TAKHATRY SHIVADATTRAY MANKAD v. STATE OF GUJARAT

Citation: [1989] 3 S.C.R. 214

Court: Supreme Court of India

Bench: G.L. OZA, S. RATNAVEL PANDIAN

Case summary

504 of 1971 before the High Court of Gujarat seeking Issue of writ of mandamus against the State of Gujarat to direct the State to pay the appellant all the outstanding salaty; allowances as well as tile reviseG....

Judgment text

The Judgment of the Court was delivered by -~ RATNAVEL PANDIAN, J. This is an appeal by special leave from the judgment of the Gujarat High Court dismissing the appeal made in Letters Patent Appeal No. 145 of 1978 arising from the order passed in Special Civil Application No. 268 of 1978 of the said High Court. As this case has a chequerred history spreading over decades, we \ feel that the relevant facts that are necessary for the disposal of this appeal are to be stated in brief. The appellant was born on 15th January, 1909 and he obtained the Degree of Bachelor of Engineering (Civil). He joined the service of the erstwhile State of Junagadh in Saurashtra region on 1st August, 1934.

While the appellant was in the service of Junagadh State, he was governed by the Junagadh State Pension & Parwashi Allowances Rules of 1932 (hereinafter called as "Junagadh Rules) which had been published in the official Gazette of -+ that State and which were subsequently codified and published in the Jugagadh State Account Code. Rule 241-A of the aforesaid Junagadh Rules provided for pension and Parwashi Allowances. The State of Junagadh was integrated into the State of Saurashtra on 20th January, 1949. Thereafter the appellant was absorbed in the service of the State TAKHATRY SHIVADATTRAYv. STATE OF GUJARAT [PANDIAN, J. J 219 of Saurashtra. The supplementary Covenant which brought about the integration read with Art. 16 of the main Covenant expressly protected the conditions of the service of the absorbed servants and the protection was also statutorily recognised by the Saurashtra Ordinance 3 of the 1949 read with Ordinance 1of1948.

A proclamation providing ~ a guarantee that the conditions of service could not be varied to the ~ disadvantage of the Covenanting State servants was also issued in that behalf on 20th January 1949 which was the date of the merger of the State into the State of Saurashtra. ,_. ~ Based on the decision of this Court in Bholanath J. Thakar v. State of Saurashtra, A. LR. 1954 S. C. 680 wherein it was held that the rules as regards the age of superannuation which prevailed in the 'r covenanting State which in that case was the State of Wadhwan, continued to cover those Government servants who had come from that State and had been absorbed in the services of the State of Saurashtra. The State of Saurashtra made the Saurashtra Covenanting State Servants (Superannuation Age) Rules 1955 (hereinafter called as "Saurashtra Rules") in exercise of the powers conferred by Art. 309 of the Constitution of India. Rule 3(i) provided: "A Govt.

servant shall, unless for special reasons otherwise directed by Government retire from service on his completing 55 years of age. " After the integration of the Saurashtra State into the State of Bombay a resolution was passed by the Government on 7th January 1957 applying the old Bombay Civil Service Rules to Saurashtra area. ) On 1st July 1959 the Bombay Civil Services Rules 1959, (hereinafter . _called the "Bombay Rules") were promulgated under Art. 309 of the 1 Constitution. Clause (c)(2)(ii)(l) of Rule 161 is as follows: "Except as otherwise provided in this Sub-clause, Government servants in the Bombay Service of Engineers, Class I, must retire on teaching the age of 55 years, and may be required by the Government to retire on reaching the age of 50 years, if they have attained to the rank of Superintending Engineer. " The appellant was compulsorily retired from service under the above rule by an order passed by the State of Gujarat on 12. 10. 1961 with effect from 12. 1.

1962 when he had completed the age of 53 years. This order of retirement was unsuccessfully challenged by the- appellant before the Gujarat High Court by a writ petition under Art. 226 of the· ·y· Constitution. Not being satisfied, the appellant took up the matter before this Court which by its judgment dated 9. 4. 1"69 allo.. :ed •. he appeal and declared "that the appellant was entitle~ to •~i. ia::: . n service until he attained the age of 55 years and that the impugned order directing his retirement was invalid and ineffective. " This judgrient is reported in 1970 1 SCR 244-AIR 1970 S. C. 143, Takhatray Shivdatray Mankad v. State of Gujarat,. As per this decision, the appellant had the right to continue in service till he attained the age of 55 years. It may be noted that the appellant had already completed the age of 55 years by the time the judgment was pronounced by the Supreme Court.

In due compliance of the above judgment duce the relevant portion of the show cause notice {Ailil Bombay Civil Services Rules. " On the basis of the above findings, the appeal was dismissed. ~ Hence the present appeal. Shri B . K. Mehta, learned counsel appearing on behalf of the appellant assailed the impugned judgment of the Division Bench of the High Court inter-alia contending (1) that the High Court had clearly gone wrong in upholding the impugned order of reduction in pension made in the purported exercise of power under Rules 188 and 189 of the Bombay Rules in view of the finding of this Court in C. A. No. 409 of 1966, Takhatray Shivdatray Mankad's, case (supra), wherein it was held that the Bombay Rules could not be made applicable to the appellant; (2) that the appellant is not governed by the Saurashtra Rules because the said rules do not provide for compulsory retirement as pointed out by the Supreme Court in C. A. No. 409 of 1966 and (3) ' TAKHATRY SHIVADATTRAY v.

STATE OF GUJARAT {PANDIAN,J. l 223 '· --{ that the Stae Government has not specifically stated in the show cause notice dated 17. 7. 1971 (Annexure C) as well as in the impugned order for reducing the pension (Annexure A) as to under what set of rules, namely, whether under the Junagadh Rules or the Saurashtra Rules or -, the Bombay Rules they were exercising the power for reducing the pension and gratuity. . "" It has been further urged that clauses 3, 13 and 15 of Rule 241-A of Junagadh Rules operate in different fields in that while Rule 3 applies to cases of normal superannuation, Rule 13 applies to cases of ~ compulsory retirement and, therefore, the observation of the Division A Bench of the High Court in the Letters Patent Appeal approving the view taken by the learned single judge that Rule 3 controls Rule 13, .. ,,,, would practically render Rule 13 as ultra vires Art.

311 of the Constitu· lion of India, since compulsory retirement together with reduction of pension would amount to penalty in the absence of procedural safe· guards. Further it is urged that during the pendency of the appeal (C. A. No. 409/66) before this court, the Bombay Rules were extended to the Saurashtra State Covenanting servants and the superannuation age was raised to 58 years and therefore the appellant in any case was entitled to continue upto 60 years of age under the Junagadh Rules or upto 58 years of age under the Bombay Rules. When it was so, the retirement of the appellant on attaining the age of 55 years should be . ->· construed as a case of compulsory retirement before the normal age of superannuation which coupled with the order of reduction in pension would amount to penalty which could not have been imposed without ..... following the prescribed procedure under the Conduct, Discipline and Appeal Rules.

In support of this last submission, reliance was placed on the decision of this Court in Dalip Singh v. State ofPunjab, I1961] I SCR 88 and Moti Ram Deka Etc. v. General Manager, N. E. F. Rail· ) ways, Maligaon, Pandu, Etc. , [1964] 5 SCR683. In the alternative, he submitted assuming that the Bombay Rules apply to the case of the appellant, the enquiry as prescribed under Rule 189 of the Bombay Rules was not followed. further if the case of th. e appellant is to be governed by the Saurashtra Rules, there was no provision for compulsory retirement as pointed out by the Supreme Court in C. A. No. 409 of 1966. Finally he submitted that the impugned t order for reduction of pension is bad in law and void because (1) no enquiry for the reasons as contemplated under Rule 189 of the Bombay Rules had been conducted and (2) admittedly the State had stated before the High Court in the course of hearing of the Civil Application on 24. 10.

1972 that the departmental enquiry had become infructuous and was dropped as the appellant had already retired. In any case, no enquiry could be held in pursuance to the show cause notice dated 17. 7. 1971 after a lapse of 4 years in view of the prohibition under proviso (b)(ii) of Rule 189-A of the Bombay Rules. Therefore, the reduction of pension and gratuity by 50% is wholly unreasonable, unwarranted and arbitrary. Mr. C. A. Shah, learned counsel appearing on behalf of the respondent, stoutly opposed the submissions made on behalf of the appellant stating that the appellant was directed to retire on attaining the age of 55 years as per the judicial pronouncement of this court in C. A. No.

409/66 fixing his age of retirement at 55 years and hence the appellant cannot be permitted to be heard that his retirement at the age of 55 should be construed as compulsory retirement, in view of the fact that the age of retirement was increased to 60 years under the Junagadh Rules and 58 years under the Bombay Rules. According to Mr. Shah after the dismissal of the Special Civil Application No. 70 of 1970 by the Gujarat High Court holding that the right of the appellant I) to continue in service was judicially determined by this court and so it cannot be said that the State Government had discriminated the appellant, which decision of the High Court was upheld by this court by the order of dismissal of the Special Leave Petition on 21. 1. 1979.

It is urged by the learned counsel for the respondent that the appellant's retirement having been a normal one, he was entitled to pension under Rule 241-A of the Junagadh Rules and as such the State Government in exercise of the powers under the said rules had passed the order dated 15. 11. 1977 reducing the pension and gratuity to 50% after affording an opportunity to him by issuing a show cause notice alleging several acts of misconduct to which notice the appellant did not give any explanation in spite of several opportunities afforded for over 6 years. Hence the order of the Government reducing the pension and gratuity to 50% on the finding that the allegations of misconduct are proved is justified. According to him Rules 188 and 189 of the Bombay Rules are inapplicable to the case of the appellant.

Moreover, these rules are in pari materia to Rule 241-A of the Junagadh Rules and therefore as held by the Division Bench of the High Court under either of the Rules, the Government is competent to reduce the pension for misconduct. Coming to Rule 189-A which was introduced on t 29. 10. 1971 after the issue of show cause notice in this case; it is said that this Rule provides that the proceedings already initiated shall be deemed to be a proceeding under this rule and continued and concluded by the authority. In the present case, the proceedings were initiated even while the appellant was in service and they were TAKHATRY SHIVADATTRAY v. STATE OF GUJARAT IPANDIAN, J. ] 225 ...... dropped after his retirement. Therefore, the appellant is not Justified in contending that those proceedings relate to misconduct which had occurred 4 years prior to the institution and therefore they are not sustainable as per proviso (b)(ii) of Sec. 189-A of the Bombay Rules.

'-y( We shall scrutinize the respective contentions of the learned counsel with reference to the facts of this case and the position of law with reference to the relevant rules and the various judicial pronouncements of this court in a series. of decisions { ment on attaining the age of 55 years, pursuant to the declaration of this Court was a nounal retirement on reaching the age of superannuation and not a compulsory retirement by way of punishment for misconduct as contended by the appellant. ·- A Next we shall deal with the respective contentions of both the parties with reference to the Junagadh Rules and the Bombay Rules. It may be mentioned here that the appellant himself under the ground y (h) of his Special Leave Petition had stated that his services were to be governed by the Junagadh Rules.

It was also urged on behalf of the respondent that the appellant's retirement being a normal one, he is entitled to pension under Junagadh Rules and the State Government in exercise of the power vested in it had passed the order dated 15. 11. 1977 reducing the pension and gratuity to 50%. As pointed out by the Division Bench of the High Court, under the scheme of the. Junagadh Rules as per clause 10 of Rule 241-A, the pensions are admissible for superior service of not less than 10 years and they are ,)... divided into 4 classes, namely, (1) compensation pension; (2) invalid pension; (3) superannuation pension; and (4) retiring pension. As we are. concerned only with the superannuation pension in the present .. case, we would refer to the relevant clause.

which reads as follows: "(13) Superannuation pension is admissible only on attaining the age of 60 years, except in cases in which the authorities consider it desirable in the interest of the State an officer should retire on attaining the age of 55 years or at an}i time thereafter on such superannuation pension as he may have earned at the time ofretirement. " A bare perusal of the above clause shows that superannuation pension is admissible to the State Goyernment servant on his attaining the age of 60 years, save in cases in which the authorities consider in -+ the interest of the State to retire an officer on attaining the age of 55 years or at any time thereafter on such superannuation pension as he may have earned at the time of his retirement. Clause 15 of Rule 24·1-A deals with the proportionate pension.

As clasue 3 of Rule 241-A is material for our purpose, that clause is reproduced hereunder: "The full amount of pension or gratuity admissible under the rules will not be granted unless the service is proved from State records on receipt of an application for pension or gratuity from the retired officer in Form No. 53 and will be liable to reduction in the absence of such proof or if the service is not reported by the Head of the Department to have been satisfactory. " As per this clause, the Government servant will be entitled to full amount of pension or gratuity only if his service is proved from the records satisfactory ll(st the pension will be liable to reduction. A combined reading of clauses 3, 13 and 15 shows that clause 3 is an exception to the general scheme laid down in clauses 13 and 15.

On careful consideration of this rule, we see no merit in the submissions made by the learned counsel that these clauses operate in different fields and therefore observations of the High Court that Rule 3 controls Rule 13 would render Rule 13 as ultra vires Art. 311 of the Constitution of India, since compulsory retirement together with reduction of pension would amount to penalty in the absence of the procedural safeguards. The Government in its detailed orde. r dated 15. 11. 1977 has set out the reasons for reducing the amount of pension and gratuity. The relevant portion of the order reads thus: "Government is satisfied that the services of Shri T. S. Mankad, Executive Engineer have not been found to be thoroughly satisfactory.

Accordingly Government hereby orders that the pension and Death-cum-Retirement Gratuity, which may be accepted by the Accountant General, Ahmedabad as admissible under the rules shall be reduced by the specified extents as under: (i) Amount of reduction in pension = 50% (Fifty percent) (ii) Amount of reduction in gratuity = 50% (Fifty percent). " According to the respondent, the appellant instead of giving a proper + explanation to the show cause notice dated 17. 7. 1971 entered into long correspondence with respondent raising all sorts of irrelevant questions and seeking several adjournments thereby adopting delayed tactics and further the appellant though informed the authorities that he would inspect certain documents in the Department for making his TAKHATRYSHIVADATIRAYv. STATE OF GUJARAT (PANDIAN,J. ] 229 . _, reply, he would not do so and therefore according to the learned counsel it was in those circumstances, the Government was constrained to pass this order dated 15. 11.

1977 after a lapse of more than 6 years taking into consideration that his service had not been found thoroughly satisfactory·for the reasons mentioned in the show cause notice to which he had not given any reply. We see much force in the above submission, made by Mr. Shah the learned counsel appearing for the respondent. · In view of the above position, we are of the view that the impugned order dated 15. 11. 1977 cannot' be said to contravene the Junagadh Rules. Now we shall pass on to the alternative contention on the y assumption that Bombay Rules would apply to the case of the appellant. The relevant Rules are Rules 188 and 189 which are reproduced below: "188. Government may make such reduction as it may think fit -ill the amount of the pension of a Government servant whose service has not been thoroughly satisfactory. " "189. Good conduct is an implied condition of every grant'of pension.

Government may withhold or withdraw a pension or any part of it if the pensioner be convicted of serious crime or be found to have been guilty of grave misconduct either during or after the completion of his se.. Vice, provided that before any order to this effect is issued, the procedure referred to in Note 1 to Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal Rules shall be followed. " An examination of Rule 188 shows that the Government may reduce the amount of pension of a Government servant as it may think fit if the service of the Government servant has not been thoroughly satisfactory. As per Rule 189 the Government may withhold or withdraw a pension or part of it if the petitioner is convicted of severe crime or found to have been guilty of misconduct during or after the completion of service provided that before any order to this effect is issued, the procedure referred to the Bombay Civil Services Conduct, Discipline and Appeal Rules are followed.

The8e Rules thus, have expressly preserved the State Government's power to reduce or withhold pen- sion by taking proceedings against a Government servant even after ')' his retirement. The validity of these rules have not been challenged. These two rules came for interpretation before this court in State of Maharashtra v. M. H. Mazumdar, [1988] 2 SCC 52 and this Court expressed its view with reference to these rules as follows: "The aforesaid two rules empower Government to reduce . t' or withdraw a pension. Rule 189 contemplates withholding or withdrawing of a pension or any part of it if the pensioner is found guilty of grave misconduct while he was in service or after the completion of his service. Grant of ~ pension and its continuance to a Government servant )k depend upon the good conduct of the Government servant. Rendering satisfactory service maintaining good conduct is a necessary condition for the grant and continuance of pension.

Rule 189 expressly confers power on the Government to withhold or withdraw any part of the pension payable to a Government servant for misconduct which he may have committed while in service. This rule further provides that before any order reducing or withdrawing any part of the pension is made by the competent authority the pensioner mnst be given opportunity of defence in accordance with the procedure specified in Note I to Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal Rules. The State Government's power to reduce or withhold pension by taking proceedings against a Government servant even after his retirement is expressly preserved by the aforesaid rules. The validity of the rules was not challenged either before the High Court or before this Court. In this view, the Government has power to reduce the amount of pension payable to the respondent. In M. Narasimhachar v. ;... State of Mysore, [1960] 1 SCR 981: AIR 1960 SC 247 and State of Uttar Pradesh v.

Brahm Datt Sharma, [1987) 2 SCC 179 similar rules authorising the Government to withhold or reduce the pension granted to Government servant were interpreted and this Court held that merely because a Government servant retired from service on attaining the age of superannuation he could not escape the liability for misconduct and negligence or financial irregularities which + he may have committed during the period of his service and the Government was entitled to withhold or reduce the pension granted to a Government servant. " TAKHATRYSHIVADATIRAYv. STATE OF GUJARAT [PANDIAN, J. ] 231 •. "( In compliance with the principle of natural justice requiring an opportunity of hearing to be afforded to a Government servant before an order affecting his right is passed and in accordance with the procedure specified in Note-I to Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal Rules a show cause notice as pointed out earlier had been issued to the appellant on 17. 7.

1971 calling upon him to show cause within 30 days from the date of the receipt of the notice as to why the proposed reduction should not be made in the pension and death-cum-retirement gratuity. But the appellant failed tn avail that opportunity lo disprove the allegations and satisfy his appointing authority that he rendered satisfactory service throughout. ~. ' It was in those circumstances the appointing authority taking into consideration of the serious allegations levelled against him in the disciplinary proceedings had thought. it fit to impose reduction in the pension and gratuity in accordance with Rules 188 and 189 of the Bombay Rules on the ground that the appellant had not rendered satisfactory service. The appellant is not entitled to take advantage of clause (b)(ii) of the proviso to Section 189-A of the Bombay Rules since the proceedings had been instituted long before his retirement.

Further as per clause (a) of the said proviso, the proceedings already instituted while the Government servant was in service could be continued and concluded even after his retirement. Hence for the reasons stated above the impugned order dated 15. 11. 1977 reducing the pension and gratuity cannot be said to contravene the Bombay Rules. At the risk of repetition, we may point out that three depart- .. mental proceedings containing serious allegations of misconduct were instituted against the appellant of which one was instituted even before he was compulsorily retired on 12. I. 1961 and other two proceedings were instituted in the year 1963 that is much earlier the appellant attaining the age of superannuation on 14. 1. 1964. These departmental proceedings are stated to have become infructuous consequent upon the retirement of the appellant on attaining the age of superannuation. To the show cause notice dated 17. 7.

1971 proposing to inflict reduction in pension and gratuity the appellant, instead of giving a proper reply, disproving the charges and satisfying the appointing authority that he rendered satisfactory service throughout had delayed the matter for over a period of six years. It was in that situation that the impugned order dated 15. 11. 1977 happened to be passed. The learned counsel for the appellant strenuously contended that after the disciplinary inquiries had been dropped on the ground that they had become infructuous, the Government was not right and justified in reducing the pension and gratuity on the same charges )--· which were the subject matter of the enquiries.

This argument of the ' learned counsel, in our opinion, does not merit consideration because the charges against the appellant were not made use of for awarding any punishment after his retirement from service but only for determining the quantum of the appellant's pension in accordance with the rules relating to the payment of pension and gratuity. In this connec- ¥ tion it would be apposite to refer the observation of the Supreme •Court in State of Uttar Pradesh v. Brahm Datt Sharma & Anr. , [1987] 2 sec 179 which we quote _below: "If disciplinary proceedings against an employee of the '-,. Government are initiated in respect of misconduct committed by him and if he retires from service on attaining the ''( age of superannuation, before the completion of the proceedings, it is open to the State Government_ to direct deduction in his pension on the proof of the allegations made against him.

If the charges are not established during the disciplinary proceedings or if the disciplinary proceedings are quashed it is not permissible to the State Government to direct reduction in the pension on the same allegations but if the disciplinary proceedings could not\pe completed and if the charges of serious allegations ai'e established, which may have bearing on the question of ~ rendering efficient and satisfactory service, it would be open to the Government to take proceedings against the Government servant in accordance with rules for the deduction of pension and gratuity. " - The above principle laid down in that case squarely applies to the facts of the present case. F' A For all the reasons hereinbefore stated we hold that the order of State Government dated 15-11-1977 reducing the amount of pension and the gratuity on the ground that the service of the appellant had not been found thoroughly satisfactory by the appointing authoriy cannot be assailed.

In that view of the matter we see no reason to interfere with the impugned judgment of the High Court. In the result, the appeal is dismissed but without any order as to costs. -+ Y. L. Appeal dismissed.