HIGH COURT OF PUNJAB AND HARYANAversusAMRIK SINGH

A                 HIGH COURT OF PUNJAB AND HARYANA
                                       v.
                                AMRIKSINGH

                             NOVEMBER23, 1994

B          [K. RAMASWAMY AND K. JAYACHANDRA REDDY, JJ.]

         Service law

        Central Civil Services Pension Rules-Rule 9-Punjab and Haryana
    Civil Services Manual, Vol II-Rule 2.2-Disciplinary Proceedings-
c   Proceedings validly initiated should be continued till appropriate orders
    passed-Proceedings do not abate consequent on retirement of
    delinquent-Order to be passed when delinquent already retired-Power of
    competent authority to withhold pension.

D          Central Civil Services Pension Rules- Rule 9-Punjab and Haryana
      Civil Service - Manual,       Vol II-Rule 2.2-Employee attained
      superannuation-Re-employment-Charges of embezzlement of funds-
      Disciplinary proceedings-Expiry of period of re-employment-Employee
     allowed to retire-Finding of embezzlement recorded-Order of dismissal
     from service-Whether valid in law-Order of giving effect to order of
E    dismissal from date of its order-Superfluous as employee no longer in
    -service on that date-Power ofcompetent authority to withhold pension.

        The respondent, while working as a Selection Grade
    Superintendent in the High Court had attained his superannuation. His
F   tenure was extended by two years and thereby be was to retire after the
    expiry of re-employment period on August 31, 1982. During bis re-
    employment a charge sheet was issued against the respondent on the
    grave charges of embezzlement. On expiry of two years he was allowed
    to retire. After conducting the enquiry, the respondent was dismissed
    from service by orders dated June 7, 1983 and August 31, 1983 with
G   immediate effect. On appeal, the order of dismissal from service was
    confirmed. Writ perition filed against the order was allowed by the
    High Court and the institution of the disciplinary proceedings and
    imposition of penalty of dismissal from service against the respondent
    were declared void. This appeal has been filed agaipst the said order of
H   the High Court.
                                       6
                  H.C. OF PB. AND HARYANA v. AMRIK S~GH                    7

         The appellant contended that once disciplinary proceedings have A
    been initiated according to the Rules while the employee was in office,
    either before his attaining superannuation or on expiry of tlie period of
    re-employment, the departmental proceedings would be continued till
    the final orders were passed. In view of the proved grave misconduct of
    the embezzlement of the funds of the High Court, the Chief Justice
    dismissed the respondent from service with immediate effect from the B
    date of the passing of the order, and that the Division Bench was not
    right in holding that the order is void.

         The respondent contended that, though the disciplinary authority
!   had power to continue the proceedings, after the delinquent had
    attained superannuation, and was allowed to retire, the Chief Justice      C
    had no power to pass the order of dismissal; and that it would be open
    only to pass appropriate order under the Pension Rules and no other.

        In the instant case the question for consideration was whether the
    order of dismissal was valid in law or what would be the appropriate
    order that could be passed in the circumstances of the case.           D
        Allowing the appeals, this Court

         HELD: 1.1 The disciplinary proceedings validly initiated against
    the delinquent officer should be continued till the appropriate orders
    are passed by the competent authority, though the delinq9ent had
    retired, during the pendency of the enquiry and the proceedings were E
    not abated, consequent on the retirement. Several options are open to
    the appointing authority. Before the delinquent reaches super-
    annuation, the enquiry should be got expedited and appropriate order
    passed on the basis of the findings reached by the disciplinary
    authority. In case it is not possible to complete the enquiry or to pass F
    the final order, the suspension should be extended and re-employment
    ordered or the later extended appropriate orders during the extended
    period. In case it is found that either of those courses, neither is feasible
    nor possible and allowed the delinquent to retire, it would be open to
    the disciplinary authority to record in its order that "but for the
    retirement he would have passed an order of dismissal or removal from G
    service." Since the delinquent had retired the disciplinary authority
    would record in the order that the delinquent "~ominitted. grave
    misconduct of the proved charge" and suitable order be made.
                                                          (10 D to H, l lA & BJ

        D. V Kapoor v. Union ofIndia and Ors., [1990) 4 SCC 314, relied on.
                                                                               H
       8                      SUPREME COURT REPORTS           [1994] SUPP. 6 S.C.R

 A          1.2. The disciplinary authority, consequent upon the result of the
       departmental or judicial proceedings, should record a finding whether
       the delinquent has committed grave misconduct or negligence during
       the period of his serivce including the seryj~~- rendered upon re-
       employment after retirement. On recording such a positive finding, the
       competent authority has been empowered to with hold the pension in
 B     whole or in part or to recover the pencuniary loss, if any, caused to the
       Government. These orders are only consequent to the finding of the
       guilty or grave misconduct or negligence in the discharge of the duty
       during the period of his service including the service rendered upon re-
       employment after retirement. [HE & F]

 c          1.3. In the instant case, the Chief Justice of the High Court, on the
       administrative side, while passing the order of dismissal agreed with
       the enquiry officer's finding that the respondent committed
       embezzlement and mentioned that the order of dismissal would come
       into immediate effect from the date of the order. He appeared to have
       intended to say that the order of dismissal will be operative from the
 D     date of the order of the dismissal. But it would appear that the Chief
       Justice was not apprised that the delinquent had already retired from
       service on completion of two years period of extended service of re-
       employment. Therefore, the order of giving effect to the order of
       dismissal from the date of its order was of no consequence and became
       superfluous as he was no longer in service as on that date. However, he
 E     has the power either under Rule 2.2 of the Punjab and Haryana Civil
       Service Manual, Vol II or Rule 9 of the Central Civil Service Pension
       Rules to take appropriate action as was made applicable to the staff of
       the High Court of Punjab and Haryana as the case may be.
                                                                  [llG & H, 12A)

 F         CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2343-45 of
       1994.

           From the Judgment and Order dated 23.7.93 of the Punjab and Haryana
       High Court in C. W.P. Nos. 5629-31 of 1984.

 G        D.D. Thakur, Mi:s. Kawaljit Kochar, N.N. Bhatt and Mrs. Rani
       Chhabra for the Appellant.

          D.V. Sehgal, Ms. Rekha Palli, Anant Palli, Deepak Singh and Ms.
       Monika Gusain for the Respondent.

· H,       The following Order of the Court was delivered :
                         H. C. OF PB. AND HARYANA v. AMRIK SINGH                   9

               These appeals by special leave are from the judgment of the High         A
          Court of Punjab & Haryana in C.W.P. Nos. 56:29, 5630 and 5631of1984
          dated July 23, 1993. The respondent, while was working as a Selection
          Grade Superintendent in the High Court of Punjab & Haryana, had attained
          his superannuation after reaching 58 years of age on August 31, 1980. The
          Chief Justice of the High Court had extended his tenure by two years and
          thereby he was to retire after the expiry of re-employment period on August   B
          31, 1982. During his re-employment, it had come to the knowledge of the
          Chief Justice that the respondent had committed misconduct of embezzling
          the funds of the High Court. Therefore, he was kept under suspension on
          December 17, 1981 and a charge-sheet was issued after enlistment of three
          specific charges against the respondent on the grave charges of
          embezzlement. On expiry of two years he was allowed to retire. After          C
          conducting the enquiry by the Dist. Judge and on receipt of the report in
          that behalf complying with clause 2 of Article 311 of the Constitution and
          the relevant statutory rules, the Chief Justice on the administrative side
          dismissed the respondent from service by his orders dated June 7, 1983 and
          August 31, 1983 with immediate effect. On appeal, as per the Rules, the       D
          Division Bench on the administrative side confirmed the order on January
          24, 1984. The respondent challenged the orders in three Civil Writ Petition
          Nos. 5629, 5630 and 5631/84. The Division Bench by judgment dated July
      t   23, 1993 declared thus:

                        "For the reasons stated above, C.W.P. No. 5629/84 is E
                       .allowed. The initiation of the disciplinary proceedings and
                        imposition of penalty of dismissal from service against the
                        petitioner are declared void. The orders of dismissal from

..                      service dated June 7, 1983 passed by the disciplinary
                        authority and of the Appellate authority dated August 24,
                        1984, which are under challenge in C.W.P. Nos. 5630, 5631 F
                        of 1984, are quashed. However, we leave it open to the
                        disciplinary authority, which in this case is the Chief Justice
                        of this Court, to take appropriate action under Rule 9 of the
 ..                     Pension Rules, ifhe so desires."

              This order is now under challenge by leave of this Court.                 G
               Shri D.D. Thakur, learned senior counsel for the appellant has
          contended that it is settled law that once disciplinary proceedings have been
          initiated according to the Rules while the employee was in office, either
          before his attaining superannuation or expiry of the period of re-
          employment, die logical consequence would be that the departmental H
    10                    SUPREME COURT REPORTS              [1994] SUPP. 6 S.C.R

A   proceedings would be continued till the final orders are passed. Final order
    would be either exoneration of the delinquent of the charges or to pass an
    appropriate punishment in accordance with Rules. In this case, in view of
    the proved grave misconduct of the embezzlement of the funds of the High
    Court, the Chief Justice dismissed the respondent from service with
    immediate effect from the date of the passing of the order. The Division
B   Bench was not right in holding that the order is void. Consequential to the
    order of dismissal, appropriate action would be taken under the Pension
    Rules either under section 9 of the Central Rules or under Rule section 2 (2)
    (b) of the Punjab Civil Services Rules, Volume II. Shri Sehgal, learned
    Senior counsel for the delinquent contended that, though the disciplinary
    authority has power to continue the proceedings, after the delinquent had
c   attained superannuation, and was allowed to retire, the Chief Justice had no
    power to pass the order of dismissal. It would be open only to pass
    appropriate order under the Pension Rules and no other.

         The respective contentions gives rise to the question whether the orders
    of dismissal is valid in law or what would be the appropriate orders that
D   could be passed in the circumstances of the case. In D. V. Kapoor v. Union
    of India and Ors., [1990) 4 SCC 314, considering Rule 9 of the Central
    Pension Ruies, this Court held that the initiation of the disciplinary
    proceedings against the delinquent must be deemed to be proceedings under
    the Pension Rules and shall be continued and concluded by the authority by
    which the proceedings have been commenced in the same manner as if the
E   Government servant has been continued in service. In that case, since the
    prior approval of the President was required to be obtained, it was held that
    the requirement has been complied with. Accordingly, it was held that the
    proceedings validly initiated against the delinquent officer should be
    continued till the appropriate orders are passed by the competent authority,
    though the delinquent had retired, during the pendency of the enquiry and
F   the proceedings were not abated, consequent on the retirement. The same
    ratio would apply to the facts of this case. Several options are open to the
    appointing authority and in case the disciplinary authority also happens to
    be the appointing authority. Before the delinquent reaches superannuation,
    the enquiry should be got expedited and appropriate order passed on the          ..
    basis of the findings reached by the disciplinary authority. In case the
G   delinquent attempts to drag the proceedings or he does not co-operate in the
    completion of the enquiry, after giving necessary warning in writing,
    suitable course appropriate to the facts is required to be adopted. In case it
    is not possible to complete the enquiry or to pass the final order, the
    suspension should be extended and re-employment ordered or the later
    extended and to pass appropriate orders during extended period. In case it is
H
                   H. C. OF PB. AND HARYANA v. AMRIK SINGH                   ll

    found that either of those courses, neither is feasible nor possible and A
    allowed the delinquent to retire from service, it would be open to the
    disciplinary authority to record in its order that "but for the retirement he
    would have passed on order of dismissal or removal from service." Since
    the delinquent had retired the disciplinary authority would record in the
    order that the delinquent "committed grave misconduct of the proved
    charge" and suitable order be made.                                           B
        Rule 2 (2) of the Pension Rules, Clause (b) clearly mentions thus:

                 "2 (2) (b) The Government further reserves to themselves the
                 right to withholding or withdrawing a pension or any part of
                 it, whether permanently or for a specified period and right of C
                 ordering the recovery from the pension of the whole or part
                 of any pecuniary loss caused to Government, if, in a
                 departmental or judicial proceedings, the pensioner is found
                 guilty ofgrave misconduct or negligence during the period of
                 his service including service rendered upon re-employment
                 after retirement". (emphasis supplied)                         D
         A reading thereof clearly indicates that the disciplinary authority,
    consequent upon the result .of the departmental or judicial proceedings,
    should record a finding whether the delinquent has committed grave
    misconduct or negligence during the period of his service including the
    service rendered upon re-employment after retirement. On recording such E
    a positive finding, the competent authority has been empowered to withhold
    the pension in whole or in part or to recover the pecuniary loss, if any,
    caused to the Government. These orders are only consequential to the
    finding of the guilty of grave misconduct or negligence in the discharge of
    the duty during the period of his service including the service rendered
    upon re-employment after retirement.                                        F

         It is seen that the learned Chief Justice of the High Court, on the
    administrative side, while passing the order of dismissal agreed with the
;
    enquiry officer's finding that the respondent committed embezzlement and
    mentioned that the order of dismissal would come into immediate effect
    from the date of the order. In other words, he appears to have intended to G
    say that the order of dismissal will be operative from the date of the order
    of the dismissal. But it would appear that the Chief Justice was not apprised
    that the delinquent had already been retired from service on completion of
    two years period of extended service of re-employment with effect from
    August 31, 1982. Therefore, the order of giving effect to the order of H
    12                   SUPREME COURT REPORTS             [1994] SUPP. 6 S.C.R

A   dismissal from the date of its order was of no consequence and became
    superfluous as he was no longer in service as on that date. However, it
    would be clear that he has the power either under Rule 2.2 of the Punjab &
    Haryana Civil Service Manual, Vol. II or Rule 9 of the Central Civil
    Services Pension Rules to take appropriate action as was made applicable to
    the staff of the High Court of Punjab & Haryana as the case may be.
B   Therefore, it would be open to him to take such action as is open to him
    under law. The impugned order of the High Court is set aside, and the writs
    are issued with the above modification. The appeals are allowed. No costs.

    A.G.                                                     Appeals allowed.




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