Can't Withhold Pensionary Benefits In The Absence Of Departmental Proceedings Even If Employee Was Not Qualified When Appointed: Gauhati High Court

Justice Achintya Malla Bujor Barua observed that there was no departmental enquiry into the same during his tenure and that the cause of action of the misconduct occurred in 1988. 

"In the instant case, records reveal that neither there was any departmental proceeding nor the cause of action of the misconduct is within the period of four years from which a departmental proceeding can be initiated. Admittedly, the cause of action took place in the year 1988 itself when the petitioner entered service without having the necessary qualification. From such point of view, we are of the view that the pensionary benefits of the petitioner cannot be now withheld by invoking the proviso to Rule 21 of the Assam Services (Pension) Rules, 1969."

The petitioner was appointed as an Assistant Teacher under the Elementary Education Department of Government of Assam on 25.11.1988 and he retired from service as an Assistant Teacher of Kacharihat Girls' High School on 31.08.2019. The total length of service rendered by the petitioner is stated to be 30 years and 279 days.

The Department denied him pensionary benefits citing that he did not pass the HSLC examination or any other equivalent examination. The departmental authorities took the view that it could not be ascertained as to whether the petitioner was in a pensionable service. Aggrieved by the denial of the pensionary benefits after retirement, the petitioner moved the Court. 

The Court recorded that a reading of Rule 21(1) of the Assam Services (Pension) Rules provides that the Governor of Assam reserves to himself the right of withholding or withdrawing a pension, whether permanently or for a specified period if in the departmental or judicial proceeding the pensioner is found guilty of grave misconduct for negligence during the period of his service.

In other words, any withholding of the pensioner benefits would have to satisfy the conditions precedent of there being an order in a departmental or judicial proceeding which may indicate that the pensioner is found guilty of grave misconduct or negligence.

Further, the proviso (b)(ii) under Rule 21 of Assam Services (Pension) Rules, 1969 provides that the departmental proceeding, if not instituted while the person concerned was in service shall not be in respect of any event which took place more than four years before such institution of a departmental proceeding.

The Court also perused the petitioner's record and noted that it revealed that neither there was any departmental proceeding nor the cause of action of the misconduct is within the period of four years from which a departmental proceeding can be initiated.

"In the instant case, even if it is accepted that the petitioner did not have the necessary qualification at the time of his initial appointment in the year 1988, a conclusion of misconduct thereof would have to be arrived in a departmental proceeding and further the cause of action for such misconduct would have to be within a period of four years from the initiation of the departmental proceeding."Court said

The Court recorded that the cause of action took place back in 1988 itself when the petitioner entered service without having the necessary qualification. Therefore, it was of the view that the petitioner is entitled to pensionary benefits and the writ was allowed accordingly.

Case Title: SYED MOHBUBUL MAJID v THE STATE OF ASSAM AND 5 ORS

Citation: 2022 LiveLaw (Gau) 32

Petitioner is represented by advocate S S S Rahman

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