Penalties affecting pensionary benefits cannot be imposed during service, and disciplinary proceedings can continue post-retirement under Rule 21 without a fresh decision from the Governor.

JUDGMENT :

Vijay Bishnoi, CJ.

Heard Mr. B.M. Deka, learned counsel, appearing for the appellant. Also heard Mr. D. Nath, learned Standing Counsel, PWD, assisted by Ms. N. Barman, learned counsel for respondent Nos.1, 2 and 4.

2. This writ appeal is filed by the appellant being aggrieved with the judgment and order dated 30.03.2023 passed in WP(C) No.4118/2017.

Vide impugned judgment and order dated 30.03.2023, the learned Single Judge has set aside the order dated 03.03.2017 passed by the Disciplinary Authority against the appellant, however, allowed to continue the disciplinary proceedings against him under Rule 21(a) of theAssam Service (Pension) Rules , 1969 (hereinafter to be referred to as “Rules of 1969”) with certain other directions.

3. The brief facts of the case are that the appellant while serving as a Superintending Engineer in the Public Works Department was served with a show-cause notice dated 04.07.2015 under Rule 9 of the Assam Services (Discipline and Appeal) Rules , 1964 (hereinafter to be referred as “Rules of 1964”) read with Article 311 of the Constitution of India, requiring him to show- cause as to why penalty prescribed under Rule 7 of the Rules of 1964 shall not be imposed on him in respect of two charges mentioned in the show-cause notice.

4. The appellant has joined the disciplinary proceedings initiated pursuant to the show-cause notice and ultimately, the said disciplinary proceedings were culminated in the passing of the final order dated 03.03.2017 by the Secretary to the Government of Assam, Public Works Department, imposing two penalties, one regarding salary which was limited to the subsistence allowance received by the petitioner and the other is regarding recovery of 50% of the pensionary benefits for the loss caused.

5. It is to be noticed that the disciplinary proceedings initiated pursuant to the show-cause notice dated 04.07.2015 were finally decided by passing the punishment order on 03.03.2017 i.e. during the continuation of the appellant in service of the respondent Public Works Department as the appellant has attained the age of superannuation on 31.03.2017.

6. The learned Single Judge, taking note of the facts and circumstances of the case, has set aside the punishment order dated 03.03.2017, while observing as under:

“3. The relevant provisions of the order passed in the disciplinary proceeding against the petitioner dated 03.03.2017 is extracted as below:

‘And whereas in the Meeting of the Public Accounts Committee, Assam Legislative Assembly held on 23^rd September, 2016, the Chairman on Para 2.2.3 (above mentioned C&AG’s report) has decided and directed to (1) re-instate the service of the Superintending Engineer (Sri Kader) immediately and recover the remaining amount during his service period and (2) to submit a report before the committee by March, 2017 regarding the other punishment taken against the Executive Engineer.

Now, after careful consideration of all the aspects and non-recovery of considerable amount of Govt. money from the contractor concerned, the Govt. in PWD decided to re-instate Sri Abdul Kader Superintending Engineer, PWRD revoking the suspension order issued vide No.CON.33/2015/101 dated-18-06-2015 in service with the following penalties.

1. The period of suspension is to be treated as on duty only for pensionary purpose and salary for the suspension period shall be limited to subsistence allowance received or to be received by him.

2. Whole of his DCRD is to be recovered and his pension is limited to 50% of his net pension.’

4. A reading of the aforesaid-extracted provisions of the order dated 03.03.2017 makes it discernable that as per the meeting of the Public Accounts Committee of the Assam Legislative Assembly held on 23.09.2016 there was a decision to reinstate the petitioner in his service as Superintending Engineer and to recover the remaining amount during his service tenure.

5. Accordingly, by the said order the petitioner was reinstated as Superintending Enginee