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2012(1) JLJ 179
(FULL BENCH)
Sushil Harkauli, Ag. C.J., Rajendra Menon and Alok Aradhe, JJ.
State of M.P. v. Puranlal Nahir
Writ Appeal No.311 of 2011 (Jabalpur); Decided on 24.1.2012.
Held : From careful scrutiny of clauses (a) and (b) of third proviso to rule 9(4), it is apparent that aforesaid clauses no where provide that if the departmental proceeding is not concluded within the period of two years, the same would come to an end automatically. The aforesaid clauses only provide that if departmental proceeding is not concluded within a period of one year or two years, 50% of the amount of pension and entire amount of pension withheld shall stand restored to the delinquent employee, respectively. If the meaning of clause (b) of third proviso to rule 9(4) is expanded to mean that Governor would not have any right to pass final order with regard to imposition of punishment as prescribed under clause (c), such an interpretation would bring clause (c) in conflict with clause (b) of third proviso to rule 9(4) of the 1976 Rules and, therefore, such an interpretation cannot be accepted. Clauses of third proviso to rule 9(4) have to be read as a whole and an attempt has to be made to reconcile them so that any repugnancy can be avoided. Thus, clauses (a) and (b) of third proviso to rule 9(4) have to be read subject to clause (c) of third proviso to rule 9(4). In other words, the withholding of pension as provided in clauses (a) and (b) of third proviso to rule 9(4) of the Rules is provisional and tentative and is subject to the final order which may be passed by the Governor under clause (c) of third proviso to rule 9(4). 2006(3) JLJ 218 (DB) overruled.
Answer to the questions referred for opinion are as follows :
(a) In view of submissions made by learned Advocate General as well as learned counsel for the respondent that Question No.1 formulated by the Division Bench does not arise for consideration in the facts of the case, it is not necessary for us to answer the same.
(b) The disciplinary proceeding initiated by the State Government against a Government employee after his retirement, does not automatically come to an end in case the enquiry is not concluded within two years of its inception and can continue beyond the period of two years.
(c) The Governor is not precluded from passing final order in relation to payment of pension to a Government employee against whom disciplinary proceeding is initiated after his retirement and is not concluded within two years from its institution.
(d) The proposition of law laid down in State of M.P. v. R.L. Ogale [2006(3) JLJ 218 (DB)], that in view of clause (b) of third proviso to rule 9(4) of the Rules, if the departmental proceedings is not concluded against a retired Government servant within a period of two years, the Governor does not have the right to impose the penalty, does not lay down the correct proposition of law.
(e) The second question of law referred by the learned Single Judge in Writ Petition No.3494/2011(S) has already been answered by us while answering the third question of law.
(2) Interpretation of Statutes -- principle of -- statute must be read as a whole -- it is applicable to different parts of section -- section must be construed as a whole whether or not one part is saving clause or proviso -- it is also equally settled rule of statutory interpretation -- where language of statute in its ordinary meaning and grammatical construction -- leads to manifest contradiction of apparent purpose of enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, construction may be to open it, which modifies meaning of words and structure of sentence. (1957)1 All ER 49, AIR 1955 SC 1012, AIR 1955 SC 830, AIR 2000 SC 1261 and AIR 2004 SC 2236 referred to. [Paras 5 & 6
¼1½ flfoy lsok ¼isU‘ku½ fu;e] 1976 ¼e-iz-½ && fu-9¼4½] ijarqd rhu] [kaM ¼d½¼[k½ rFkk ¼x½ ‘kfDr;ksa dh O;kfIr && vipkjh deZpkjh ds fo#) foHkkxh; dk;Zokfg;k¡ & ,d ;k nks o"kZ ds Hkhrj lekIr ugha && deZpkjh ds lsokfuo`Rr gksus ds i‘pkr~ dk;Zokfg;k¡ vius vki lekIr ugha gksrha && isU‘ku dk jksd j[kuk && vLFkk;h] varfje rFkk [kaM ¼x½ ds v/khu vafre vkns‘k ds v/;/khu gS && jkT;iky vafre vkns‘k ikfjr djus ls izokfjr ugha gS && ijarq rhu ds [kaM ¼d½ rFkk ¼x½ dks ,d lkFk i<+uk gksrk gSA vfHkfu/kkZfjr % fu;e 9¼4½ ds r`rh; ijarqd ds [kaM ¼d½ rFkk ¼[k½ dh lko/kkuhiw.kZ tk¡p ls Li"V gS fd mi;qZDr [kaM dgha Hkh micaf/kr ugha djrs fd foHkkxh; dk;Zokgh nks o"kZ dh dkykof/k ds Hkhrj lekIr ugha dh tkrh gS] rks vius vki lekIr gks tk,xhA mi;qZDr [kaM dsoy ;g mica/k djrs gSa fd ;fn foHkkxh; dk;Zokgh ,d ;k nks o"kZ dh dkykof/k ds Hkhrj lekIr ugha dh tkrh gS] isU‘ku dh 50 izfr‘kr jde rFkk isU‘ku dh jksdh xbZ laiw.kZ jde T;ksa&dh&Rksa deZpkjh dks dze‘k% izR;kofrZr dh tk,xhA ;fn fu;e 9¼4½ ds r`rh; ijarqd ds [kaM ¼d½ rFkk ¼[k½ dk ;g vFkZ yxk;k tkrk gS fd jkT;iky dks naM vf/kjksi.k ds laca/k esa vafre vkns‘k ikfjr djus dk vf/kdkj ugha gks ldsxk] tSlk fd [kaM ¼x½ esa fofgr gS] isU‘ku fu;e] 1976 ds fu;e 9¼4½ ds r`rh; ijrqad ds [kaM ¼x½ dk ,slk fuoZpu [kaM ¼[k½ ds foijhr gksxk vkSj] blfy,] fuoZpu Lohdkj ugha fd;k tk ldrkA fu;e 9¼4½ ds r`rh; iajrqd ds [kaMksa dks laiw.kZ :i ls i<+uk gksxk rFkk mudk esy&feyki djus dk iz;kl djuk gksxk ftlls fdlh izdkj dh izfrdwyrk dk ifjgkj fd;k tk ldsA bl izdkj] fu;e 9¼4½ ds r`rh; ijarqd ds [kaM ¼d½ rFkk ¼[k½ dks fu;e 9¼4½ ds r`rh; ijarqd ds [kaM ¼x½ ds vuqdze esa i<+uk gksxkA nwljs ‘‘kCnksa esa] isU‘ku dk jksd j[kuk tSlk fd fu;eksa ds fu;e 9¼4½ ds r`rh; ijarqd ds [kaM ¼d½ rFkk ¼[k½ esa micaf/kr gS vLFkk;h rFkk varfje gs rFkk jkT;iky }kjk fu;e 9¼4½ ds r`rh; ijarqd ds [kaM ¼x½ ds v/khu ikfjr fd;k tk ldus okys vafre vkns‘k ds v/;/khu gksxkA 2006 ¼3½ ts ,y ts 218 ¼[kaM U;k;ihB½ myVk x;kA fufnZ"V iz‘uksa dk mRrj vfHker gsrq fuEukuqlkj gS % ¼d½ fo}ku egkf/koDrk rFkk izR;FkhZ ds fo}ku dkmUlsy }kjk fd, x, fuosnuksa ds n`f"Vdks.k ls fd [kaM U;k;ihB }kjk cuk, x, iz‘u dz- 1 ij izdj.k ds rF;ksa ls fopkj djus dk iz‘u mRiUu ugha gksrk] gekjs fy, mldk mRrj nsuk vko‘;d ugha gSA ¼[k½ jkT; ljdkj }kjk ljdkjh deZpkjh ds fo#) mldh lsokfuo`fRr ds i‘pkr~ ‘kq: dh xbZ vuq‘kklfud dk;Zokgh] ;fn tk¡p blds izkjaHk ls 2 o"kZ ds Hkhrj lekIr ugha gksrh rc og vius vik lekIr ugha gks tkrh rFkk 2 o"kZ ds ijs fujarj j[kh tk ldrh gSA ¼x½ jkT;iky ljdkjh deZpkjh ftlds fo#) mldh lsokfuo`fRr ds i‘pkr~ vuq‘kklfud dk;Zokgh ‘kq: dh tkrh gS rFkk blds lafLFkr fd, tkus ls 2 o"kZ ds Hkhrh lekIr ugha gqbZ gS mldks isU‘ku Hkqxrku djus ds laca/k esa vafre ikfjr djus ls izokfjr ugha gSA ¼?k½ e-iz- jkT; fo- vkj-,y- vksxyys ¼2006 ¼3½ ts ,y ts 218 ¼[kaM U;k;ihB½½] esa vf/kdfFkr fof/k ds rdZ&okD] tgk¡ fu;eksa ds fu;e 9¼4½ ds r`rh; ijarqd ds [kaM ¼[k½ ds n`f"Vdks.k ls] ;fn lsokfuo`Rr ljdkjh deZpkjh ds fo#) foHkkxh; dk;Zokgh nks o"kZ dh dkykof/k ds Hkhrj lekIr ugha gqbZ gS] jkT;iky dks vFkZnaM vf/kjksi.k dk vf/kdkj ugha gksrk gS] fof/k dk vPNk rdZ&okD vf/kdfFkr ugha djrkA ¼³½ fo}ku ,dy U;k;k/kh‘k }kjk fjV ;kfpdk dz- 3494@2011 ¼,l½ esa funsZf‘kr fof/k ds f}rh; iz‘u dk gekjs }kjk r`rh; iz‘u dk mRrj nsrs gq, iwoZ esa gh mRrj fn;k tk pqdk gSA ¼2½ fof/k dk fuoZpu & dk fl)kar && dkuwu laiw.kZ :i ls i<+k tkuk pkfg, && ;g /kkjk ds fHkUu&fHkUu Hkkx dks ykxw gksrk gS && /kkjk dk laiw.kZ vFkZ yxkuk pkfg, pkgs ,d Hkkx O;ko`Rr [kaM ;k ijarqd gS ;k ugha && dkuwuh fuoZpu dk ;g Hkh leku :i ls fu/kkZfjr fl)kar gS && fd tgk¡ dkuwu dh Hkk"kk vius lk/kkj.k rFkk O;kdj.k vFkZ yxkus esa vf/kfu;fefr ds izdV mn~ns‘; dh izR;{k vlaxfr ;k laHkkO;r% vfHkiszr ugha gS] dh vksj ys tkrk gS] ,slk vFkkZo;u izdV fd;k tk ldsxk] tks ‘‘kCnksa ds vFkZ vFkok okD; dh ljapuk dk :ikarj djrk gSA ¼1957½ 1 vkWy bZvkj 49] , vkb vkj 1955 ,l lh 1012] , vkb vkj 1955 ,l lh 830] , vkb vkj 2000 ,l lh 1261 rFkk , vkb vkj 2004 ,l lh 2236 fufnZ"VA ¼iSjk 5 rFkk 6
Aradhe, J. -- 1. A Division Bench as well as learned Single Judge of this Court having found difficulty in agreeing with the view taken by another Division Bench of this Court in State of Madhya Pradesh v. R.L. Ogale [2006(3) JLJ 218=2006(1) MPLJ 412], in exercise of powers under rule 8 of Chapter 4 of the Madhya Pradesh High Court Rules, 2008, have referred the certain questions for consideration by a Larger Bench. The questions referred for consideration in Writ Appeal No.31/2011 are :
“(1) Whether the disciplinary proceedings initiated by the Government against a Government servant any time after his retirement are deemed to have been instituted on the date of his retirement and if so, its effect on the period for conclusion of enquiry in view of rule 9 of M.P. Civil Services (Pension) Rules, 1976?
(2) Whether the disciplinary proceedings initiated by the Government against a Government employee after his retirement automatically comes to an end in case the enquiry is not concluded within two years of its inception?
(3) Whether on the face of clause (c) of third proviso to sub-rule (4) of rule 9 of M.P. Civil Services (Pension) Rules, 1976, the Governor is precluded from passing a final order in relation to payment of pension to a Government employee, against whom disciplinary proceedings are initiated after his retirement, in case the enquiry against him is not concluded within two years of its inception?”
The questions which have been referred for consideration in Writ Petition No.3494/2011 (S) are :
“(i) Whether the law laid down by the Division Bench of this Court in the case of State of Madhya Pradesh v. R.L. Ogale [2006(3) JLJ 218=2006(1) MPLJ 412], lays down the correct proposition of law?
(ii) Whether in case of a retired Government servant, the Governor can pass an order by way of punishment for withholding or withdrawing a pension or part thereof, whether permanently or for a specified period; and can also pass an order ordering recovery, even after expiry of two years period from the date of issuance of charge-sheet?”
2. Background facts giving rise to the references briefly stated are that respondent in Writ Appeal No.311/2011 attained the age of superannuation on 31st July, 2000. A charge-sheet dated 13.9.2002 was served on the respondent and disciplinary authority vide order dated 28.9.2006 imposed the punishment of stoppage of 20% of pension permanently under clause (c) of third proviso to rule 9(4) of M.P. Civil Services (Pension) Rules, 1976. The respondent challenged the said order in a writ petition. The writ petition was allowed by the learned Single Judge by placing reliance on the decision in the case of R.L. Ogale (supra), and it was held that disciplinary proceedings initiated against the Government servant automatically came to an end, as the enquiry was not concluded within a period of two years of its inception and, therefore, the disciplinary authority cannot pass any order imposing punishment. Being aggrieved by the aforesaid order, the State Government preferred an appeal before the Division Bench. In Writ Petition No.3494/2011, the petitioner attained the age of superannuation on 31.5.2008. The disciplinary enquiry was initiated against him on 4.12.2004 and eventually, an order of punishment dated 5.2.2011 was passed by which reduction in the amount of pension by 30% for a period of five years was inflicted upon him. The petitioner challenged the order of punishment in the writ petition. The Division Bench by order dated 22.6.2011 and the learned Single Judge by order dated 25.4.2011 have referred the questions stated supra for consideration by the Larger Bench.
3. Learned Advocate General appearing for the appellants in Writ Appeal No.311/2011 submitted that interpretation putforth by the Division Bench in R.L. Ogale’s case, on rule 9(4) of the M.P. Civil Services (Pension) Rules, 1976 (hereinafter referred to as ‘the Rules’) is not proper. The Division Bench has failed to consider clause (c) of
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