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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: M.H. MAZUMDAR

DATE OF JUDGMENT24/02/1988

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) VENKATARAMIAH, E.S. (J) OJHA, N.D. (J)

CITATION:  1988 AIR  842            1988 SCR  (3)  31  1988 SCC  (2)  52        JT 1988 (1)   432  1988 SCALE  (1)402  CITATOR INFO :  R          1989 SC1843  (23)

ACT:      Bombay Civil  Services Rules,  1959: Rules  188 and  18 Pension-Reduction/withdrawal-Whether permissible.      Government servant-After  retirement of  attaining  the age of  superannuation-Whether liable to departmental action for  misconduct,   negligence  or  financial  irregularities committed during  service period  - Whether  pension can  be reduced.

HEADNOTE: %      The respondent retired from State Government service on September 1,  1987, on  attaining the age of superannuation. About a year after his retirement, the respondent was served with a  chargesheet containing allegations of misconduct and negligence for  the period  he was  in service. Enquiry into the charges  was  held  and  respondent  was  afforded  full opportunity to  defend himself.  On the  conclusion  of  the enquiry a  report was  submitted by  the Collector,  holding that one  of the two charges was established while the other charge was  partly proved,  and that the respondent’s action was helpful  to one  of the  parties  which  amounted  to  a serious default  on his part as a Government servant, and it was  recommended  that  since  the  respondent  has  already retired from  service, a  lenient view  should be  taken and reduction in  pension to  the extent  of Re.  1 per month be made. The  State Government accepted the findings and issued orders  reducing  the  amount  of  pension  payable  to  the respondent by  50% permanently  under Rule 188 of the Bombay Civil Services Rules.      The  respondent   challenged  the   validity   of   the Government order  before the High Court. A Division Bench of the High  Court allowed  the writ petition and quashed State Government’s order  on the  ground that the State Government had no authority in law to take any disciplinary proceedings against respondent  as he  had already  retired from service and the  initiation of disciplinary enquiry and the order of punishment were unauthorised and illegal.

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    Allowing the appeal by the State. partly, 32 ^      HELD: 1.1  Rule 188  of the Bombay Civil Services Rules empowers the Government to reduce the amount of pension of a Government servant  whose service  has not  been  thoroughly satisfactory.  Rule  189  expressly  confers  power  on  the Government to  withhold or  withdraw any part of the pension payable to  Government servant  for misconduct  which he may have committed while in service, after giving opportunity of defence in accordance with the procedure specified in Note I of Rule  33 of  the Bombay Civil Services Conduct Discipline and Appeal  Rules. The State Government’s power to reduce or withhold pension  by taking  proceedings against  Government servant even after retirement is thus expressly preserved by the aforesaid rules. [34C, F-H]      1.2 The High Court committed a serious error in holding that the  State Government  had no authority to initiate any proceedings against  the  respondent.  The  purpose  of  the enquiry  was   not  to   inflict  any  punishment,  and  the proceedings  were  initiated  for  determining  respondent’s pension. The  proceedings were  taken in accordance with the Rules 188 and 189 of the Rules. [35C-E]      1.3 The  Government had  power to  reduce  the  pension payable to the respondent but having regard to the facts and circumstances of  the case,  the reduction of pension by 50% was too harsh and disproportion ate to the misconduct proved against the  respondent. The  State Government  should  have taken into  consideration the  fact that  the respondent had retired from  service and  the reduction  of pension  by 50% would seriously  affect his  living. The  order of  the High Court and  the State  Government’s order reducing pension by 50% are  set aside  and the  State Government is directed to reconsider  the   question  of   reduction  of  respondent’s pension. [35E-F; 36E-G]      B. J.  Shelet v.  State of Gujarat & ors., [1978] 2 SCC 202, distinguished.      M. Narasimhachar  v. The  State of Mysore, [1960] 1 SCR 981 and  State of Uttar Pradesh v. Brahm Datt Sharma & Anr., [1987] 2 SCC 179, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 573 of 1988      From the  Judgment and  order dated  13.2.1987  of  the Bombay High Court in W.P. No. 613 of 1984. 33      A.M. Khanwilkar and A.S. Bhasme for the Appellant.      B.N. Singhvi and A.K. Gupta for the Respondent.      The Judgment of the Court was delivered by      SINGH, J. Special leave granted.      This appeal raises an important question of law whether a Government  servant after  his retirement on attaining the age  of   superannuation  is   liable  to   be  dealt   with departmentally for  any misconduct,  negligence or financial irregularities committed  by him  during the  period of  his service.      Necessary facts  giving rise  to this  appeal are  that M.H. Mazumdar,  the Respondent  was in  the service  of  the State of Maharashtra as Supply Inspector and he retired from service on  attaining the age of superannuation on September 1, 1977. After his retirement the respondent was served with a charge-sheet on October 16, 1978 containing allegations of

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misconduct and  negligence against him for the period he was in service.  Enquiry into  those charges  was held  and  the respondent was  afforded full opportunity to defend himself. On the conclusion of the enquiry the State Government issued orders on  December 4,  1982 reducing  the amount of pension payable to  the respondent  by 50 per cent permanently under Rule 188  of the Bombay Civil Services Rules. The respondent challenged the  validity of  the Government’s order by means of a  writ petition  under Article  226 of  the Constitution before the  High Court  of Bombay.  A Division Bench of that Court allowed  the  writ  petition  and  quashed  the  State Government’s order dated December 4, 1982 on the ground that the State  Government had  no authority  in law  to take any disciplinary proceedings  against the  respondent as  he had already retired from service. Placing reliance on a decision of this  Court in  B.J. Shelet  v. State  of Gujarat  & Ors. [1978] 2  SCC 202 the High Court held that the initiation of disciplinary  enquiry   and  the  order  of  punishment  was unauthorised and  illegal.  The  State  of  Maharashtra  has preferred this  appeal against  the  judgment  of  the  High Court.      There is  no dispute  that the  respondent had  retired from service  on attaining  the  age  of  superannuation  on September 1,  1977 and charges were served on him on October 16, 1978  after about a year of his retirement. Undisputably the proceedings  against the respondent were initiated after the respondent ceased to be in service of the State 34 Government. The  proceedings culminated into an order of the State Government reducing the respondent’s pension by 50 per cent. The  question is  whether  the  State  Government  was competent to  take action against the respondent by reducing his pension. Conditions for grant of pension to a Government servant of  the State  of Maharashtra  are regulated  by the Bombay Civil  Services Rules (hereinafter referred to as the Rules). Rule  184 provides  for grant  of pension admissible under the  rules to  Government servant  who is borne on its establishment. Rules  188 and  189 relevant  for our purpose are as under:           "188. Government may make such reduction as it may           think fit  in the  amount  of  the  pension  of  a           Government servant  whose  service  has  not  been           thoroughly satisfactory."           "189. Good  conduct is  an  implied  condition  of           every grant of pension. Government may withhold or           withdraw a  pension or  any  part  of  it  if  the           pensioner be  convicted of  serious  crime  or  be           found to  have been  guilty  of  grave  misconduct           either during  or  after  the  completion  of  his           service, provided  that before  any order  to this           effect is  issued, the  procedure referred  to  in           Note  I  to  Rule  33  of  Bombay  Civil  Services           Conduct, Discipline  and  Appeal  Rules  shall  be           followed."      The aforesaid two Rules empower Government to reduce or withdraw a  pension. Rule  189 contemplates  withholding  or withdrawing of  a pension or any part of it if the pensioner is found  guilty of grave misconduct while he was in service or after the completion of his service. Grant of pension and its continuance to a Government servant depend upon the good conduct of  the Government  servant. Rendering  satisfactory service maintaining  good conduct  is a  necessary condition for the grant and continuance of pension. Rule 189 expressly confers power  on the Government to withhold or withdraw any part of  the pension  payable to  a Government  servant  for

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misconduct which  he may  have committed  while in  service. This Rule further provides that before any order reducing or withdrawing any part of the pension is made by the competent authority the pensioner must be given opportunity of defence in accordance  to the  procedure specified in Note I to Rule 33 of  the Bombay  Civil Services  Conduct,  Discipline  and Appeal Rules.  The State  Government’s power  to  reduce  or withhold pension  by taking proceedings against a Government servant even  after his retirement is expressly preserved by the aforesaid Rules. 35 The validity  of the  Rules was not challenged either before the High  Court or  before this  Court. In  this  view,  the Government has power to reduce the amount of pension payable to the  respondent. In  M. Narasimhachar  v.  The  State  of Mysore, [1960] 1 SCR 981 and State of Uttar Pradesh v. Brahm Datt  Sharma   &  Anr.,  [1987]  2  SCC  179  similar  Rules authorising the Government to withhold or reduce the pension granted to  the Government servant were interpreted and this Court held  that merely because a Government servant retired from service on attaining the age of superannuation he could not escape  the liability  for misconduct  and negligence or financial irregularities  which he may have committed during the period of his service and the Government was entitled to withhold or  reduce the  pension  granted  to  a  Government servant.      The High  Court in  our view committed serious error in holding that  the  State  Government  had  no  authority  to initiate any  proceedings against  the respondent.  In B. J. Shelat v.  State of  Gujarat & Ors. disciplinary proceedings had  been  initiated  against  the  Government  Servant  for purpose of  awarding punishment  to him after he had retired from service.  The ratio  of that decision is not applicable to the  instant case  as in  the present case the purpose of the enquiry  was not  to inflict any punishment; instead the proceedings were  initiated for determining the respondent’s pension. The proceedings were taken in accordance with Rules 188 and  189 of  the Rules. It appears that the attention of the High Court was not drawn to these Rules.      The State  Government had  power to  reduce the pension payable to  respondent but  having regard  to the  facts and circumstances, of  the case  we are  of the opinion that the reduction of  pension by 50 per cent was disproportionate to the charges  proved against the respondent. Two charges were framed against the respondent which are as under:           "Charge No. 1.           He has  made a  farce of  an enquiry,  collected 6           permits from  the  Kolhapur  Central  Co-operative           Consumers Stores  including the  permit No. 007314           issued  to   Shri  K.P.  Khatavane  with  malafide           intention after  passing a  receipt thereof to the           Godown Keeper, of the said stores on 12.6.1974 and           thereby tried  to shield  Shri K.P.  Khatavane and           his   sons    Baban   Khatavane    from   criminal           prosecution.           Charge No. 2.           He has  deliberately and  intentionally denied  to           have made 36           any enquiry regarding unauthorisedly lifting of 10           bags of  Sugar on  bogus or  forged permit by Shri           Baban Khatavane  even though  he was  deputed  for           such enquiry  by Shri  A.R. Mane  District  Supply           officer, Kolhapur and he had actually recorded the           statement of  Shri S.L. More, Godown Keeper of the

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         said stores and Shri Hari Santu Pande, Cart driver           and also  collected above mentioned 6 permits from           Shri More  after passing  a  receipt  thereof.  By           denying the  above fact  he has  helped Shri  A.R.           Mane,  District   Supply  officer,   Kolhapur  for           suppressing the  case. His  failure in this regard           leads to  belief that  he has  conspired with Shri           K.P. Khatavane  and his  son Shri  Baban Khatavane           with some  ulterior motive and abatted them in the           disposal of sugar in black market."      On conclusion  of the enquiry charge No. 1 was found to have been  established while  charge  No.  2  was  partially proved. In  his report to the State Government the Collector of Kolhapur held that the respondent’s action was helpful to Shri Khatavane to sell the sugar in the black market, and it amounted to  a serious  default on  his part as a Government servant.  He  recommended  that  since  the  respondent  had already retired  from service a lenient view should be taken and reduction in pension to the extent of Re. 1 per month be made The  State Government  accepted the findings and passed the impugned  order reducing  the pension  by 50 per cent In our view  the reduction of pension 50 per cent was too harsh and disproportionate  to the  misconduct proved  against the respondent. The  State Government  should  have  taken  into consideration the  fact that the respondent had retired from service and  the reduction  of pension  by 50 per cent would seriously affect his living.      Accordingly, we  allow the appeal partly, and set aside the order of the High Court dated February 13, 1987, and the State Government’s  order dated  December 4, 1982 and direct the State Government to reconsider the question of reduction of respondent’s  pension. There  will be  no order regarding costs. N.P.V.                                  Appeal allowed. 37