-^S^K. HIGH CQURT OF CHHATTISGARH : ^ILASPU^ Petitioner Writ Petition No. 2333 of 2004 G. R. Sao, S/o Late K. Sao, aged about 60 Years, MIG 12/11, Narmada Nagar, Raigarh, Dist. C.G. State. Versus Respondents 1. 2. 3. 4. State of Chhattisgarh, through Secretary, Water Resources Deptt. Government of Chhattisgarh, Raipur. Dist. Collector, Jashpur, Dist. C.G. State. Dy. Accountant Gcneral, Office of Accountant General, Chhattisgarh State. Chief Engineer, Water Resources Dept. Jashpur, C.G. State. WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA (SB: Hon'ble Shri Satish K. Agnihotri J.) Shri K. R. Nair, Advocate for the petitioner. Shri M. P. S. Bhatia, Deputy Govt. Advocate for the respondents. AF< ORDER(QraU (Passed on this 7th day of September, 2009) Heard. The challenge in this petition is to the order dated 5.4.2004 (Annexure P/16), issued by the respondent No.2 i.e. Collector, Jashpur, for forfeiture of 50% of the gratuity amount to the tune of Rs. 76,808/-, payable to the petitioner on his superannuation. The petitioner further prays for grant of interest on the amount which has been withheld by the respondents illegally. The indisputable facts, as projected by the petitioner, are that the petitioner while working as Assistant Grade-II in the Water Resources Department, Jashpur attained the age of superannuation on 29.2.2004 (Annexure P/l). After retirement of the petitioner, a show cause notice containing charges was issued on 1.3.2004 (Annexure P/9), calling upon the petitioner to submit his reply to the show cause notice. After conclusion of the enquiry, the Collector passed the impugned order on 5th April, 2004 (Annexure P/ 16), directing forfeiture of 50% of the gratuity amount. The question involved in the present petition is asto whether a charge sheet can be issued and departmental enquiry can be instituted after retirement of an employee from sen^ice. Shri K. R. Nair, learned counsel appearing for the petitioner would submit that the provisions of Rule 9 (2) (b) (i) of the Madhya Pradesh/Chhattisgarh Civil Servrices (Pension) Rules, 1976 (for short 'the Pension Rules, 1976) prohibits initiation of departmental proceedings, if the same was not instituted while the government servant was in service. The departmental proceedings can be instituted only after sanction of the Governor. Learned counsel would further submit that the initiation of the departmental proceedings against the petitioner is bad and illegal and contrary to the provisions of the law as it was instituted after retirement of the petitioner from service. Thus, the consequential order dated 5.4.2004 is also void and illegal and deser^es to be set aside. Rule 9 of the Pension Rules, 1976 reads as under: a9. Right to governor to withhold or withdraw pension (1) The Governor reservres to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from pension of the whole or part of any pecuniary loss caused to the Government if, in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his ser^ice, including ser^ice rendered upon re-employment after retirement: Provided that the State 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 pension shall not be reduced below (the minimum pension as determined by the Government from time to time}; (2)(a) The departmental proceedings, if instituted while the Government servrant 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 an concluded by the authority by -71 %^v^-y ,..^ "^^y which they were commenced, in the same manner as if the Government servant had continued in ser^ice: Provided that where the departmental proceedings are instituted by an authority subordinate to the Governor, that authority shall submit a report regarding its findings to the Governor. (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 Governor; (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:- (a) in which an order of dismissal from service could be made in relation to the Government servant during his service in case it is proposed to withhold or withdraw a pension or part thereof whether permanently or for a specified period; or (b) in which an order of recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders could be made in relation to the Government servant during his ser^ice if it is proposed to order recovery from his pension of the whole or part of any pecuniary loss caused to the Government. (3) xxx xxx xxx (4) xxx xxx xxx (5) xxx xxx xxx?? Shri M. P. 8. Bhatia, learned counsel appearing for the respondents, per contra, relying on the notification dated 25.3.1996 (Annexure R/l), wherein it is stated that the Collector has power under Madhya Pradesh/Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 to suspend Class-III and IV employees and impose minor penalties, would submit that the impugned order dated 5.4.2004 has rightly been passed by the Collector. Learned counsel does not address on the applicability of the provisions of Rule 9 of the Pension Rules, 1976. \ 6. The law is very clear. The provisions of Rule 9 of the Pension Rules, 1976 are unambiguous and clear that no departmental proceedings can be instituted after retirement of an employee from service. This provision has been considered and interpreted by the Hon'ble Supreme Court in State of M.P. and others Vs, Dr. Yashwant Triinbak1, wherein it was obser^ed that the Governor does not mean the Governor in person but the same can be considered by the Council of Ministers in accordance with the Rules of Business, made under Article 166(3) of the Constitution. 7. Hon'ble Supreme Court in Dr. Yashwant Trimbak (supra), in paragraphs 17 and 18, held as under: "17. The order of sanction for prosecution of a retired government servant is undoubtedly an executive action of the Government. A Governor in exercise of his powers under Article 166(3) of the Constitution may allocate all his functions to different Ministers by framing rules of business except those in which the Governor is required by the Constitution to exercise his own discretion. The expression "business of the Government of the 8tate?? in Article 166(3) of the Constitution, comprises functions which the Governor is to exercise with the aid and advice of the Council of Ministers including those which he is empowered to exercise on his subjective satisfaction and including statutory functions of the State Government. The Court has held in Godavari Shamrao Parulekar v. State of Maharashtra that even the functions and duties which are vested in a State Government by a statute may be allocated to Ministers by the Rules of Business framed under Article 166(3) of the Constitution. In State of Bihar v. Rani Sonabati Kumari where power of ' (1996) 2 SCC 305 ^1^., issuing notification under Section 3 (1) of the Bihar Land Reforms Act, 1950 have been conferred on the Governor of Bihar, this Court held: "Section 3(1) of the Act confers the power of issuing notifications under it, not on any officer but on the State Government as such though the exercise of that power would be governed by the rules of business framed by the Governor underArticle 166(3) ofthe Constitution." 18. Therefore, excepting the matters with respect to which the Governor is required by or under the Constitution to act in his discretion, the personal satisfaction of the Governor is not required and any function may be allocated to Ministers/' 8. The Collector does not have any role in the Business Rules, as in the Business Rules the concerned department, through signature of the Secretaiy or Under Secretary, concerned, is authorized to authenticate the order in the name of the Governor. 9. The reliance of Shri Bhatia on the notification dated 25.3.1996 is misplaced as the said provision deals with the serving government employees not the retired one. If the enquiry itself is bad, the consequential order deserves to be quashed, as being illegal. 10. It is not the case of the respondents/State that in exercise of powers under Rule 9 (2) (b) (i) of the Pension Rules, 1976^ the Council of Ministers has considered the case of the petitioner for grant of sanction in accordance with the Rules of Business and the order granting sanction has been authenticated by the s Secretary or Under Secretary of the department in the name of the Governor. Thus, the initiation of the departmental proceedings by order dated 1.3.2004 by the Collector after retirenient of the petitioner is illegal and contrary to the provisions ofRule 9 ofthe Pension Rules, 1976. 11. The reliance of the respondents/State on the provisions of Section 64 ofthe Pension Rules, 1976 is misplaced, as the power under Section 64 of the Pension Rules, 1976 can be exercised only in a case where the departmental proceedings is proper and legal. In the case on hand, the initiation of the departmental proceedings, after retirement of the petitioner, itself was bad and illegal. 12. If the initiation of the departmental proceedings, itself, is illegal, the consequential order cannot sustain. The same is also illegal, unauthorized and improper. Thus, the departmental proceedings by order dated 1.3.2004 (Annexure P/9) and the consequential order dated 5.4.2004 (Annexure P/16) are quashed. 13. On the question of applicability of rate of interest on the withheld gratuily amount, learned counsel appearing for the petitioner submits that Section 7 of the Payment of Gratuity Act, 1972 provides for determination of the amount of gratuity. Further, sub-section (3-A) of this Section 7 stipulates that if the amount of gratuity is not paid by the employer within time, the amount shall carry simple interest i.e. 10% per annum specified as the rate of simple interest vide Standing Order 874(E), dt. 1.10.1987, but not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify. 14. For the reasons mentioned herein above, the petition is allowed. The petitioner is entitled to full gratuity amount with simple interest as may have been notified by the Central Government, from the date it became due. No order asto costs. Sd/- Satish K. Agnihotri Judge Thakur