179. Knowledge Spectrum – Discipline – POST RETIREMENT PROCEEDINGS 96
298. Is there any condition regarding the time gap between the misconduct and initiation of proceedings as regards proceedings initiated before retirement and continued thereafter?
The Pension rules do not prescribe any fetter in this regard giving an impression that a charge sheet can be issued on the date of retirement in respect of misconduct committed decades ago and the proceedings can be continued under Rule 9(2)(a) of the Pension Rules. However, the following observation of the Hon'ble High Court of Delhi in O.P. Gupta v. Union of India 1981(3) SLR 778, lays down that the four year limitation applies even in respect of such cases:
"17. In other words is the deeming provision in Rule 9 so unbridled? Can the provision be used to keep the inquiry alive for any number of years or indefinitely? Can it be 'deemed that even after 20 years the inquiry is still not concluded, as in the present case? Considering public interest and difficulties in Government administration, I am of the opinion that power to continue or to start a disciplinary proceeding after retirement may be necessary in certain cases. By itself the power is not arbitrary. It has a rational basis. But the power must be exercised, within a reasonable period and consistent with justice and public interest. In Mohambhai v.Y.B. Zala 1980(1) SerL&R324: Gujarat High Court held that starting of a departmental enquiry 11/2 years after the incident, was violative of natural justice. The Court held that it was too much to expect that delinquent would be able to remember and narrate the old incident. We have here the lapse of more than 20 years. If Rule 9 is to be saved from the attack of arbitrariness it must be read in a reasonable and just manner. A guideline is available in Rule 9(2)(b). A fresh inquiry cannot be started 'in respect of any event which took place more than 4 years before such institution'. This statutory limitation embodies sound principle of equity and justice. It also recognises the principle of finality and repose. I do not find any difference in principle from the point of view of public interest,' in continuation of pending proceeding and starting afresh proceeding'. I, therefore, hold that in case of an event more than four years old on the date of retirement, a department proceeding cannot be continued after retirement under Rule 9(2) of the Pension Rules, 1972. It is well settled that requirement of natural justice can be read in a Rule even if the Rule is silent about it, particularly in a Rule concerning quasi judicial proceeding. In this view of the matter / hold that the departmental proceeding, if any, pending against the petitioner after 30.3.1975 is bad in law. The same is hereby set aside".
The above ruling of the Hon'ble High Court of Delhi has been followed by the Tribunal in 0.A. 1065/2002 in D.N. Vohra v. Union of India, decided on 31.10.2003 as stated in Smt. Santosh Verma Vs. The Commissioner, Kendriya Vidyalaya Sangathan and Ors. 0.A. No. 2469 of 2003 Decided On: 18.05.2004 [2005(1)SLJ383(CAT)]
299. What is the impact of minor penalty proceedings on pension?
There was considerable ambiguity in the area for some time. Presently, based on the decision of the Hon'ble Central Administrative Tribunal Principal Bench. Delhi in OA no 2068 of 2002 (R Sagar, NOIDA-UP Vs Union of India) it has been held vide DoP&T OM No, No.110/9/2003- AVD- - 1 dated 13 April 2009 that minor penalty cannot have any effect on Pension. Accordingly, all the disciplinary authorities are required to complete the proceedings for minor penalty before the retirement of the delinquent.
Post a Comment