Allowed

A.C.Barua v. the State of Ap

Gauhati HC24 Nov 2020WP(C)/460/2019

Case brief

AI extract

What is this about?

The Gauhati High Court held that a departmental proceeding and police investigation initiated six years after the alleged act were illegal and void ab initio as they violated Rule 9(2)(b) of CCS (Pension) Rules, 1972. The court allowed the petition and directed the government to pay the petitioner's pension within three months.

What did the court decide?

Impugned U.O. Note No. SLA/Per-01/2015-16/359 and Vigilance Inquiry No. 38/2017 set aside; respondents directed to pay petitioner's pension within 3 months.

A.C.Barua Vs the State of Ap — Pension and Retirement Benefits | Gauhati HC (2020)

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GAHC040014052019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH)

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Case No. : WP(C) 460/2019

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1:A.C.Barua

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S/OLlate Debeswar Barua,R/O Ponkial,PO-Doigrong,PS-Golaghat, Dist-Golaghat

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VERSUS

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1:THE STATE OF AP

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Rep. by the Chief Secretary, Govt. of AP, Itanagar

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2:THE PRINCIPAL SECRETARY (VIG) GOVT OF AP ITANAGAR

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3:THE PRINCIPAL SECRETARY (PERSONNEL) GOVT OF AP ITANAGAR

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4:THE DEPUTY COMMISSIONER PAPUMPARE DISTRICT YUPIA

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5:THE UNDER SECRETARY (VIG) GOVT OF AP ITANAGAR

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6:THE DEPUTY SUPERINTENDENT OF POLICE CUM OF SIC VIGILANCE PS- CHIMPU

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ITANAGAR

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7:SHRI NABAM REBIA R/O SENKI PARK PO- ITANAGR PAPUMPARE DISTRICT AP (FORMER SPEAKER OF ARUNACHAL PRADESH LEGISLATIVE ASSEMBLY

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Advocate for the Petitioner : T Tagum

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Advocate for the Respondent : GA(AP)

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BEFORE HONBLE MR. JUSTICE PARTHIVJYOTI SAIKIA

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ORDER

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Date : 24-11-2020

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Heard the learned counsel, Mr. T. Tagum, appearing for the petitioner. Also heard Mr. S. Tapin, learned Senior Government Advocate, representing State respondent Nos. 1 to 6 and Mr. N. Kanu, learned counsel appearing for the respondent No. 7.

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2. This writ petition under Article 226 of the Constitution of India has been filed challenging the legality and validity of the U.O. Note No. SLA/Per-01/2015-16/359, dated 07.05.2015, written by the private respondent No. 7, and the impugned Vigilance Enquiry No. SIC(VIG)PS ENQUIRY NO. 38/2017.

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3. During the period 2004 to 2009, the petitioner was working as an Extra Assistant Commissioner (EAC) at Doimukh. Thereafter, in the year 2015, i.e. after 6 (six) years, the Speaker of the Arunachal Pradesh Legislative Assembly made a complaint against the petitioner alleging that he had committed anomalies while issuing Land Allotment Orders/Land Allotment Certificates in Doimukh area. On the basis of the aforesaid complaint, the respondents conducted an enquiry. The said enquiry was conducted by the Deputy Commissioner, Papumpare District, Yupia and on 16.12.2016, the Deputy Commissioner, Papumpare District, Yupia, sent his report, wherein, it was held that no prima facie evidence could be established against the petitioner.

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4. It may be mentioned that prior to filing of the report by the Deputy Commissioner, Papumpare District,

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the complainant Speaker had withdrawn his allegation against the petitioner. On 09.09.2015, the complainant had claimed that after investigation he found that the allegation against the petitioner was unnecessary. Thereafter, the government forwarded the matter to Police for investigation. On 28.12.2017, the Officer-InCharge, SIC (Vig.) PS, CPU, Itanagar, sent a vigilance clearance report to the respondents stating that the involvement of the petitioner in the aforesaid matter could not be established. However, the Police continued the aforesaid enquiry.

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5. On 31.12.2017, the petitioner retired from his services on attaining superannuation and therefore, wrote a letter to the government on 31.01.2018, requesting early disposal of the Police enquiry. In spite of all these, the petitioner is not getting his pension till today.

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6. The learned counsel, Mr. T. Tagum, appearing for the petitioner, has submitted that Rule 9(2)(b) of CCS (Pension) Rules, 1972, provides that the government is not entitled to institute any enquiry or departmental proceeding against an employee in respect of any matter after 4 (four) years of such occurrence. In the instant case, after 6 (six) years, the complaint was made against the present petitioner and the proceeding was initiated thereafter.

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7. In a similarly situated situation, the Hon’ble Supreme Court in Brajendra Singh Yambem Vs. Union of India reported in (2016) 9 SCC 20, has held that if the disciplinary proceeding are not institute against the government servants by the disciplinary authority, while he was in service, then prior sanction of the President of India is required to institute such proceedings against such persons. The Apex Court further held that it is also clear that such sanction shall not be in respect of an event which take place more than 4 (four) years before institution of such disciplinary proceedings. In my considered opinion, the ratio laid down by the Hon’ble Supreme Court is clearly applicable in the present case.

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8. Today, I have no doubt that the respondents have been doing unanswerable acting, for which, the petitioner is till now deprived of his due pension.

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9. Rule 9(2)(b) of CCS (Pension) Rules, 1972, makes it clear that the entire investigation or enquiry or departmental proceeding that have been going on against the petitioner is against the law. Moreover, there is clear finding of some competent authorities that the complaint made against the petitioner is baseless. Even the complainant has written to the respondents stating that his earlier complaint against the petitioner is baseless.

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10. In Deokinandan Prasad Vs. State of Bihar & Ors. reported in (1971) 2 SCC 330, the Hon’ble Supreme Court has held that right to receive pension is property under Article 31 (1) of the Constitution of India and by a mere executive order, the State has no power to withhold the same.

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11. Summing up, I hereby hold that the Departmental Proceeding and the Police Investigation against the present petitioner are illegal and void ab initio. Therefore, the petition filed by the petitioner is allowed. The U.O. Note No. SLA/Per-01/2015-16/359, dated 07.05.2015, and the Vigilance Inquiry No. SIC(VIG)Police Station ENQUIRY NO. 38/2017, and other such consequential orders or proceedings are hereby set aside and quashed. The respondents are directed to pay the pension to the petitioner within next 3 (three) months.

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12. The writ petition stands disposed of with the aforesaid observation and direction.

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JUDGE

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A.C.Barua v. the State of Ap

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A.C.Barua v. the State of Ap

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