MDNAYEBUR RAHMAN Vs. STATE OF ASSAM & OTHERS

JUDGEMENT

(1.) In the year 1953 the petitioner passed Matriculation Examination from Gurdon High School, Nalbari. A certificate was issued by the school as the original was not issued by the Gauhati University at that time. The petitioner joined the training course for Sericulture Demonstrator in the Sericulture and Weaving Department, Assam in the year 1957. Thereafter, he was appointed as Sericulture Demonstrator in the year 1961. While he joined the service, he submitted the certificate issued by the school and it is stated that he has submitted the original certificate issued by the University in the year 1962. This original certificate was submitted and the prayer was made for correction of age in the service book because the certificate issued by the school reflected his age as 18 years as on 1st March, 1953 but the certificate issued by the University shows his age as 15 years as on 1st March, 1953. The petitioner during his service in the Sericulture Department applied for the post of Soil Conservation Demonstrator (Junior) through proper channel. He was appointed to that post on 31.12.63. There was a gradation list for promotion and there was some mistake and according to Matriculation Certificate, he was to retire from service on and from 31.3.96. Rule 95 of the Assam Service Pension Rules, 1969 provides as follows :

(2.) In this particular case, no such procedure was followed by the Department but in the end of 1995 the petitioner was asked to furnish the original certificate of Matriculation, that was done but his pay etc was held up on the allegation that the petitioner manipulated the age due to which he over stayed in service after attaining the age of retirement on 1.3.93. The Department did not raise this allegation during 32 years of his service in the Department and only at the fag end of his service life this allegation was made. The petitioner was made to work without pay and allowances since Dec., 1995 until 31.3.96, the date of his retirement. After that he retired from service on 22.5.96, the petitioner received a show cause notice dated 20.5.96 under Rule 9 of the Assam Civil Services (Discipline and Appeal) Rules, 1964 read with Art. 311 of the Constitution of India asking him to show cause as to why penalty should not be inflicted on him as provided under Rule 7 of the Rules, 1964. The show cause notice was served on the petitioner after his retirement and this show cause notice does not reflect that any departmental proceeding was initiated before the retirement. Rule 21 (a), (b) and (c) of the Pension Rules, 1969 provides as follows :

(3.) Rule 21 was amended on 16.8.89. By this amendment, one explanation as quoted above has inserted in the bottom of Rule 21. In (1984) 2 GLR 488 (GK Phukan Vs. State of Assam & others) it was stated that there remains no master and servant relationship in between the retired person and the Govt to continue the departmental proceeding after retirement which was instituted during the service period of the employee. In 1988 (2) GLJ 106 (Reazuddin Ahmed Vs. State of Assam) it was again pointed out that departmental proceeding after retirement of the person shall continue if the proceeding was instituted before the retirement and it was further stated by this Court that the right of the Governor to withhold or withdraw the pension or a part of it whether permanent or for specific period in connection with the right of the Governor for recovery of the pensionary or part of any pecuniary loss caused to the Govt. The Govt can exercise this-right under Rule 21 only for the purpose of recovery of the pecuniary loss caused to the Govt and for no other purpose. After the amendment the continuation of the proceeding was provided if the proceeding is initiated before the retirement, it is automatic and no show cause notice is necessary and powers under Rule 21 shall be exercisable not only in case of loss to the Govt but also in all cases.