a G^> 1 ^- ® IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR ./XJ ^ W.P. (S) No.' of2009(S.B.) PETITIONER RESPONDEIVTS ^' )0-p^ ^•^•••-" 'e^y' .^V9-^"' ^p°' ^v'-- ^av w..-y "\ .A SSffI ^/a v r. J. S. Mehta, S/o Late R.S. Mehta, aged about 62 years, Retired Chief Medical & Health Officer Kanker, R/o Amaodaya Niwas, Street No. 26, Shanti Nagar, Bhilai, Distt. Durg (C.G.) VERSUS 1) State ofChhattisgarh Through- the Secretary, Department of Health and Family Welfare, Mantralay, D.K.S. Bhawan, Raipur (C.G.) 2)* Under Secretary, Govemment of Chhattisgarh, Department of Health and Family Welfare, Mantralay, D.K.S. Bhawan, Raipur (C.G.) 3) Director, Health Services, D.K.S. Bhawan, Raipur (C.G.) 4) Director Of6ce of Commissioner, Department of Aadim Jati, Anusuchit Janjati, OBC Minorities Wetfare, Raipur (C.G.) 5) Dr. R.K. Rajmani Enquiry Officer, Director, State Health and Family Welfare lastitute, Raipur (C.G.) 6) Director, Govemment of Chhattisgarh Department of State Health and Fanuly Welfare Institute, Raipur (C.G.) °> WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTIQN OF INDIA ^ HIGH COURT OP CHHATTISGARH : BILASPUR SINGLB BBNCH : HON»BLESHRI MANINDRA MOHAN SHRIVASTAVA.J. PBTITIONER DifrttPetitionJSlNp. 6983/2009 Dr. J. S. Mehta Versus RESPONDBNTS State of Chhatdsgarh aiid ofhers Petition u/A 226 ofthe Constitution oflndia Appearance: Shri Vivek Sharma, counsel for fhe petitioner. Shri Satish Gupta, Govt. Advocate for fhe State/rcspondents No. 1 to 4 aiid 6, on advao.cc copy. None for rcspondent No.5, though served, ORAL-PRDBR (Passedon6.7.2010) 1. This petition has been filed by the petitioner, a pensioner, aggrieved by order dated 19.3.2009 (Annexure P-1) by which^ m a departmental enquiry initiated before retirement, an order of wifhholding 10% of pension has been passed against the petitioner. 2. Shora of unnecessaiy detaUs, fhe petitioner while workiag as Chief Medical & Health Officer at Kanker, rctired on 30.6.2003. Beforc his retirement, a charge sheet was issued to fhe petitioner on 23.7.2002 (Annexure P-8) mstituting a departmental enquiiy. The said enquuy was continued even after his retirement aad after almost 6 years of his retireinent, fhe unpugned order has been passed holding charges proved agaiast the petitiouer, whereby respondent No. 1, m purported exercise of powers under Rule 9 of fhe M.P./C.G. Civil Services ^—- - 2 ~ CD '<%^r^^ (Pension) Rules, 1976 (for short "the Rules of 1976") has directed reduction in pension to the extent of 10%. • 3. Leamed counsel for ttie petitioner assails legalit}r and validity of fhe order dated 19.3.2009 on fhe sole ground that fhe impugned order is m excess aufhority xinder ftie law, iaasinuch as in view offhe provision contamed ia Clause (b) of third proviso to sub-rule (4) of rule 9 of the Rules of 1976, where enqiuxy is not concluded wifhia fhe period of 2 years froin fhe date of retirenient, no order of rcduction of pension could be imposed aad such order is violative ofthe aforesaid provision. To buttress his submissions, leanied counsel for the petitioner placed reliance on fhe ratio of fhe judginent of the High Court of Madhya Pradesh m fhe case of State of M.P. and others Vs« R. L. Offsle and others [2006 (11 M.P.L.J.1 decided on 6.10.2065, wherem a Division Bench of fhe High Coiirt of M.P., mterpretmg tfaese rules, as appUcable ia fhe State of Madhya Pradesh, held fhat it was beyond the authority of fhe Goveminent to reduce pension if fhe enquiry is not concluded witliin a period of 2 years, Relyiag upon the aforesaid judgment, High Court of Madhya Pradesh has passed similar order ia the case ofKrishaalal (Dr.l Vs. State ofM.P. & Qrs. 12009 (111 MPJR 1391 & B.P. Shrivastava Vs. State ofM.P. [2008 (11 MFWN 47. 4. On fhe other haad, submission oflearaed counsel for fhe respondents is that the rules nowhere prescribe tiiat ia fhe event departmental enquiry could not be completed wifhia 2 years of fhe retirement, order of reduction of punishnient could not be passed. Leamed counsel for fhe respondents submits that merely because fhe provision prescribed fhat after 2 years, whole amount of pension woxild be rcstored, it does not preclude the Authority fronx reducing fhe pension, tf ulthnately the charges are found proved. / ^' 4 -3- I0| ^•^^ ^8i—. 5. I have considered fhe rival submissions raade by learaed coiuisel for fhe parties aiid perused fhe records. 6. A bare perusal offhe provision contained ia Clause (b) offhird proviso to sub-mle (4) of Rule 9 of the Rules of 1976 shows that if the departmental proceediags are not completed withm fhe period of 2 years from fhe date of its mstitution, fhe entire amount of pension withheld shall stand restored on the expiration of fhe aforesaid penod of 2 years, The aforesaid provision contamed iii M.P. CivU Cervices (Pension) Rules, 1976 caiae-up for consideration before Divisiou Bench of High Court of Madhya Pradesh ia fhe inater of R.L. Ogftle (supra), After examiniag fhe scheine of fhe Rules of 1976, particularly Clause (b) offhe third proviso to sub-rule (4) ofRule 9 ofthe Rules of 1976, it was held as under:- "10. In fhe prcsent case, fhe original respondent retired on attaming fhe age of superannuation on 31.8.1985 and his pensiou iacluding gratidly was wifhheld by fhe authorities under the aforesaid Rule 9 of the Rules of 1976, aad fhe origiaal rcspondent was paid, however, a provisional pension in accordaace wifh the said sub- rule (4) of Rule 9 of fhe Rules of 1976. Any proceeding under Rule 9 of fhe Rules of 1976 for recovexy of loss from pension caa be iastituted only on or after fhe retireinent of a GoverDJiient servaat aad by virtue of sub-rule (2) of Rule 9, the proceedmgs against the origmal respondent could be deemed to have been mstituited on fhe date of his rctirement i.e. on 31.8.1985. Clause (b) of the thini proviso of fhe said sub-rule (4) of nile 9 of fhe Rules of 1976, makes it aoiply clear fhat if fhe departmental proceediags are not completed wifhia a period of 2 years firom the date of institution, fhe entire ainount of pension so wifhheld shaU staad restored on the expiration of fhe period of 2 years. Thus, the pension fhat has been withheld m the 1 '"*%. ^ X ,,. &' ^ '^^•\y -4- ID^- case of the ori^iiial respondent stood restored on the expiration of 2 years froni fhe date of iastttution of the departnxental proceediags aad no ftirther order on fhe conipletion of such 2 years could be passed by fhe Govemor for recovery offhe loss ofRs.4,10,071.84 froni fhe origmal respondent. Thus, even ifwe hold fhat fhe departmental proceedings iaitiated by fhe Conservator of Forest did not staad vitiated aad fhe findiags IEI fhe said departoaiental proceediags by fhe DiscipUnaiy Aufhority could be placed before fhe Goveraor, it will not be possible for the Govemor to pass aay final order for recoveiy of ftie loss of Rs.4,10,071.84 from fhe origiaal respondent ia view of clause (b) of the fhird proviso to sub-rule (4) ofRule 9 ofthe Rules of 1976. 11. Shri Yadav, leamed counsel for fhe petitioners, howevery subinitted fhat a statutory fiction has been crated ia clause (c) of the fhird proviso to Rule 9 to the effect fhat ifin fhe departaiental proceediags, final order is passed to withhold or withdraw the pension or aay recpvery is ordercd, such order shaU be deeined to take effect JBroni fhe institution of fhe departniental proceediags and fhe amount of pension wifhheld shaU be adjusted ia terms of fhe fiLaal order subject to fhe limit specified ia sub-nile (5) of Rule 43, But in our opiaion this is a provision providiag for fhe legal consequences of a final order passed under Rule 9 of fhe Rules of 1976 aad it makes it clear fhat once a final order is passed to wifhhold or wifhdraw fhe pension or to recover any anioiint of loss, fhe aaiount of pension withheld is to be adjusted ia terms of the final order subject to liinit specified in sub-rule (5) of Rule 43. It does not in aay way qualify or alter fhe limitation of 2 years for completion of the departmental proceedings from fhe date of iastitution ia a case where the Gtovenunent seryant has retired^ ' /' '!^i^;-^ 1^ -5- \ 03 '^. K 7. In fhe case of Krishnalal (Dr.) (supra), applyiag fhe aforesaid ratio, it was held as under: "7, Haviag regard to fhe aforesaid legal position I ain of fhe view that fhe rcspondents could not have passed fhe impugned order of reduction of his pension by 30% much after fhe period of two years from the date of his retireinent. The contention of fhe respondent that fhe departaiental proceediags were already conipleted on 7.5.1993 when the inqxuiy report was received holdiag the petitioner gmlty and fh.erefore fhe order of penalty could have been passed even after inore than two years of petitioner's retireiaent cannot be accepted. The Suprenie Court ia case ofYogiDLafh D. Badge V. State of Maharashtm (AIR 1999 SC 3734) = (1999) 7 SCC 739) has held fhat fhe departinental proceediags are not concluded on the submission of fhe inquiry report but it conie to an end only when fhe disciplmary aufhority on consideration offtie report either exonerates or unposes punishment on fhe deluiquent. Admittedly after fhe submission of fhe inquiry report a show cause notice was issued to fhe petitioner. He subndtted his representation to it Thereafter on 30.12.1996 fhe opiaion of Public Service Conunission about fhe proposed penally was sought but no order was passed aiid ia fhe ineanwhile on attaming fhe age of supemnnuation fhe petitioner was retired on 30.4.1997. After about five years of his retircment the impugned order ofpenally has been passed on 15.2.2002," 8. In yet another case of B.P. Shrivastava (supra), wherein order of punishnient of reduction of pension was passed in aa iaquiiy after 2 years ofretirement, itwas held as under:- "5. The Division Bench of this Court in State of M.P. and others v. R.L. Ogale aad others [2006 (3) JLJ 218 = 2006 (1) MPLJ 412 ] (DB), has decided that if any enquiry agamst an incumbent is iaitiated beforc his retireinent fhen fhe enquuy as such caa be contuiued ^. /'/.: -6- ^DU '^.': ia pursuance to Rule 9 (2) (a) of Madhya Pradesh Pension Rules, 1976. The Division Bench has further decided fhat fhe said enquiry has to be completed by the State Govenunent witihia a period of two years and ia case the enquiry is not coinpleted wifhia a period of two years fhen fhe Goveninient shedl have no power to impose the penalty of reducmg fhe pension. Thus, m the instaiit case, fhe respondents have no ri^ht to direct for fhe reduction ia fhe pension of fhe petitioner or to effect aay recovery, 6, Siace fhe order of punishinent by reduciag the pension of fhe petitioner by 5% was passed on 3.7.1996 (Annexure A-22) ie., much after the period of two years froni the date the petitioner rctired froin the sendces, fherefore, ia terms of fhe judgment passed by the Division Bench of fhis Court ia R.L. Ogale (supra), fhe respondents wiU not have any right to pass aii order dated 3.7.1996 (Annexure A-22) reduciag the pension offhe petitioner." 9. This Court finds no reason to take dijBTerent view froin the view taken ia fhe aforesaid cases, as fhe provisions of the Rules of 1976, iinder consideration ia fhe present case, were iaterpreted ia fhe case ofR«L. Ogale (supra). I am iaclmed to take fhe view taken ia fhe aforesaid decision » Consequenfly, the petition is allowed aiid impugned order dated 19.3.2009 (Annexure P-1) is held iUegal aad hercby quashed, Praveen Sd/- Manindra Mohan Shrivastava 1 Judge