Civil Appeal No 573 of 1988 From the Judgment and order dated 1321987 of the Bombay High Court in WP No 613 of 1984
33 AM Khanwilkar and AS Bhasme for the Appellant
BN Singhvi and AK Gupta for the Respondent
The Judgment of the Court was delivered by SINGH J
Special leave granted
This appeal raises an important question of law whether a Government servant after his retirement on attaining the age of superannuation is liable to be dealt with departmentally for any misconduct negligence or financial irregularities committed by him during the period of his service
Necessary facts giving rise to this appeal are that MH Mazumdar the Respondent was in the service of the State of Maharashtra as Supply Inspector and he retired from service on attaining the age of superannuation on September 1 1977
After his retirement the respondent was served with a charge sheet on October 16 1978 containing allegations of misconduct and negligence against him for the period he was in service
Enquiry into those charges was held and the respondent was afforded full opportunity to defend himself
On the conclusion of the enquiry the State Government issued orders on December 4 1982 reducing the amount of pension payable to the respondent by 50 per cent permanently under Rule 188 of the Bombay Civil Services Rules
The respondent challenged the validity of the Government s order by means of a writ petition under Article 226 of the Constitution before the High Court of Bombay
A Division Bench of that Court allowed the writ petition and quashed the State Government s order dated December 4 1982 on the ground that the State Government had no authority in law to take any disciplinary proceedings against the respondent as he had already retired from service
Placing reliance on a decision of this Court in BJ Shelet vs State of Gujarat  Ors  the High Court held that the initiation of disciplinary enquiry and the order of punishment was unauthorised and illegal
The State of Maharashtra has preferred this appeal against the judgment of the High Court
There is no dispute that the respondent had retired from service on attaining the age of superannuation on September 1 1977 and charges were served on him on October 16 1978 after about a year of his retirement
Undisputably the proceedings against the respondent were initiated after the respondent ceased to be in service of the State 34 Government
The proceedings culminated into an order of the State Government reducing the respondent s pension by 50 per cent
The question is whether the State Government was competent to take action against the respondent by reducing his pension
Conditions for grant of pension to a Government servant of the State of Maharashtra are regulated by the Bombay Civil Services Rules hereinafter referred to as the Rules
Rule 184 provides for grant of pension admissible under the rules to Government servant who is borne on its establishment
Rules 188 and 189 relevant for our purpose are as under 188
Government may make such reduction as it may think fit in the amount of the pension of a Government servant whose service has not been thoroughly satisfactory 189
Good conduct is an implied condition of every grant of pension
Government may withhold or withdraw a pension or any part of it if the pensioner be convicted of serious crime or be found to have been guilty of grave misconduct either during or after the completion of his service provided that before any order to this effect is issued the procedure referred to in Note I to Rule 33 of Bombay Civil Services Conduct Discipline and Appeal Rules shall be followed
 The aforesaid two Rules empower Government to reduce or withdraw a pension
Rule 189 contemplates withholding or withdrawing of a pension or any part of it if the pensioner is found guilty of grave misconduct while he was in service or after the completion of his service
Grant of pension and its continuance to a Government servant depend upon the good conduct of the Government servant
Rendering satisfactory service maintaining good conduct is a necessary condition for the grant and continuance of pension
Rule 189 expressly confers power on the Government to withhold or withdraw any part of the pension payable to a Government servant for misconduct which he may have committed while in service
This Rule further provides that before any order reducing or withdrawing any part of the pension is made by the competent authority the pensioner must be given opportunity of defence in accordance to the procedure specified in Note I to Rule 33 of the Bombay Civil Services Conduct Discipline and Appeal Rules
The State Government s power to reduce or withhold pension by taking proceedings against a Government servant even after his retirement is expressly preserved by the aforesaid Rules
35 The validity of the Rules was not challenged either before the High Court or before this Court
In this view the Government has power to reduce the amount of pension payable to the respondent
In M Narasimhachar vs The State of Mysore 1960 1 SCR 981 and State of Uttar Pradesh vs Brahm Datt Sharma  Anr 1987 2 SCC 179 similar Rules authorising the Government to withhold or reduce the pension granted to the Government servant were interpreted and this Court held that merely because a Government servant retired from service on attaining the age of superannuation he could not escape the liability for misconduct and negligence or financial irregularities which he may have committed during the period of his service and the Government was entitled to withhold or reduce the pension granted to a Government servant
The High Court in our view committed serious error in holding that the State Government had no authority to initiate any proceedings against the respondent
In B J Shelat vs State of Gujarat  Ors
disciplinary proceedings had been initiated against the Government Servant for purpose of awarding punishment to him after he had retired from service
The ratio of that decision is not applicable to the instant case as in the present case the purpose of the enquiry was not to inflict any punishment instead the proceedings were initiated for determining the respondent s pension
The proceedings were taken in accordance with Rules 188 and 189 of the Rules
It appears that the attention of the High Court was not drawn to these Rules
The State Government had power to reduce the pension payable to respondent but having regard to the facts and circumstances of the case we are of the opinion that the reduction of pension by 50 per cent was disproportionate to the charges proved against the respondent
Two charges were framed against the respondent which are as under Charge No 1
He has made a farce of an enquiry collected 6 permits from the Kolhapur Central Co operative Consumers Stores including the permit No 007314 issued to Shri KP Khatavane with malafide intention after passing a receipt thereof to the Godown Keeper of the said stores on 1261974 and thereby tried to shield Shri KP Khatavane and his sons Baban Khatavane from criminal prosecution
Charge No 2
He has deliberately and intentionally denied to have made 36 any enquiry regarding unauthorisedly lifting of 10 bags of Sugar on bogus or forged permit by Shri Baban Khatavane even though he was deputed for such enquiry by Shri AR Mane District Supply officer Kolhapur and he had actually recorded the statement of Shri SL More Godown Keeper of the said stores and Shri Hari Santu Pande Cart driver and also collected above mentioned 6 permits from Shri More after passing a receipt thereof
By denying the above fact he has helped Shri AR Mane District Supply officer Kolhapur for suppressing the case
His failure in this regard leads to belief that he has conspired with Shri KP Khatavane and his son Shri Baban Khatavane with some ulterior motive and abatted them in the disposal of sugar in black market
 On conclusion of the enquiry charge No 1 was found to have been established while charge No 2 was partially proved
In his report to the State Government the Collector of Kolhapur held that the respondent s action was helpful to Shri Khatavane to sell the sugar in the black market and it amounted to a serious default on his part as a Government servant
He recommended that since the respondent had already retired from service a lenient view should be taken and reduction in pension to the extent of Re 1 per month be made The State Government accepted the findings and passed the impugned order reducing the pension by 50 per cent In our view the reduction of pension 50 per cent was too harsh and disproportionate to the misconduct proved against the respondent
The State Government should have taken into consideration the fact that the respondent had retired from service and the reduction of pension by 50 per cent would seriously affect his living
Accordingly we allow the appeal partly and set aside the order of the High Court dated February 13 1987 and the State Government s order dated December 4 1982 and direct the State Government to reconsider the question of reduction of respondent s pension
There will be no order regarding costs
NPV Appeal allowed


Summary:
 The appellant was in Government service
On a number of charges framed against him the State government referred his case to the Administrative Tribunal for enquiry
In respect of the six charges against the appellant the Tribunal recorded findings that the first charge was not proved but it recorded findings against the appellant in respect of the remaining charges
The Governor issued notice with a copy of the findings of the Tribunal to the appellant to show cause why he should not be dismissed
The appellant submitted reply to the showcause notice which was referred to the Tribunal for its consideration
The Tribunal submitted a report dated July 7 1971 recording the finding that there was no convincing evidence to uphold the charges framed against the appellant
The State Government referred the matter to the Legal Remembrancer for opinion
The Legal Remembrancer opined that there was sufficient evidence on record to uphold charges 2 to 5 against the appellant which were of common pattern to the effect that the appellant had claimed travelling allowance at the rate of first class railway fare without having actually travelled in that class on four different occasions
The Governor thereupon disregarding the findings of the Tribunal issued order dismissing the appellant
The appellant challenged the order of dismissal by a writ petition in the High Court
The High Court Single Judge allowed the writ petition and quashed the order of dismissal
The respondent State preferred a Letters Patent appeal
The Division Bench of the High Court allowed the appeal and set aside the order of the Single Judge of the High Court
The appellant then moved this Court for relief by this appeal
Allowing the appeal the Court 80  HELD After scrutiny of the two reports of the Administrative Tribunal and the note of the Legal Remembrancer the Court found that the view taken by the Tribunal in its subsequent report dated July 7 1971 was positive in nature that there was no convincing evidence to sustain the charges 2 to 5 against the appellant
84B There was no justification for the view taken by the High Court
The Tribunal was the inquiring authority
In its initial report dated May 7 1970 it had recorded findings against the appellant but when the Governor referred the appellant s reply to the show cause notice to the Tribunal for reconsideration of the matter it recorded a positive finding that there was no convincing evidence to support its earlier findings
The Tribunal had acted within its jurisdiction in reappraising the evidence in the light of the appellant
The State Government issued the impugned order of dismissal on the basis of the opinion of the Legal Remembrancer without recording any reasons for disregarding the findings of the Tribunal
If the State Government chose to pass the order of dismissal in all fairness it should have recorded reasons for the same and in order to afford a reasonable opportunity to the appellant it was necessary for the Government to communicate to him the reasons for disagreement with the Tribunal s report
The report of the legal Remembrancer on the basis of which the Government has passed the impugned order had never been communicated to the appellant and he was denied opportunity to meet the same
Article 3112 before its amendment by the Constitution forty second Amendment Act 1975 contemplated reasonable opportunity of defence even at the stage of show cause notice
The appellant had been denied opportunity of being heard at the stage of show cause notice
84E H 85A BF The Tribunal in its report dated July 7 1971 had categorically recorded the finding that there was no evidence on record to prove the charge that the appellant had not purchased 1st class tickets in advance relating to the journeys in question
The Tribunal had observed that the evidence raised suspicion against the appellant but mere suspicion was not sufficient to hold that the charges stood proved
The Legal Remembrancer ignoring the findings of the Tribunal concluded that the evidence on record had proved charges 2 to 5
The entire approach of the Legal Remembrancer in considering the Tribunal s findings suffered from errors of law
He was of the opinion that the Tribunal had no authority to reappraise the evidence or enter into the sufficiency or adequacy of the evidence
The principles applicable to judicial review of administrative actions or findings recorded in departmental disciplinary proceedings do not apply to a Tribunal which is like an 81 inquiring authority while assessing the evidence on charges against a delinquent officer
The Tribunal could enter into adequacy insufficiency or credibility of evidence on record
The Tribunal was not discharging the functions of a court but was acting as an enquiring authority therefore it had full powers to appraise the evidence and record its findings
The approach of the Legal Remembrancer was misconceived as a result whereof he had opined that the findings of the Tribunal in appellant s favour be ignored
The State Government committed a serious error of law in ignoring the findings of the Tribunal applying the principles of judicial review of administrative actions by a court of law without giving the appellant an opportunity to show cause against the proposed view of the Government and in passing the impugned order on the basis of the report of the Legal Remembrancer
In view of the findings of the Tribunal dated July 7 1971 aforementioned the impugned order of dismissal could not legally be sustained against the appellant
85F G 86C H 87A There was no evidence on record to sustain the findings of charges 2 to 5 against the appellant and further the appellant was denied a reasonable opportunity of defence contemplated by Article 3112 as it then existed
The State Government s order dismissing the appellant from service was illegal and unconstitutional
The order of the Division Bench of the High Court was set aside the appellant s petition was allowed and the order of dismissal was quashed
The appellant was directed to be treated in service without a break with all the consequential benefits
87B C State of Andhra Pradesh vs SN Nizamuddin Ali Khan   referred to