IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.563 of 2005 Decided on : December 22, 2009 State of H.P. …Petitioner. Versus Hira Nand Chauhan and another …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Petitioner : Mr. P.K. Sharma, Additional Advocate General and Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : Mr. Dilip Sharma, Advocate, for respondent No.1. Surjit Singh, J (Oral) State of Himachal Pradesh has filed the present Writ Petition, under Articles 226 and 227 of the Constitution of India, seeking judicial review and the quashing of order dated 1st March, 2005 of learned H.P. State Administrative Tribunal (now abolished), in Original Application No.1695 of 2000, filed by respondent No.1 Hira Nand Chauhan, whereby allowing the said Original Application, order dated 3rd November, 1999 (Annexure P-2), passed by the Government of Himachal Pradesh, has been set aside and the petitioner has been directed to pay to respondent No.1 all pensionary benefits, within three months, with liberty reserved to the Department to recover the amount allegedly misappropriated by him (the respondent). Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Relevant facts may be noticed. Respondent Hira Nand Chauhan was working as Beldar in the Horticulture Department of Himachal Pradesh in the year 1994, when he allegedly misappropriated an amount of Rs.11,000/- and odds, collected by him, on account of sale proceeds of horticulture products. A case was got registered against him, under Sections 409 and 477-A of the Indian Penal Code. He was acquitted by the trial Court. Appeal was filed by the State against the judgment of acquittal, in this court. That appeal was accepted by this Court, vide judgment dated 24th August, 1990, and the respondent was convicted of offence, under Section 409 of the Indian Penal Code, and sentenced to two years imprisonment and fine of Rs.10,000/-. Respondent filed Special Leave Petition in the Supreme Court. Hon’ble Supreme Court, vide judgment dated 14th February, 1995, maintained the conviction of the respondent, but reduced the sentence of substantive imprisonment to the term already undergone. 3. Respondent retired from service on 30th April, 1996, or say about 14½ months after the disposal of his Special Leave Petition. During this period of 14½ months, Department did not initiate any action against him, under Rule 19 of CCS(CCA) Rules, which reads as under: “19. Special procedure in certain cases Notwithstanding anything contained in Rule 14 to Rule 18__ …3… (i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or (ii) where the Disciplinary Authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or (iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules. the Disciplinary Authority may consider the circumstances of the case and make such orders thereon as it deems fit: [Provided that the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under Clause (i): Provided further that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule.]” Respondent retired on attaining the age of superannuation. However, his pension and other pensionary benefits were not released. He made representations to the Department for release of pension, gratuity and other pensionary benefits. While dealing with those representations of the respondent, which were dated 1st March, 1999, 20th June, 1999 and 23rd June, 1999, the State Government passed order (Annexure P-2), dated 3rd November, 1999, to the effect that the full pension and gratuity of the respondent be withheld, …4… permanently. This order was challenged by the respondent, by filing the aforesaid Original Application, before the Tribunal. 4. Petitioner, which was impleaded as respondent, in the Original Application, took the plea that the aforesaid order had been passed under Rule 9(1) of Central Civil Services (Pension) Rules, 1972, as adopted by the State of Himachal Pradesh. Learned Tribunal came to the conclusion that the impugned order had been passed without application of mind and allowed the Original Application and quashed the impugned order, Annexure P-2. 5. In the present Writ Petition also it is alleged that the order is covered by Rule-9 of Central Civil Services (Pension) Rules, 1972. 6. We have heard the learned Additional Advocate General as also the learned counsel for the respondent. 7. Rule-9 of Central Civil Services (Pension) Rules, 1972, is reproduced for ready reference: “9. Right of President to withhold or withdraw pension (1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity 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 service, including service rendered upon re-employment after retirement: …5… Provide that the Union Public Service Commission shall be consulted before any final orders are passed: Provided further that where a part of pension is withheld or withdrawn, the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five (Rupees One thousand nine hundred and thirteen from 1-4-2004 – see GID below Rule 49) per mensem. (2)(a)The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service: Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President. (b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re- employment,- (i) shall not be instituted save with the sanction of the President, (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 President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of …6… dismissal from service could be made in relation to the Government servant during his service. (3) Deleted. (4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 69 shall be sanctioned. (5) Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. (6) For the purpose of this rule,- (a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to be instituted- (i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made, and (ii) in the case of civil proceedings, on the date the plaint is presented in the Court.” …7… 8. From a bare reading of Rule-9(1), it is clear that order for withholding pension, in full or part, is passed only after the petitioner is found guilty of causing pecuniary loss to the Government, in any departmental or judicial proceedings. The use of term “after the pensioner is found guilty” clearly indicates that the finding about the pensioner being guilty should be given after he ceases to be in service and becomes a pensioner. 9. In the present case, respondent Hira Nand Chauhan retired from service on 30th April, 1996. He had been held guilty of committing offence of misappropriation of Government money, on 24th August, 1990, when he was convicted by this court of the offence of misappropriation of Government money. Therefore, sub-rule (1) of Rule-9 does not apply to the case and the order, Annexure P-2, is not covered by this Rule. 10. It has further been argued that the order is covered by sub-rule (2)(b) of Rule-9. This submission is also fallacious. 11. For taking action under Rule (2)(b) of Rule-9 of Central Civil Services (Pension) Rules, 1972, prior sanction of the Governor is required, which in this case is not shown to have been obtained. Further, the action cannot be initiated under sub-rule (2)(b) of Rule-9, if the event, which led to the pecuniary loss, is more than four years old. …8… 12. In the present case, the event had taken place in the year 1974 and the impugned order was passed in the year 1999. In between, the respondent had been convicted and sentenced to two years imprisonment and a fine of Rs.10,000/- by this Court, vide judgment dated 24th August, 1990. The State Government did not take any action soon after the conviction of the respondent by this Court. Not only this, it did not initiate any action against the respondent, even after the dismissal of his Special Leave Petition, despite the fact that he was still in service when his Special Leave Petition was dismissed. He was allowed to continue to serve for more than 14 months, even after the dismissal of his Special Leave Petition. The impugned order was passed more than 3½ years after his retirement and that too while dealing with his representations for release of pensionary benefits. As a matter of fact, no proceedings under Rule-9(2)(b) of the Central Civil Services (Pension) Rules, 1972, had been initiated against the respondent, but the impugned order was passed only when deciding his representations. In view of the abovestated position, we see no merit in the present Writ Petition. The same is, therefore, dismissed. ( Surjit Singh ), J December 22, 2009(sd) ( Surinder Singh ), J