AI Structured Summary
Not yet generated for this judgment
Judgment
In all these writ petitions, the petitioners, retired employees of the respondentAhmedabad Municipal Corporation, have prayed to quash and set aside the impugned order dated 14.09.2011 passed by the respondentCorporation and also further prayed to permanently restrain the respondentCorporation from taking any action deducting the amount from the pension of the petitioners.
The brief facts of the case are that : The petitioners were serving with the respondentCorporation on different posts and on attaining the date of superannuation, the petitioners retired from services. In the year 2010 one Dalbirsingh Mahendrasingh Samel & Ors. Filed Special Civil Application No.10066 of 2010 before this Court against the respondentCorporation challenging the demolition notice dated 20.11.2009 issued by the respondentCorporation under Section 260(2) of the Gujarat Provincial Municipal Corporations Act, 1949 and the public notice, which was affixed by the respondentCorporation and it was prayed in the said petition to permanently restrain the respondentCorporation from demolishing 6th7th floors of the building as People Plaza/ Kalpana Complex. Said petition came to be dismissed vide judgment and order dated 22.11.2010, however, with a direction to the respondentCorporation to hold inquiry to find out as to who was responsible for such illegal construction and for delay in finalizing the proceeding. It was further directed by this Court to the respondentCorporation to conclude the inquiry within a period of three months from passing of the order and to initiate appropriate proceedings against the erring officer(s), after following due process of law and in accordance with law.
Pursuant to the aforesaid order of this Court, show cause notices were issued to the petitioners. In response to the aforesaid show cause notices, the petitioners had filed their reply wherein they contended that they have not been provided with any document and, therefore, such show cause notices are required to be set aside. Petitioners further contended that they have been retired from services long back and, therefore, the show cause notices are required to be withdrawn considering the provisions of Rule 24(2) of the Gujarat Civil Service (Pension) Rules, 2002. A request was also made by the petitioners to give opportunity, if it is found necessary.
In spite of the aforesaid replies of the petitioners, they were not afforded any opportunity of personal hearing and without providing any document and without permitting to refer the files relating to Kalpana Complex Building and also without holding any inquiry against the petitioners, straightway, the impugned orders have been passed by the respondentCorporation deducting pension equivalent to one increment from the last drawing pension of the petitioners.
Learned advocate for the petitioners has submitted the impugned orders passed by the respondentCorporation is improper, without application of mind, bad in law and without affording opportunity of hearing to the petitioners and, therefore, the same require to be quashed and set aside. It is further contended that the Municipal Commissioner of the respondentCorporation could not have issued the notice and could not have initiated the proceedings almost after such a long period after the retirement of the petitioners. It is contended by Mr.Parikh that it is impermissible under Rules to initiate the proceedings after four years. Reliance is also place upon Rule 24(2)(b) of the Gujarat Civil Service (Pension) Rules, 2002.
Learned advocate Mr.Parikh for the petitioners also submitted that while passing the impugned orders no departmental inquiry has been initiated by the respondentCorporation and without holding any such inquiry stereotyped orders are passed against the petitioners, which itself shows that the orders are passed without proper justification and reasons and, therefore also, the impugned orders deserve to be quashed and set aside. It is also submitted that while passing the impugned orders no proper opportunity of hearing has been afforded to the petitioners and the petitioners have not been given any inspection of any file pertaining to the case and incorrect statement has been made in the impugned orders. It is submitted that no such inspection has been given and no such document has been provided to the petitioners and, therefore, the petitioners are not in a position to answer the show cause notices issued by the respondentCorporation.
It is also contended that the Commissioner of the Corporation is not the appointing authority, hence, he has no power to pass the impugned order or penalty.
Learned Advocate Mr.Munshaw appearing on behalf of Respondent Corporation has submitted that the petitioners were involved in serious misconduct and considering the directions given by the Hon''ble High Court in the judgement dated 22.11.2010 in Special Civil Application No.10066 of 2010 to hold necessary inquiry to find out who were responsible for the illegal constructions, the petitioners are imposed a penalty of reduction in pension by one increment as they were found responsible for such illegal construction.
Heard the submissions advanced by he learned Advocates appearing on behalf of the respective parties.
The core question of law which fastens all these petition is that whether a retired employee can be imposed a penalty of reduction in an increment from his pension?
The impugned order of penalty does not refer to any provision of law, rule or regulation under which the same is passed. It speaks of reduction of pension equivalent to one increment from the last pay drawn. Thus, an increment of the petitioners is reduced retrospectively from the pay after their retirement resulting into the reduction of their pension. The author of the impugned penalty order is ignorant of basic tenet of service jurisprudence. He is not aware of the fact that an employee is granted increment in a time scale while he is in service and on his retirement his pension is fixed on his last pay drawn. After the retirement he seizes to get the increments. There is no provision in the Gujarat Civil Services Pension Rules, 2002 of reducing the pension of an employee by withdrawing an increment from his pay. Learned Advocate Mr.Munshaw was unable to point out the relevant provision of law empowering the Municipal Commissioner to impose such a penalty of reduction in increment with retrospective effect resulting in to reduction in pension. The impugned order is replete with impropriety. Thus, the impugned orders of penalties are liable to be quashed and set aside as the authority by which the same is issued i.e. Municipal Commissioner is ignorant of relevant pension Rules or disciplinary rules under which such a penalty can be imposed.
Though the order of penalty does not specify under which provision of law the same is passed, the undisputed fact remains that the pension of the petitioners is governed under the provisions of Gujarat Civil Services Pension Rules, 2002.
Rule 24 of said Rules reads as under: "RULE 24 : Right of Government to withhold or withdraw pension
(1) Government may, by order in writing, withhold or withdraw a pension or any part of it, whether permanently or for a specified period, and also order the recovery from such pension, the whole or part of any pecuniary loss caused to Government if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon reemployment after retirement:
Provided that the Gujarat Public Service Commission shall be consulted before any final order is passed in respect of officers holding posts within their purview :
Provided further that where a part of pension is withheld or withdrawn, the amount of remaining pension can be reduced below the minimum fixed by Government.
(2) (a) The departmental proceedings referred to in subrule (1), if instituted while the Government employee was in service whether before his retirement or during his reemployment, shall, after the final retirement of the Government employee, 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 employee had continued in service.
(b) The departmental proceedings, if not instituted while the Government employee was in service, whether before his retirement or during his reemployment.
(i) shall not be instituted save with the sanction of the Governor,
(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 at such place as the Government may direct and in accordance with the procedure applicable to the departmental proceedings in which an order of dismissal from service could be made in relation to the Government employee during his service.
(3) In case of a Government employee 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 subrule (2), a provisional pension as provided in Rules 144 to 146 shall be sanctioned.
(4) Where Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not, subject to the provision of subrule (1) of this rule, ordinarily be made at a rate exceeding onethird of the pension admissible on the date of retirement of a Government employee.
(5) 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 employee or pensioner, or if the Government employee has been placed under suspension from an earlier date, on 1 ["such date or if any decision is taken by the Competent Authority for either of it, and"]
(b) judicial proceedings shall be deemed to be instituted
(i) in case of criminal proceedings, on the date on which the complaint 2 ["registered or any decision is taken to register the complaint by the Competent Authority"] or report is made by a police officer of which the Magistrate takes cognizance, and
(ii) in case of civil proceedings, on the date of presenting the plaint in the Court 2 ["or any decision is taken by the Competent Authority to initiate civil proceedings"].
In the present case when the show cause notices were issued to the petitioners in the year 2011. By that time all of them had retired from service between the year 1998 and 2005. Indubitably, the proceedings are instituted after their retirement. In that view of the matter Rule 24(b)(i) of the Pension Rules provides that the departmental proceedings shall not be instituted without the sanction of governor and shall not be in respect of any event which took place more than four years of such institution. The impugned order does not reveal that any such sanction was obtained from the governor before imposing the penalty of reduction in pension. Thus, the impugned orders of penalties are liable to be quashed and set aside.
For the foregoing observations the impugned orders imposing the penalties in reduction of pension are hereby quashed and set aside. The respondentCorporation is directed to refix, revise the pension of the petitioners and pay all the consequential benefits to them. Since the orders are passed in blatant violation of the relevant rules and regulations affecting the pension of the retired employees, the respondentCorporation is hereby imposed a cost of Rs.2,000/to be paid to each of the petitioners.
Registry to place a copy of this order in each of the connected matters.