STATE OF MAHARASHTRAversusM.H. MAZUMDAR

                            STATE OF MAHARASHTRA                                 A
                                            v.
                                  M.H. MAZUMDAR

                                 FEBRUARY 24, 1988

        [E.S. VENKATARAMIAH, K.N. SINGHAND N.D. OJHA, JJ.J B

             Bombay Civil · Services Rules, 1959: Rules 188 and 189-
        Pension-Reduction/withdrawal-Whether permissible.

              Government servant-After retirement of attaining the age of
        superannuation-Whethe~ liable to departmental action for misconduct, C
        negligence or financial irregularities committed during service period-
        Whether pension can be reduced.

              The respondent retired from State Government . service on
        September I, 1987, on attaining ibe age of superannuation. About a D
        year after his retirement, the respondent was served with a chargesheet
        containing allegations of misconduct and negligence for the period he
        was in service. Enquiry into the charges was held and respondent was
        afforded full opportunity to defend himself. On the conclusion of the
        enquiry a report was submitted by the Collector, holding that one of the
---<.   two charges was established while the other charge was partly proved, E
        and that the respondent's action was helpful to one of the parties which
        amounted to a serious default on his part as a Government servant, and
        it was recommended that since the respondent has already retired froin
        service, a lenient view should be' taken and reduction in pension to the
        extent of Re. I per month be made. The State Government accepted the
        findings and issued orders reducing the amount of pension payable to F
        the respondent by 50% permanently under Rule 188 of the Bombay
        Civil Services Rules.


              The respondent challenged the validity of the Government order
        before the High Court. A Division Bench of the High Court allowed the
        writ petition and quashed State Government's order on the ground that the G
        State Government had no authority in law to take any disciplinary
        proceedings against respondent as he had already retired from service
        and the initiation of disciplinary enquiry and the order of punishment
        were unauthorised and illegal.

              Allowing the appeal by the State. partly,                          H

                                          31
    32                   SUPREME COURT REPORTS           11988] 3 S.C.R.

A       HELD :1.1 Rule i88 of the Bombay Civil Services Rules empow·
  ers the Government to reduce the amount of pension of a Government
  servant whose service has not been thoroughly satisfactory. Rule i89
  expressly confers power_ on the Government to withhold or withdraw
  any part of the pension payable to Government servant for misconduct
  which he may have committed while in service, after giving opportunity
B of defence in accordance with the procedure specified in Note I of Rule
  33 of the Bombay Civil Services Co_nduct Discipline and Appeal Rules.
  The State Government's power to reduce or withhold pension by taking
  proceedings against Government servant even 'after retirement is thus
  expressly preserved by the aforesaid rules. l34C, F-H]


C       l.:i The High Court committed a serious error in holding that the
  State Government had no authority to initiate any proceedings against
  the respondent. The purpose of the enquiry was not to inflict any
  punishment, and the proceedings were initiated for determining res·
  pondent's-pel\sion. The proceedings were taken in accordance with the
D Rules 188 and 189 of the Rules. [35C-E]

           1.3 T_he Government had power to reduce the pension payable to
    the respondent but having regard to the facts and circumstances of the
    case, the r'Cduction of pension by 50% was too harsh and disproportion·
    ate to the misconduct proved against the respondent. The State Govern·
E   ment should have taken into consideration the fact that the respondent
    had retired from service and the reduction of pension by 50% would
    seriously affect his living. The order of the High Court and the State
    Government's order reducing pension by 50% are set aside and the
    State Government is directed to reconsider the question of reduction of
    respondent's pension. [35E·F; 36E·G I
F
          B.J. She/et v. State of Gujarat & Ors., 11978] 2 SCC 202,
    distinguished.

          M. Narasimhachar v. The State of Mysore, 11960] 1 SCR 981 and
    State of Uttar Pradesh v. Brahm Datt Sharma & Anr., 11987] 2 SCC
G   179, referred to.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 573                  /-
    of 1988

         From the Judgment and Order dated 13.2.1987 of the Bombay
H   High Court in W.P. No. 613of1984.
           STATE OF MAHARASHTRA v. M.H. MAZUMDAR {SINGH, J.I               33

           A.M. Khanwilkar and A.S. Bhasme for the Appellant.
                                                                                A

           B .N. Singh vi and A.K. Gupta for the Respondent.

           The fodgment of the Court was delivered by

           SINGH, J. Special leave granted.                                     B

          This appeal raises an important question of law whether a
     Government servant after ~is retirement on attaining the age of
     superannuation is liable to be dealt with departmentally for any mis-
     conduct, negligence or financial irregularities committed by him
     during the period of his service.
                                                                                c
           Necessary facts giving rise to this appeal are that M.H.
     Mazumdar, the Respondent was in the service of the State of
     Maharashtra as Supply Inspector and he retired from service on attain-
     ing the age of superannuation 'on September 1, 1977. After h.is retire-
     ment the respondent was served with a charge-liheet on October 16, D
      1978 containing allegations of misconduct and negligence against him
     for the period he was in service. Enquiry into those charges was held
     and the respondent was afforded full opportunity to defend himself.
     On the conclusion of the enquiry the State Government issued orders
     on December 4, 1982 reducing the amount of pension payable to the
     respondent by 50 per cent permanently under Rule 188 of the Bombay · E
     Civil Services Rules. The respondent challenged the validity of the
-·   Government's order by means of a writ petition under Article 226 of
     the Constitution before the High Court of Bombay. A Division Bench
     of that Court allowed tlie writ petition and quashed the State Govern-
     me.nt's order dated December 4, 1982 on the ground that the State
     Government had no authority in law to take any disciplinary proceed- F
     ings against the respondent as he had already retired from service.
     Placing reliance on a decision of this Court in B.J. She/et v. State of
     Gujarat & Ors., [1978] 2 SCC 202 the High Court held that the initia-
     tion of disciplinary enquiry and the order of punishment was un-
     authorised and illegal. The State ·of Maharashtra has preferred this
     appeal against the judgment of the High Court.                          G

           There is no dispute that the respondent had retired from service
     on attaining the age of superannuation on September 1, 1977 and
     charges were served on him on October 16, 1978 after about a year of
     his retirement. Undisputably the proceedings against the respondent
     were initiated after the respondent ceased to be in service of the State   H
    34                   SUPREME COURT REPORTS           [1988] 3 S.C.R.

    Government. The proceedings culminated into an order of the State
A
    Government reducing the respondent's pension by 50 per cent. The
    question is whether the State Government was competent to take
    action against the respondent by reducing his pension. Conditions for
    grant of pension to a Government servant of the State of Maharashtra
    are regulated by the Bombay Civil Services Rules (hereinafter referred
B   to as the Rules). Rule 184 provides for grant of pension admissible
    under the rules to Government servant who is -borne on its establish-
    ment. Rules 188 and 189 relevant for our purpose are as under:

               "188. Government may make such reduction as it may
               think fit in the amount of the pension of a Government
                                                                               -
                                                                              ".
               servant whose service has not been thoroughly satisfac-
c              tory."

               "189. Good conduct is an implied condition of every grant
               of pension. Government may withhold or withdraw a
               pension or any part of it if the pensioner be convicted of
D              serious crime or be found to have been guilty of grave
               misconduct either during or after the completion of his
               service, provided that before any order to this effect is
               issued, the procedure referred to in Note I to Rule 33 of
               Bombay Civil Services Conduct, Discipline and Appeal
               Rules shall be followed."
E
         The aforesaid two Rules empower Government to reduce or
   withdraw a pension. Rule 189 contemplates withholding or withdraw-
   ing of a pension or any part of it if the pensioner is found guilty of
   grave misconduct while he was in service or after the completion of his
                                                                                  -
   service. Grant of pension and its continuance to a Government servant
F depend upon the good coridJlct of the Government servant. Rendering
                                                                              +--
                                                                              '
   satisfactory service maintaining good conduct is a necessary condition
   for the grant and continuance of pension. Rule 189 expressly confers
   power on the Government to withhold or withdraw any part of the
   pension payable to a Government servant for misconduct which he
   may have committed while in service. This Rule further provides that
G before any order reducing or withdrawing any part of the pension is
   made by the competent authority the pensioner must be given
   opportunity of defence in accordance to the procedure specified in
   Note I to Rule 33 of the Bombay Civil Services Conduct, Discipline
   and Appeal Rules. The State Government's power to reduce or with-
   hold pension by taking proceedings against a Government servant
H_ even after his retirement is expressly preserved by the aforesaid Rules.
          STATE OF MAHARASHTRA v. M.H. MAZUMDAR. [SINGH, J.I              35

    The validity of the Rules was not challenged either before the High A
    Court or before this Court. In this view, the Government has power to
    reduce the amount of pension payable to the respondent. In M.
    Narasimhachar v. The State of1Mysore, [1960] 1 SCR 981 and State of
    Uttar Pradesh v. Brahm Dati Sharma & Anr., [1987] 2 SCC 179 similar
    Rules authorising the Government to withhold or reduce the pension
    granted to the Government servant were interpreted' and this Court B
    held that merely because a Government servant retired from service
    on attaining the age of superannuation he could not escape the liability
    for misconduct and negligence or financial irregularities which he may
    have committed during the period of his service and the Government
    was entitled to withhold or reduce the pension granted to a Govern-
    ment servant.
                                                                                c
           The High Court in our view committed serious error in holding
    that the State Government had no authority to initiate any proceed-
    ings against the respondent. In B.J. She/at v. State of Gujarat & Ors.
    disciplinary proceedings had been initiated against the Government
    Servant for purpose of awarding punishment to !iiiµ after he had re-        D
    tired from service. The ratio of that decision is not applicable to the
    instant case as in the present case the purpose of the enquiry was not to
    inflict any punishment; instead the proceedings were initiated for de-
    tehnining the respondent's pension. The proceedings were taken in
    accordance with Rules 188 and 189 of the Rules. It appears that the
    attention of the High Court was not drawn to these Rules.                   E

          The State Government had power to reduce the pension payable
    to respondent but having regard to the facts and circumstances, of the
    case we are of the opinion that the reduction of pension by 50 per cent
    was disproportionate to the charges proved against the respondent.
    Two charges were framed against the respondent which are as under:          F

                "Charge No. I.
                He has made a farce of an enquiry, collected 6 permits from
                the Kolhapur Central Co-operative Consumers Stores
                including the permit No. 007314 issued to Shri K.P .
•
.               Khatavane with malafide intention after passing a receipt       G
                thereof to the Godown Keep et, ·-0f the said stores on
                12.6.1974 and thereby tried to shield Shri K.P. Khatavane
                and his sons Baban Khatavane from criminal prosecution.

                Charge No. 2.
                He has deliberately and intentionally denied to have made       H
    36                   SUPREME COURT REPORTS           [1988] 3 S.C.R.
                                                                             ·y-
A              any enquiry regarding unauthorisedly lifting of 10 bags of ·
               Sugar on bogus or forged permit by Shri Baban Khatavane
               even though he was deputed for such enquiry by Shri A.R.
               Mane District Supply Officer, Kolhapur and he had actu-
               ally recorded the statement of Shri S.L. More, Godown
               Keeper of the said stores and Shri Hari Santu Pande, Cart
B              driver and also collected above mentioned 6 permits from
               Shri More after passing a receipt thereof. By denying the    ~4..
               above fact he has helped Shri A.R. Mane, District Supply
               Officer, Kolhapur for suppressing the case. His failure in


c
               this regard leads to belief that he has conspired with Shri
               K.P. Khatavane and his son Shri Baban Khatavane with
               some ulterior motive and abatted them in the disposal of
                                                                             r !
               sugar in black market."
                                                                              i
        On conclusion of the enquiry charge No. 1 was found to have
  been established while charge. No. 2 was partially proved. In his report
  to the State Government the Collector of Kolhapur held that the
D respondent's action was helpful to Shri Khatavane to sell the sugar in
  the black market, and it amounted to a serious default on his part as a
  Government servant. He recommended that since the respondent had
  already retired from service a lenient view should be taken and reduc-
  tion in pension to the extent of Re.1 per month be made. The State
  Government accepted the findings and passed the impugned order
E reducing the pension by 50 per cent. In our view the reduction of           I
                                                                               >-
  pension 50 per cent was too harsh and disproportionate to the mis-
  conduct proved against the respondent. The State Government should
  have taken into consideration the fact that the respondent had retired
  from service and the reduction of pension by 50 per cent would
                                                                                   -
F
  seriously affect his living.

          Accordingly, we allow the appeal partly, and set aside the order
                                                                              -k    '\
    of the High Court dated February 13, 1987, and the State Government's
    order dated December 4, 1982 and direct the State Government to
    reconsider the question of reduction of respondent's pension. There
    will be no order regarding costs.
G
                                                         Appeal allowed.