Sawant, J.:— The petitioner retired on June 30, 1980 from the services of the State Government as a Secretary in the Public Works Department. By its order dated January 21, 1981 the Goverment sanctioned to him provisional pension equal to 100 per cent of the pension that he was entitled to, with effect from July 1, 1980. The very same order also stated that the orders regarding the death-cum-gratuity would be issued in due course.
2. Subsequently, on July 20, 1984 the Government instituted departmental proceedings against him under Rules 26 and 27 read with Rule 165 of the Maharashtra Civil Services (Pension) Rules, 1982 (hereinafter referred to as “the Pension Rules”). The departmental proceedings were on the basis of the petitioner's conduct during the period July 1971 to May 1974 in his capacity as the Superintending Engineer and from July 25, 1977 till the date of his retirement viz. June 30, 1980 variously as the Chief Engineer, Joint Secretary and Secretary to the Government. The petitioner, therefore, approached this Court by the present petition filed under Article 226 of the Constitution for quashing the departmental proceedings. He also applied for an interim order staying the said proceedings which was granted by this Court on August 24, 1984. Subsequently, the Government by its order dated February 1, 1985 withdrew the show cause notice dated July 20, 1984 by which the departmental proceedings were initiated, without prejudice to its right to issue a fresh show cause notice for the same reasons. On March 16, 1985 a fresh show cause notice was issued for holding departmental enquiry under Rule 189 of the Bombay Civil Services Rules (hereinafter referred to as “the Civil Services Rules”) read with Rule 165 of the Pension Rules. The petitioner thereafter amended the petition to challenge the fresh departmental proceedings and has prayed for quashing the same. The only question that falls for our consideration is whether the departmental proceedings instituted by the Government are competent. The Government has relied upon rule 165(2)(c) of the Pension Rules read with Rule 189 of the Civil Services Rules to support the validity of the proceedings, while it is urged on behalf of the petitioner that since his case would not fall under Rule 165(2)(c) of the Pension Rules, Rule 189 of the Civil Services Rules will not apply to his case. His case, therefore, will be governed only by Rule 27 of the Pension Rules which prohibits the Government from adopting the present proceedings since admittedly they relate to events which had taken place more than four years before the institution of the proceedings. In order to appreciate the rival contentions, it is necessary to scrutinise the relevant rules and circulars.
3. It is not disputed that before the Pension Rules of 1982 came into force with effect from 15th August of that year, the only rule under which the departmental proceedings could be held with a view either to withhold or withdraw the pension or any part of it, was Rule 189 of the Civil Services Rules. That rule reads as follows:—
“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.”
4. As is evident from the aforesaid provisions of rule 189, the whole or any part of the pension of the Government servant was liable to be withheld or withdrawn if the pensioner was convicted of a serious crime or was found to have been guilty of grave misconduct committed whether during or after the completion of his service. There was no time limit prescribed for holding such enquiry nor was it the requirement of that Rule that the conduct for which he suffers the penalty should have been committed within a specified time before his retirement. However, subsequently Pension Rules of 1982 came into operation, as stated earlier, with effect from 15th August of that year. The provision of rule 189 is, so to say, split into two different rules viz. Rules 26 and 27 of those Rules. Rule 26 reiterates what was stated in Rule 189 of the Civil Services Rules viz. that future conduct is an implied condition of every grant of pension and also provides for withholding or withdrawing the pension or part thereof whether permanently or for a specified period if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. Of course, this has to be done after holding an enquiry as provided in Civil Services Rules. This rule is not relevant for our purpose. Rule 27 takes care of the cases where the pension or part of it is sought to be withheld or withdrawn for misconduct committed during the tenure of service. However, unlike Rule 189, it prescribes a time limit for instituting departmental proceedings on the basis of such conduct. Sub-rule (2)(b)(ii) thereof states that if the departmental proceedings are not instituted, while the Government servant was in service, whether before his retirement or during his reemployment they shall not be instituted in respect of any event which took place more than four years before such institution viz. the institution of the proceedings.
5. Rule 165 of the Pension Rules is the usual repealing and saving provision and saves the old rules in certain cases. Since we are concerned with Rule 189 of the Civil Services Rules, we have to find out whether in the present case it is the said Rule 189 or the new Pension Rules which would cover the case. The relevant provisions of rule 165 with which we are concerned are as follows:—
“165(1). On the commencement of these rules, every rule, regulation or order including Government Resolutions (hereinafter referred to in this rule as the old rule) in force immediately before such commencement shall, in so far as it provides for any of the matters contained in these rules, cease to operate.
(2) Notwithstanding such ceaser of operation—
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(c) any case which pertains to the authorisation of pension to a Government servant who had retired before the commencement of these rules and is pending before such commencement shall be disposed of in accordance with the provisions of the old rule as if these Rules had not been made.”
6. It is thus evident from the provisions of Rule 165(1) read with 2(c) thereof that it is only those cases where the question of authorisation of pension to a Government servant who had retired before the commencement of the Pension Rules was pending before such commencement, which would be disposed of in accordance with the provisions of Rule 189 of the Civil Services Rules. In other words, where the Government servant had retired before 15th August, 1982 and his case pertaining to the authorisation of pension was not pending before such commencement, it is not the said Rule 189 but the Pension Rules of 1982 which would apply to the case.
7. There is no dispute that the petitioner had retired on superannuation on June 30, 1980 i.e before the commencement of the Pension Rules. The only question that is, therefore, to be considered is whether any case pertaining to the authorisation of pension to him was pending before August 15, 1982. On that subject we have two Government Resolutions on record, one is of March 28, 1980 and the other of December 18, 1980. These resolutions apply to the employees retiring on or after 31st March, 1980. The latter Resolution of December 18, 1980 refers to para 7(b) of the Resolution of March 1980 and points out that the discretion vested in the Heads of Offices by the said provision which laid down the ceiling for provisional pension was being used by them to pay less than 100 per cent of the admissible pension. It then goes on to say that, hence the Government was pleased to direct that the provisional pension to the retiring Government servant against whom departmental/judicial proceedings are instituted or are continued after retirement should be paid at the rate of 100 per cent of the pension admissible to him as in cases of normal retirement. However, no gratuity should be paid to him until the conclusion of the departmental or judicial proceedings and the issue of final orders thereon. Paragraphs 7 and 8 of the earlier Resolution of March 28, 1980 are relevant for our purpose. Paragraph 7 asserts the right of the Government to withhold or withdraw pension in the case of Government servants who have retired on attaining the age of superannuation or otherwise, and against whom any departmental or judicial proceedings are instituted, and makes a provision for payment of provisional pension and also asserts that the provisions of paragraph 8(c) will not be applicable to such cases. Paragraph 8 then refers to payment of provisional pension and gratuity in cases where neither departmental nor judicial proceedings are pending. Paragraph 8(c) then incorporates an important provision which is vital to the present case. It states that the provisional pension is not intended to be continued on a provisional basis beyond the period of six months from the date of retirement. If the Audit Officer responsible for issuing the pension payment-order has not finalised the pension case by that time, the provisional pension shall be deemed to have become final and it will be obligatory for the Audit Office concerned to issue the final pension payment order for the amount of pension and gratuity already calculated on a provisional basis and the deductions made from the gratuity as per sub-paragraph (a) of that paragraph shall also be released subject to the provisions of paragraphs 9 and 10 of the very said resolution. It may be mentioned that paragraph 9 relates to the issue of last pay certificate and to the withholding of 10 per pent of the gratuity or Rs. 1,000/- whichever is less, pending the production of the last pay certificate and paragraph 10 relates to the adjustment of Government dues on account of accommodation etc.
8. The above Government Resolutions of March 28, 1980 and December 18, 1980 admittedly came into force from the dates of those circulars prior to the petitioner's retirement from service. Although Mr. Keswani, the learned counsel appearing for the Government, tried to persuade us to the contrary, admittedly no judicial proceeding has so far been instituted against the petitioner and the first time the departmental proceedings were instituted were either on July 20, 1984, if the first show cause notice of the enquiry is taken into account, or on March 16, 1985 when the fresh show cause notice after withdrawal of the earlier notice, was issued to the petitioner. In the present case it will not make any difference whether it is the first or the second show cause notice which is taken into consideration, since even the first show cause notice was issued more than four years after the petitioner's retirement. Since, however, the same was withdrawn, in law it is the second show cause notice issued on March 16, 1985 by which it can be said that the departmental proceedings were instituted for the first time.
9. On the admitted position that the petitioner was granted provisional pension by the order of January 21, 1981 with effect from July 1, 1980, in terms of paragraph 8(c) of the Government Resolution dated March 28, 1980 referred to above, his pension had become final within six months from that date, on January 21, 1981. As stated above paragraph 7 of that Resolution would not apply to the petitioner's case since neither judicial proceedings nor departmental proceedings were instituted prior to that date. The result, therefore, is that since no case pertaining to the authorisation of pension to the petitioner was pending before the commencement of the Pension Rules of 1982 viz. August 15, 1982, in terms of the provisions of sub-rule (2)(c) of Rule 165, it is not the old rule 189 of Civil Services Rules but Rule 27 of the Pension Rules of 1982 which will cover the petitioner's case.
10. This being the case, the departmental enquiry which was instituted by the notice dated March 16, 1985 is clearly barred by time and the Government cannot proceed with the same in view of the provisions of sub-clause (b) of sub-rule (2) of the said Rule 27. Mr. Keswani no doubt tried to urge that since an investigation had already commenced in the serious lapses committed by the Field Officers in granting advances/loans on machinery and material, by appointment of a Fact Finding Committee on June 28, 1978, and since further the papers were handed over to the Anti-Corruption Bureau on November 6, 1979, it should be held that the judicial and departmental proceedings were instituted from the respective dates and both were pending on June 30, 1980 when the petitioner retired from service. This argument is only to be stated to be rejected. It is unnecessary to emphasise that the departmental proceedings cannot be deemed to have been instituted prior to the issuance of the show cause notice or if the delinquent employee has been placed under suspension, prior to the date of his suspension. Nor can the judicial proceeding be deemed to have been instituted in the case of a criminal proceeding before the date on which complaint is filed or the report of the Police Officer of which the Magistrate has taken cognizance of, is submitted and in the case of civil proceeding before the day of presentation of the plaint in the court. The argument, therefore, has no merit. The position, therefore, that emerges in view of the aforesaid discussion is that not only Rule 189 of the Civil Services Rules will not govern the case of the petitioner but it is Rule 27 of the Pension Rules, 1982 which will squarely apply to his case. Since the impugned departmental proceedings were instituted more than four years after his retirement, they will have to be quashed. Hence we make the Rule absolute in terms of prayer (a). In the circumstances of the case, however, there will be no order as to costs.
Order accordingly.
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