IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8907 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgement? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ SATYA PAL GUSAIN Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: PARTY-IN-PERSON for the Petitioner. Mr.Premal Joshi, Assistant GOVERNMENT PLEADER, for the Respondent. CORAM : MR.JUSTICE P.B.MAJMUDAR Date of decision: 04/07/2001 C.A.V. JUDGEMENT 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the legality, validity and powers of the authority to initiate departmental enquiry against him and has prayed for setting aside the departmental proceedings on the ground that it is not open for the authority to initiate departmental enquiry after his retirement from service. 2. The detailed facts leading to the petition are as under :- The petitioner was recruited through the Gujarat Public Service Commission as Deputy Collector, and, ultimately, the petitioner has retired on 30.6.2000 on attaining 58 years of age. According to the petitioner, after he handed over the charge on the evening of 30th June, 2000, he was served with a charge-sheet on the same day, i.e. 30th June, 2000. A copy of the charge-sheet issued to the petitioner on 30th June, 2000 is annexed to the petition. Seven charges are levelled against the petitioner which are as under :- (1) That during the period between 1986-'87 and 1988, the petitioner has not deducted House Rent Allowance amount and has misappropriated Government money and accordingly, has committed misconduct under the Gujarat Service Conduct Rules, 1971; (2) For the Block Year 1984-'85, he has got the benefit of Home Town Travel Allowance and though such Home Town Travel Allowance was enjoyed, he has not annexed railway receipt and accordingly, he has misappropriated Government money; (3) During the period 1986-'87, by not obtaining permission from the District Magistrate, he enjoyed Home Town Travel Allowance claiming amount of two tickets more as compared to earlier block period. (4) Withholding of one increment of his subordinate employee for which he had no power; (5) Not producing C.L. report for a period of three days when the petitioner went on leave from 16.5.1989 to 18.5.1989 and during that period, he had served as supervisor in K.P. Shah Law College without taking prior permission of the Department; (6) Enjoyed the leave for the year 1989 like compensatory leave, C.L., optional leave, etc. and his conduct was unbecoming the status of a Class I Officer; and (7) Non-maintenance of necessary register, etc. It was found out during inspection of the office of the petitioner through the District Magistrate and Civil Defence Department and accordingly, he has shown negligence as Head of the Department. 3. The petitioner was asked to give his defence letter within 30 days from the date of receipt of the said charge-sheet. It is stated in paragraph 5 of the said order that the petitioner is to retire on 30th June, 2000 and since the enquiry could not be concluded before his retirement, under Rule 189A of the Bombay Civil Services Rules, 1959 ("B.C.S.R.", for short), the enquiry will be continued after his retirement. 4. The petitioner has challenged the aforesaid action on the ground that the Authority has no power to initiate the enquiry after his retirement. It is submitted by the petitioner that the action of the Department is mala fide and that since the initiation of the enquiry is after his retirement, the initiation of the enquiry is not permissible under Rule 189-A(b). It is submitted by the petitioner that the departmental proceedings were not instituted while he was in service, but it was instituted after his retirement. Such enquiry cannot be instituted without the sanction of the Governor and that as the incident in question is more than four-year old, under the said provision, the said enquiry cannot be instituted against him. It is also further submitted that looking to the fact that the enquiry is initiated after such a long time, such delayed enquiry should be treated as contrary to the principles of natural justice and to hold enquiry after such a long time is arbitrary, and illegal and, therefore, no such enquiry should be allowed to be continued and the authority has no power to continue such enquiry. On the aforesaid grounds, the petitioner has challenged the aforesaid charge-sheet issued to him. He further submitted that he had already handed over his charge after office hours on 30th June, 2000 and, thereafter, charge-sheet was issued to him in the late evening and, therefore, since he has already retired, after office hours, he cannot be said to be in service after the evening of 30th June, 2000 and, therefore, it was not open for the authority to serve him charge-sheet after his retirement from service. He submitted that after retirement, if the charge-sheet is required to be served, then provisions of Rule 189-A(b) are applicable and without following them, it is not open for the Authority to issue charge-sheet against him. 5. On behalf of the State Government, affidavit-in-reply is filed by the Deputy Secretary, Revenue Department, Gandhinagar. In paragraph 3 of the reply, it is pointed out that while the petitioner was serving under the Home Department as a Deputy Director (Civil Defence), Jamnagar, certain irregularity came to the notice of the Department regarding taking Home Town Travel Concession and some misappropriation of amount and certain irregularity in service, and for that, Home Department made proposal after holding preliminary enquiry. Reference was made regarding earlier petition of the petitioner on the ground that it has no relation with the present departmental proceedings. In paragraphs 8 and 9, it is stated that the charge-sheet was given to the petitioner before his retirement. It is stated that regarding allegations made in the charge-sheet, relevant documents are sent to the petitioner, but certain documents are to come from the Home Department and all the documents would be sent to the petitioner after receiving the same from the Home Department, as the departmental enquiry proceeded on the basis of the say of the Home Department. There is a further affidavit-in-reply, which is at page 36. In the said further reply, the Department tried to explain the delay in initiation of the enquiry against the petitioner. In paragraph 3 of the said reply, it is stated as under :- " ... ... ... 3. I have already filed affidavit in reply on 18th Sept. 2000 and I am filing this additional affidavit in reply in support of the aforesaid reply. I further say and submit that the petitioner was deputed as Deputy Controller, Civil Defence, Jamnagar, on the relevant point of time i.e. on 24/9/1986 to 9/4/1990. During the course of discharging his duties in the aforesaid post, certain irregularities were found to be committed by the petitioner and complaints were received to the Home Department. It is respectfully submitted that the home department received the letter dated 2/7/1988 of Vigilance Commission wherein the complaint dated 25/5/88 of one Mr.H.G. Thakkar was referred to for the aforesaid irregularities on 28/7/88. The Director ACB forwarded a letter in which the complaint of Mr.J.K. Ganatra was referred to. It is further submitted that the Home Department by way of this letter dt. 16/12/88 forwarded the aforesaid two complaints to the Director, Civil Defence, for sending report after conducting the inquiry. In the meanwhile, the Collector, the Controller Civil Defence, Jamnagar in a surprise checking of the office of the petitioner found that the petitioner has committed certain financial irregularities and the Collector Jamnagar who is also ex-officio Controller Civil Defence Jamnagar sent his report vide letter dated 13/6/89 to the Director Civil Defence. The Director Civil Defence has submitted above inquiry report to the State Govt. by letter dated 21/7/89. It is further submitted that the aforesaid two complaints were inquired by Mr.A.M. Chauhan, Dy. Director, Civil Defence, and he submitted a report to the State Government vide letter dated 6/10/89. It is further submitted that in view of the report of the Collector and ex officio Controller, Civil Defence, Jamnagar, the State Govt. directed Mr.A.R. Bhatt, Dy. Director, Civil Defence to inquire into the aforesaid report dated 21/7/89 and submit his report within 30 days to the State Govt. On 4/3/1991 Principal Secretary, Home Deptt. instructed the Director of Civil Defence, Gujarat State to complete the inquiry with regard to the irregularities committed by the petitioner within 7 days. It is submitted that since Mr.A.R. Bhatt could not submit his report to Director Civil Defence the said inquiry was assigned to Mr.J.K. Gohil former Principal of Civil Defence Training School, Ahmedabad. Director Civil Defence has forwarded the proposal vide letter dated 12/3/91 to the State Govt. to inquire into the same through Director, ACB as there is prima facie case with regard to the serious administrative and financial irregularities against the petitioner. The said file was sent to the Special Branch-I on 14/11/91 for necessary further action but unfortunately the said file did not traced out in the Special Branch-I till date. It is respectfully submitted that my office has written a letter to the Home Department on 21/11/1996 to send the final report in this regard upto 28/11/96 again reminder was sent to the Home Department for the same. It is further submitted that my department has again written letter on 2/2/2000 to the Home Department to send the final report with regard to the preliminary inquiry as the petitioner was to retire on 30/6/2000. With regard to the file of the petitioner which was sent to Spl. Branch of the Home Department and after series of the reminder to that branch dated 31/3/2000, 3/4/2000, 7/6/2000, 9/6/2000, 16/6/2000. On 3/4/2000 the Home Department directed the office of the Director Civil Defence to send the report and information with regard to the case of the petitioner as early as possible. By way of the letter dated 14/6/2000 the Director Civil Defence sent Xerox copies of the inquiry report against the petitioner to the Home Deptt. After perusing the aforesaid reports received from the office of Director Civil Defence, the Home Department sent the said file to my office on dt. 27/6/2000 as there is a prima facie case in the preliminary inquiry against the petitioner. My office instructed the Home Department to send the draft of the charge sheet along with the file of the petitioner and the draft of the charge sheet along with file was received by my office on 30/6/2000 and the same was served to the petitioner prior to his retirement. In view of the aforesaid facts and circumstances, it is not correct to say that no preliminary inquiry has been conducted prior to the serving of the charge sheet. In my respectful submission there is no inordinate delay as alleged by the petitioner in serving the charge-sheet as a matter of fact the preliminary inquiry was conducted and the file was misplaced in the Special Branch-1 and hence some delay has been caused but it cannot be said that the department sat idly for the years over the file. ... ... ...." 6. I have heard party-in-person Mr.Gusain and learned AGP for the State Government. The question which requires consideration is whether the charge-sheet can be said to have been issued to the petitioner after his retirement from service, which would disentitle the respondent to hold enquiry under Rule 189A of the BCSR or can it be said that the enquiry was initiated against the petitioner while he was in service. The other question which requires consideration is whether the enquiry is bad in law on the ground of unreasonable delay in initiating the enquiry against the petitioner and in view of such delay, whether it can be said that the action of initiation of the enquiry is arbitrary, mala fide or illegal. The petitioner also submitted about the merits of the charges. However, this Court cannot, at this stage, decide the merits of the case to find out whether the petitioner was responsible for the alleged misconduct or not. Since the petition is filed at the time of enquiry, this Court cannot go into the aforesaid question at this stage of the departmental proceedings. 7. There is some controversy between the petitioner and the respondent as to the actual time of serving the charge-sheet to the petitioner. It is the say of the petitioner that after he handed over the charge in the evening, subsequently, when he went home, the charge-sheet was served upon him, while the say of the Department is that, as such, it was served to him earlier in the evening. However, the learned AGP stated that, in any case, it is not in dispute that the said charge-sheet was issued to the petitioner before midnight, i.e. 12.00 O'Clock at night on 30th June, 2000. Therefore, it is not in dispute that the said charge-sheet was issued to the petitioner before 12.00 midnight on 30th June, 2000. Now, whether the Department can serve such charge-sheet after office hours is also a question which requires consideration. 8. At this stage, reference is required to be made to Rule 189-A of the BCSR. The said Rule reads as under :- " ... ... ... 189-A. The Governor reserves 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 services rendered upon re-employment after retirement : Provided that- (a) such departmental proceeding, 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 a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the Government servant had continued in service : (b) such departmental proceeding 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 Governor; (ii) shall not be in respect of any event which took place more than 4 years before such institution; and (iii) shall be conducted by such authority and in such place as the Governor 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 Government servant during his service; xxx xxx xxx (d) the Gujarat Public Service Commission shall 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 Government servant or pensioner, or if the Government servant 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. ... ... ...." Reading the aforesaid Rule, it is clear that, on termination of departmental or judicial proceedings, if a person is found guilty of grave misconduct or negligence during the period of his service, then the Governor can withhold or withdraw a pension or any part of it, either permanently or for a specified period, including the right of recovery from a pension of such Government employee regarding any pecuniary loss which can be said to have been caused to the Government. The said provision of Rule 189-A is subject to provisos (a) and (b). So far as Rule 189-A(a) is concerned, it is clear that if the departmental proceeding is pending when the Government servant was already in service, such enquiry can continue after the final retirement of the Government servant, meaning thereby, that a pending enquiry is not affected even if a Government servant subsequently retires if such enquiry is initiated prior to his retirement. However, if such departmental proceedings were not instituted while such Government servant was in service, then, such proceedings cannot be instituted without the sanction of the Governor as well as it cannot be instituted if the event had taken place more than four years before such institution. Reading the aforesaid Rule, it is clear that so far as period of four-year limitation which is prescribed in Rule 189-A(b)(ii) is concerned, the same is applicable in case the enquiry is initiated after the Government servant had retired from service. If the proceedings are initiated against the Government servant while he was in service, then such proceedings can continue even after his retirement under Rule 189-A(a) and in that eventuality, the limitation regarding the period of four years is not applicable, as the same will have application only when the enquiry is initiated after retirement. The first question which requires consideration is whether the departmental proceedings can be said to be instituted against the petitioner while he was in service or that it is initiated after his retirement, i.e. while he was not in Government service. 9. As stated earlier, in the instant case, the charge-sheet was served on the petitioner on 30th June, 2000, which is the date on which he retired from Government service on attaining 58 years of age. The say of the petitioner is that it was not served to him during office hours and that it was served at late evening and after he had handed over his charge. As stated earlier, it is not in dispute that such charge-sheet was issued to the petitioner before 12.00 at midnight on the same day. So far as Rule 189-A(b) is concerned, it deals with the situation where the Government servant was not in service at the time of institution of the departmental proceedings against him. It is, therefore, required to be found out whether the petitioner can be said to be in Government service at the time when he was served with the charge-sheet. Reference is required to be made to the definition of `day', given in the B.C.S.R. `Day' is defined in Rule 9(15) and it reads as under :- ... ... ... 9. Unless there be something repugnant in the subject or context the terms defined in this Chapter are used in the rules in the sense here explained :- xxx xxx xxx (15) Day means a calendar day beginning and ending at midnight, but an absence from headquarters which does not exceed twenty-four hours shall be reckoned for all purposes as one day at whatever hours the absence begins or ends. ... ... ...." In view of the said definition, it is clear that the petitioner can be said to have been in service upto midnight of 30th June, 2000 and, therefore, if the departmental proceedings are initiated upto last day of his service, which is 30th June, 2000, it cannot be said that the petitioner was not in service after office hours of 30th June, 2000. For that purpose, even if the petitioner had handed over charge during office hours, still, he remains in Government service upto midnight and since it is not in dispute that before midnight of 30th June, 2000, charge-sheet was served on the petitioner, it cannot be said that it was not open for the Department to issue charge-sheet in question to the petitioner. As stated earlier, the petitioner can be said to be in service upto midnight and, therefore, charge-sheet can be said to have been issued to him and departmental proceedings can be said to have been initiated against him while he was in Government service, and once it is held that the departmental enquiry was initiated against the petitioner while he was in service, then, under Rule 189-A(a), it is open for the Department to continue such enquiry even after his retirement in the same manner as if the Government Servant had continued in service and in such circumstances, it is not necessary to resort to Rule 189-A(b) as the same will have application only when the departmental enquiry is initiated after the retirement of the Government servant. 10. The petitioner has relied on certain judgments to substantiate his say that the departmental enquiry should not have been allowed to be proceeded against him. He relied upon the judgment of the Supreme Court in Vijay L. Mehrotra v. State of U.P. and others, 2000-II LLJ 267, wherein the Supreme Court has held that in case of employee retiring after having rendered service, it is expected that all the payments of retiral benefits should be made on the date of retirement or soon therafter, if for some unforeseen circumstances, the payments could not be made on the date of retirement. However, the instant case is not a case where there is a delay in finalising the pension papers of the petitioner. Here, departmental enquiry is initiated resorting to Rule 189-A(a) of the B.C.S.R. and the petitioner has been given provisional pension subject to the outcome of the enquiry. 11. The petitioner thereafter has relied on the decision of the Apex Court in State of Madhya Pradesh v. Bani Singh and another, 1990 (supp) SCC 738. In the said judgment, the Supreme Court has held that after a delay of 12 years in initiating disciplinary proceedings, for which no satisfactory explanation is given, it would be unfair to permit the departmental enquiry to proceed at such a late stage. The Supreme Court found that there is no satisfactory explanation for such delay in issuing charge memo and it was further held that it will be unfair to proceed with the departmental enquiry in view of such delay. 12. The petitioner has also relied upon the judgment of the Supreme Court in B.J. Shelat v. State of Gujarat and another, 1978 Service Law Weekly Reporter 199. While interpreting Rule 161(2)(ii), the Supreme Court held that the disciplinary proceedings after the date of retirement of the employee was not proper. It is required to be noted that, in the instant case, the departmental enquiry is initiated under Rule 189-A(a) of the BCSR and on the conclusion of the enquiry, now since the petitioner has already retired, such enquiry can be continued to find out whether there is any financial loss to the Government because of the so-called misconduct of the delinquent and also to find out if there is any pecuniary loss to the Government. In the instant case, it cannot be said that the enquiry was initiated against the petitioner after his retirement. 13. The petitioner has also relied upon the judgment of this Court in M.N.Mewada v. State of Gujarat and another, 1976(2) SLR 666. In the aforesaid case, the employee was allowed to retire from the Government service. The pensioner started drawing his pension which was sanctioned by the authorities and at that stage, the authority never thought it fit to effect cut in his pension and his full pension was sanctioned and subsequently, the State Government decided to impose pension cut, on the ground of alleged misconduct which took place in 1959-'60,