High Court
Legal Reasoning
W.P. No.6820/2022, with6021/2022 & 6822/2022- 1 -IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.6820 OF 2022Toliram s/o Phulaji Rathod,Age 63 years, Occu. Pensioner,(Retired Executive Engineer)R/o N-4, F-115, CIDCO,Aurangabad, District Aurangabad… PetitionerVERSUSThe State of Maharashtrathrough the Secretary,Public Works Department,Madam Kama Road,Hutatma Chowk, Mantralaya,Mumbai – 32(Copy to be served on G.P.,High Court of Bombay,Bench at Aurangabad)… Respondent.......Mr. Sujeet D. Joshi, Advocate for PetitionerMr. P.K. Lakhotiya, A.G.P. for respondent - State....…WITHWRIT PETITION NO.6821 OF 2022Toliram s/o Phulaji Rathod,Age 63 years, Occu. Pensioner,(Retired Executive Engineer)R/o N-4, F-115, CIDCO,Aurangabad, District Aurangabad… PetitionerVERSUS W.P. No.6820/2022, with6021/2022 & 6822/2022- 2 -The State of Maharashtrathrough the Secretary,Public Works Department,Madam Kama Road,Hutatma Chowk, Mantralaya,Mumbai – 32(Copy to be served on G.P.,High Court of Bombay,Bench at Aurangabad)… Respondent.......Mr. Sujeet D. Joshi, Advocate for PetitionerMr. P.K. Lakhotiya, A.G.P. for respondent - State....…WITHWRIT PETITION NO.6822 OF 2022Toliram s/o Phulaji Rathod,Age 63 years, Occu. Pensioner,(Retired Executive Engineer)R/o N-4, F-115, CIDCO,Aurangabad, District Aurangabad… PetitionerVERSUSThe State of Maharashtrathrough the Secretary,Public Works Department,Madam Kama Road,Hutatma Chowk, Mantralaya,Mumbai – 32(Copy to be served on G.P.,High Court of Bombay,Bench at Aurangabad)… Respondent.......Mr. Sujeet D. Joshi, Advocate for PetitionerMr. P.K. Lakhotiya, A.G.P. for respondent - State....… W.P. No.6820/2022, with6021/2022 & 6822/2022- 3 -CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. & KISHORE C. SANT, J.DATE: 25th JULY, 2024.JUDGMENT (PER : CHIEF JUSTICE) :1.Rule. Rule made returnable forthwith. With theconsent of learned counsel for the parties, all the three WritPetitions have been taken up for final disposal.2. Since all these petitions involve a common issue,as to whether the charge sheets served upon the petitionerare liable to be quashed in view of the provisions contained inRule 27(2)(b)(ii) of the Maharashtra Civil Services (Pension)Rules, 1982, hence they have been heard together and arebeing decided by this common judgment which follows.3.The petitioner, who retired from the post ofExecutive Engineer in the Public Works Department of Stateof Maharashtra on 31/5/2017, by instituting these petitions,challenges the common judgment and order dated 4/5/2022,passed by the Aurangabad Bench of MaharashtraAdministrative Tribunal (hereinafter referred to as theTribunal), whereby Original Applications No.935/2019,936/2019 and 937/2019 have been dismissed and the
Legal Reasoning
W.P. No.6820/2022, with6021/2022 & 6822/2022- 4 -prayers made therein for quashing the charge sheets issuedagainst the petitioner has not been acceded to.4.Shri Sujeet Joshi, learned counsel representing thepetitioners has vehemently argued that, the Tribunal, whilepassing the impugned judgment dated 4/5/2022, has notconstrued the provisions contained in Rule 27(2)(b)(ii) andRule 27(6)(a) of the Pension Rules, 1982 correctly, andhence, the judgment and order passed by the Tribunal isliable to be quashed. His further submission is that as amatter of fact the charge sheets which were challenged bythe petitioner for filing the Original Applications before theTribunal are liable to be quashed for the reason that suchcharge sheets could not have been issued as per theprovisions contained in Rule 27(2)(b)(ii) of the Pension Rules,1982, as the events in respect of which the charge sheetswere issued had admittedly taken place more than four yearsfrom the date of institution of enquiry against the petitioner.5.It has further been argued by learned counsel forthe petitioner that in terms of the provisions contained inRule 27(2)(b)(ii), the departmental proceedings against aretired employee cannot be instituted in respect of alleged W.P. No.6820/2022, with6021/2022 & 6822/2022- 5 -irregularities said to have taken place more than four yearsbefore such institution. Drawing our attention to Rule27(6)(a) of the Pension Rules, 1982, it has been argued onbehalf of the petitioner that, departmental proceedings underRule 27 are to be deemed to be instituted on the date onwhich statement of charges are issued to the employeeconcerned or the pensioner concerned. It has further beencontended that since in this case, the charge sheets thoughdrawn on 28/4/2017, were served to the petitioner after twoyears from the date he retired, there is no institution of thedepartmental proceedings in the eye of law before thepetitioner retired, i.e. before 31/5/2017. In this view, thesubmission is that, on the basis of the charge sheets thedepartmental proceedings against the petitioner cannot bepermitted to be carried out any further. In support of hissubmissions, learned counsel for the petitioner has reliedupon the judgment of the Hon’ble Supreme Court in the caseof Banarsi Debi & Laxmi Niwas Moody Vs. Income TaxOfficer, District IV, Calcutta & Others reported in AIR1964 SC 1742.6.Per contra, learned A.G.P. has vehemently opposed
Decision
W.P. No.6820/2022, with6021/2022 & 6822/2022- 6 -the prayers made in the Writ Petitions and has submittedthat, Rule 27(6)(a) of the Pension Rules, 1982 clearlyprovides that the departmental proceedings shall be deemedto be instituted on the date on which the charge sheet isissued. According to him, the phrase appearing in sub-rule(6) of Rule 27 is ‘issued’ and not ‘served’. The learned A.G.P.has stated that, admittedly the petitioner retired from serviceof the State Government on 31/5/2017 and charge sheetswere issued on 28/4/2017 i.e. before he retired. 7.Further submission made by the learned A.G.P. isthat merely because the charge sheets are said to have beenserved upon the petitioner after retirement, it cannot beconstrued that the departmental proceedings were notinstituted against the petitioner before he retired for thesimple reason that, in fact, the charge sheets were alreadyissued on 28/4/2017 before the date of retirement of thepetitioner, i.e. before 31/5/2017. Contention raised by thelearned A.G.P. representing the respondent State is that,departmental proceedings ordinarily are said to be initiated/instituted when a charge sheet is issued and in this respect,the date of service of charge sheet cannot be deemed to be W.P. No.6820/2022, with6021/2022 & 6822/2022- 7 -the date on which the departmental proceedings areinstituted.8.On the aforesaid counts, it has been contended bythe learned A.G.P. that the Tribunal, while passing theimpugned judgment dated 4/5/2022, has not committed anyillegality or error and accordingly, no interference in the saidjudgment is called for by this Court in exercise of itsjurisdiction under Article 226 of the Constitution of India.9.We have heard the learned counsel for therespective parties and have also perused the record availablebefore us on the Writ Petition.10.Certain facts which are not in dispute need to benoted before we delve into respective submissions advancedby learned counsel representing the respective parties.11.Admittedly, the petitioner, while working on thepost of Executive Engineer with the Public Works Departmentof the State Government, retired on 31/5/2017. The chargesheets which are available on record, clearly bear the date28/4/2017. W.P. No.6820/2022, with6021/2022 & 6822/2022- 8 -12.It is stated that the said charge sheets dated28/4/2017 were served upon the petitioner on 2/4/2019 i.e.after a period of about two years from the date the petitionerretired.13.Rule 27(2)(b) of the Pension Rules, 1982 providesthat the departmental proceedings, if not instituted while theGovernment servant is in service, whether before hisretirement or during his re-employment, shall not be inrespect of any event which takes place more than four yearsbefore such institution.14.It is not in dispute that the illegalities which arethe subject matter of the charge sheets pursuant to whichdepartmental proceedings were initiated against thepetitioner related to the period more than four years beforethe initiation of the enquiry i.e. before 20/4/2017. However,what needs to be noted at this juncture is that the chargesheets against the petitioner were issued on 28/4/2017, i.e.before the date of his retirement which is 31/5/2017. Rule27(2)(2(b) of Pension Rules is extracted hereinbelow :-“27.Right of Government to withhold or withdrawpension :- W.P. No.6820/2022, with6021/2022 & 6822/2022- 9 -(1)Appointing authority may, by order in writing,withhold or withdraw a pension or any part of it,whether permanently or for a specified period, andalso under the recovery from such pension, the wholeor part of any pecuniary loss caused to Government,if, in any departmental or judicial proceedings, thepensioner is found guilty of grave misconduct ornegligence during the period of his service includingservice rendered upon re-employment afterretirement.Provided that the Maharashtra Public ServiceCommission shall be consulted before any final ordersare passed in respect of officers holding posts withintheir purview.Provided further that where a part of pension iswithheld or withdrawn, the amount of remainingpension shall not be reduced below the minimum fixedby Government.2(b)The Departmental proceedings, if not institutedwhile the Government servant was in service, whetherbefore his retirement or during his re-employment, –(i)shall not be instituted save with the sanction ofappointing authority.(ii)shall not be in respect of any event which tookplace more than four years before such institution,and(iii)shall be conducted by such authority and at suchplace as the Government may direct and inaccordance with the procedure applicable to thedepartmental proceedings in which an order ofdismissal from service could be made in relation tothe Government servant during his service.15.Rule 27(6) of the Pension Rules provides that, theproceedings shall be deemed to be instituted on the date onwhich the charge sheet is issued to the Government servant W.P. No.6820/2022, with6021/2022 & 6822/2022- 10 -or the pensioner. Rule 27(6)(a) is also extractedhereinbelow:-“(6)For the purpose of this rule :-(a)departmental proceedings shall be deemed tobe instituted on the date on which the statement ofcharges is issued to the Government servant orpensioner, or if the Government servant has beenplaced under suspension from an earlier date, onwhich date;16.Thus, the question which falls for our considerationis as to whether in the instant case, the departmentalproceedings would be deemed to have been instituted on28/4/2017 when the charge sheets were issued on 2/4/2019when the charge sheets are said to have been served uponthe petitioner. If we come to the conclusion that thedepartmental proceedings shall be deemed to be institutedagainst the petitioner in the instant case on 2/4/2019, thebar of Rule 27(2)(b)(ii) will come into play since theirregularities in respect of which charge sheets have beenissued and charges are framed against the petitioner, relateto a period more than four years before such institution.However, if we hold that the departmental proceedings in theinstant case would be deemed to have been instituted on W.P. No.6820/2022, with6021/2022 & 6822/2022- 11 -28/4/2017 i.e. before the petitioner retired, the bar of Rule27(2)(b)(ii) of the Pension Rules, 1982 will have no bearing.17.As noted above, Rule 27(6)(a) states that thedepartmental proceedings shall be deemed to be instituted onthe date of issuance of charge sheet. It clearly does not statethat the departmental proceedings shall be deemed to beinstituted on the date the charge sheet is served upon theGovernment servant. In service jurisprudence, the phrases‘issued’ and ‘served’ have often been subject matter ofdiscussion by Hon’ble Supreme Court in various judgments.In the case of Delhi Development Authority Vs. H.C.Khurana, reported in AIR 1993 SC 1488, the submission thatthe word ‘issued’ shall mean ‘service’ on the employee, wasnot accepted. It has clearly been opined by the Hon’bleSupreme Court in the said judgment that the word ‘issued’merely means that decision to initiate departmentalproceedings is taken and translated into action by despatch ofthe charge sheet leaving no doubt that the decision has beentaken. The Hon’ble Supreme Court has further observed that‘issue’ of charge sheet in the context of decision to initiatethe disciplinary proceedings mean framing of the charge W.P. No.6820/2022, with6021/2022 & 6822/2022- 12 -sheet and taking of necessary action to despatch the chargesheet to the employee to inform him about the chargesframed against him and further requiring his explanation.The Hon’ble Supreme Court has clearly held that ‘issue’ wouldnot mean the factum of ‘service’ of charge sheet on theemployee concerned. The Hon’ble Supreme Court has furtherobserved that, meaning of the word ‘issued’ has to begathered from the context in which it is used, and accordinglythe Apex Court concluded that, ‘issue’ of a charge sheetwould mean its despatch to the Government servant and thisact is complete, the moment steps are taken for the saidpurpose for framing the charge sheet and despatch it to theGovernment servant. It has clearly been held by the Hon’bleSupreme Court that, the fact of actual ‘service’ of chargesheet on the Government servant is not a necessary part ofthe requirement of ‘issuance’ of charge sheet.18.Paragraphs 13, 14, and 15 of the judgment in thecase of Delhi Development Authority (supra) are apposite tobe quoted here, which run as under:“13.It will be seen that in Jankiraman also,emphasis is on the stage when a decision has beentaken to initiate the disciplinary proceedings' and it W.P. No.6820/2022, with6021/2022 & 6822/2022- 13 -was further said that 'to deny the said benefit (ofpromotion), they must be at the relevant timepending at the stage when charge-memo/charge-sheet has already been issued to the employee'. Theword 'issued' used in this context in Jankiraman it isurged by learned counsel for the respondent, meansservice on the employee. We are unable to readJankiraman in 'this manner.The context in which theword 'issued' has been used, merely means that thedecision to initiate disciplinary proceedings is takenand translated into action by despatch of thechargesheet leaving no doubt that the decision hadbeen taken. The contrary view would defeat theobject by enabling the government servant, if soinclined, to evade service and thereby frustrate thedecision and get promotion in spite of that decision.Obviously, the contrary view cannot be taken.14.'Issue' of the chargesheet in the context of adecision taken to initiate the disciplinary proceedingsmust mean, as it does, the framing of thechargesheet and taking of the necessary action todespatch the chargesheet to the employee to informhim of the charges framed against him requiring hisexplanation; and not also the further fact of serviceof the chargesheet on the employee. It is so,because knowledge to the employee of the chargesframed against him, on the basis of the decisiontaken to initiate disciplinary proceedings, does notform a part of the decision making process of theauthorities to initiate the disciplinary proceedings,even if framing the charges forms a part of thatprocess in certain situations. The conclusions of theTribunal quoted at the end of para 16 of the decisionin Jankiraman which have been accepted thereafterin para 17 in the manner indicated above, do use theword 'served' in conclusion No.(4), but the fact of'issue' of the chargesheet to the employee isemphasised in para 17 of the decision. ConclusionNo.(4) of the Tribunal has to be deemed to beaccepted in Jankiraman only in this manner.15.The meaning of the word 'issued', on whichconsiderable stress was laid by learned counsel forthe respondent, has to be gathered from the contextin which it is used. Meanings of the 'word issue' W.P. No.6820/2022, with6021/2022 & 6822/2022- 14 -given in the Shorter Oxford English Dictionaryinclude 'to give exit to; to send forth, or allow topass out; to let out; .... to give or send outauthoritatively or officially; to send forth or deal outformally or publicly-, to emit, put into circulation'.The issue of a chargesheet, therefore, means itsdespatch to the government servant, and this act iscomplete the moment steps are taken for thepurpose, by framing the chargesheet anddespatching it to the government servant, thefurther fact of its actual service on the governmentservant not being a necessary part of itsrequirement. This is the sense in which the word'issue' was used in the expression 'chargesheet hasalready been issued to the employee', in para 17 ofthe decision in Jankiraman.”19.Even otherwise, institution of disciplinaryproceedings against any Government servant means adecision taken by the appointing/ disciplinary authority toinitiate the departmental proceedings. The occurrence of theword ‘issued’ in Rule 27(6)(a) of the Pension Rules, 1982 has,thus, to be construed accordingly. If the law laid down by theHon’ble Apex Court in case of Delhi Development Authority(supra) is borne in mind, the act of ‘issuance’ of charge sheetwould only mean a decision to institute the proceedings,framing of charge sheet and its despatch to the Governmentservant. It would not in any circumstance, mean to ‘serve’the charge sheet upon the Government servant.20.Reliance placed by learned counsel for the W.P. No.6820/2022, with6021/2022 & 6822/2022- 15 -petitioner on the judgment in the case of Banarsi Debi(supra) is highly misplaced for the simple reason that theissue which was under consideration before the Hon’bleSupreme Court in the said case related to interpretation ofthe expression ‘issued’ occurring in Section 34(1) of theIndian Income Tax Act, 1922. It is well settled principle oflaw that for construing a Taxing Statute, the doctrine of strictinterpretation is to be applied. In any case, the meaningascribed to the word ‘issued’ occurring in a Taxing Statute, inour opinion, cannot be borrowed for interpreting suchexpression occurring in Rule relating to institution ofdepartmental proceedings against a Government servant. 21.The law laid down by the Hon’ble Supreme Courtin the case of Delhi Development Authority (supra) is inrelation to the institution of disciplinary proceedings against aGovernment servant and accordingly, for construing thecorrect meaning of the expression ‘issued’ occurring in Rulesregulating conditions of service of a Government servant, theinterpretation adopted by the Hon’ble Supreme Court in thecase of Delhi Development Authority (supra) has to be bornein mind. W.P. No.6820/2022, with6021/2022 & 6822/2022- 16 -22.If, thus, we consider the submissions made bylearned counsel for the petitioner that the charge sheetsagainst him were barred by the provisions of Rule 27(2)(b)(ii)of Pension Rules, 1982, we do not find ourselves inagreement with such submissions. The charge sheets againstthe petitioner were issued on 28/4/2017 before the petitionerretired i.e. before 31/5/2017 and accordingly, the date ofissuance of charge sheet is the date of institution ofdepartmental proceedings in terms of the provisions of Rule27(6)(a) of the Pension Rules, 1982. The date of service ofcharge sheets, in our opinion, cannot be said to be the dateof institution of the departmental proceedings; it has to benecessarily, the date of issuance of the charge sheets.23.For the reasons aforesaid, we have no hesitation tohold that departmental proceedings against the petitioner inthe instant case will be deemed to have been instituted on28/4/2017. In other words, the departmental proceedingswere instituted against the petitioner before he retired i.e.before 31/5/2017. Accordingly, Rule 27(2)(b)(ii) of thePension Rules, 1982 will have no application in the instantcase and hence, the charge sheets issued against the W.P. No.6820/2022, with6021/2022 & 6822/2022- 17 -petitioner which were challenged before the Tribunal are notbarred by the said provision.24.In view of the discussions made and the reasonsgiven above, we do not find any good ground to interfere withthe impugned judgment and order dated 4/5/2022, passedby the Tribunal. 25.The Writ Petitions, thus lack merit, which,resultantly are dismissed. 26.Rule stands discharged. 27.No order as to costs. (KISHORE C. SANT, J.) (CHIEF JUSTICE)fmp/-