Disciplinary Proceedings Post-Retirement Invalid; Pension Recovery Permissible Only If Charge Of Loss By Fraud Is Proved During Service: J&K HC

Background Facts

The petitioner was appointed as a Sub-Inspector in the Jammu & Kashmir Police on 11th November, 1990. He was promoted to the post of Inspector on 31st March, 2000. He was later placed as Incharge Deputy Superintendent of Police (Dy.SP) vide Government Order dated 20th July, 2012.

During his service in 2015, the police headquarters received information that the petitioner had been simultaneously working as Joint Secretary in the Jammu & Kashmir Cricket Association (JKCA) without obtaining the prior permission mandated under Rule 21(2) of the Jammu & Kashmir Government Employees (Conduct) Rules, 1971. It was also noted that he received a monthly honorarium of Rs. 12,000/- from the JKCA for this role. A specific complaint was also received alleging that the petitioner was neglecting his official duties while working as AC HG, Samba, due to his involvement with the JKCA.

The police headquarters sought an explanation from the petitioner. He applied for post-facto permission on 24th February, 2016. However, permission was not granted. The Director General of Police (DGP) recommended initiating departmental proceedings against him in June 2018 for misconduct. The petitioner superannuated and retired from service on 31st May, 2021. Subsequently, the police headquarters recommended to the Home Department that the case against the petitioner be closed and his promotion as Dy.SP be regularized. It was cited that he had been issued a fresh integrity certificate.

However, the Home Department did not agree with the recommendation. After the petitioner's retirement, it issued a memorandum which initiated an inquiry under the J&K Civil Services (CCA) Rules, 1956. The petitioner was served with a charge-sheet. The inquiry officer held the petitioner guilty of violating the Conduct Rules. Consequently, the government directed the recovery of the honorarium amount he had received from the JKCA from his pension. Aggrieved, the petitioner had approached the Tribunal.

The Tribunal has upheld the action of the respondents recovering remuneration received by the petitioner from JKCA from his pension. However, the Tribunal has allowed the prayer of the petitioner for his regularization as Dy.S.P. and has issued necessary directions for considering his case for regularization with all consequential benefits.

Aggrieved by the same, the petitioner filed the writ petition.

It was submitted by the petitioner that the disciplinary proceedings cannot be initiated against him after his retirement for misconduct committed during his service. It was further submitted that the recovery of the honorarium amount from his pension was illegal as the provisions of Article 168-A of the J&K Civil Service Regulations, 1956, were not attracted as the loss to the public exchequer on account of the petitioner having accepted the assignment of Joint Secretary, JKCA has not been established. Further the petitioner has not been given adequate opportunity to defend the charge.

On the other hand, it was submitted by the respondents that regular disciplinary proceedings for misconduct cannot be initiated against a retired employee, however, the provisions of Article 168-A of the J&K Civil Service Regulations, 1956 empowers the government to order the recovery of any amount from the pension of an officer if it represents a loss caused to the government by the negligence or fraud of that officer during his service. It was further submitted that the petitioner, by accepting the assignment of Joint Secretary in the JKCA and drawing an honorarium, caused a loss to the public exchequer by accepting the assignment of Joint Secretary in JKCA at the cost of his official duties as a police officer in the Government.

Findings of the Court

It was observed by the court that a retired employee cannot be subjected to disciplinary proceedings for misconduct committed during service, as the competent authority loses the power to impose penalties under the J&K Civil Services (CCA) Rules, 1956, once an employee has superannuated. It was held that the proceedings initiated under Rule 33 of the 1956 Rules against the petitioner after his retirement were invalid.

It was further observed that however, Article 168-A of the J&K Civil Service Regulations, 1956 permits recovery from the pension of an officer for a loss caused to the Government by his negligence or fraud. It was found by the court that the charges framed against the petitioner only alleged misconduct for violating the Conduct Rules. There was no charge levelled against the petitioner regarding causing any financial loss to the public exchequer through negligence or fraud.

It was held by the court that the inquiry was not conducted on the charge of causing a loss, therefore, the petitioner was denied an opportunity to defend himself against such an allegation. The government order dated 16.11.2022, directing recovery could not be sustained.

It was also noted by the court that numerous other senior civil and police officers had held similar positions in sports associations without permission, but only the petitioner was chosen for punitive action, which highlighted a discriminatory approach.

Therefore it was concluded that the disciplinary proceedings cannot be initiated against a government servant after retirement, and recovery from pension is impermissible unless a specific charge of financial loss caused to the Government by negligence or fraud is duly framed and proved. The judgment of the Tribunal, to the extent it upheld the recovery of the remuneration from the petitioner's pension, was quashed and set aside by the court. With the aforesaid observations, the writ petition filed by the petitioner Sub-Inspector was allowed by the court.

Case Name : Sudershan Mehta vs Union Territory of Jammu & Kashmir

Case No. : WP(C) No.2027/2024

Counsel for the Petitioner : Parveen Kapahi, Advocate

Counsel for the Respondents : Monika Kohli, Sr. AAG