Full Judgment Text
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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