Dr. Shyam Raj Singh v. State of Chhattisgarh, through Principal Secretary, Home

Judgment

#2. Question of Law Involved Challenge in the Writ Petition

#3. Quintessential Facts

#9. Return of the State Government

Rejoinder on behalf of the Writ Petitioner Submission on behalf of the Writ Petitioner Submission on behalf of the Respondents Proceeding before the State Government Relevant Rule

#10. Power of Relaxation under Rule 79

#11. Discussion and Analysis

#12. Conclusion

#13. Relief and Cost Question of Law Involved 2 2 3 4 4 5 6 6 10 15 19 22 22

#1. The short but important question of law that is involved in the writ petition is, whether the State Government is justified in instituting departmental proceeding against the petitioner of an event which took place more than four years before the institution of such proceeding in violation of Rule 9(2)(b)(ii) of the Chhattisgarh Civil Services (Pension) Rules, 1976 (for short, ‘the Rules of 1976’) allegedly relaxing the aforesaid Rule in exercise of power conferred under Rule 79 of the Rules of 1976? Challenge in the Writ Petition

#2. The petitioner herein takes exception to the order dated 18-10-2019 (Annexure P-1) passed by the State Government imposing a penalty under Rule 9(5) of the Rules of 1976 directing recovery of ₹ (WPS No.9593/2019) 1,09,975/- finding that the petitioner is guilty of misconduct under Rule 3-A of the Chhattisgarh Civil Services (Conduct) Rules, 1965. Quintessential Facts

#3. The petitioner was working on the post of Superintendent, Central Jail, Raipur and eventually, he was superannuated on the said post with effect from 31-8-2010 and thereafter, it is the case of the petitioner that he has been granted and paid all retiral dues including pension and gratuity. On 29-5-2013, charge-sheet was issued to the petitioner alleging that he did not accept the lowest tender and caused loss of revenue to the Government to the extent of ₹ 1,09,975/- and thereafter, by order dated 3-11-2014, instituted departmental enquiry and further, in exercise of power under Rule 79 of the Rules of 1976, relaxed the period of four years as prescribed under Rule 9(2)(b)(ii) of the Rules of 1976 in respect of an event which took place more than four years before such institution. Thereafter, by the impugned order dated 18-10-2019, in exercise of power under Rule 9(5) of the Rules of 1976, the State Government directed recovery of ₹ 1,09,975/- against the petitioner leading to filing of this writ petition.

#4. It is the case of the petitioner that the period prescribed in Rule 9(2) (b)(ii) of the Rules of 1976, which prescribes the time limit that departmental enquiry shall not be instituted in respect of an event which took place more than four years before such institution, is imperative and in exercise of power under Rule 79 of the Rules of (WPS No.9593/2019) 1976, such rule could not have been relaxed, as the prescription of time limit of four years in respect of an event which took place more than four years, is mandatory and the time barred action cannot be revived by relaxing the rule, more particularly, the Administrative Department has not passed any order relaxing the rule by recording reasons in writing, only the Finance Department has given its concurrence, which is not the compliance of Rule 79 of the Rules of 1976, therefore, the order impugned dated 18-10-2019 suffers from jurisdictional error and it is liable to be quashed. Return of the State Government

#5. The State/respondents have filed return justifying its action stating inter alia that the period of four years as prescribed under Rule 9(2) (b)(ii) of the Rules of 1976 has been relaxed in exercise of power under Rule 79 of the Rules of 1976 by order Annexure R-8 dated 3- 11-2014, which is in accordance with law and the competent authority had also granted permission under Rule 9(2)(b) to institute and hold departmental enquiry against the petitioner. Thus, the rule has been relaxed by virtue of Rule 79 of the Rules of 1976, as such, the writ petition deserves to be dismissed. Rejoinder on behalf of the Petitioner

#6. A short rejoinder has been filed on behalf of the petitioner stating that exercise of power under Rule 79 of the Rules of 1976 is totally unwarranted, it is not a valid exercise of power and it cannot be exercised to take exemption from the rigors of the Pension Rules (WPS No.9593/2019) which requires to make the payment of retiral dues like pension and gratuity to a Government servant in the next month. Rule 79 of the Rules of 1976 cannot be interpreted in favour of the respondents for shielding them from their neglect or delay in discharge of their statutory duties towards the retired employee. As such, the writ petition deserves to be allowed. Submission on behalf of the Writ Petitioner

#7. Dr. Veena Nair, learned counsel appearing on behalf of the petitioner, would make submissions as under: -

#1. Rule 9(2)(b)(ii) of the Rules of 1976 is mandatory and the departmental proceeding is barred by limitation, as action has not been in accordance with the time prescribed in Rule 9(2)(b) (ii). By relaxing Rule 79 of the Rules of 1976, such a period cannot be extended and the alleged relaxation in exercise of power under Rule 79 will be totally arbitrary and unbridled exercise of power by the State Government.

#2. Rule 79 of the Rules of 1976 has not been complied with, even otherwise, no reasons have been recorded in exercise of Rule 79 except the concurrence of the Finance Department and the period of limitation which the rule-making authority has prescribed for initiating departmental proceeding conferring power to the State Government in respect of an event which took place more than four years before such institution, cannot be extended in alleged exercise of the power of relaxation. (WPS No.9593/2019) Such a relaxation in rule is totally unwarranted, unsustainable and bad in law and liable to be set aside. Submission on behalf of the Respondents

#8. Mr. Sharad Mishra, learned State counsel appearing on behalf of the State/respondents, would submit that the State Government has rightly relaxed Rule 9(2)(b)(ii) of the Rules of 1976 in exercise of power under Rule 79 of the said Rules and as such, the writ petition deserves to be dismissed.

#9. I have heard learned counsel for the parties and considered their rival contentions made herein-above and also gone through the record with utmost circumspection. Proceeding before the State Government

#10. In order to deal with the issue, it would be appropriate to notice the proceeding that has taken place against the petitioner.

#11. The petitioner stood superannuated from the post of Superintendent, Central Jail, Raipur on 31-8-2010. Thereafter, on 22-1-2013, the Council of Ministers in exercise of power conferred Rule 9(2)(b) of the Rules of 1976, granted permission to institute departmental proceeding against the petitioner, which states as under: - eaf=ifj"kn~ vkns’k ¼dk; Zlwph esa lfEefyr fo"k;½ ¼vk; Ve dzekad&71-3½ fnukad 22 tuojh] 2013 fo"k;% izdj.k dzekad&31@06 esa NRrhlx<+ yksd vk; ksx dh vuq’kalk vuqlkj MkW- ';kejkt flag] rRdkyhu v/kh{kd] dsUnzh; dkjkxkj x`g] jk; iqj ds fo:) dk; Zokgh ckcr~A (WPS No.9593/2019) fu.kZ;% fu.kZ; fy;k x;k fd MkW- ';kejkt flag] ¼lsokfuo`Rr½] rRdkyhu vf/k{kd] dsUnzh; dkjkxkj x`g] jk; iqj ds fo:) NRrhslx<+ flfoy lsok ¼isa’ku½ fu;e& 1976 ds fu;e&9 ds varxZr vkjksi i=kfn tkjh djus ,oa foHkkxh; tkap lafLFkr djus dh dk; Zokgh dh tk,” d`i;k le; kof/k esa vuqlkafxd dkjZokbZ djsaA lgh@& ¼lqfuy dqekj½ eq[; lfpo

#12. Since the alleged misconduct as apparent from the impugned order Annexure P-1 is of the years 2004-05 & 2005-06 and from the order dated 22-1-2013, those were the events which took place more than four years before such institution and institution of disciplinary proceedings was apparently barred under Rule 9(2)(b)(ii) of the Rules of 1976, the State Government placed the case before the Finance/Administrative Department to relax Rule 9(2)(b) of the Rules of 1976 in exercise of Rule 79 for instituting disciplinary proceeding against the petitioner and accordingly, the concurrence of the Finance Department, as provided under the proviso to Rule 79 was obtained, which states as under: - “foRr foHkkx iz’kkldh; foHkkx ls izkIr izLrko ds laca/k es a ys[k gS fd isa’ku a ds varxZr issa’ku fu;e&9 ¼2½ ¼ch½ fu;e 1976 ds fu;e&79 esa iznRr ’kfDr;ks ds f’kfFkyhdj.k gsrq foRr iz’kkldh; foHkkx }kjk bl 'krZ ds lkFk lgefr nh tkrh gS fd iz’kkldh; foHkkx lgefr laca/kh vkns’k es a dks Li"V :i ls ys[kc) djsxk ftlds vk/kkj ij mDr lgefr U;k; laxr vkSj lkE;iw.kZ gSA” a mu dkj.kks ¼eku- eq[;ea=h th }kjk Vhi vuqeksfnr½ NRrhlx<+ ’kklu foRr foHkkx lgh@& voj lfpo (WPS No.9593/2019)

#13. But, however, there is nothing on record that as per Rule 79 of the Rules of 1976, reasons have been recorded by the Administrative Department granting consent and relaxing the rule under Rule 79, except the concurrence by the Finance Department as noted herein- above. Thereafter, on 29-5-2013, charge-sheet was issued to the petitioner on the following charges: - vkjksi %& a ,oa m|ksxks a gsrq yxus okyh lkefxz; ks vkids }kjk o"kZ 2004&05 ,oa 2005&06 esa dsUnzh; tsy] jk; iqj esa cafn; ks a xaHkhj vfu; ferrk,a cjrh xbZ gSA U;wure fufonk dks Lohdkj ugha fd;k x;k vkSj jktdh; jktLo dh gkfu igqpkbZ xbZA dsoy lQsn dkxt ds dz; esa gh :i;s 1]09]975@& dh gkfu 'kkldh; jkf’k dh igqpkbZ xbZ gS] tksfd N0x0 flfoy lsok ¼vkpj.k fu;e½ 1965 ds fu;e 3 dk mYy?ku gSA a ds dz; es vkius ,slk dj Lo;a dks vuq’kklukRed dk; Zokgh djus ds fy, nks"kh Bgjk;k gSA

#14. Thereafter, finally, by order dated 18-10-2019 (Annexure P-1), the State of Chhattisgarh had passed the impugned order of punishment upon the petitioner, which states as under: - NRRkhlx<+ 'kklu x`g ¼tsy½ foHkkx %% ea=ky; %% egkunh Hkou] uok jk; iqj] vVy uxj &%% vkns’k %%& uok jk; iqj] vVy uxj] fnukad 18@10@2019 dzekad ,Q 3& 13@rhu & tsy@2009 %% izeq[k yksdk; qDr] NRrhlx<+ yksd vk; ksx] jk; iqj }kjk ikfjr vkns’k fnukad 13-09-2011] es a MkW- ';kejkt flag rRdkyhu v/kh{kd] dsUnzh; tsy jk; iqj ds fo:) lQsn dkxt dz; esa :i;s 1]09]975@& dh 'kkldh; jkf’k dk {kfr igaqpkuk ik;k x;k gS ,o a Jh ';kejkt flag ds fo:) vuq’kklukRed foHkkxh; dk; Zokgh lafLFkr dh tkdj vkjksi LFkkfir gksus ij ;Fkksfpr ’kkfLr vf/kjksfir dh tkus dh vuq’kalk dh xbZ gSA (WPS No.9593/2019) 2@ NRRkhlx<+ yksd vk; ksx dk mDr vkns’k ftl dnkpj.k ds laca/k esa gS] og dnkpj.k fnukad 11-07-2006 dks fd;k x;k FkkA MkW0 ';kejkt flag] tsy v/kh{kd ds in ls fnukad 31-08-2010 dks lsokfuo`Rr gks pqds FksA 3@ mDr fLFkfr esa ekuuh; yksdk; qDr dh vuq’kalk ds izpyu gsrq laHko vuq’kklukRed dk; Zokgh ds laca/k esa vkns’kkuqlkj lkekU; iz’kklu foHkkx] fof/k foHkkx dk vfHker izkIr djrs gq, vfHker vuqlkj foRr foHkkx dh lgefr izkIr dj eaf=ifj"kn esa vuqeksnu izkIr fd;k x;kA eaf=ifj"kn~ vkns’k fnukad 22 tuojh] 2013 es a fy;s x;s fu.kZ; vuqlkj MkW- ';kejkt flag ¼lsokfuo`Rr½] rRdkyhu v/kh{kd] dsUnzh; dkjkxkj x`g] jk; iqj ds fo:) NRrhlx<+ flfoy lsok ¼isa’ku½ fu;e&1976 ds fu;e&9 ds varxZr vkjksi i=kfn tkjh djus ,oa foHkkxh; tkap lafLFkr djus dh dk; Zokgh dh xbZA 4@ vipkjh vf/kdkjh MkW0 ';kejkt flag] lsokfuo`Rr] tsy vf/k{kd dks foHkkx ds Kkiu fnukad 29-05-2013 }kjk vkjksi i=kfn tkjh fd;k x;kA MkW0 flag }kjk vkjksi &i=kfn dk izfrokn mRrj izLrqr u djrs gq, vkjksiks a ls a dh ekax dh xbZA tsy eq[;ky; }kjk muds pkgs lacaf/kr lqlaxr vfHkys[kks vuqlkj mUgsa nks ckj vfHkys[k Hkh miyC/k djk;s x;s fdarq muds }kjk izdj.k esa foyac fd;k x;kA MkW0 flag }kjk vkjksi&i= dk izfrokn mRrj izLrqr u djus ds dkj.k foRr foHkkx dh lgefr vuqlkj NRrhlx<+ flfoy ¼ias’ku½ fu;e] 1976 ds fu;e&9¼2½ ¼ch½ ¼ii½ es a mYysf[kr 04 o"kZ dh le;& lhek ds ca/ku dks f’kfFky djrs gq, mDr isa’ku fu;e rFkk N-x- flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e] 1966 ds fu;e 14 ds varxZr MkW- ';kejkt flag] tsy v/kh{kd ¼lsokfuo`Rr½ ds fo:) foHkkx ds vkns’k fnukad 05-11-2014 }kjk foHkkxh; tkap laLFkfir djrs gq, Jh ,l-,l- frXxk] v/kh{kd] dsUnzh; tsy] fcykliqj dks tkapdrkZ vf/kdkjh ,oa Jh ,u-ds- 'kekZ] lgk;d tsy v/kh{kd] dsUnzh; tsy] fcykliqj dks izLrqrdrkZ vf/kdkjh fu; qDr fd;k x;kA 5@ MkW0 ';kejkt flag ¼lsokfuo`Rr½ ds fo:) dsUnzh; tsy jk; iqj esa tsy a inLFkh vof/k ds nkSjku dz; dh xbZ lkefxz; ksa esa v/kh{kd ds :i es vfu; ferrk cjrus ds izdj.k es a fuEufyf[kr vkjksi ij foHkkxh; tkap lafLFkr dh xbZ%& vkids }kjk o"kZ 2004&2005 ,oa 2005 &06 esa dsUnzh; tsy 1- jk; iqj es a cafn; ksa ,oa m|ksxksa gsrq yxus okyh lkefxz; ksa ds dz; esa xaHkhj vfu; ferrk cjrh xbZ U;wure fufonk dks Lohdkj ugha fd;k x;k vkSj jktdh; jktLo dh gkfu igqapkbZ xbZA dsoy lQsn dkxt ds dz; esa gh :i;s 1]09]975-00 gkfu 'kkldh; jkf’k dh igqapkbZ xbZ gSA tks NRRkhx<+ flfoy lsok ¼vkpj.k fu;e½ 1965 ds fu;e 3 dk mYya?ku gS] vkius ,slk dj Lo;a dks vuq’kklukRed dk; Zokgh djus ds fy, nks"kh Bgjk;k gSA 6@ tkapdrkZ vf/kdkjh] }kjk fu; ekuqlkj foHkkxh; tkap lEiUu dj tkap izfrosnu esa lsokfuo`Rr tsy v/kh{kd] MkW0 ';kejkt flag ij yxs vkjksi dzekad 01 izekf.kr ik;k x;kA 7@ tkapdrkZ vf/kdkjh }kjk izLrqr tkap izfrosnu ij vipkjh vf/kdkjh dk vH;kosnu izkIr fd;k x;kA muds }kjk izLrqr vH;kosnu ij egkfuns’kd] tsy dk fcUnqokj vfHker@Vhi izkIr dh xbZ gSA egkfuns’kd] tsy }kjk mipkjh (WPS No.9593/2019) vf/kdkjh MkW0 ';kejkt flag }kjk izLrqr vH;kosnu esa mYysf[kr fcUnq xzkg~; ;ksX; ugha gksus dk mYys[k djrs gq, vekU; fd;k tkuk ys[k fd;k x;kA 8@ izdj.k ds tkapdrkZ vf/kdkjh }kjk izLrqr tkap izfrosnu ,oa vipkjh vf/kdkjh ds vH;kosnu dk egkfuns’kd] tsy ls izkIr vfHker ij fopkjksijkar vekU; fd;k x;kA vipkjh vf/kdkjh }kjk gkfu igaqpk;s x;s 'kkldh; jkf’k 1]09]975-00@& dk lek; kstu lsokfuo`Rr vf/kdkjh] MkW] ';kejkt flag rRdkyhu tsy v/kh{kd] dsUnzh; tsy jk; iqj ls fd;s tkus dk vufUre iz’kkldh; fu.kZ; fy;k tkdj NRrhlx<+ yksd lsok vk; ksx dh lgefr izkIr dh xbZA 9@ vr% jkT; 'kklu] ,rn~}kjk] MkW0 ';kejkt flag] lsokfuo`Rr tsy v/kh{kd ¼rRdkyhu tsy v/kh{kd] dsUnzh; tsy] jk; iqj½ dk d`R; NRrhlx<+ flfoy lsok ¼vkpj.k½ fu;e 1965 ds fu;e&3 ¼d½ ds varxZr dnkpj.k dh Js.kh dk vkjksi izekf.kr gksus ls muds }kjk 'kklu dks igaqpkbZ xbZ gkfu :i;s 1]09]975@& ¼,d yk[k ukS gtkj ukS lkS ipgRrj :i;s ek=½ dh olwyh NRrhlx<+ flfoy ¼isa’ku½ fu;e] 1976 ds fu;e&9 ¼5½ ds izko/kkuks a ds rgr MkW0 ';kejkt flag] lsokfuo`Rr tsy v/kh{kd dk izkIr ifjyfC/k;ksa ls fd, tkus dh 'kkfLr vf/kjksfir djrk gSA NRrhlx<+ ds jkT;iky ds uke ls rFkk vkns’kuqlkj lgh@& ¼tud dqekj½ voj lfpo NRrhlx<+ 'kklu] x`g ¼tsy½ foHkkx

#15. The aforesaid order is sought to be challenged by way of the present writ petition. Relevant Rule

#16. In order to consider the challenge to the aforesaid order dated 18-10- 2019, it would be appropriate to notice Rule 9(2)(b)(i) & (ii) which state as under: - “9. Right of Governor to withhold or withdraw pension.—(1) xxxxxx (2) (a) xxx xxx (b) The departmental proceedings, if not instituted while the Government servant was in service whether before his retirement or during his re-employment :— (WPS No.9593/2019) (i) shall not be instituted save with the sanction of the Governor; (ii) shall not be in respect of any event which took place more than four years before such institution; and xxx”

#17. A careful perusal of the provision contained in Section 9(2)(b)(i) of the Rules of 1976 would show that if the departmental proceedings are not instituted against the Government servant by the disciplinary authority while he was in service, then it shall not be instituted save with the sanction of the Governor, and sanction of the Governor or/ his delegate Council of Ministers/Chief Minister as may be prescribed by the Allocation of Business Rules, is required to be taken. Similarly, Rule 9(2)(b)(ii) of the Rules of 1976 provides that such sanction shall not be in respect of an event which took place more than four years before the institution of such disciplinary proceedings.

#18. The usage of the word “shall” in the above-stated Rules 9(2)(b)(i) & (ii) of the Rules of 1976 would show that requirement of sanction from the Government prior to institution of departmental enquiry and which shall not be in respect of an event which took place more than four years before the institution of such proceeding, is mandatory. Such mandatory safeguard is intended to prevent institution of unwarranted proceedings against the superannuated employees. {See Kadirkhan Ahmedkhan Pathan v. (WPS No.9593/2019) Maharashtra State Warehousing Corporation and others1 (paragraph 29).}

#19. The Supreme Court in Kadirkhan Ahmedkhan Pathan (supra), while dealing with Rule 27(2)(b)(ii) of the Maharashtra Civil Services (Pension) Rules, 1982, which is the pari materia provision to Rule 9(2)(b)(ii) of the Rules of 1976, has held that this provision is benevolent in nature, as it regulates the State’s discretion to institute or continue departmental proceedings, and observed as under: - “20. On appreciation of Rule 27(b), it can safely be observed that in cases where the departmental proceedings were instituted post-retirement without obtaining sanction of the government till culmination as specified in the rules and simultaneously if the cause of action of such proceedings arose prior to four years of date of institution, such proceedings could not have been instituted or continued. Therefore, the provision is benevolent in nature, as it regulates the State's discretion to institute or continue departmental proceedings.”

#20. Rules 9(2)(b)(i) & 9(2)(b)(ii) of the Rules of 1976 are pari materia to Rules 9(2)(b)(i) & 9(2)(b)(ii) of the Central Civil Services (Pension) Rules, 1972. The provisions contained in Rules 9(2)(b)(i) & 9(2)(b) (ii) of the Central Civil Services (Pension) Rules, 1972, which are pari materia to Rules 9(2)(b)(i) & 9(2)(b)(ii) of the Rules of 1976 came to be considered by their Lordships of the Supreme Court in the matter of Brajendra Singh Yambem v. Union of India and another 2 in which their Lordships posed the following question for (2026) 3 SCC 252 1 2 (2016) 9 SCC 20 (WPS No.9593/2019) consideration with respect to Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972:- “31.1. (i) Whether the impugned judgment and order passed by the Division Bench of the High Court correctly appreciates the scope of Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972 in light of the fact that the disciplinary proceedings were initiated more than four years after the alleged incidents?” Their Lordships considered the issue and held that the period of limitation is prescribed by Rule 9(2)(b)(ii) for initiating departmental enquiry after retirement and if the action is barred by limitation, departmental proceedings could not have been initiated in violation of that Rule, and observed as under: - “40. The Division Bench of the High Court failed to appreciate the fact that liberty had been granted by the High Court vide its judgment and order dated 7-11-2006 in WA (C) No. 45 of 2006 to the disciplinary authority to take disciplinary action against the appellant. Thus, there was no need for the respondent disciplinary authority to withdraw the memorandum of charges dated 14-5-1998 for the purpose of initiating disciplinary proceedings afresh against the appellant on the same charges by obtaining an order of sanction from the President of India as required under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972. The Division Bench of the High Court in its judgment and order dated 5-8- 20133 has completely ignored this important legal aspect of the matter, that the prior sanction accorded by the President under the abovesaid Rules was in fact, barred by limitation. Thus, it has committed serious error in law in arriving at the conclusion that the respondent disciplinary authority had obtained due sanction from the President of India to conduct the departmental proceedings against the appellant for the same charges, which action was barred by limitation as provided under Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972. Therefore, the impugned judgment and order passed by the Division Bench of the High Court cannot be allowed to sustain in law.” 3 Union of India v. B.S. Yambem, 2013 SCC OnLine Mani 114 (WPS No.9593/2019)

#21. Similarly, in the matter of State of U.P. and another v. Shri Krishna Pandey4, the Supreme Court has held that time-limit has been prescribed for initiating departmental enquiry after retirement and when the departmental enquiry for embezzlement was initiated more than four years after the delinquent was allowed to retire on superannuation, their Lordships of the Supreme Court held that such departmental enquiry is incompetent, as the State had disabled itself by their deliberate omissions to take appropriate action against the respondent (therein) and allowed the officer to escape from the provisions of Regulation 351-A of the Civil Services Regulations. It has been observed by their Lordships in paragraph 6 of the report as under: - “6. It would thus be seen that proceedings are required to be instituted against a delinquent officer before retirement. There is no specific provision allowing the officer to continue in service nor any order passed to allow him to continue on re-employment till the enquiry is completed, without allowing him to retire from service. Equally, there is no provision that the proceedings be initiated as a disciplinary measure and the action initiated earlier would remain unabated after retirement. If Regulation 351-A is to be operative in respect of pending proceedings, by necessary implication, prior sanction of the Governor to continue the proceedings against him is required. On the other hand, the Regulation also would indicate that if the officer caused pecuniary loss or committed embezzlement etc. due to misconduct or negligence or dereliction of duty, then proceedings should also be instituted after retirement against the officer as expeditiously as possible. But the events of misconduct etc. which may have resulted in the loss to the Government or embezzlement, i.e., the cause for the institution of proceedings, should not have taken place more than four years before the date of institution of proceedings. In other words, the departmental proceedings must be instituted 4 (1996) 9 SCC 395 (WPS No.9593/2019) before lapse of four years from the date on which the event of misconduct etc. had taken place. Admittedly, in this case the officer had retired on 31-3-1987 and the proceedings were initiated on 21-4-1991. Obviously, the event of embezzlement which caused pecuniary loss to the State took place prior to four years from the date of his retirement. Under these circumstances, the State had disabled itself by their deliberate omissions to take appropriate action against the respondent and allowed the officer to escape from the provisions of Regulation 351-A of the Regulations. This order does not preclude proceeding with the investigation into the offence and taking action thereon.”

#22. As such, four years is the time-limit/period of limitation prescribed by the rule-making authority by way of Rule 9(2)(b)(ii) of the Rules of 1976 in respect of an event which took place more than four years before the institution of departmental proceedings and such a provision is a mandatory provision well designed to protect the superannuated Government servants from unnecessary harassment after their superannuation. Power of Relaxation under Rule 79

#23. Now, this would bring me to the next question of power of relaxation. It is the case of State Government that four year’s period of limitation prescribed in Rule 9(2)(b)(ii) of the Rules of 1976 has been relaxed in exercise of the power conferred under Rule 79 of the Rules of 1976. Rule 79 of the Rules of 1976 which provides power to relax, states as under: - “79. Power to relax.—Where any department of the Government is satisfied that the operation of any of these rules causes undue hardship in any particular case, the State Government may by order for reasons to be recorded in writing, dispense with or relax the requirements of that rule to such extent and subject to such exceptions and conditions (WPS No.9593/2019) as it may consider necessary for dealing with the case in a just and equitable manner : Provided that no such order shall be made except with the concurrence of the Finance Department.”

#24. A careful perusal of the above-stated Rule would show that though the power to relax rule is conferred to the State Government, on satisfaction of any Department of the Government, that operation of any rule is causing hardship to any particular case, it is necessarily required to be exercised in a just and equitable manner and to mitigate hardship, if any, caused in a particular case. However, such a power of relaxation cannot be exercised to revive the time barred action and mandatory provision cannot be relaxed. The power of relaxation must be construed strictly and cannot be used as blanket authority to disregard the binding Rule.

#25. The pari materia provision of power to relax except the proviso contained in Rule 22 of the Haryana Service of Engineers Class I PWD (Public Health Branch) Rules, 1961 came to be considered by the Supreme Court in the matter of J.C. Yadav and others v. State of Haryana and others5 and highlighting the object and purpose of conferring the power to relax, their Lordships of the Supreme Court have held that the object and purpose of conferring this power on the government is to mitigate undue hardship in any particular case, and to deal with a case in a just and equitable manner. It has been observed by their Lordships in paragraph 6 of the report as under: - 5 (1990) 2 SCC 189 (WPS No.9593/2019) “6. The rule confers power on the government to dispense with or to relax the requirement of any of the rules to the extent and with such conditions as it may consider necessary for dealing with the case in a just and equitable manner. The object and purpose of conferring this power on the government is to mitigate undue hardship in any particular case, and to deal with a case in a just and equitable manner. If the rules cause undue hardship or rules operate in an inequitable manner in that event the State Government has power to dispense with or to relax the requirement of rules. The rule does not restrict the exercise of power to individual cases. The government may in certain circumstances relax the requirement of rules to meet a particular situation. The expression “in any particular case” does not mean that the relaxation should be confined only to an individual case. One of the meanings of the expression “particular” means “peculiar or pertaining to a specified person — thing — time or place — not common or general”. The meaning of the word particular in relation to law means separate or special, limited or specific. The word ‘case’ in ordinary usage means ‘event’, ‘happening’, ‘situation’, ‘circumstances’. The expression ‘case’ in legal sense means ‘a case’, ‘suit’ or ‘proceeding in court or Tribunal’. Having regard to these meanings the expression ‘in any particular case’ would mean: in a particular or pertaining to an event, situation or circumstances. Rule 22 postulates relaxation of rules to meet a particular event or situation, if the operation of the rules causes hardship. The relaxation of the rules may be to the extent the State Government may consider necessary for dealing with a particular situation in a just and equitable manner. The scope of rule is wide enough to confer power on the State Government to relax the requirement of rules in respect of an individual or class of individuals to the extent it may consider necessary for dealing with the case in a just and equitable manner. The power of relaxation is generally contained in the Rules with a view to mitigate undue hardship or to meet a particular situation. Many a time strict application of service rules create a situation where a particular individual or a set of individuals may suffer undue hardship and further there may be a situation where requisite qualified persons may not be available for appointment to the service. In such a situation the government has power to relax requirement of rules. The State Government may in exercise of its powers issue a general order relaxing any particular rule with a view to avail the services of requisite officers. The relaxation even if (WPS No.9593/2019) granted in a general manner would ensure to the benefit of individual officers.”

#26. Similarly, Justice V.R. Krishna Iyer, in the matter of Shri Amrik Singh and others v. Union of India and others6 has observed that there must be undue hardship and, further the relaxation must promote the dealing with the case “in a just and equitable manner”.

#27. As such, the object of the power of relaxation is obviously to neutralise an injustice as a result of operation of any rule. It has been described to be the reserve power to deal with unforeseen situations or circumstances and it is to be exercised in the public interest with a view to maintain integrity and efficiency in service. (See R.R. Verma and others v. Union of India and others7.)

#28. Power to relax rules must be made judiciously keeping in mind the object and purpose. The power is conferred upon the Government to meet any emergent situation where injustice might have been caused to any individual employee or class of employees or where the working of the rule might have become impossible (see Ashok K. Uppal v. State of J&K8). The power of relaxation must also be expressly conferred (see Sanjay Kumar Manjul v. Chairman, UPSC9).