LPA No.1195 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH. LPA No. 1195 of 2009 in CWP No. 4312 of 2007 Date of decision: 10.11.2009 Harjinder Singh Cheema ....Appellant vs. State of Punjab and others ....Respondents CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR. HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR --- Present: Mr.Ritesh Pandey, Advocate, for the appellant. -- J.S.KHEHAR,J. (Oral) Through the instant Letters Patent Appeal the appellant Harjinder Singh Cheema has approached this Court, so as to assail the order passed by the learned Single Judge disposing of CWP No.4312 of 2007, vide order dated 16.9.2009. It is a matter of shock and surprise for us, that the instant Letters Patent Appeal should not have been filed at all, on account of the fact that it was on the following request made by the appellant Harjinder Singh Cheema, before the learned Single Judge, that the writ petition filed by him came to be disposed of in terms of the prayer made on his behalf:- “ In view of the aforesaid facts, counsel for the petitioners states that these petitions may be disposed of with a direction to the respondents to conclude the departmental proceedings within a period of six months and thereafter, release the retiral benefits in accordance with the said decision”. LPA No.1195 of 2009 2 While disposing of CWP No.4312 of 2007, this Court only directed the respondents to conclude the departmental proceedings initiated against the appellant herein within a period of six months. Learned Single Judge ordered, that in case the appellant herein is found entitled to any retiral benefits after the culmination of the departmental inquiry held against him, the same would be released to him immediately thereafter. Despite the aforesaid, it is the vehement contention of the learned counsel for the appellant, that no departmental proceedings could have been initiated against the appellant under the mandate of rule 2.2 of the Punjab Civil Services Rules Vol.II Part-I. For facility of reference, the aforesaid rule is being extracted hereunder in its entirety:- “2.2. Recoveries from pensions (a) Future good conduct is an implied condition of every grant of a pension. The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it the pensioner be convicted of serious crime or be guilty of grave misconduct. In a case where a pensioner is convicted of a serious crime, action shall be taken in the light of the judgment of the court relating to such conviction. In a case not covered by the preceding paragraph, if the Government considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order.-- (i) serve upon the pensioner a notice specifying the action proposed to be taken against him and the grounds on which it is proposed to be taken and calling upon him to submit, within sixteen days of the receipt of the notice or such further time not exceeding fifteen days ,as may allowed by the pension sanctioning authority , such representation as he may wish to make against the proposal ; and (ii) take into consideration the representation, if any, submitted LPA No.1195 of 2009 3 by the pensioner under sub-clause (i) . Where a part of pension is withheld or withdrawn the amount of such part of pension shall not ordinarily exceed one- third of the pension originally sanctioned nor shall the amount of pension left to the pensioner be ordinarily reduced to less than forty rupees per month, having regard to the consideration whether the amount of the pension left to the pensioner , in any case, would be adequate for his maintenance. In a case where an order under clause (i) above is to be passed by the Government, the Public Service Commission shall be consulted before the final order is passed. The decision of the Government on any question of withholding or withdrawing the whole or any part of pension under this rule shall be final and conclusive. Explanation.- In this rule, the expression “serious crime” includes crime involving , an offence under the Official Secrets Act, 1923 (19 of 1923); and the expression “grave misconduct” includes the communication or disclosure of any secret, official code or pass-word or any sketch , plan, model, article, note, document or information such as is mentioned in section 5 of the Official Secrets Act, 1923 (19 of 1923) (which was obtained while holding office under the Government) so as to prejudicially affect the interests of the general public or the security of the State. Note.-- A claim against the Government employee may become known and the question of making recovery may arise:- (a) When the calculation of pension is being made and before the pension is actually sanctioned; or (b) after the pension has been sanctioned. The claim and the recovery may be one or other of the following categories:- (1) Recovery as a punitive measure in order to make good loss caused to Government as a result of negligence or fraud on the part of the person concerned while he was in service. LPA No.1195 of 2009 4 (2) Recovery of other Government dues such as over issues of pay, allowances or leave salary, or admitted and obvious dues such as house-rent, Postal Life Insurance premia, outstanding motor car, house building, traveling allowance or other advances. (3) Recovery of non- Government dues. 1. In cases falling under ( a ) above , none of the recoveries mentioned in (1) to (3) above may be effected by a reduction of the pension about to be sanctioned except in the following circumstances:- (i) Omitted (ii) When the pensioner by request made or consent given has agreed that the recovery may be made. If such request is not made or consent is not given by the pensioner, even sums admittedly due to Government such as house-rent, outstanding advances, etc., may not be recovered from pension. In such cases, however, the executive authorities concerned would have to consider whether they should not try to effect the recovery otherwise than from pension, for example, by going to a court of law, if necessary. 2. In cases falling under (b) above, none of the recoveries described in clauses ( I ) to (3), may be effected by the deduction from a pension already sanctioned except at the request or with the express consent of the pensioner. Under rule 2.2 (a) , of this Volume, future good conduct is an implied condition of every grant of a pension and a pension can be withheld or withdrawn in whole or in part if the pensioner is convicted of serious crime or misconduct occurring after the pensioner has retired from service, and the rule would not , therefore , cover a reduction of pension made for the purpose of retrieving loss caused to Government as a result of negligence or fraud on the part of the pensioner occurring before he had retired from service. In cases where the pensioner does not agree to recovery being LPA No.1195 of 2009 5 made even of sums admittedly due to Government, the concluding remarks made under.] (ii) above, will also be applicable. Heads of offices should see that the last pay or leave salary prior to retirement shall not be paid until it is clear that a retiring Government employee has no outstanding dues Government. Sometimes, it may not be practicable to ascertain in time all the outstanding dues, while sometimes dues may exceed the amount of last pay or leave salary. In such case, it is the duty of the heads of offices (in consultation with Treasury officers and Accountant General, Punjab. In the case of Gazetted Officers), to bring promptly to the notice of the Accountant-General, Punjab, all the outstanding amounts by a separate communication, stating in detail the nature of recovery and why it has not been possible to effect it from last pay or leave salary. The outstanding amounts should also be clearly and completely noted in the last pay certificates in sufficient detail with reference to the previous correspondence with the Accountant-General, Punjab , and if the recovery is to be effected from pension, it should be clearly recorded on the last pay certificate itself that the request or express consent of the pensioner in writing to the recovery from his pension has been obtained. Note 1.--Although compassionate allowance is of the nature of an ex-gratia payment it is really a form of pension and, therefore, recoveries from it, once it is sanctioned , should be governed by the above orders. Direct recovery of Government dues form Compassionate Allowance is not permissible, under these orders, but recovery may be made indirectly (before the allowance is sanctioned) by reducing the allowance either permanently or as a temporary measure . Note 2.-- Strictly speaking under the orders no recovery of amount is permissible from pension but final recovery has been LPA No.1195 of 2009 6 made it need not be refunded to the pensioner concerned . (b) The Government further reserve to themselves 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 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: Provided that – (1) Such departmental 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 article and shall be continued and concluded by the authority by which it was commenced the same manner as if the officer had continued in service ; (2) Such departmental proceedings, 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 Government ; (ii) shall not be in respect of any event which took place more than four years before such institution ; and (iii) shall be conducted by such authority and in such place as the Government 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. 3. No such judicial proceedings , 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 four LPA No.1195 of 2009 7 years before such institution ; and The public Service Commission should be consulted before final orders are passed. Explanation.- For the purpose of this rule— (a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension from an earlier date, on such date ; and (b) a judicial proceeding shall be deemed to be instituted- (i) in the case of a criminal proceeding, on the date on which the complaint or report of the police officer on which the Magistrate takes cognizance, is made ; and (ii) in the case of a civil proceeding, on the date of presentation of the plaint in the court . Note :- As soon as proceedings of the nature referred to in the above rule are instituted, the authority which institutes such proceedings should without delay intimate the fact to the Accountant-General. The amount of the pension withheld under clauses (b) should not ordinarily exceed one – third of pension originally sanctioned , including any amount of pension to be so withheld, regard should be had to the consideration whether the amount of the pension left to the pensioner in any case would be adequate for his maintenance. (c) (1) Where any departmental or judicial proceeding is instituted under clause (b) of rule 2.2 or where a departmental proceeding is continued under clause (i) of the proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which , upon conclusion of such proceedings , final orders are passed , a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement or if he was under suspension on the date of retirement up to date LPA No.1195 of 2009 8 immediately proceeding to the date on which he was placed under suspension; but no gratuity or Death–Cum–Retirement Gratuity shall be paid to him until the conclusion of such proceedings and of final orders thereon. The gratuity, if allowed to be drawn by the competent authority on the conclusion of the proceedings will be deemed to have fallen due on the date of issue of final orders by the competent authority. (2) Payment of provisional pension made under sub – clause (I) shall be adjusted against the final retirement benefits sanctioned to such officer upon conclusion of the aforesaid proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period. Note.- The grant of pension under this rule shall not prejudice the operation of rule 6.4 ibid when final pension is sanctioned upon conclusion of the proceedings.” In order to buttress his contention in respect of the non applicability of the rule, extracted hereinabove, it is the submission of the learned counsel for the appellant, that the appellant being a non government employee, his services were not per se governed by the Punjab Civil Services Rules, Vol.II Part-I, and that his services were governed only by the provisions of the Punjab State Civil Supplies Corporation (Revised Service Regulations) 1985. Despite his aforesaid contention, it is conceded at the hands of the learned counsel for the appellant that the Punjab Civil Service rules including rule 2.2 contained in Vol.II Part-I thereof, would be applicable to the appellant limited to the extent of punishment and appeal. Since it is not a matter of dispute, that the aforesaid provision has been invoked for initiating departmental proceedings against the appellant, there LPA No.1195 of 2009 9 can be no doubt whatsoever that the rule under reference has been invoked only to the limited extent of punishment and appeal. In spite of our conclusion hereinabove, it is the submission of the learned counsel for the appellant that rule 2.2(b) could have been invoked against the appellant only if the employment of the appellant was against a pensionable post. Referring to the title of the aforesaid rule... “recovery from pensions”, it is the submission of the learned counsel for the appellant, that the rule under reference was clearly inapplicable to the appellant, and as such, the direction issued by the learned Single Judge requiring departmental proceedings to be completed by the respondents was wholly unjustifiable. We have considered the aforesaid contention of the learned counsel for the appellant in the background of the rule, extracted hereinabove. Clause (c) of rule 2.2 clearly mandates, that where proceedings have been initiated against an employee under clause (b) of rule 2.2, such an employee would not be entitled to gratuity or death-cum- retirement gratuity till the conclusion of such proceedings. It is therefore apparent that the mandate of rule 2.2, extracted hereinabove, would be applicable even for a claim for gratuity. Undisputedly the gratuity payable to the appellant which is now the only remaining retiral benefit due to him, has been withheld. The same is clearly permissible within the mandate of the rule, extracted hereinabove. For the reasons recorded hereinabovce, we find no merit in this appeal, and the same is accordingly dismissed. Since the main appeal has been dismissed on merit, it is not necessary for us to pass any formal orders for the disposal of the civil LPA No.1195 of 2009 10 miscellaneous applications appended to the Letters Patent Appeal. ( J.S.Khehar) Judge (Mehinder Singh Sullar) Judge November 10, 2009 rk