178. Knowledge Spectrum – Discipline – POST RETIREMENT PROCEEDINGS 95

 178. Knowledge Spectrum – Discipline – POST RETIREMENT PROCEEDINGS  95

294.  What is the legal sustainability of continuing the proceedings after the retirement of the delinquent? 
This question came up for consideration of the Supreme Court in the case of DV Kapoor Vs. union of India (1990 AIR 1923, 1990 SCR (3) 697, 1990 SCC (4) 314, JT 1990 (3) 403] and the Hon'ble Supreme Court had ruled as under: 
In the instant case, merely because the appellant was allowed to retire, the Government is not lacking jurisdiction or power to continue the proceedings already initiated to the logical conclusion thereto. The only inhibition is that where the departmental proceedings are instituted by an authority subordinate to the President, that authority should submit a report recording its findings to the President. That has been done, and the President passed the order under challenge. Therefore, the proceedings are valid in law and are not abated consequent to voluntary retirement of the appellant and the order was passed by the competent authority, i.e. the President of India. 

295. What happens to the ongoing disciplinary proceedings which could not be completed before the retirement of the employee? 
As stated above, the proceedings can be continued under Rule 9(2) (a) of the Pension rules subject to the condition that the findings will be submitted to the President. 

296. What is the position regarding disbursement of retirement benefits in respect of a person against whom disciplinary proceedings are pending at the time of superannuation? 
Hon'ble Supreme Court in its judgment dated 14 August 2013 in Civil Appeal No.6770/2013 [State of Jharkhand & Ors. Vs Jitendra Kumar Srivastava has held that pension and pensionary benefits being a form of property, a person can be deprived of it only through the authority of law, as prescribed in Article 300A of the Constitution. Executive instructions cannot take the place of law and therefore in the absence of any provision in any of the Rules, for example, Pension Rules, 1972 any action to deprive the retired employee of the retirement benefits would be illegal. It is significant to note that Rules 8 and 9 of the Pensions Rules provide for withholding of pension only if the Government Servant is found guilty. Although the above judgment is based on the rules applicable to the Jharkhand State, the position does not appear to be different in the light of the CCS Pension Rules 1972 either. 

297. In the light of the four year limitation for initiation of post retirement disciplinary proceedings, what is the effective date of commencement proceedings? 
Rule 9(6) of the Pension Rules provides as under 
(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date ; and 
(b) judicial proceedings shall be deemed to be instituted - 
(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and 
(ii) in the case of civil proceedings, on the date the plaint is presented in the court.