Avtar Singh v. The Punjab State Power Corporation Ltd & ORS
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH **** I.
AVTAR SINGH .... PETITIONER Vs.
THE PUNJAB STATE POWER CORPORATION LTD & ORS .... RESPONDENTS **** II.
WARJINDER SINGH .... PETITIONER Vs.
THE PUNJAB STATE POWER CORPORATION LTD & ORS .... RESPONDENTS ****
Reserved on: 13.01.2025
Pronounced on: 22.01.2025 ****
CORAM:
HON'BLE MR JUSTICE DEEPAK GUPTA Argued by:- Mr. J.S. Jaidka, Advocate and Mr. Abhishek Khullar, Advocate for the pe00oner (in both the cases) Mr. H.S. Ghuman, Advocate for respondents.
**** DEEPAK GUPTA, J.
This order shall dispose of two pe00ons 0tled above, as facts and the issues involved in both the cases are similar. For the sake of convenience, the facts are being no0ced from CWP No.19843 of 2016 0tled "Avtar Singh vs. Punjab State Power Corpora0on Ltd.".
2.
Pe00oner re0red from the services of the respondent on 31.01.2015. Prior to his re0rement and during the service period, pe00oner was served a charge-sheet (Annexure P-3) on 10.10.2014 under Regula0on 8 of PSEB Employees (Punishment and Appeals) Regula0ons, 1971 for releasing connec0ons by breaking seniority; for releasing connec0ons despite objec0ons in unauthorized colony and for not comple0ng the record regarding GSC in 0me. The said charge-sheet was s0ll pending, when the pe00oner re0red on 31.01.2015. Without holding any enquiry and aGer the re0rement of the pe00oner, order dated 10.09.2015 (Annexure P-1) was passed, whereby the punishing authority imposed 10% cut in the pension of the pe00oner for a period of 05 years. The Appellate Authority vide order dated 26.06.2016 (Annexure P-2) modified the order to the extent that 10% cut in pension was reduced for the period of 03 years.
3.
The abovesaid orders have been assailed by the pe00oner by way of the present pe00on.
4.
It is contended that charge-sheet proposed to impose major penalty; and that major penalty has been imposed aGer re0rement of the pe00oner without holding any enquiry, which is in viola0on of rules. 5.
As per the reply of the respondents, their stand is as under:- "(a) That, the averments in the sub paragraph (a) of paragraph 8 of the writ pe00on is vehemently denied by the answering respondent. It is wrong and incorrect to aver that a major penalty has been imposed upon the pe00oner. As per PSEB Employees Punishment and Appeal Regula0on, 1971; Regula0on 8(1) "No order imposing any of the penal es specified in clause (v) to (ix) of the Regula on 5 Annexure-I shall be made except a$er an inquiry held, as far as may be in the manner provided in this regula on and regula on 9 or in the manner provided hereina$er". The copy of the PSEB Employees Punishment and Appeal Regula0ons, 1971 is annexed with the wriKen statement as Annexure R-3/1. It is further amplified that clause (v) to (ix) of Regula0on-5 are
regarding major penal0es, whereas clause (i) to (iv) are for minor penal0es. As per Secretary Regula0on Sec0on, PSEB Pa0ala's Circular No.25/2000 under Office Order No.851/REG17/V-5-A dated 11-09-2000, clause (iv) under minor penal0es and clause (v) under major penal0es has been amended. The relevant extracts of the circular are annexed with the wriKen statement as Annexure R-3/2. Further, in the ibid-men0oned Office Order No 851/REG-17/V-5-A dated 11-09-2000, clause (iv) under minor penal0es and (v) under major penal0es has been amended. Under Clause (iv) withholding of increments of pay without cumula0ve effect is a minor penalty; whereas withholding of increments of pay with cumula0ve effect is a major penalty under Clause (v).
In the instant case of the pe00oner, who has re0red on 3101-2015 before the decision of the charge sheet, the punishing authority has imposed a cut of 10% in his pension for a limited period of three years, which is without cumula0ve effect. Hence, the punishment imposed on the pe00oner is a minor penalty as per clause (iv). As per Regula0on 8 (5) (a), "on receipt of the reply from the delinquent employee, the punishing authority may consider the reply of the delinquent employee and a$er recording reasons for so doing, impose on the employee any of the penal es specified in clause (i) to (iv) of Regula on-5." Therefore, as per Regula0on 8 (1) and (5), it is not mandatory for the punishing authority to hold inquiry, before imposing any of the minor penal0es specified in clause (i) to (iv) of Regula0on 5."
Thus, as per respondents, only minor penalty has been imposed on the pe00oner, for which it was not mandatory to hold inquiry. 5.
I have considered submissions of both the sides and have appraised the record carefully.
6.
From the stand of the respondents, it is quite clear that no enquiry was held before passing the impugned order, making 10% cut in the pension of pe00oner for a period of 05 years, which was modified to 03 years period. Since the pe00oner had already re0red from the service, when the impugned orders imposing the penalty of 10% cut in the pension was passed,
obviously neither the major nor the minor punishment under the Regula0ons, 1971 could be inflicted upon the pe00oner. However at the same 0me, since the charge-sheet was issued to the pe00oner, when he was in service, therefore, proceedings could con0nue but only as per Rule 2.2 of the Punjab Civil Service Rules, Volume-II.
7.
The Rule 2.2 of the Punjab Civil Service Rules, Volume-II reads as under:- 2.2 (a) Future good conducts is an implied condi0on of every grant of a pension. The appoin0ng authority reserves to itself the right of withholding or withdrawing a pension or any part of it, if the pensioner be convicted of serious crime or is guilty of grave misconduct. The decision of the appoin0ng authority on any ques0on of withholding or withdrawing the whole or any part of pension under this rule shall be final and conclusive. Note 1.─ A claim against the Government employee may become known and the ques0on of making recovery may arise─ (a) When the calcula0on of pension is being made and before the pension is actually sanc0oned; or (b) aGer the pension has been sanc0oned. The claim and the recovery may be one or other of the following categories:-
(1) Recovery as a puni0ve measure in order to make good loss caused to Government as a result of negligence or fraud on the part of the person concerned while he was in service.
(2) Recovery of other Government dues such as over issues of pay, allowances or leave salary, or admiKed and obvious dues such as house rent, postal life insurance premia, outstanding motor car, house building, travelling allowance or other advances.
(3) Recovery of non-Government dues.
I.
In cases falling under:-
(a) above, none of the recoveries men0oned in (1) to (3) above may be effected by a reduc0on of the pension about to be sanc0oned except in the following circumstances:- (i) When an officer's service can be held to have been not thoroughly sa0sfactory, a reduc0on in the amount of pension may be made under rule 6.4 (b) of this Volume by a competent authority although no direct penal recovery from pension is permissible.
(ii) When the pensioner by request made or consent given has agreed that the recovery may be made. If such request is not made or consent is not given by the pensioner, even sums admiKedly due to Government such as house rent, outstanding advances, etc., may not be recovered from pension. In such cases, however, the execu0ve authori0es concerned would have to consider whether they should not try to effect the recovery otherwise than from pension, for example, by going to a court of law, if necessary.
II.
In cases falling under (b) above, none of the recoveries described in clauses (1) to (3) may be effected by the deduc0on from a pension already sanc0oned except at the request or with the express consent of the pensioner. Under rule 2.2 (a) of this Volume, future good conduct is an implied condi0on of every grant of a pension and a pension can be withheld or withdrawn in whole or in part if the pensioner is convicted of serious crime or is guilty of grave misconduct. This, however, refers only to crime or misconduct occurring aGer the pensioner has re0red from service, and the rule would not, therefore, cover a reduc0on of pension made for the purpose of retrieving loss caused to Government as a result of negligence or fraud on the part of the pensioner occurring before he had re0red from service.
In cases where the pensioner does not agree to recovery being made even of sums admiKedly due to Government, the concluding remarks under I (ii) above will also be applicable.
Heads of offices should see that the pay or leave salary prior to re0rement shall not be paid un0l it is clear that a re0ring Government employee has no outstanding dues to Government. Some0mes, it may not be prac0cable to ascertain in 0me all the outstanding dues, while some0mes dues may exceed the amount of last pay or leave salary. In such cases, it is the duty of the Heads of Offices (in consulta0on with Treasury Officers and Accountant General, Haryana in the case of GazeKed Officers) to bring promptly to the no0ce of the Accountant General, Haryana, all the outstanding amounts by a separate communica0on, sta0ng in detail the nature of recovery and why it has not been possible to effect it from last pay or leave salary.
The outstanding amounts should also be clearly and completely noted in the last pay cer0ficates in sufficient detail with reference to the previous correspondence with the Accountant General, Haryana and if the recovery is to be effected from pension, it should be clearly recorded on the last pay cer0ficate itself that the request or express consent of the pensioner in wri0ng to the recovery from his pension has been obtained.
Note 2.─ Although compassionate allowance is of the nature of an ex-gra0a payment it is really a form of pension, therefore, recoveries from it, once it is sanc0oned, should be governed by the above orders. Direct recovery of Government dues from compassionate allowance is not permissible under these orders, but recovery may be made indirectly (before the allowance is sanc0oned) by reducing the allowance either permanently or as a temporary measure.
Note 3.─ Strictly speaking under the orders no recovery of amount is permissible from pension but if final recovery has been made it need not be refunded to the pensioner concerned.
(b) The Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings, to have been guilty of grave
misconduct or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on reemployment aGer re0rement.
Provided that─
(1) such departmental proceedings, if ins0tuted while the officer was in service whether before his re0rement or during his re-employment shall aGer the final re0rement of the officer, be deemed to be a proceeding under this rule and shall be con0nued and concluded by the authority by which it was commenced in the same manner and as if the officer had con0nued in service,
(2) such departmental proceedings, if not ins0tuted while the officer was on duty either before re0rement or during re-employment─ (i) shall not be ins0tuted save with the sanc0on of the Government; (ii) shall be in respect of an event which took place not more than four years before the ins0tu0on of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made;
(3) such judicial proceedings, if not ins0tuted while the officer was on duty either before his re0rement or during his re-employment, shall be ins0tuted in respect of an event as is men0oned in clause (ii) of proviso (2); and
(4) The Public Service Commission shall be consulted before final orders are passed.
Explana7on.─ For the purpose of this rule:-
(1) Departmental proceedings shall be deemed to have been ins0tuted when the charges framed against the pensioner are issued to him or, if the officer has been placed under suspension from an earlier date, on such date; and
(2) Judicial proceedings shall be deemed to have been ins0tuted─ (i) in the case of criminal proceeding, on the date on which the complaint is made or a challan is submiKed to a criminal court; and (ii) in the case of civil proceeding, on the date on which the plaint is presented or, as the case may be, an applica0on is made to civil court. Note 1.─ As soon as proceedings of the nature referred to in the above rule are ins0tuted, the authority which ins0tutes such proceedings should without delay in0mate the fact to the Accountant General. Note 2.─ In a case in which a pension as such is not withheld or withdrawn, but the amount of any pecuniary loss caused to Government is ordered to be recovered from the pension, the recovery should not ordinarily be made at a rate exceeding one-third of the gross pension originally sanc0oned including any amount which may have been commuted."
8.
The abovesaid Rule makes it clear that:
Pension or a part of pension can be withheld by the Government, whether permanently or for a specified period. The right of the Government in ordering the recovery from the pension of the whole or part of any pecuniary loss caused to the Government can be done, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including the service rendered upon re-employment aGer re0rement.
The proviso to clause (b) of Rule 2.2 PCSR Volume II, further makes it clear that in case, the departmental proceedings are ins0tuted while the officer was in service, whether before his re0rement or during his re-employment, the same shall aGer the final re0rement of the officer be deemed to be the proceedings under this rule and shall be con0nued
and conducted by the authority by which it was commenced in the same manner, as if the officer had con0nued in service. Further the right of the Government to withhold or withdraw a pension or any part of it arises in case the pensioner is convicted of a serious crime or is found to be guilty of grave misconduct. In case pensioner is convicted of a serious crime, then ac0on is to be taken in the light of the judgment of the Court rela0ng to such convic0on. However in case, the case is not covered under the earlier paragraph, and the Government considers the pensioner to be prima facie guilty of grave misconduct, then before passing any order, a no0ce is required to be served upon the pe00oner specifying the ac0on proposed to be taken against him and the grounds on which it is proposed to be taken and calling upon him to submit within the specified 0me, the reply/representa0on and it is only aGer considering the same that necessary order is to be passed as per Rule 2.2. 9.
In the present case, it is not the stand of the respondents that pe00oner has been convicted of any serious crime. 10.
Now the ques0on is that as to whether the pe00oner was found to be guilty of any grave misconduct. Even if it be assumed for the sake of arguments that he was found to be guilty of grave misconduct, then before imposing the penalty of withdrawing a part of pension i.e. cut in pension, the procedure as prescribed under Rule 2.2 is required to be followed by the respondents.
11.
In view of the aforesaid discussion, the impugned orders as passed by the respondents, cannot be sustained in the eyes of law, as they are patently wrong and illegal and as such, these are set aside. However it is made clear that respondents will be at liberty to ini0ate proceedings as per Rule 2.2 of the PCSR, Volume-II, in case they intend to take ac0on on the basis of
charge-sheet, which was served upon the pe00oners before their re0rement. Any such ac0on is to be taken strictly in accordance with law. Disposed of.
A photocopy of this order be placed on the file of connected case. (DEEPAK GUPTA) JUDGE 22.01.2025 Nee ka Tuteja Whether speaking/reasoned?
Yes Whether reportable?
Yes