1986 Supreme(MP) 681

IN THE HIGH COURT OF MADHYA PRADESH
FAIZAN UDDIN, J.
G. N. Mishra - Appellant
Versus
State of M. P. - Respondent
M. P. No. 3723 of 1985 (J)
Decided on : 14-07-1986

Headnote:(1) Civil Services (Pension) Rules, 1976 (M.P.) – R. 9 (1) – departmental enquiry against retired Government servants under – is limited one as provided in this provision.

       (2) Civil Services (Pension) Rules, 1976 (M.P.) – R. 9 (2) (b) (i) – departmental enquiry against retired Government servant – prior sanction of Governor is mandatory.

        Short Note

       1. By this petition under article 226 of the Constitution the petitioner seeks issuance of writ in the nature of certiorari/mandamus to quash the departmental proceedings against him in pursuance of the order dated 5 – 10 – 1983 (Annexure 'C) as well as issuance of direction to the respondents to pay his full pension and other service benefits accrued to him after retirement.

       2. Held : If the Government proposed or intended to take disciplinary action against a Government Servant, it must be done before such a Government Servant retires and if the departmental enquiry cannot be concluded before the date of his reaching the age of superannuation, the course open to the Government is to pass an order of suspension and refuse to permit the Concerned Government' Servant to retire and retain him in service till such enquiry is completed and a final order is passed. See State of Punjab v. Khemi Ram (A.I.R. 1970 S. C. 214) and B. J. Shelot v. State of Gujrat (A. I. R. 1978 S C. 1109). It appears that after their Lordships of the Supreme Court took the view that disciplinary action cannot be taken against a Government servant after the date of his retirement the Rules known as M. P. Civil. Services (Pension) Rules 1976 were framed and brought into force with effect from 1st June, 1976 by the State of Madhya Pradesh.

       3. Rule 9 of the Rules deals with power of the Governor to inflict penalties in respect of the withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and ordering recovery from pension of the whole or part of any pecuniary loss caused to the Government if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service. It is by virtue of the provisions of Rule 9 of 1976 Rules that a departmental proceeding may be commenced even against a retired Government servant which would be only a limited type of enquiry to be proceeded with as specified in sub rule (1) of Rule 9. It has, therefore, to be seen whether in the facts and circumstances of the present case, the provisions of Rule 9 have been complied with in letter and spirit so as to attract their application in the present case.

       4. A reading of sub – rule (1) of Rule 9 of the Rules will go to show that the enquiry that is contemplated under Rule 9 is only a limited enquiry circum scribing the limits of the Governor to impose the penalty. Under Sub rule (1) if a Government servant is found guilty either of grave misconduct or negligence or both during the tenure of his service including rendered on re – employment after retirement the Governor has the right of withholding or withdrawing a pension or part thereof and of ordering recovery from pension of the whole or part of any pecuniary loss caused to the Government. Sub. rule (1) of Rule 9 of the Rules thus does not confer powers to inflict any other penalty except the one relating to withholding or withdrawing a pension or part thereof whether permanently or for a specified period and ordering recovery of any pecuniary loss caused to the Government. In this view of the matter, I am supported by full Bench decision of Kerala High Court rendered in the case of R. P. Nair v. Kerala State Electricity Board (AIR 1979 Ker 135).

       5. This brings me to the question of the learned counsel for the petitioner about the want of prior sanction of the Governor for a departmental enquiry against the petitioner after his retirement. Here a reference to the provisions of clause (b) (i) of sub – rule (2) of Rule 9 of the Rules be made with advantage which unequivocally contemplate that the departmental proceedings, if not instituted while the Government Servant was in service whether before retirement or during his re – employment shall not be Instituted save with the sanction of the Governor. According to the language of the sub rule, the requirement of sanction of the Governor for initiating or institution of any departmental enquiry is mandatory and in the absence of the requisite sanction the departmental proceedings would be incompetent and without jurisdiction. In the present case, admittedly the petitioner had retired with effect from 31st May, 1981 and the notice (Annexure – C) ordering departmental enquiry (Annexure – C) with the charges was issued on 5 – 10 – 83. Consequently, it is incumbent upon the respondent to show the existence of the necessary sanction of the Governor for institution of the departmental proceedings against the petitioner.

       6. Though the respondents have pleaded in their return that the lapses in the purchases on the part of the petitioner being detected, the department submitted proposal to the Governor who in agreement with the proposal issued the letter/notice dated 5 – 10 – 1983 (Annexure – C) to the petitioner stating institution of departmental enquiry against him. It may be pointed out that a plain reading of the contents of the impugned letter/notice dated 5 – 10 – 1983 (Annexure – C) makes it clear that it was the State Government who had taken the decision for initiation of the departmental proceedings and not by the Governor. The letter/notice no where mentions or gives an impression that the matter was referred to the Governor for sanction to institute departmental enquiry and that the Governor after application of his mind had granted the sanction. Therefore, even by necessary implication, the said letter/notice cannot be construed to be a sanction of the Governor within the meaning of clause (b) (i) of sub – rule (2) of Rule 9 of the Rules. AIR 1976 SC 214 and AIR 1978 SC 1109 referred to. AIR 1979 Ker. 135 and 1983 (1) SLJ 25 (Mad.) relied on.

       Petition allowed.