ORDER
1. This writ petition is filed for quashing the proceedings dated 12-9-1994 vide Memorandum No.C1/PGTSPR/94 and also the other proceedings dated 15-5-1995 vide Order No.C1/POTSPR/95.
2. Learned Counsel appearing for the petitioner contended that by the impugned proceedings dated 12-9-1994 the charges are framed against the petitioner for holding a departmental enquiry and vide proceedings dated 15-5-1995 the Enquiry Officer and the Presenting Officer were appointed and these proceedings are illegal, since the proceedings are initiated after the retirement of the petitioner which is impermissible in law. Elaborating his contention, he stated that the petitioner retired with effect from 30-11-1993 and from the date of his retirement the relationship of the petitioner with the respondent-Visakhapatnam Port Trust as Employer and Employee ceases to exist; therefore, these proceedings cannot go on. He relied upon two judgments of this Court in C. Ramalinga Reddy v. Non-Conventional Energy Development Corporation of A.F. Ltd, and K. Agarwat v. Bhagwat Bai Montessori School, 1997 (6) ALD 188. He further submitted that in both the judgments the learned Single Judges of this Court have followed the judgment of the Supreme Court in State of Assam & another v. J.N. Roy Biswar, and in view of
this law holding the field the present impugned proceedings cannot be allowed to go on since the petitioner has already retired with effect from 30th November, 1993; therefore, the writ petition deserves to be allowed.
3. A detailed counter is filed by the respondent-Visakhapatnam Port Trust. Learned Counsel for the respondent, Ms. Sudha, relying on the counter filed by the respondent contended that the petitioner has been allowed to retire with effect from 30th November, 1993 on attaining the age of superannuation, without prejudice to the disciplinary action contemplated against him. She further submitted that the order of retirement itself states that the petitioner was retired subject to the disciplinary proceedings already contemplated. Therefore., in terms of Rule 9 (2) (a) of Central Civil Services (Pension) Rules, 1972 the departmental proceedings shall be deemed to be the proceedings under this Rule and shall be continued and concluded by the authority even after retirement. She further stated that in terms of Rule 9 (2) (b) of the said rules, even where the departmental proceedings were not instituted before the retirement of an employee the same could be instituted within 4 years of the event or events. She further submitted that the C.C.S. (Pension) Rules, 1972 have been adopted under Visakhapatnam Port Employees (Classification, Control & Appeal) Regulations, 1969. Thus, Rule 9 of the C.C.S. (Pension) Rules would be applicable to the facts of this case, and even if the proceedings are taken as if instituted after the retirement, the same could be done within four years of the events that had happened. She further submitted that admittedly in this case the event had happened in the years 1990-91 and 1991-92 and that would be within four years of the institution of the proceedings. In the instant case, the proceedings were instituted with a memo along with the charge sheet and other particulars on 12-9-1994 and as such the proceedings are in time; therefore, there are no merits in the writ petition and the same is liable to be dismissed. She further submitted that the two judgments of the learned single Judges of this Court are not applicable to the facts of this case in the sense that the Rules of the type involved in this case were not considered by those two learned single Judges. She further submitted that in State of Assam v. Padma Ram, AIR 1965 SC 473, which was relied upon by the two learned Single Judges of this Court, the Supreme Court was interpreting the Rules framed in Assam–particularly Rule 56–and in view of the said Rule the Hon’ble Supreme Court held that after retirement of a person on 6-1-1991 and after granting extension for three months from 1-1-1961 to 31-3-1961, there could be no further extension of services only because the departmental enquiry was not concluded. Thus, she submitted that the said judgment cannot be taken as the law laying down that after retirement no proceedings can be initiated at all. She stated that even in a case in which charge of misappropriation is held proved, the misappropriated amount could be recovered from the pensionery benefits and, therefore, for that purpose the departmental enquiry could be continued even after retirement. At any rate, she stated that in the instant case the institution of the proceedings vide Memo dated 12-9-1994 was within four years of the events that took place in the years 1990-91 and 1991-52 and, therefore, this Rule is applicable to the facts of this case. Thus, she submitted that the judgments relied upon by the learned Counsel for the petitioner cannot assist the case of the petitioner and therefore the writ petition is liable to be dismissed.
4. Now the short point for my consideration would be whether the departmental enquiry could be continued after retirement of an employee in view of Rule 9 of CCS (Pension) Rules, 1972, which according to both the parties apply to the Port Trust in question?
5. From the facts narrated above it is clear that the petitioner retired with effect from 30th November, 1993 on attaining the age of superannuation, without prejudice to the disciplinary action contemplated against him. The order of retirement dated 30th November, 1993 reads as under:
'' VISAKHAPATNAM PORT TRUST PERSONNEL DEPARTMENT N.C1/PGTSPR/93 Dated: 30-11-93 ORDER: Sub: Superannuation of Sri T.S. Prakasa Rao, Executive Engineer (Civil) (Class-I), Engineering Department - Reg.
Sri T.S. Prakasa Rao, Executive Engineer (Civil) (Cl-I) Emp. No.561244, Civil Engineering Department, S.B. No.06 0100 on pay Rs. 5150A in the scale of Rs.3350-5150 is allowed to retire from Port Service with effect from 30-11-1993 AN. on attaining the age of superannuation., without prejudice to the disciplinary action contemplated against him.
Sd/-
Chairman”
From a reading of this order it is clear that already disciplinary proceedings against the petitioner were in contemplation. Thereafter vide memorandum dated 12-9-1994 departmental proceedings were instituted against the petitioner, by furnishing him a detailed charge-sheet and also the material particulars. And by subsequent order dated 15-5-1995 an Inquiry Officer and also Presenting Officer were appointed. It is at this stage the petitioner has preferred this writ Petition challenging the proceedings initiated vide memo dated 12-9.1994 and also appointment of Inquiry Officer and Presenting Officer vide order dated 15-5-1995. Learned Counsel for the petitioner strenuously contended that after retirement of the petitioner with effect from 30-11-1993 there is no relationship of master and servant. Therefore, no disciplinary proceedings can be instituted after such retirement. He relied upon judgment of this Court in C. Ramalinga Reddy’s case (supra) wherein learned single Judge of this Court, referred and followed, the judgment of State of Assam’s case (supra) and held that when once an employment comes to an end by retirement, the authorities have no power to proceed with the departmental enquiry and in the circumstances departmental proceedings cannot be allowed to be continued. In State of Assam’s case (supra) the Supreme Court found fault with the order of extension of services of an employee who had retired from the service on the ground that departmental enquiry against him was not yet finalised after first extension of three months. The Supreme Court observed that:
“The position is the same here. The respondent had ceased to be in service on March 31, 1961 by the very order of the State Government. An order of retention in service passed more than a month thereafter, was a mere nullity and cannot be sustained.”
6. Learned Counsel for the petitioner also cited a judgment of this Court in K. Agarwal’s case (supra) wherein this Court followed the judgment passed by this Court in C. Ramalinga Reddy’s case (supra) and held that after permitting an employee to retire, the departmental proceedings cannot be continued and the authorities are not entitled to withhold the terminal benefits which are legitimately due to the petitioner including payment of gratuity, provident fund etc.
7. But in the instant case it is brought to my notice that Rule 9 of the C.C.S. (Pension) Rules, 1972 have been adopted by the respondent Visakhapatnam Port Trust and it governs the parties. Learned Counsel for the respondent contended that under Rule 9(2) (a) and 9 (2) (b) of C.C.S. (Pension) Rules, 1972 the departmental proceedings can be instituted even after retirement regarding the events which took place within four years of the date of retirement. When the rules provide for such contingency and it binds both the parties it cannot be said that the departmental proceedings cannot be instituted at all. On the other hand learned Counsel for the petitioner contended that notwithstanding such a rule, in view of the judgments of this Court referred to above, no departmental proceedings can be allowed to continue after a person is permitted to retire.
8. The order of retirement, dated 30th November, 1993 which I have already
extracted, specifically states that the petitioner was permitted to retire from the service without prejudice to the disciplinary action contemplated against him. Rule 9 of the C.C.S (Pension) Rules, 1972 reads as under:
“9. Right of President to withhold or withdraw pension :–(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement:
Provided that the Union Public Service Commission shall be consulted before any final orders are passed;
Provided further that where a part of pension is withheld or withdrawn the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy five per mensem.
(2) (a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service:
Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President.
(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment.
(i) shall not be instituted save with the sanction of the President.
(ii) shall not be in respect of any event which took place more than four years before such institution,
and
(iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.
(3) Deleted.
(4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 69 shall be sanctioned.
(5) Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.
(6) For the purpose of this rule:-
(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”…..
9. From a reading of above Rule (9)2(b) of C.C.S. (Pension) Rules, 1972, it is quite clear that the departmental proceedings, if not
instituted while the Government servant was in service, whether before his retirement, or during his re-employment shall not be instituted in respect of the events which took place more than four years before such institution. In other words this Rule provides that if any departmental proceedings are to be instituted after retirement it shall be done within four years after the events that took place. In the instant case, according to the charge-sheet (he events took place in the years 1990-91 and 1991-92 and memorandum of charge-sheet was issued on 12-9-1994 and as such the event admittedly is within four years from the date of institution i.e. 12-9-1994. These rules were not in issue in C. Ramalinga Reddy’s case (supra) and in K. Agarwal’s case (supra). Having regard to these facts it is clear that those judgments are distinguishable from the facts of the present case. Since Rule 9(2)(b) of C.C.S. (Pension) Rules, 1972 provides for institution of departmental proceedings within four years of the events that took place and admittedly the charge-sheet is filed within four years, it cannot be said that the impugned proceedings are illegal and without jurisdiction. The object of Rule 9(2)(a) and Rule 9(2)(b) is that if there are any charges causing financial loss or involving defalcation of the amount, the departmental proceedings could be continued so as to recover the same from out of the pensionary benefit or from the pension, which the deliquent officer was entitled, to and subject to the limitation that such proceedings should be instituted within four years of the events happened, notwithstanding that the such deliquent officer was permitted to retire. In this view of the matter. I do not see any merit in the writ petition and accordingly I pass the order as under:
10. The writ petition is dismissed. But, in the circumstances of the case, without
costs.