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PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: BRAHMA DATT SHARMA AND ANR.

DATE OF JUDGMENT25/02/1987

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) SEN, A.P. (J)

CITATION:  1987 AIR  943            1987 SCR  (2) 444  1987 SCC  (2) 179        JT 1987 (1)   571  1987 SCALE  (1)457  CITATOR INFO :  R          1988 SC 842  (5)  APL        1989 SC1843  (23)

ACT:     U.P.   Civil   Service  Regulations,   Article   470(b): pension--Whether    Government    competent    to     direct reduction--Government Servant--Whether entitled to be heard. Practice and Procedure:     Government  servant--Show  cause  notice  issued   under statutory  provision--Courts  to be reluctant  to  interfere unless issuance palpably without any authority of law. Service law.     Disciplinary   proceedings--Whether   could  be  resumed after superannuation.

HEADNOTE:     Article  470(b)  of the U.P. Civil  Service  Regulations provides for reduction in pension amount by the  sanctioning authority in cases where the service of a Government servant has not been thoroughly satisfactory.     A number of charges framed against the first  respondent were  found  proved in a departmental inquiry. He  was  dis- missed  from service by order dated November 10,  1972.  The U.P. Public Service Tribunal upheld the dismissal. In a writ petition filed by him the High Court quashed the said  order on  August 10, 1984 on the ground that he had not  been  af- forded  reasonable  opportunity of defence inasmuch  as  the recommendation of the inquiry officer relating to the  quan- tum  of punishment had not been communicated to  him.  Since the  respondent had already retired from service during  the pendency  of  the petition only consequential  reliefs  were granted.     The  State Government issued a notice to him on  January 29, 1986 calling upon him to show cause as to why orders for forfeiture  of  his pension and gratuity be  not  issued  in accordance with Article 470(b) of the Civil Service  Regula- tions as his services have not been wholly satis- 445 factory.  It  contained allegations of misconduct.  The  re- spondent thereupon filed on application in the writ petition which  had already been disposed of on August 10, 1984.  The

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High  Court held that since departmental  proceedings  taken against the respondent had already been quashed, it was  not open to the State Government to issue show cause notice  for imposing  reduction in the respondent’s pension on the  same set of charges. Allowing the appeal by special leave, the Court,     HELD:1. When a show cause notice is issued to a  Govern- ment  servant under a statutory provision he must place  his case  before the authority concerned by showing  cause.  The courts  should be reluctant to interfere with the notice  at that  stage unless it is shown to have been issued  palpably without  any authority of law. The purpose of  issuing  show cause  notice  is to afford opportunity of  hearing  to  the Government servant and once cause is shown it is open to the Government to consider the matter in the light of the  facts and  submissions placed by the Government servant  and  only thereafter  a final decision in the matter could  be  taken. Interference by the Court before that stage would be  prema- ture.  The High Court, therefore, ought not to  have  inter- fered with the show cause notice in the instant case. [452H; 453A-C]     2.1 When proceedings stand terminated by final  disposal of  a  writ petition it is not open to the Court  to  reopen them  by means of miscellaneous application in respect of  a matter which provided a fresh cause of action. [453F]     2.2  In  the  instant case  Respondent’s  writ  petition challenging  the  order  of dismissal  having  been  finally disposed of on August 10, 1984 no miscellaneous  application could be filed in the writ petition to revive those proceed- ings.  If the respondent was aggrieved by the  notice  dated January  29,  1986 he could have filed a  separate  petition under  Article  226 of the Constitution, as  it  provided  a separate cause of action. The High Court, therefore, commit- ted an error in entertaining his application. [453D-E]     3.  After the decision of the writ petition it was  open to the State Government to have taken up proceedings against the  respondent from the stage at which it was found  to  be vitiated.  Had the respondent not retired from  service  the State  Government could have passed orders awarding  punish- ment to him after issuing a fresh show cause notice. [449D] 446     4.  Merely  because a Government  servant  retires  from service  an  attaining the age of superannuation  he  cannot escape the liability of misconduct and negligence or  finan- cial  irregularities.  There  were  serious  allegations  of misconduct  against the respondent which had been  proceeded against  him  during inquiry. Those charges  remained  alive even after quashing of the dismissal order. Since no  disci- plinary  proceedings could be taken as he had  retired  from service, the Government proceeded to take action against him under the Civil Service Regulations. [451C; 449F]     5.1  Pension  is not bounty, instead it is  a  right  to property  earned by the Government servant on his  rendering satisfactory  service  to the State. Article 470(b)  of  the Civil  Service  Regulations vests power  in  the  appointing authority to take action for imposing reduction in  pension. As the State Government is the appointment authority in  the instant case it was competent to issue show cause notice  to the respondent. [450F; 452G]     5.2  If disciplinary proceedings against an employee  of the  Government are initiated in respect of misconduct  com- mitted  by  him and if he retires from  service  before  the completion  of  the  proceedings, it is open  to  the  State Government  to direct reduction in his pension on the  proof of the allegations made against him. If the charges are  not

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established  during the disciplinary proceedings or  if  the disciplinary  proceedings are quashed it is not  permissible to  the State Government to direct reduction in the  pension on the same allegations, but if the disciplinary proceedings could not be completed and if the charges of serious allega- tions  are established, which may have bearing on the  ques- tion  of  rendering efficient and satisfactory  service,  it would be open to the Government to take proceedings  against the Government servant and to withhold or reduce the  amount of  pension in accordance with the statutory rules.  If  the Government incurs pecuniary loss on account of misconduct or negligence  of a Government servant and if he  retires  from service  before  any  departmental  proceedings  are   taken against him, it is open to the State Government to  initiate departmental proceedings, and if in those proceedings he  is found guilty of misconduct, negligence or any other such act or  commission  as a result of which Government  is  put  to pecuniary  loss, the State Government is entitled  to  with- hold,  reduce or recover the loss suffered by it by  forfei- ture or reduction of pension. [449H; 450-A-B; D-F]     5.3  Art. 311(2) of the Constitution is  not  attracted, nonetheless the Government servant is entitled to opportuni- ty  of  hearing  before order for reduction  in  pension  is issued,  as it would affect his right to receive  full  pen- sion. [452B] 447     5.4 It would be open to the State Government to consider the respondent’s reply to the show cause notice and  proceed with the matter in accordance with law. [453G]     State  of  Punjab v. K.R. Erry and  Sobhag  Rai,  Mehta, [1973]  2  SCR 405; Deokinandan Prasad v. State of  Bihar  & Ors., [1971] Suppl. SCR 634; D.S. Nakara and Ors., v.  Union of  India,  [1983] 2 SCR 165; M. Narasimhachar v.  State  of Mysore, [1960] 1 SCR 981 and State of Punjab & Anr. v. Iqbal Singh, [1976] 3 SCR 360, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  481  of 1987.     From  the  Judgment and Order dated 11.7.  1986  of  the Allahabad High Court in W.P. No. 8249 of 1980. Anil Dev Singh and Mrs. S. Dikshit for the Appellant. Ashok Grover and Pramod Dayal for the Respondents. The Judgment of the Court was delivered by SINGH, J. Leave granted.     This  appeal is directed against the order of  the  High Court  of Allahabad quashing the State  Government’s  Notice dated 29.1.86 issued under Art. 470(b) of the Civil  Service Regulations calling upon the respondent to show cause as  to why his pension and gratuity be not forfeited.     Relevant facts giving rise to this appeal are  necessary to  be  recaptulated. Brahm Datt Sharma was employed  as  an Executive Engineer in the Irrigation Department of the State of  Uttar Pradesh. A number of charges were  framed  against him and after departmental inquiry charges were found proved consequently.  He  was dismissed from service by  the  State Govt.’s  Order  dated November 10, 1972.  He  unsuccessfully challenged the validity of the Order before the U.P.  Public Service  Tribunal. Therefore he filed a writ petition  under Art. 226 of the Constitution before the High Court challeng- ing the order of dismissal. A single Judge of the High Court Allahabad by his Order dated 10.8.84 set aside the order  of the  Tribunal and quashed the State Government’s Order  dis-

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missing  the respondent from service on the ground  that  he had not been afforded reasonable opportunity of 448 defence in as much as the recommendation made by the inquiry officer  relating to the quantum of punishment  against  the petitioner had not been communicated to him. While  allowing the writ petition the learned single Judge made the  follow- ing observations:                     "I  am informed by the  learned  counsel               for the petitioner that the petitioner has now               reached  the age of superannuation during  the               pendency  of the petition in the  High  Court,               consequently  no reinstatement can be  ordered               today. The petitioner will, however, be  enti-               tled  to  receive all the  benefits  which  he               would be entitled treating him as having  been               in service from the date of dismissal till the               date  of superannuation. The  petitioner  will               also  be  entitled to receive  the  pensionary               benefits which will be admissible to him as if               he  continued  in  service till  the  date  of               superannuation.  It  will be open to  the  re-               spondents  to draw fresh proceedings if it  is               permissible to do so."     The  respondent had already retired from service  during the  pendency  of  the petition before the  High  Court.  On attaining the age of superannuation disciplinary proceedings could  not  be taken against him. The  State  Govt.  however issued  a  notice dated 29.1.86 to him calling upon  him  to show  cause as to why orders for forfeiture of  his  pension and  gratuity be not issued in accordance with  Art.  470(b) Civil  Service  Regulation  as his services  have  not  been wholly  satisfactory.  The notice contained  allegations  of misconduct against the respondent regarding financial irreg- ularities committed by him. The respondent submitted a reply to  the  notice but before the same could be examined  or  a decision could be taken by the Govt. he filed an application before  the  High Court in Writ Petition No. 82449  of  1980 which  had already been finally disposed of on  10.8.84.  By his  Order dated July 11, 1986 the learned single  Judge  of the High Court held that since the departmental  proceedings taken  against the respondent had already been  quashed,  it was  not open to the State Govt. to issue show cause  notice under  Art.  470(b) of Civil Service Regulations,  on  those very  allegations which formed charges in  the  disciplinary proceedings. The Learned single Judge quashed the show cause notice  and directed the State Govt. to pay arrears of  sal- ary, pension and other allowances to the respondent.     The  question which fails for consideration  is  whether notice  dated 29.1.86 was invalid and liable to be  quashed. The  learned  single  Judge of the High  Court  quashed  the notice on the sole ground that the  449 allegations specified in the show cause notice were the same which  had been the subject matter of  departmental  inquiry resulting  in the respondent’s dismissal from  service,  and since dismissal order had been quashed in the writ petition, it  was not open to the State Govt. to take proceedings  for imposing any cut in the respondent’s pension on the same set of charges. We do not agree with the view taken by the  High Court.  While  quashing the order of dismissal  the  learned Judge did not quash the proceedings or the charges  instead; he had quashed dismissal order merely on the ground that the respondent  was  not  afforded  opportunity  to  show  cause against  the proposed punishment as the recommendation  with

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regard  to  the quantum of punishment made  by  the  Inquiry Officer  had  not been communicated to him.  In  fact  while allowing the writ petition the learned single Judge  himself observed in his order dated 10.8.84 that it would be open to the State govt to draw fresh proceedings if it was permissi- ble to do so.The High Court did not enter into the  validity of the charges or the findings recorded against the respond- ent during the inquiry held against him. After the  decision of the writ petition, it was open to the State Govt. to have taken  up proceedings against the respondent from the  stage at which it was found to be vitiated. Had the respondent not retired from service on attaining the age of  superannuation it  was open to the State Govt. to pass order awarding  pun- ishment  to him after issuing a fresh show cause notice  and supplying  to him a copy of the recommendation made  by  the Inquiry  Officer. There was no legal bar against  the  State Govt.  in  following  such a course of  action.  There  were serious  allegations  of misconduct against  the  respondent which  had been proceeded against him during inquiry,  those charges remained alive even after quashing of the  dismissal order  and it was therefore open to the State Govt. to  take action against the respondent in accordance with the  rules. No disciplinary proceedings could be taken as the respondent had retired from service, the Govt. therefore considered  it appropriate  to  take action against him under Art.  470  of Civil Service Regulations. The Regulation vests power in the appointing  authority to take action for imposing  reduction in the pension, as the State Govt. is the appointing author- ity  it  was  competent to issue show cause  notice  to  the respondent.  The notice specified various acts of  omissions and commissions with a view to afford respondent opportunity to show that he had rendered throughout satisfactory service and  that the allegations made against him did  not  justify any  reduction  in the amount of  pension.  If  disciplinary proceedings  against an employee of the Govt. are  initiated in respect of misconduct committed by him and if he  retires from service on attaining the age of superannuation,  before the  completion of the proceedings it is open to  the  State Govt. to direct deduc- 450 tion  in  his pension on the proof of the  allegations  made against  him. If the charges are not established during  the disciplinary proceedings or if the disciplinary  proceedings are  quashed  it is not permissible to the  State  Govt.  to direct reduction in the pension on the same allegations, but if  the disciplinary proceedings could not be completed  and if the charges of serious allegations are established, which may have bearing on the question of rendering efficient  and satisfactory service, it would be open to the Govt. to  take proceedings  against the Govt. servant in  accordanace  with rules  for  the deduction of pension and gratuity.  In  this view the High Court committed error in holding that the show cause notice was vitiated.     Grant of pension to employees of the State Government is regulated by the Civil Service Regulations which have statu- tory character. Article 348-A provides that pension shall be granted  subject to the conditions contained in the  Regula- tions.  Article 351-A empowers the Governor to  withhold  or withdraw  pension or any part of it, whether permanently  or for  a  specified  period and also to  order  recovery  from pension of the whole or part of the pension for any  pecuni- ary loss caused to the Government if the pensioner is  found guilty  in departmental or in judicial proceedings  for  any misconduct  or  negligence during his service.  Article  353 lays  down  that no pension shall be granted to  an  officer

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dismissed or removed from service for misconduct, insolvency or inefficiency, but compassionate allowance may be  granted on special consideration. The claim of pens,on is determined by  length  of service, as provided by Article 474  to  485. Full  pension is admissible under the rules not as a  matter of course but only if the service rendered by the Government employee is approved. The Regulations empower the  authority sanctioning the pension to make such reduction in the amount of pension as it may think proper. These provisions indicate that  a  Government servant is entitled to pension  but  the claim of pension is determined in accordance with the statu- troy rules. No doubt pension is no more a bounty; instead it is a right earned by the Government servant on the basis  of length of service, nonetheless grant of full pension depends on  the  approval of service rendered by  the  employee.  In other words if the service rendered by the Government  serv- ant  has not been satisfactory he would not be  entitled  to full  pension  and it would always to open to the  Govt.  to withhold or reduce the amount of pension in accordance  with the statutory rules. If the Government incurs pecuniary loss on  account of misconduct or negligence of a  Govt.  servant and  if  he  retires from service  before  any  departmental proceedings  are taken against him, it is open to the  State Govt. to initiate departmental proceedings, and if 451 in  those  proceedings  he is found  guilty  of  misconduct, negligence or any other such act or omission as a result  of which  Govt.  is put to pecuniary loss, the State  Govt.  is entitled to withhold, reduce or recover the loss suffered by it  by forfeiture or reduction of pension. These  provisions ordain  the Govt. servant to perform his  duties  faithfully and honestly. Honest and devoted service rendered by a Govt. servant  ensures  efficiency in public  administration.  The statutory rules therefore contain provisions for the forfei- ture and deduction in the pension of Govt. servant who  have not  rendered  satisfactory service or who have  been  found guilty  of misconduct or negligence resulting in  pencuniary loss  to  the Govt. Merely because a Govt.  servant  retires from  service  on  attaining the age  of  superannuation  he cannot escape the liability of misconduct and negligence  or financial irregularities.               Art. 470 of the Civil Service Regulation reads               as under:                     "470(a)  The  full  pension   admissible               under the Rules is not to be given as a matter               of course, or unless the service rendered  has               been really approved (See Appendix 9)                       (b) If the service has not been  thor-               oughly satisfactory the authority  sanctioning               the pension should make such reduction in  the               amount as it thinks proper.               Provided  that  in cases where  the  authority               sanctioning pension is other than the appoint-               ing authority, no order regarding reduction in               the  amount of pension shall be  made  without               the approval of the appointing authority.               Note:  For  the purpose of this  Article  ’ap-               pointing  authority’ shall mean the  authority               which  is  competent to make  substantive  ap-               pointment  to the post or service  from  which               the officer concerned retires."     A  plain reading of the regulation indicates  that  full pension  is  not awarded as a matter of course  to  a  Govt. servant  on his retirement instead, it is awarded to him  if his  satisfactory service is approved. If the service  of  a

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Govt.  servant  has  not been  thoroughly  satisfactory  the authority competent to sanction the pension is empowered  to make such reduction in the amount of pension as it may think proper.  Proviso to the regulation lays down that  no  order regarding reduction in 452 the amount of pension shall be made without the approval  of the  appointing  authority. Though the  Regulations  do  not expressly  provide  for affording opportunity to  the  Govt. Servant  before  order for the reduction in the  pension  is issued,  but the principles of natural justice  ordain  that opportunity of hearing must be afforded to the Govt. servant before  any order is passed. Art. 311(2) is  not  attracted, nonetheless the Govt. servant is entitled to opportunity  of hearing  as  the order of reduction in pension  affects  his right to receive full pension. It is no more in dispute that pension  is  not bounty; instead it is a right  to  property earned  by the Govt. servant on his  rendering  satisfactory service  to the State. In State of Punjab v. K.R.  Erry  and Sobhag Rai Mehta, [1973] 2 SCR 405 this Court held that  the State Govt. could not direct cut in the pension of  officers without giving a reasonable opportunity of bearing to  them. In  Deokinandan  Prasad  v. State of Bihar  &  Ors.,  [1971] Suppl.  SCR 634 it was held that pension is not bounty  pay- able  at the sweet will and pleasure of the  Govt.;  instead the  right  to pension is valuable right vested in  a  Govt. servant.  Again in D.S. Nakara and Ors. v. Union  of  India, [1983]  2  SCR 165 this Court held that payment  of  pension does  not depend upon the discretion of the Govt. but it  is governed  by the rules and Govt. servant coming under  those rules  is entitled to claim pension. A Govt. employee  earns his  pension  by rendering long and efficient  service,  the claim  of pension is regulated by rules, which  provide  for reduction in the amount of pension if the Govt. servant  has failed  to render efficient service. In M. Narasimhachar  v. State  of  Mysore, [1960] 1 SCR 981 this  Court  upheld  the order  of  the State Govt. in reducing pension  of  a  Govt. employee  as the rules regulating the grant of pension  made provision for reduction of pension on account of his  having rendered  unsatisfactory service. Rule 6.4 of  Punjab  Civil Pension  Rules provides for the reduction in the  amount  of pension  if the service of the Govt. employee has  not  been thoroughly  satisfactory. The State Govt.’s order  directing reduction of pension of the employee of State of Punjab were set aside by this Court in State of Punjab v. K.R. Erry  and Sebhag  Rai Mehta (Supra) and in State of Punjab &  Anr.  v. Iqbal Singh, [1976] 3 SCR 360 on the ground that the  orders imposing deduction in the pension had been passed in  viola- tion  of principles of natural justice as the  affected  em- ployees had not been afforded opportunity of hearing.  These decisions leave no scope for any doubt that the State  Govt. is competent to direct reduction in pension after  affording opportunity of hearing to the Govt. servant.     The  High Court was not justified in quashing  the  show cause notice. When a show cause notice is issued to a  Govt. servant under a 453 statutory  provision calling upon him to show  cause,  ordi- narily  the  Govt. servant must place his  case  before  the authority  concerned by showing cause and the courts  should be  reluctant  to interfere with the notice  at  that  stage unless  the  notice is shown to have  been  issued  palpably without  any authority of law. The purpose of  issuing  show cause  notice  is to afford opportunity of  hearing  to  the Govt.  servant  and once cause is shown it is  open  to  the

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Govt.  to consider the matter in the light of the facts  and submissions placed by the Govt. servant and only  thereafter a final decision in the matter could be taken.  Interference by the Court before that stage would be premature. The  High Court in our opinion ought not have interfered with the show cause notice.     The  High  Court’s  order is not.  sustainable  for  yet another  reason. Respondents’ writ petition challenging  the order   of  dismissal  had  been  finally  disposed  of   on 10.8.1984,  thereafter nothing remained pending  before  the High  Court. No miscellaneous application could be filed  in the writ petition to revive proceedings in respect of subse- quent  events  after two years. If the  respondent  was  ag- grieved  by the notice dated 29.1.86 he could have  filed  a separate  petition under Art. 226 of the Constitution  chal- lenging the validity of the notice as it provided a separate cause  of action to him. The respondent was not entitled  to assail validity of the notice before the High Court by means of  a miscellaneous application in the writ  petition  which had already been decided. The High Court had no jurisdiction to entertain the application as no proceedings were  pending before  it. The High Court committed error  in  entertaining the respondent’s application which was founded on a separate cause of action. When proceedings stand terminated by  final disposal  of  writ petition it is not open to the  Court  to reopen the proceedings by means of a miscellaneous  applica- tion in respect of a matter which provided a fresh cause  of action.  If  this principle is not followed there  would  be confusion  and chaos and the finality of  proceedings  would cease to have any meaning.     We accordingly allow the appeal, set aside the order  of the High Court dated 10.8.84. It would be open to the  State Government  to  consider the respondents reply to  the  show cause notice and proceed with the matter in accordance  with law.  In  the circumstances of the case parties  shall  bear their own costs. P.S.S                                                 Appeal allowed. 454