Excelsior Correspondent
Srinagar, Aug 23: The High Court in a well celebrated judgment today held that the Government can recover the losses to the public exchequer by the retired or in-service employee from his pension.
Challenging the order issued in May last year by the Government, whereby the petitioner-Mukhtar Ahmad Bhat has been served with Article of Charges and statement of imputation in support of each charge and has been asked to submit his written statement of defence and his post retiral benefits – monthly pension, gratuity and leave salary has been stopped till then.
Justice Sanjeev Kumar while deciding his plea has held that the Government is well within its right to conduct departmental proceedings against a Government Officer or Government employee (serving or retired) to find out and determine the amount of loss caused to the Government by negligence or fraud of such employee and recover the same from his pension.
Such departmental enquiry, Court added, shall be restricted only to the determination of financial loss caused to the Government by the delinquent government employee and would not be applied or made use of for the purposes of imposing the punishment prescribed under Rule 30 of the Rules of 1956.
Court said the impugned order of May, 2021 issued in respect of the petitioner may be proceeded only for the purposes of determining the amount on account of loss, if any, caused by any negligent or fraudulent act of the petitioner. The petitioner, however, would not be preceded in the departmental proceedings for the purposes of imposing any of the punishments prescribed in Rule 30 of the Rules of 1956.
Court has also recorded that the Government shall be entitled to recover such amount of loss, as is found established in the departmental enquiry conducted by the respondents in pursuance of the impugned notice dated 28th May, 2021.
“Till such enquiry is conducted and amount of loss, if any, is determined against the petitioner, he shall not be denied post retiral benefits. The respondents shall do well to process the case of the petitioner for post retiral benefits and release the same in his favour within a period of two months from the date a copy of this judgment is served upon them”, read the judgment.
While dealing with the case of the petitioner, court said, there is no scope left for doubting the clear legal position emerging from the reading of Rules 1956 which clearly envisages disciplinary proceedings for inflicting enumerated minor and major penalties upon a member of service would not include retired officer of the Government.
Court, however, clarified that the Government is permitted to conduct departmental proceedings to find out and determine the amount of loss, if any, caused by a delinquent officer whether serving or retired, due to his act of negligence or fraud.
“The Regulation only places few restrictions in a case where departmental proceedings are initiated while the delinquent officer has ceased to be on duty. This obviously covers the contingency where the government contemplates departmental proceedings against a retired government official,” read the judgment.
Court, however, has reiterated that such departmental proceedings, if initiated or continued against retired Government official, shall be restricted only to find out and determine the amount on account of losses caused to the Government by such officer due to his negligence or fraud and would not in any manner be applied for imposing any of the punishments enumerated in Rules.
Since it is not be permissible to hold disciplinary proceedings against the delinquent employee after he has been superannuated and the court said this would be the position even if the disciplinary proceedings are initiated while such delinquent employee was in service.
“However, nothing prevents the Government from holding departmental/disciplinary proceedings into the conduct of the officer/official which has resulted into a financial loss to the Government”, court recorded.
Court has made it clear that such kind of proceedings would be limited only to determine the amount to be recovered from the pension of the government employee on account of losses found to have been caused to the Government by the negligent and fraudulent act of a delinquent officer.
“There is, however, a caveat to the exercise of this power by the Government and the caveat is that where such departmental proceedings are initiated while the officer was on duty, these proceedings shall not proceed save with the sanction of the Government and these proceedings shall be instituted before the officer’s retirement from service or within a year from the date on which he was last on duty or in respect of an event which has taken place not more than one year before the date on which the officer was last on duty”, Court said.
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