2024 (7) TMI 1651 - HC - Indian Laws

Institution of departmental proceedings - Period of limitation - institution of proceedings when the charge sheets are said to have been served upon the petitioner or otherwise? - HELD THAT - Rule 27(2)(b) of the Pension Rules 1982 provides that the departmental proceedings if not instituted while the Government servant is in service whether before his retirement or during his re-employment shall not be in respect of any event which takes place more than four years before such institution. On coming to the conclusion that the departmental proceedings shall be deemed to be instituted against the petitioner in the instant case on 2/4/2019 the bar of Rule 27(2)(b)(ii) will come into play since the irregularities in respect of which charge sheets have been issued and charges are framed against the petitioner relate to a period more than four years before such institution. However the departmental proceedings in the instant case would be deemed to have been instituted on 28/4/2017 i.e. before the petitioner retired the bar of Rule 27(2)(b)(ii) of the Pension Rules 1982 will have no bearing. In the case of Delhi Development Authority Vs. H.C. Khurana 1993 (4) TMI 312 - SUPREME COURT the submission that the word issued shall mean service on the employee was not accepted. It has clearly been opined by the Hon ble Supreme Court in the said judgment that the word issued merely means that decision to initiate departmental proceedings is taken and translated into action by despatch of the charge sheet leaving no doubt that the decision has been taken. The Hon ble Supreme Court has further observed that issue of charge sheet in the context of decision to initiate the disciplinary proceedings mean framing of the charge sheet and taking of necessary action to despatch the charge sheet to the employee to inform him about the charges framed against him and further requiring his explanation. The Hon ble Supreme Court has clearly held that issue would not mean the factum of service of charge sheet on the employee concerned. The Hon ble Supreme Court has further observed that meaning of the word issued has to be gathered from the context in which it is used and accordingly the Apex Court concluded that issue of a charge sheet would mean its despatch to the Government servant and this act is complete the moment steps are taken for the said purpose for framing the charge sheet and despatch it to the Government servant. It has clearly been held by the Hon ble Supreme Court that the fact of actual service of charge sheet on the Government servant is not a necessary part of the requirement of issuance of charge sheet. The charge sheets against the petitioner were issued on 28/4/2017 before the petitioner retired i.e. before 31/5/2017 and accordingly the date of issuance of charge sheet is the date of institution of departmental proceedings in terms of the provisions of Rule 27(6)(a) of the Pension Rules 1982. The date of service of charge sheets cannot be said to be the date of institution of the departmental proceedings; it has to be necessarily the date of issuance of the charge sheets. Conclusion - There are no hesitation to hold that departmental proceedings against the petitioner in the instant case will be deemed to have been instituted on 28/4/2017. In other words the departmental proceedings were instituted against the petitioner before he retired i.e. before 31/5/2017. Accordingly Rule 27(2)(b)(ii) of the Pension Rules 1982 will have no application in the instant case and hence the charge sheets issued against the petitioner which were challenged before the Tribunal are not barred by the said provision. Petition dismissed.

Summary

The core legal question considered by the Court was whether the charge sheets issued against the petitioner could be quashed on the ground that the departmental proceedings were barred under Rule 27(2)(b)(ii) of the Maharashtra Civil Services (Pension) Rules, 1982, due to the alleged delay and the timing of issuance and service of the charge sheets relative to the petitioner's retirement date.

Specifically, the issues were:

1. Whether the departmental proceedings were instituted within the permissible period under Rule 27(2)(b)(ii), which prohibits institution of proceedings in respect of events occurring more than four years prior to the date of institution.

2. Whether the date of institution of departmental proceedings is the date on which the charge sheet is issued or the date on which it is served upon the Government servant or pensioner.

3. The applicability and interpretation of Rule 27(6)(a) of the Pension Rules, 1982, which defines the date of institution of proceedings.

4. The relevance of the petitioner's retirement date in relation to the issuance and service of the charge sheets and consequent institution of departmental proceedings.

Issue-wise Detailed Analysis

Issue 1 & 3: Interpretation of Rule 27(2)(b)(ii) and Rule 27(6)(a) regarding the timing of institution of departmental proceedings

The relevant legal framework is contained in Rule 27 of the Maharashtra Civil Services (Pension) Rules, 1982. Rule 27(2)(b)(ii) prohibits departmental proceedings from being instituted in respect of any event that took place more than four years before such institution, if the proceedings were not instituted while the Government servant was in service. Rule 27(6)(a) states that departmental proceedings shall be deemed to be instituted on the date on which the statement of charges (charge sheet) is issued to the Government servant or pensioner.

The petitioner contended that since the charge sheets were served after his retirement (served on 2/4/2019, while he retired on 31/5/2017), the proceedings could only be deemed instituted on the date of service, which was more than four years after the events in question, thus barred by Rule 27(2)(b)(ii). He relied on a Supreme Court decision interpreting "issued" in a different statutory context to support this argument.

The State, on the other hand, argued that the date of institution of proceedings is the date of issuance of the charge sheet, which was 28/4/2017, before the petitioner's retirement. The State emphasized the distinction between "issued" and "served," contending that the law does not require actual service for institution of proceedings, only issuance (despatch) of the charge sheet.

The Court referred extensively to the Supreme Court judgment in Delhi Development Authority v. H.C. Khurana, which clarified the meaning of "issued" in the context of departmental proceedings. The Supreme Court held that "issue" means the decision to initiate proceedings translated into action by framing and despatching the charge sheet, and does not require actual service on the employee. The Court emphasized that the act of issuance is complete once the charge sheet is framed and steps are taken to send it to the employee, irrespective of whether the employee actually receives it.

The Court rejected the petitioner's reliance on the Banarsi Debi case, which involved interpretation of "issued" under a taxing statute, noting that strict interpretation applicable to tax statutes cannot be transposed to service rules.

Issue 2 & 4: Effect of retirement date on institution of proceedings and applicability of the four-year bar

The Court noted the undisputed facts that the charge sheets were dated 28/4/2017 and served on 2/4/2019, while the petitioner retired on 31/5/2017. Since the departmental proceedings are deemed instituted on the date of issuance of the charge sheet, i.e., 28/4/2017, the proceedings were initiated before the petitioner's retirement.

Accordingly, the four-year bar under Rule 27(2)(b)(ii) does not apply because the institution of proceedings took place while the petitioner was still in service. The Court held that the date of service of the charge sheet after retirement does not affect the date of institution of proceedings.

The Court further observed that the institutional act of initiating proceedings is the framing and issuance of the charge sheet, and the subsequent service is procedural. The petitioner's argument that proceedings commenced only upon service was rejected as inconsistent with the statutory scheme and judicial precedent.

Conclusions on Issues

The Court concluded that the departmental proceedings were validly instituted on 28/4/2017, before the petitioner retired. Therefore, the charge sheets are not barred by the four-year limitation period under Rule 27(2)(b)(ii) of the Pension Rules, 1982. The Tribunal's dismissal of the petitioner's applications challenging the charge sheets was upheld.

Significant Holdings

"The word 'issued' merely means that decision to initiate departmental proceedings is taken and translated into action by despatch of the charge sheet leaving no doubt that the decision has been taken. The contrary view would defeat the object by enabling the government servant, if so inclined, to evade service and thereby frustrate the decision and get promotion in spite of that decision."

"'Issue' of the charge sheet in the context of a decision taken to initiate the disciplinary proceedings must mean... the framing of the charge sheet and taking of the necessary action to despatch the charge sheet to the employee to inform him of the charges framed against him requiring his explanation; and not also the further fact of service of the charge sheet on the employee."

"The departmental proceedings against the petitioner in the instant case will be deemed to have been instituted on 28/4/2017. In other words, the departmental proceedings were instituted against the petitioner before he retired i.e. before 31/5/2017. Accordingly, Rule 27(2)(b)(ii) of the Pension Rules, 1982 will have no application in the instant case and hence, the charge sheets issued against the petitioner which were challenged before the Tribunal are not barred by the said provision."

The Court established the principle that for departmental proceedings under the Pension Rules, the date of institution is the date of issuance of the charge sheet, not the date of service. The timing of issuance relative to retirement is crucial in determining applicability of limitation bars under the Rules.

Accordingly, the Court dismissed the writ petitions and upheld the Tribunal's order refusing to quash the charge sheets.