Supreme Court: Judge Can't Retain Case File and deliver judgment After retirement

  One of the contentions raised in these appeals is

that on 17th April, 2017, the learned Single Judge

pronounced only one line order declaring the operative

part. The learned Judge demitted office on 26th May, 2017

and a detailed judgment was made available only on 23rd

October, 2017, nearly 5 months after the learned Judge

demitted the office. On these facts, there is no

dispute. {Para 5}

6. The operative part was pronounced on 17th April,

2017. There were five weeks available for the learned

Judge to release the reasoned judgment till the date on

which he demitted office. However, the detailed judgment

running into more than 250 pages has come out after a

lapse of 5 months from the date on which the learned

Judge demitted the office. Thus, it is obvious that even

after the learned Judge demitted the office, he assigned

reasons and made the judgment ready. According to us,

retaining file of a case for a period of 5 months after

demitting the office is an act of gross impropriety on

the part of the learned Judge. We cannot countenance

what has been done in this case.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.829-830 OF 2024

(Arising out of S.L.P.(Criminal) Nos.2210-2211 of 2024

@ Diary No.29911 of 2018)

STATE THROUGH INSPECTOR OF POLICE

CBI CHENNAI  VS. NARESH PRASAD AGARWAL & ANR. 

Author: ABHAY S.OKA, J.

Dated: February 13, 2024.

Citation: 2024 INSC 120.

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Allahabad HC: Only Governor Can Take Action Under Art. 351 Of CSR If Govt Servant Is Found Guilty Of Grave Misconduct After Retirement

 A bare perusal of the afore-quoted provision of Article 351-A

of the CSR shows that once the government servant retires, it is the Governor who has the right of withholding or withdrawing the pension or any part of it, permanently or for a specified period. The Governor under the said provision has also the right of recovery from the pension of the whole or part of any pecuniary loss caused to the Government, if the employee is found in departmental or judicial proceedings to have caused pecuniary loss to Government by misconduct or negligence during his service or he has been found guilty of gross misconduct. {Para 17}

18. It is, thus, clear that after retirement, withholding or

withdrawing a pension and ordering the recovery from pension is permissible to be caused only by the Governor i.e. the State

Government in terms of the Rules of Business, not only in case

such employee is found causing pecuniary loss to the Government by his misconduct or negligence but also in a cases when the employee concerned is found guilty of grave misconduct.

19. The provision of first proviso appended to Article 351-A of

the CSR clearly prohibits institution of departmental proceedings except with the sanction of Governor if such proceedings were not instituted while the employee was on duty either before retirement or during re-employment. Thus, Article 351-A of CSR puts a prohibition of initiating the departmental proceedings in a case of retired government servant, however, such proceedings are permissible to be instituted with the sanction of Governor, that too, in respect of an event which took place not more than four years before institution of such proceedings. The provision further provides that departmental enquiry in such an event shall be conducted by such authority and at such place as the Governor may direct and in accordance with the procedure applicable.

 ALLAHABAD HIGH COURT

Case :- SPECIAL APPEAL No. - 408 of 2021

Appellant :- Gaya Prasad Yadav

Respondent :- State Of U.P.Thru.Prin.Secy.Home Lucknow And

Anther

Coram: 

Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Shree Prakash Singh,J.

Order Date :- 23.9.2022

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Whether an employee who retired on 31st of a month is entitled to the increment which would have fallen due on 1st of the next month?

The petitioner was not on duty on 1.4.2003. Increment can be drawn only when an employee is on duty. The increment in terms of FR 24 & 26 did not become due during the period of service of the petitioner. Therefore, increment on 1.4.2003 cannot be sanctioned in favour of petitioner on the ground that he had completed twelve months of continuous service. The date of increment falls due on the first day of the succeeding month after the retirement. Petitioner retired on the basic pay drawn by him on 31.3.2003 i.e. his date of retirement. His pension has to be determined accordingly. Petitioner had become a pensioner on 1.04.2003. He cannot be held entitled to any increment which may fall due post his retirement. He is entitled only to those increments which fall due to him during the period of his service.

 In the High Court of Himachal Pradesh, Shimla

(Before Tarlok Singh Chauhan and Jyotsna Rewal Dua, JJ.)

CWP No 2503 of 2016

Hari Prakash Vs State of Himachal Pradesh

CWP No. 2503 of 2016 a/w CWPOA No. 663 of 2020

Decided on November 6, 2020, 

Citation: 2020 SCC OnLine HP 2362

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Whether the retirement of one partner amounts to the dissolution of the partnership firm if it consists of only two partners?

There is a clear distinction between ‘retirement of a partner’ and

‘dissolution of a partnership firm’. On retirement of the partner, the

reconstituted firm continues and the retiring partner is to be paid

his dues in terms of Section 37 of the Partnership Act. In case of

dissolution, accounts have to be settled and distributed as per the

mode prescribed in Section 48 of the Partnership Act. When the

partners agree to dissolve a partnership, it is a case of dissolution

and not retirement [See – Pamuru Vishnu Vinodh Reddy v.

Chillakuru Chandrasekhara Reddy and Others, (2003) 3 SCC

445]. In the present case, there being only two partners, the

partnership firm could not have continued to carry on business as

the firm. A partnership firm must have at least two partners. When

there are only two partners and one has agreed to retire, then the

retirement amounts to dissolution of the firm [See – Erach F.D.

Mehta v. Minoo F.D. Mehta, (1970) 2 SCC 724].

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6659-6660 OF 2010

GURU NANAK INDUSTRIES, FARIDABAD Vs AMAR SINGH

SANJIV KHANNA, J.

Dated:MAY 26, 2020.

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Whether protection U/S 197 of CRPC is available to public servant after retirement?

However as regards charges for the offences punishable under the Indian Penal Code concerned the High Court was absolutely right in setting aside the order of the Special Judge. Unlike Section 19 of the POC Act, the protection Under Section 197 of Code of Criminal Procedure is available to the concerned public servant even after retirement. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2168 of 2010

Decided On: 17.12.2014

 State of Punjab Vs.  Labh Singh

Hon'ble Judges/Coram:

Dipak Misra and U.U. Lalit, JJ.

Citation: 2015 ALL SCR 648

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Whether court should direct government to delay discharge of government employee for few days so that he can get pension?

 In this particular case, the applicant is short of 10 years’ of service by 22 days. In this situation, when the livelihood of an individual is getting adversely affected, it is expected from a Government Organization to be magnanimous and considerate to its employee, and in this case, the same could have been achieved by delaying the discharge by 22 days. Hence, we are of the considered opinion that in the interest of substantial justice, the applicant is to be notionally treated in service till he completes 10 years of service and he should be granted invalid pension. 

In the Armed Forces Tribunal

(Before SVS Rathore, Member (Judicial) and Air Marshal SVS Rathore, Member (Administrative))

Regional Bench Lucknow

No. 2804886N Ex Sepy Jadhav Nilesh Dinkar Vs  Union of India,

Original Application No. 266 of 2018

Decided on March 26, 2019

Citation: 2019 SCC OnLine AFT 1028

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Whether departmental enquiry can be continued against Judicial officer even after retirement?

 A conjoint reading of the aforesaid subrules
of Rule 27
indicates that the appointing authority is invested with the
power to withhold or withdraw the pension, if in any
departmental or judicial proceedings, the pensioner is found
guilty of grave misconduct or negligence during the period of his
service. Good conduct of the pensioner is an implied condition
for the receipt of pension and if subsequently the pensioner is

found guilty of misconduct or negligence in relation to the acts
or omissions during the services rendered by the pensioner, the
pension can be withheld or withdrawn. The retirement of an
employee does not, therefore, completely preclude the
appointing authority from initiating action for dealing with the
misconduct of the employee during currency of the service.
The retirement does not confer complete immunity from the
action for the misconduct during period of employment. The
nature of the action is, however, restricted to withdrawal or
withholding of pension.
19. Clause (a) of Subrule
(2) in express terms provides that
the departmental proceedings referred to in subRule
(1), if
instituted while the Government servant was in service whether
before his retirement or during his reemployment,
shall, after
the final retirement of the Government servant, be deemed to be
proceedings under this rule and shall be continued by the
authority in the same manner as if the Government servant had
continued in service. The initiation or continuation of the
disciplinary proceedings, against a retired employee is, however,
subject to certain safeguards to protect the interest of the
employee. Clause (b) of subrule
(2) stipulates conditions for
continuation of the disciplinary proceedings if not instituted
while the Government servant was in service. Subrule
(3)

provides a timelimit
of four years so that the pensioner is not
under a threat of action for eternity. In all the cases, where the
departmental enquiry is instituted either before or after
retirement, subrule
(4) mandates sanction of provisional
pension as provided in Rule 130.
20. If we consider the fascicles of the provisions in Rule 27 of
the Pension Rules, 1982, it becomes evident that the rules do
envisage initiation of the disciplinary action even after
retirement of a Government servant, on superannuation or
otherwise, in addition to the continuation of the disciplinary
proceedings, which was instituted before the retirement of the
Government servant. The broad submission canvassed on
behalf of the Petitioner that after retirement of a Government
servant no disciplinary proceedings can be instituted/continued
runs counter to the express mandate of clause (a) of subrule
(2) of Section 27, extracted above, which incorporates a deeming
provision and, by a legal fiction, mandates that the disciplinary
proceedings instituted before the retirement shall be deemed to
be a proceedings under Rule 27 and continued and concluded
in the same manner as if the Government servant had
continued in service. The broad submission therefore cannot be
countenanced.

21. The legal position as regards the institution /
continuation of disciplinary proceedings after the retirement of
an employee, seems to have been crystallised to the effect that
the employer can institute/continue the disciplinary
proceedings against an employee who has retired, provided the
rules which govern the services of the employee permit such a
course of action.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2820 OF 2019

 Mrs. Padmini Nandakumar Nair  Vs The Honourable High Court of Judicature at Bombay, through its
Registrar General, Mumbai

CORAM: R. M. BORDE & N. J. JAMADAR, JJ

PRONOUNCED ON; 14th JUNE, 2019

(Per N. J. JAMADAR, J.)

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Whether government servant is entitled to get interest if payment of gratuity is delayed beyond his retirement?

 As has been held by the Hon'ble Supreme Court in Y.K. Singla (supra), consequent upon the acquittal of an employee, it would be erroneous to conclude that the gratuity payable to such employee on attaining the age of superannuation was withheld on account of some fault of the employee himself. In the present case, it is not as if the petitioner, was ultimately convicted in criminal prosecution launched against him, in which case, the petitioner, could have been held to be at fault. Therefore, applying the principle explained by the Hon'ble Supreme Court in Y.K. Singla (supra), we hold that the delay in payment of gratuity to the petitioner beyond three months from the date of retirement was for no fault of the petitioner. In terms of Rule 129A of the MCS (Pension) Rules, 1982, read with clause 3 of the GR dated 6th May 1991 therefore, the petitioner is entitled to be paid interest for the period of delay beyond three months from the date of first retirement i.e. with effect from 1st July 1997.

35. In Prabhakar Dalal (supra), the Division Bench of this Court, in the context of Rules 129A, 130 (1)(c) of the MCS (Pension) Rules, 1982 and GR dated 23rd June 1986 has held that paragraph 3 of the GR will have to be construed to mean that on a person against whom disciplinary or judicial proceedings were pending, if he is discharged or the disciplinary authority comes to the conclusion that no punishment needs to be imposed and in case of judicial authority, such authority acquits such person, than in those cases, on the competent authority authorising the release of gratuity, it will be presumed that the gratuity is deemed to have been fallen due on the date immediately following the date of retirement for the purpose of interest. The Division Bench has commended harmonious construction of the statutory rules and the executive instructions in the GR, so that executive instructions would not fall foul of the rules.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 12966 of 2017

Decided On: 03.04.2018

 Vinodkumar Narayan Dixit Vs. The State of Maharashtra

Hon'ble Judges/Coram:

V.K. Tahilramani, Actg. C.J. and M.S. Sonak, J.

Citation: 2018(6) MHLJ 696

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Whether it is permissible to retire judicial officer retrospectively?

 In the instant case, the Appellant had not been retired by the appointing authority, namely, the Governor of Himachal Pradesh. Therefore, it cannot be said that the Appellant had retired on the completion of age of 58 years. Instead of quashing the notification at Annexure P-16, the Division Bench treated the said notification as recommendation of the High Court to the Governor for removal of the services of the Appellant. This order was passed after the Appellant had completed the age of 60 years. In terms of the order of the Division Bench, the Governor has passed an order dated 31.1.2017 retrospectively retiring the Appellant with effect from 31.7.2005, which, in our view, is not permissible in law. The Himachal Pradesh Judicial Service Rules, 2004 do not provide for retrospectively retiring the judicial officers. The order of the High Court retiring the Appellant at the age of 58 years cannot take effect as it was without authority of law. It only means that the Appellant has to be treated to have been retired from service on completion of 60 years of age on 31.7.2007.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10244 of 2017 (Arising out of SLP (C) No. 13525/2016)

Decided On: 08.08.2017

 P.D. Goel Vs.  High Court of Himachal Pradesh

Hon'ble Judges/Coram:

Jasti Chelameswar and S. Abdul Nazeer, JJ.

Citation: (2017) 16 SCC 390

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Whether fact that husband has retired can be considered by court while granting interim maintenance?

After hearing rival submissions of both parties in
connection with C.O. 2948 of 2015 and C.O. 2614 of 2015 I am
of the view that while awarding pendente lite alimony, Court
should take into the account the income as it stood on the date of
hearing of the application. Admittedly, the application was
pending for about 10 years before the Court below. When the
application was made at that time the husband was in service
and had been earning a considerable amount but after retirement
his income is reduced to a great extent. It is also on record, that
in the meantime he had purchased a flat measuring about 750
square ft. wherein the wife and their son have been residing. The
son is well educated and earns a fat salary. The wife O.P. had
contended that the husband had landed properties at Fulia,
which yields him about Rs.1,50,000/- per month but that part of
her submission has not been substantiated by any document.
Even the description of landed property was not there. Therefore,it cannot be said that the husband has some earning from the
landed property also.
 At the same time, the wife deserves a moderate standard
of living because she is the wife of an Ex-Chief Engineer of
Doordarshan when he had been residing with her husband, her
standard of living was obviously much higher and she was
accustomed with that. Naturally, she deserves that standard of
living. Due to retirement of her husband, she is also supposed to
sacrifice her standard of living to some extent because she has
been provided with a flat which has not been denied.
IN THE HIGH COURT AT CULCUTTA
(CIVIL REVISIONAL JURISDICTION)
C.O. No. 2948 of 2015
With
C.O. No. 2614 of 2015
Sri Gurubar Biswas V Smt. Krishna Biswas
Present : The Hon’ble Mr. Justice Siddhartha Chattopadhyay

Judgment Delivered On : 10.03.2016.
Citation:AIR 2016 (NOC)513 Cal

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Whether disciplinary proceeding against govt servant can continue even after retirement even though no pecuniary loss is caused to Government?

 It is therefore apparent, that it is not only for pecuniary loss caused to the Government that proceedings can continue after the date of superannuation. An employee can be proceeded against, after the date of his retirement, on account of “... grave misconduct or negligence ...”. Therefore, even in the absence of any pecuniary loss caused to the Government, it is open to the employer to continue the departmental proceedings after the employee has retired from service. Obviously, if such grave misconduct or negligence, entails pecuniary loss to the Government, the loss can also be ordered to be recovered from the concerned employee. It was therefore not right for the High Court, while interpreting Rule 10(1) of the 1971 Rules to conclude, that proceedings after the date of superannuation could continue, only when the charges entailed pecuniary loss to the Government.

Supreme Court of India

State Of West Bengal & Ors vs Pronab Chakraborty on 15 October, 2014

Bench: Jagdish Singh Khehar, Arun Mishra

Citation; AIR 2015  SC 1278

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Whether continued medical treatment to employee while in service and after retirement is duty of employer and state?

We may also refer to the observations made by the
Supreme Court in Consumer Education and Research Centre and ors.
v/s. Union of India and ors., AIR 1995 SC 922. In the above case on
consideration of Article 21 read with Articles 39(e), 41, 43 and 48A
of the Constitution the Apex Court held that the workman has a right
to health. The Court held that continued medical treatment, while in
service and after retirement is a moral, legal and constitutional
concomitant duty of the employer and the State. The Apex Court has
accordingly held that right to health, medical aid to protect the
health and vigour of a worker while in service or post retirement is a
fundamental right under Article 21 of the Constitution. We hope and
trust that respondents will keep this constitutional mandate in mind
while considering the claims of the employees for reimbursement of
the medical expenses, particularly when employees are merely
claiming reimbursement for costs of medicines purchased by them as
per prescription of the doctor.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11434 OF 2012
Rajendra B. Kasare 
v/s.
Union of India & Anr.

CORAM: MOHIT S. SHAH, C.J. &
M.S.SANKLECHA, J.
DATE : 25 March 2014
Citation; 2015(3) ALLMR222

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Power of High court to retire Judicial officer even after Judicial Officer attaining age of 50 years, 55 years or 58

Now we turn to the proviso. The Proviso makes it very clear that there
is a power to consider the case for review even after a judicial officer attaining
age of 50 years, 55 years or 58 years, as the case may be. The last part of the
Rule cannot be interpreted to mean that power under the proviso can be exercised
between the age of 50 to 55 years only if the case of the Judicial Officer is
considered before attaining the age of 50 years. The object of the proviso is to
clarify that a wider power is retained by the employer which can be exercised
even after the Judicial Officer attaining the age of 50 years, 55 years or 58
years, as the case may be. The proviso cannot be interpreted to mean that the

power to retire a Judicial officer cannot be exercised, if the case of the Judicial
Officer has not been considered before he actually attains the age of 50 years, 55
years or 58 years. The proviso clarifies that a residuary power is retained which
can be exercised notwithstanding the fact that the case of the Judicial Officer has
been already considered in accordance with the sub-Rule (1) of Rule 19.
Therefore, interpretation tried to be suggested by the learned Counsel for the petitioner cannot be accepted.
WRIT PETITION NO.4158 OF 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION
Avinash Vitthalrao Choudhary.

Vs.

1.The State of Maharashtra
Coram;A. S. OKA &
G. S. KULKARNI, JJ.
Citation;2015(2) ALLMR726

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Whether maintenance granted to wife can be reduced by fifty percent on the ground husband has retired?

When substantial justice has been done, there
was no reason to interfere. There may be a shelter over her
head in the parental house, but other real expenses cannot be
ignored. Solely because the husband had retired, there was
no justification to reduce the maintenance by 50%. It is not a
huge fortune that was showered on the wife that it deserved
reduction. It only reflects the non-application of mind and,
therefore, we are unable to sustain the said order.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.564-565 OF 2015
[Arising out of SLP (Crl.) Nos. 6380-6381 of 2014]

SHAMIMA FAROOQUI Vs SHAHID KHAN

Dated;APRIL 06, 2015.

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