To Withhold Pension By Invoking Rule 170 Of Rajasthan Service Rules, Something More Than Ordinary Misconduct Or Negligence Must Be Seen: Rajasthan HC

The Division Bench of Chief Justice Manindra Mohan Shrivastava and Justice Ashutosh Kumar held, “It is not sufficient to invoke power under Rule 170 of the Rules of 1951 that a retired employee, in a departmental enquiry, is found guilty of misconduct or negligence. In order to invoke power under Rule 170 of the Rules of 1951, something more than an ordinary misconduct or negligence is required to be seen. The provisions clearly oblige the competent authority to record its own satisfaction that it is not merely a case of committing misconduct or negligence. It is not only a case where the delinquent employee has been found guilty of misconduct or negligence, but something over and above that, in the nature that it is a case of grave misconduct or grave negligence. The object of the Rule seems to be not to deprive the pensioner of his pension, which is a serious matter and involves serious civil consequences, unless he is found guilty of grave misconduct or grave negligence.”

Advocate Tribhuvan Narayan Singh appeared for the Appellant, whereas Advocate Yash Joshi appeared for the Respondents.

An appeal was filed by the Appellant assailing the order passed by the Single Judge dismissing the writ petition of the Appellant. The writ petition was filed challenging the order by which the competent authority directed withholding the 100% pension of the appellant based on charges of negligence/misconduct in a departmental enquiry, which was initiated before retirement while the appellant/ delinquent employee was in service.

The brief facts of the case were that the Appellant herein was continuing in services of the State Government as a member of RAS (Selection Scale), and a charge sheet was issued to him, levelling nine charges. After the appointment of the Enquiry Officer, the enquiry continued. However, before it could be concluded, the appellant retired upon attaining the age of superannuation. The Enquiry Officer found the charges proved, and the disciplinary authority proceeded to issue a show-cause notice to the appellant, requiring the appellant to show cause against the proposed penalty/punishment of withholding 100% pension for five years.

The main issue for the Court’s consideration was whether the competent authority was justified in law in invoking its power under Rule 170 of the Rajasthan Service Rules, 1951 (‘Rules of 1951’) to withhold the entire pension for a lifetime.

After perusing the Rule 170 of the Rules of 1951, the Court observed, “Rational and logical interpretation of the aforesaid provision instantly reveals that the power is reserved to the Governor to withhold or withdraw a pension or any part of it, whether permanently or for specified period and also the right of ordering the recovery from pension of the whole or part of any pecuniary loss caused to the Government, if in a departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or grave negligence during the period of his service including services rendered upon re-employement after retirement.”

It added that once an employee retires from service before the departmental enquiry initiated against him is concluded, the enquiry can be proceeded further only in the manner as prescribed under Rule 170 of the Rules of 1951 and not under the Rules of 1958.

The Court held that the Rule Making Authority, in its wisdom, provided in no uncertain terms under Rule 170 of the Rules of 1951 that to deprive a pensioner of his pension fully or in part or to direct the recovery towards any loss caused to the Government, a satisfaction has to be recorded that the retired employee is guilty of grave misconduct or grave negligence, that too committed during the period of his service including services rendered upon re-employment after retirement. Therefore, it added that the requirement of law is that a satisfaction is to be arrived at that a grave misconduct or grave negligence has been committed.

The Court also said that there is nothing in Rule 170 of the Rules of 1951, either read in isolation or in conjunction with provisions contained in the Rules of 1958, which obliges the Enquiry Officer to record such findings because, in the very nature of the proceedings, a situation of this nature would arrive only after a Government servant has retired from service. Therefore, on rational construction of the provision, we have to hold that the satisfaction which is envisaged under Rule 170 of the Rules of 1951 has to be recorded by the Authority who decides to withhold pension or to direct recovery of pecuniary losses.

“On totality of the circumstances and nature of charges, finding recorded by the Enquiry Officer and complete lack of any consideration on attending circumstances or material to reach to a satisfaction that present is a case liable to be classified as grave misconduct or grave negligence, in our opinion, the impugned order withholding entire pension of the appellant, that too for his lifetime is clearly in excess of jurisdiction vested under the law. The order suffers from excess of power and cannot be sustained in law.”

Accordingly, the Court set aside the impugned order, allowed the appeal, and directed that the Appellant was entitled to 50% of the pension which he would have earned, and he would be entitled to full pension without there being any bar.

Cause Title: Braj Mohan Singh Bareth v. State of Rajasthan and Anr. (Neutral Citation: 2024: RJ-JP:38777-DB)

Appearances:

Appellant: Advocate Tribhuvan Narayan Singh

Respondents: Advocates Yash Joshi and Pulkit Bhardwaj

Click here to read/download the Order