D V KAPOOR Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal by special leave under Art. 136 of the Constitution arises against the decision of the Delhi High Court in C.W.P. No. 686 of 1985 dated March 25, 1985. The appellant was working as an Assistant Grade IV of the Indian Foreign Service, Branch 'B' in Indian High Commission at London. On November 8, 1978 he was transferred to the Ministry of External Affairs, New Delhi, but he did not join duty as commanded, resulting in initiation of disciplinary proceedings against him on August 23, 1979. Pending the proceedings, on February 26, 1980 the appellant sought voluntary retirement from service and by proceedings dated October 24, 1980 he was allowed to retire but was put on notice that the disciplinary proceedings initiated against' him would be continued under Rule 9 of Civil Services Pensions Rules, 1972 for short 'Rules'. His main defence in the explanation was that his wife was ailing at London and, therefore, he sought for leave for six days in. the first instance and 30 days later, which was granted, but as she did not recover from the ailment, he could not undertake travel. So he sought for more leave, but when it was rejected, he was constrained to opt for voluntary retirement. After conducting the enquiry the Inquiry Officer submitted his report dated May 19, 1981. The gravamen of charges as stated earlier are that the appellant absented himself from duty from December 15, 1978 without any authorisation and despite his being asked to join duty he remained absent from duty which is wilful contravention of Rule 3(i) (ii) and 3(i)(iii) of the Civil Services Conduct Rules 1964. The Inquiry Officer found that "it is however difficult to say whether his absenting himself from duty was entirely wilful". In the concluding portion he says that both the articles of charges have been established, the circumstances in which the appellant violated the rules require a sympathetic consideration while deciding the case under Rule 9 of the Rules. The President, on consideration of the report, agreed with the findings of the Inquiry Officer and in consultation with the Union Public Service Commission decided that the entire gratuity and pension otherwise admissible to the appellant was withheld on permanent basis as a measure of punishment. through the proceedings dated November 24, 198 1. When the appellant challenged the legality thereof, the High Court dismissed the writ petition in limine on the ground that it would not interfere in. its discretionary jurisdiction under Art. 226 of the Constitution.

(2.) The contention of Mr. Kapoor, learned counsel for the appellant is that the appellant having been allowed to retire voluntarily the authorities are devoid of' jurisdiction to impose the penalty of withholding gratuity and pension as a measure of punishment and the proceedings stand abated. We find no substance in the contention. Rule 9(2) of the Rules provided that the departmental proceedings if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had., continued in service. Therefore, merely because the appellant was allowed to retire, the Government is not lacking jurisdiction or power to continue the proceedings already initiated to the logical conclusion thereto. The disciplinary proceedings initiated under the Conduct Rules must be deemed to be proceedings under the rules and shall be continued and concluded by the' authorities by which the proceedings have been commenced in the same manner as if the Government servant had continued in service. The only inhibition thereafter is as provided in the proviso namely "provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President". That has been done in this case and the President passed the impugned order. Accordingly we hold that the proceedings are valid in law and they are not abated consequent to voluntary retirement of the appellant and the order was passed by the competent authority, i.e. the President of India.

(3.) His further contention that the appellant must be found to have committed "grave misconduct" or "negligence" within the meaning of Rule 8(5)(2) of the Rules which alone gives power and jurisdiction to the authority. to withhold by way of disciplinary measure the gratuity and payment of pension, Public employee holding a civil post or office under the State has a legitimate right to earn his pension at the evening of his life after retirement, be it on superannuation or voluntary retirement. It is not a bounty of the State. Equally too of gratuity, a statutory right, earned by him. Article 41 of the Constitution accords right to assistance at the old age or sickness or disablement. In D. S. Nakara v. Union of India (1983) 2 SCR 165, the Constitution Bench of this Court held that pension is not only compensation for loyal service rendered in the past, but also by the broader significance in that it is a social welfare measure rendering socio-economic justice by providing economic security in the fall of life when physical and mental prowess is ebbing corresponding to ageing process and, therefore, one is required to fall back on savings. One such saving in kind is when one had given his best in the hey-day of life to his employer, in days of invalidity, economic security by way of periodical payment is assured. Therefore, it is a sort of stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus pension is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation for service rendered. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for one self due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon.