of the Rules of 1951 could
be invoked to withhold pension fully or in part, only when there is
a satisfaction recorded by the competent authority that it is a case
of grave misconduct or grave negligence, upon which the
competent authority exercise powers to withhold pension, fully or
in part and may also direct recovery of any pecuniary loss caused
to the Government. Neither the charges alleged it to be a case of
grave misconduct or grave negligence nor was any such finding
recorded by the Enquiry Officer. The competent authority also did
not record any finding based on any material on record to reach to
a conclusion that it was a case of either grave misconduct or grave
negligence. Therefore, the order impugned is in excess of
jurisdiction conferred under the law.
5. Second submission of learned counsel for the appellant is
that the power conferred under Rule 170 of the Rules of 1951 is in
essence, power reserved to the Governor to withhold pension only
in order to recover pecuniary loss caused to the Government and
unless there are charges and finding of pecuniary loss caused to
the Government, only because the delinquent employee is found
guilty of misconduct or negligence, the power of withholding
pension fully or in part, could not be invoked.
6. Third submission of learned counsel for the appellant is that
even in the charges and the findings recorded by the Enquiry
Officer, there is no mention of any pecuniary loss caused to the
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Government because of the alleged misconduct/negligence on the
part of the appellant.
7. Learned counsel for the respondents, on the other hand,
would submit that the required satisfaction, as envisaged under
Rule 170 of the Rules of 1951, was duly recorded by the
competent authority. He would submit that after receipt of the
enquiry report, when it was found that the appellant had already
retired upon attaining the age of superannuation, the enquiry was
conducted under Rule 170 of the Rules of 1951, which is
applicable in the case of a retired government servant and a
show-cause notice was given to the appellant proposing to impose
penalty having concurred with the findings of the Enquiry Officer.
After receipt of the reply, when the authority applied its mind,
present was found to be a case where "looking to the gravity of
misconduct/negligence", it was considered just and proper to
withhold entire pension during lifetime of the appellant. For this
purpose also a show-cause notice was given to him and thereafter,
the competent authority, after applying its mind to the reply
submitted by the appellant and having found it to be a case of
grave misconduct, proceeded to exercise powers under Rule 170
of the Rule of 1951.
8. Learned counsel for the respondents would further submit
that as the competent authority had concurred with the findings of
guilt recorded by the Enquiry Officer qua all the charges levelled
against the appellant, it was not necessary for the competent
authority to independently record finding of guilt on each and
every charge. The authority has clearly recorded in the impugned
order that the decision has been taken to withhold entire pension
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for lifetime taking into consideration the gravity of charges.
Therefore, there is no jurisdictional illegality or perversity in
passing the order impugned and the learned Single Judge has
rightly upheld the order.
9. The only issue arising for consideration in this appeal is
whether the competent authority was justified in law in invoking
its power under Rule 170 of the Rules of 1951, so as to withhold
entire pension for lifetime.
10. Normally, when a government servant is alleged to have
committed an act of misconduct and/or negligence while in
service, the Rajasthan Civil Services (Classification, Control and
Appeal) Rules, 1958 (for short 'the Rules of 1958') lay down the
procedure, as also the penalty which could be imposed. Rule 14 of
the Rules of 1958 enlist nature of penalties which could be
imposed on a delinquent employee, once he is found guilty of
misconduct/negligence.
11. However, in a case where a departmental enquiry is initiated,
but is not concluded and the delinquent employee retires upon
attaining the age of superannuation, the Rules which regulate
conduct of department enquiry, as provided under the Rules of
1958 do not apply, but in such cases, Governor reserves to itself
the power to withhold pension fully or in part, as also to order
recovery against pecuniary loss caused to the Government. This
scheme of withholding pension is provided under Rule 170 of the
Rajasthan Service Rules, 1951 (Volume I - Part-B). The aforesaid
part of the Rajasthan Service Rules exclusively dealt with the
pension matters, under the caption "Pension Rules". After an
employee retires, he can be proceeded against only under Rule
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170 of the Rules of 1951. The rule being relevant for decision of
the present case, is extracted hereinbelow:-
"170. Recoveries of losses from the pension.-The
Governor further reserves to himself the right of
withholding or withdrawing a pension or any part of it,
whether permanently or for a specified period and the
right of ordering the recovery from a pension of the
whole or part of any pecuniary loss caused to the
Government, if in a departmental or judicial proceeding,
the pensioner is found guilty of grave misconduct or
negligence during the period of his service including
service rendered upon re-employment after retirement:-
(a) provided that such departmental proceeding, if
instituted while the officer was in service, whether
before his retirement or during his re-employment, shall
after the final retirement of the officer, be deemed to be
a proceeding under this rule and shall be continued and
concluded by the authority by which it was commenced
in the same manner as if the officer had continued in
service;
(b) such department proceeding, if not instituted while
the officer was in service, whether before his retirement
or during his re-employment,-
(i) shall not be instituted save with the sanction
of the Governor;
(ii) shall not be in respect of any event which
took place more than 4 years before such
institution; and
(iii) shall be conducted by such authority and in
such place as the Governor may direct and in
accordance with the procedure applicable to
departmental proceedings in which an order of
dismissal from service could be made in relation
to the officer during his service;
(c) no such judicial proceeding, if not instituted while
the officer was in service, whether before his retirement
or during his re-employment, shall be instituted in
respect of a cause of action which arose or an event
which took place more than 4 years before such
institution; and
(d) The Rajasthan Public Service Commission shall be
consulted before final orders are passed."
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12. Rational and logical interpretation of the aforesaid provision
instantly reveals that the power is reserved to the Governor to
withhold or withdraw a pension or any part of it, whether
permanently or for specified period and also the right of ordering
the recovery from pension of the whole or part of any pecuniary
loss caused to the Government, if in a departmental or judicial
proceedings, the pensioner is found guilty of grave misconduct or
grave negligence during the period of his service including services
rendered upon re-employement after retirement.
13. The first proviso attached to the aforesaid Rules also clarifies
that such department proceedings, if instituted while the officer
was in service whether before his retirement or during his re-
employment, shall after the final retirement of the officer, be
deemed to be a proceeding under this Rule and shall be continued
and concluded by the authority by which it was commenced in the
same manner as if the officer had continued in service.
14. It would thus be clear that once an employee retires from
service before the departmental enquiry initiated against him is
concluded, enquiry can be proceeded further only in the manner,
as prescribed under Rule 170 of the Rules of 1951 and not under
the Rules of 1958.
15. Furthermore, the order that could be passed under Rule 170
of the Rules 1951 has also been clearly specified by the Rule
Making Authority. It could be either withholding or withdrawing a
pension or any part of it either permanently or for a specified
period and at the same time, in appropriate cases, where it is
found that any pecuniary loss has been caused to the
Government, the recovery can also be ordered. It would thus be
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seen that the nature of orders which could be passed upon proof
of misconduct or negligence, are completely different and distinct
from the nature of penalties, which could be otherwise imposed
under Rule 14 of the Rules of 1958 in those cases where the
delinquent employee continues in service and has not attained the
age of superannuation.
16. The Rule Making Authority in its wisdom, has provided in no
uncertain terms under Rule 170 of the Rules of 1951 that in order
to deprive a pensioner of his pension fully or in part, or to direct
the recovery towards any loss caused to the Government, a
satisfaction has to be recorded that the retired employee is guilty
of grave misconduct or grave negligence, that too committed
during the period of his service including services rendered upon
re-employment after retirement. Therefore, the requirement of
law is that a satisfaction is to be arrived at that a grave
misconduct or grave negligence has been committed. It is not
sufficient to invoke power under Rule 170 of the Rules of 1951
that a retired employee, in a departmental enquiry, is found guilty
of misconduct or negligence. In order to invoke power under Rule
170 of the Rules of 1951, something more than an ordinary
misconduct or negligence is required to be seen. The provisions
clearly oblige the competent authority to record its own
satisfaction that it is not merely a case of committing misconduct
or negligence. It is not only a case where the delinquent employee
has been found guilty of misconduct or negligence, but something
over and above that, in the nature that it is a case of grave
misconduct or grave negligence. The object of the Rule seems to
be not to deprive the pensioner of his pension, which is a serious
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matter and involves serious civil consequences, unless he is found
guilty of grave misconduct or grave negligence.
17. There is nothing in Rule 170 of the Rules of 1951, either read
in isolation or in conjunction with provisions contained in the Rules
of 1958, which obliges the Enquiry Officer to record such findings
because in the very nature of the proceedings, a situation of this
nature would arrive only after a Government servant has retired
from service. Therefore, on rational construction of the provision,
we have to hold that the satisfaction which is envisaged under
Rule 170 of the Rules of 1951, has to be recorded by the Authority
who takes decision to withhold pension or to direct recovery of
pecuniary losses. Moreover, keeping in view the serious
consequences which ensue where a pensioner is deprived of his
pension or suffers an order of recovery after his retirement, the
requirement of recording satisfaction that it is a case of grave
misconduct or grave negligence is not empty formality. The
competent authority is obliged in the spirit of the law to record a
finding based on material attending circumstances to come to a
definite conclusion on consideration which are not extraneous in
nature but relevant to the case that the case partakes the nature
of grave misconduct or grave negligence and not limited to an
ordinary case of misconduct or negligence.
18. In somewhat similar circumstances, where an order of
withholding pension under para materia Rule 9 of Central Civil
Services (Pension) Rules, 1972 (for short 'the Rules of 1972') was
assailed, the Hon'ble Supreme Court recorded categoric finding
that finding of grave misconduct has to be recorded by the
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competent authority and not by the Enquiry Officer. Following are
the observations:-
"14. Having perused Rule 9 of the 1972 Rules, it is
not possible for us to accept the first contention
advanced by the learned counsel for the appellant.
The responsibility vested on an enquiry officer is
limited to the determination of the innocence or guilt
of a delinquent employee, with reference to charges
levelled against him. It is on the establishment of
the charges (if any), that the punishing authority will
record a finding, whether the conclusions lead to the
further inference, that the delinquent has committed
acts of "grave misconduct" or "grave negligence".
It is on such determination by the punishing
authority that Rule 9 of the 1972 Rules can be
invoked, in case the delinquent employee has, in
the meantime, retired on attaining the age of
superannuation. It is not a matter of dispute that
when the punishment was inflicted upon the
appellant by an order dated 30.11.2005, the
appellant had already retired from service having
superannuated on 30.06.2002. We therefore find no
merit in the first contention advanced at the hands
of the learned counsel for the appellant."
19. The responsibility vested on Enquiry Officer is, therefore,
limited to the determination of the innocence or guilt of a
delinquent employee, with reference to the charges levelled
against him. An obligation is cast on the punishing authority to
record a clear finding whether the conclusion lead to further
inference that a delinquent employee has committed an act of
"grave misconduct" or "grave negligence".
20. We shall now turn to the contents of the show cause notices
dated 12.11.1997 and 10.04.1999 to find out whether, it reflects
application of mind by the competent authority on the aspect, as
to whether present is a case of grave misconduct or grave
negligence in the light of the nature of charges and the extent of
misconduct/negligence allegedly committed by the appellant. A
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perusal of the two show causes notices only show that the
competent authority referred to enquiry report and its conclusion
and thereafter, proposed the order to be passed requiring the
appellant to submit his reply. In the first show cause notice dated
12.11.1997, withholding of entire pension for five years was
proposed, but in the second show cause notice dated 10.04.1999,
the proposal was to withhold entire pension for lifetime. In both
the show cause notices, the competent authority did not record
any reason based on any material or consideration as to why the
authority considers present to be not only a case of committing
misconduct and/or negligence, but a case of grave misconduct or
grave negligence. The appellant submitted his reply and
thereafter, the impugned order of withholding pension came to be
passed on 08.12.2000.
21. If we read the said order, there is hardly any consideration
by the competent authority why present should be treated to be a
case of a grave misconduct and if so, what are the supporting
reasons and the attending circumstances to justify such
satisfaction or conclusion.
22. The submission of learned counsel for the respondents that
the order indicates that the authority invoked the power taking
into consideration the gravity of charges, in our consideration,
does not satisfy the legal requirement or satisfaction, as
envisaged under Rule 170 of the Rules of 1951.
23. We find that at one or two places in the order, all that has
been stated is "taking into consideration the gravity of charges".
That by itself does not satisfy the legal requirement of recording
satisfaction. It was only a passing reference made by the
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competent authority without entering into any discussion, though
in brief, as to why present is considered to be a case of grave
misconduct or grave negligence. In sum and substance, the
competent authority has proceeded to accept the report of Enquiry
Officer as it is. The charges, nine in number, which were levelled
against the appellant mostly relate to an allegation of negligence
or an allegation that he recklessly exercised his judicial power
while deciding appeals. In none of the findings recorded by the
Enquiry Officer with reference to each of the charges, there is
anything which indicates that even in the opinion of the Enquiry
Officer, it was a case of grave misconduct.
24. In view of the decision of the Hon'ble Supreme Court in the
case of H.L. Gulati Vs. Union of India & Ors. (Civil Appeal
Nos.8224-8225 of 2011), it was all the more an obligation
under the law cast on the competent authority to consider this
aspect with more seriousness than what has been done in the
instant case. A passing reference that "looking to the gravity of
charges", is not enough.
25. We have also looked into various charges which were framed
and were found proved. Except two charges, other charges relate
to allegations of negligence and broadly speaking, it appears that
the subordinate officer had passed certain orders and the
allegation against the present appellant is more of a negligence.
Moreover, the other two charges related to exercise of quasi-
judicial power as an appellate authority. It is settled legal position
that ordinarily exercise of judicial power does not constitute
misconduct.
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26. In the case of Ravi Yashwant Bhoir Vs. District
Collector, Raigad & Ors., reported in (2012) 4 SCC 407,
however, the Hon'ble Supreme Court has culled out exceptions
when even exercise of quasi-judicial function may be classified
and categorized as misconduct. In case of Ravi Yashwant Bhoir
(supra), the principle was explained as below:-
"13. Mere error of judgment resulting in doing of
negligent act does not amount to misconduct.
However, in exceptional circumstances, not working
diligently may be a misconduct. An action which is
detrimental to the prestige of the institution may also
amount to misconduct. Acting beyond authority may
be a misconduct. When the office-bearer is expected
to act with absolute integrity and honesty in handling
the work, any misappropriation, even temporary, of
the funds etc. constitutes a serious misconduct,
inviting severe punishment."
27. In the present case, we find that even the Enquiry Officer
has not looked into these legal aspects and has sat over the
correctness and validity of the judicial order to hold it to be a case
of misconduct.
28. On totality of the circumstances and nature of charges,
finding recorded by the Enquiry Officer and complete lack of any
consideration on attending circumstances or material to reach to a
satisfaction that present is a case liable to be classified as grave
misconduct or grave negligence, in our opinion, the impugned
order withholding entire pension of the appellant, that too for his
lifetime is clearly in excess of jurisdiction vested under the law.
The order suffers from excess of power and cannot be sustained in
law.
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29. This legal aspect was not properly appreciated by the learned
Single Judge, therefore, the order of the learned Single Judge is
liable to be interfered with and is set aside.
30. The impugned order dated 08.12.2000 is, accordingly, set
aside. The next question which arises for consideration is as to
what relief should be granted to the appellant at this stage. The
record speaks that while the enquiry was pending, the appellant
retired from service upon attaining the age of superannuation on
29.02.1996 and he was paid provisional pension up to
30.11.2000. Obviously, as there was an order of withholding
pension passed on 08.12.2000, his pension was stopped
thereafter. 24 years have passed by. Had it not been a case of
long pendency of this case, we would have remanded the matter
again to the competent authority for consideration afresh and pass
fresh orders. However, at this juncture of time, it would not serve
the interest of justice, if the matter is remanded and the
authorities are again directed to pass any order in respect of the
case of the appellant who is nearing 90 years of age and has
remained deprived of his pension for last 24 years. Therefore, in
order to strike balance, we are inclined to put quietus to the
matter here itself without further remand.
31. In the circumstances of the case, we direct that the appellant
would be entitled to 50% of the pension which he would have
earned but for the impugned order. From the date of this order, he
would be entitled to full pension without there being any bar, as
stated in the order dated 08.12.2000, which no longer survives in
the light of the order which we have passed. Necessary exercise
be done within a period of three months.
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32. The appeal is allowed and the writ petition filed by the
appellant is also, accordingly, partly allowed in the manner and to
the extent stated above.
33. No order as to costs.
(ASHUTOSH KUMAR),J (MANINDRA MOHAN SHRIVASTAVA),CJ
RAJAT/TANISHA/41
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