Page No.# 1/16 GAHC010280402023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7284/2023 PRADIP CH BORAH S/O- LT. DIMBESHAR BOARAH, KARAIYANI CHALAPARA, P.O. MOHKHULI, P.S. SADAR, DIST.- NAGAON, ASSAM VERSUS THE STATE OF ASSAM AND 5 ORS REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM, GENERAL ADMINISTRATION DEPARTMENT, DISPUR, GUWAHATI-6 2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM PENSION AND PUBLIC GRIEVANCE CELL DISPUR GUWAHATI- 781006 3:THE DIRECTOR PENSION AND PUBLIC GRIEVANCE CELL GUWAHATI ASSAM 4:THE ACCOUNTANT GENERAL (A AND E) ASSAM MAIDAMGAON BELTOLA GUWAHATI-78102 5:THE DEPUTY COMMISSIONER NAGAON 6:THE ADDITIONAL DEPUTY COMMISSIONER (NAZARAT) CUM DRAWING AND DISBURSING OFFICER OFFICE OF THE DEPUTY COMMISSIONER NAGAO Page No.# 2/16 Advocate for the Petitioner : MR. R MAZUMDAR, MR H BEZBARUA,MR N ALI,MR. R DEKA Advocate for the Respondent : GA, ASSAM, SC, AG BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA ORDER 27.11.2025 Heard Mr. D Gogoi, learned counsel for the petitioner. Also heard Ms. S Baruah, learned Government Counsel, Assam and Mr. B Sarma, learned Standing Counsel, Accountant General (A&E). 2. The petitioner before this Court was initially appointed as a Lower Division Assistant on 01-10-1986 in the Office of the Deputy Commissioner, Nagaon. Subsequently, he was transferred to Nazarat Branch as Assistant Nazir after completion of one and half years of service. Thereafter, he was placed as a cashier at Nazarat Branch, Deputy Commissioner's Office, Nagaon and he served as the Senior Assistant-cum-Cashier in the office of the Deputy Commissioner, Nagaon till his retirement on 31-12-2017. 3. On 27-10-2017, the petitioner was placed under suspension pending drawal of departmental proceedings. An Enquiry Officer was appointed to conduct a thorough enquiry. A Presenting Officer was also appointed in the said enquiry proceedings and the Enquiry Officer was required to submit the enquiry Page No.# 3/16 report within a period of one month from the date of receipt of the order. The enquiry proceedings were concluded and the Enquiry Officer submitted its report dated 04-12-2017. The entries made in the cash book by the petitioner were examined by the Chief Accounts Officer and have been found to be correct. The Enquiry Officer concluded that in view of the fact that the petitioner is on the verge of retirement and on unknowing mistake made by the petitioner, it was concluded that the petitioner had not derelicted the higher authority's order in the sense of knowledge and belief. The Enquiry Officer concluded that in view of the findings, the enquiry was disposed of for the welfare of the incumbent, namely, the petitioner, to avail his pensionary benefits. The said enquiry report was duly accepted by the Disciplinary Authority who in turn agreed with the opinion rendered by the Enquiry Officer in the enquiry report. The petitioner was warned and let off having observed that such kind of behaviour for the first time and is not to be repeated in future. He was directed to be cautious in making himself available to duty and not to abandon it at will. The petitioner was thereafter reinstated in his original place of posting and directed to join. The period of suspension was regularised as duty for all purposes. The petitioner thereafter superannuated from his service on 31-12- 2017 4. Thereafter, the respondent authority accorded approval for sanction for Page No.# 4/16 payment of provisional DCRG amounting to ₹ 6,88,293/- (Rupees Six Lakhs Eighty Eight Thousand Two Hundred Ninety Three only) to the petitioner from the date of retirement which is 31-12-2017. A sanction was also accorded for payment of ₹ 4,93,400/- (Rupees Four Lakh Ninety Three Thousand Four Hundred only) to the petitioner being leave encashment for 300 days of unutilised leave/ earned leave in his credit till his date of retirement. Sanction was also accorded for payment of ₹ 56,630/- towards GIS savings amount to the petitioner. 5. Thereafter, although the petitioner represented before the respondent authorities for release of his pension, however, no response was received from the respondents. Being situated thus, the petitioner was served with a copy of the order dated 09-11-2021 whereby the Deputy Commissioner, Nagaon accorded sanction to start departmental proceedings under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 against the petitioner who superannuated on 31-12-2017 as Senior Assistant-cum-Cashier in the Deputy Commissioner’s office, Nagaon. Subsequently, on the same day another order was issued appointing an Enquiry Officer to conduct an enquiry regarding allegations against the petitioner. The Presenting Officer was also appointed by the said Order. The Enquiry Officer was required to submit the enquiry report within one month from the date of receipt of the order. Page No.# 5/16 6. The allegations made against the petitioner were also reflected in the said Order dated 09-11-2021 by which the Enquiry Officer as well as the Presenting Officer was appointed. The Enquiry Officer submitted a report. The petitioner thereafter represented before the Deputy Commissioner, Nagaon requesting for release of pension. 7. The learned counsel for the petitioner submits that on a day when the enquiry proceedings were initiated, the petitioner had already superannuated and therefore, departmental proceedings in respect of a person who is superannuated can only be initiated under Rule 21 of the Assam Services (Pension) Rules, 1969. Referring to the said Rule the learned counsel for the petitioner submits that under Rule 21 of the Assam Services (Pension) Rules, 1969, it is only the Governor of Assam who reserves the right to himself of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period or the right of ordering the recovery from a pension or the whole of it if in a departmental or a judicial proceeding the petitioner is found to be guilty. He, therefore, submits that the conditions prescribed under Rule 21B have not been adhered to by the Disciplinary Authority and therefore, the impugned order dated 09-11-2021 issued by the Deputy Commissioner, Nagaon invoking powers under Rule 21 is contrary to the Rule itself and should therefore be set aside and quashed. He submits that the petitioner's entitlement Page No.# 6/16 to pension cannot be cut unless the sanction as prescribed under Rule 21 (b) is granted by the Governor of the State. 8. The notice in the matter was issued as far back as 15-12-2023 and liberty was also granted to the respondents for release of provisional pension as prayed for by the petitioner by his representation dated 06-08-2022. 9. Pursuant thereto the Circle Officer being Respondent No. 5 has filed the affidavit. Learned Government Advocate referring to the said affidavit submits that the Department has contested the case projected by the petitioner in the affidavit filed through the Circle Officer, Raha, Nagaon being Respondent No.5. It is submitted that as departmental proceeding is pending against the petitioner, so the processing of the pension papers in so far as the writ petitioner is concerned has been stopped. The further submission of the learned Government Advocate is that there is no order available in the Department which reflects that the earlier departmental proceedings which were initiated have been disposed of. The learned Government Advocate, Assam referring to Rule 21 of the Assam Services (Pension) Rules, 1969 submits that the departmental proceedings was initiated while the petitioner was in service and therefore, the same need not be instituted with the sanction of the Governor of Assam. Page No.# 7/16 10. It is submitted that while the order of suspension of the petitioner was revoked by order dated 04-12-2017, however, in the said order there is no mention that the departmental proceedings were disposed of. It is the stand of the respondents that as the departmental proceedings are pending against the petitioner, so processing of pension work is stopped in the Office of the District Commissioner, Nagaon. It is further submitted that while processing the pension papers of the petitioner, discrepancies were reported from In-charge Additional District Commissioner of Socio Economic Caste Census Cell (SECC). Considering the same no objection was sought to be obtained from the Branch In-charge of SECC, SDPLO and Nazarat as transactions to these branches have direct link with Nazarat Branch. However, No Objection Certificate was not received as sought for and that apart the Additional District Commissioner, SECC Nagaon stated that the cash book of SECC was not updated and utilisation certificates were not submitted to Government during his service period. 11. Further information was received with regard to discrepancies in cash collected and deposited to bank authorities. Based on these information, the Additional District Commissioner, Nazarat, Nagaon reviewed the matter on 23.09.2021 vide the letter No.NM. 45/18/144 and a report to that effect was submitted to the Additional District Commissioner (Personnel), Nagaon. In his report the exact amount of liabilities in respect of the writ petitioner pertaining Page No.# 8/16 to Nazarat Branch could not be ascertained due to anomalies on records and considering all these circumstances a speaking order was issued by invoking Rule 21 of the Assam Service Pension Rules, 1969 and to conduct a detailed enquiry in respect of the liabilities of the petitioner which could not be ascertained due to anomalies in the records. It is the submission of the learned Government Advocate that as per Rule 21 of the Rules of 1969, the speaking order earlier issued is to be construed to be an order under Rule 21 (d) and therefore, if the Departmental proceedings are already instituted while the Officer was in service then the continuation of the proceedings after final retirement of the officer shall be automatic and no fresh decision or show-cause notice to the person concerned shall be necessary. 12. Learned counsel for the parties have been heard and pleadings available on records have been carefully perused. 13. From the facts narrated before this Court and as is available from the pleadings and records that during the service tenure of the writ petitioner, prior to his retirement, departmental proceedings were initiated and after the enquiry was conducted, the Enquiry Officer furnished enquiry report dated 04.12.2017. The Enquiry Officer concluded that the entries in the cash book which were examined by the Chief Account Officer were found to be correct considering that Page No.# 9/16 the petitioner is on the verge of retirement and any mistake may have been committed unknowingly. The Enquiry Officer concluded that he is not derelicted the Higher Authorities order in sense of knowledge and belief. Based on the said Enquiry Officer’s report, the petitioner was reinstated in his original place of posting and was directed to join immediately. The period of suspension was regularized as on duty for all purposed. While it is true that the said order dated 04.12.2017 issued by the Deputy Commissioner and Disciplinary Authority reinstating the petitioner back in service, does not disclose that the departmental proceedings have been concluded. It is also seen from the said order that the Disciplinary Authority and the Deputy Commissioner, Nagaon had concurred with the opinion of the Enquiry Officer in his enquiry report. That being so, subsequently, the Disciplinary Authority is required to disagree with the findings of the enquiry report then the procedure prescribed under the Rule 9A of the Assam Services (Discipline and Appeal) Rules, 1964 has to be specifically complied with. In the event, the Disciplinary Authority disagrees with the conclusions arrived at by the Enquiry Officer, then a disagreement note is to be furnished to the Delinquent Officer, putting him to notice as to why the punishments contemplated under Rule 7 should not be imposed. So, the procedure required to be adopted in such a situation is also elaborately provided under the Manual for Departmental Proceedings, which is appended to the Page No.# 10/16 Assam Services (Discipline and Appeal) Rules, 1964. 14. In the event the Disciplinary Authorities disagrees with the conclusion arrived at by the Enquiry Officer then disagreement note is to be furnished to the Delinquent Officer putting him to notice as to why the punishments contemplated under Rule 7 should not be imposed. The procedure required to be adopted in such a condition is elaborately provided under the manual for departmental proceedings which is appended in the Assam Services (Discipline and Appeal) Rules, 1964. 15. From the pleadings available, no such steps appear to have been undertaken by the respondent authorities. On the contrary, the Disciplinary Authority by the order dated 09-11-2021, invoked powers under Rule 21 of the Assam Services (Pension) Rules, 1969. 16. In this context, a reference to Rule 21 of the Assam Services (Pension) Rules, 1969 as well as Rule 9A of the Assam Services (Discipline and Appeal) Rules, 1964, is required to be referred to. The relevant provisions of the said Rules are extracted below: “Rule 21 of the Assam Services (Pension) Rules, 1969: 21. The Governor of Assam reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Page No.# 11/16 Government, if, in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement provided that- (a) such departmental proceeding, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service; ["Explanation- The continuation of the proceeding after the final retirement of the officer shall be automatic under sub-rule (a) of Rule 21 and no fresh decision of the Governor and/or the Appointing authority nor any show-cause notice to the person concerned shall be necessary. The powers under rule 21 shall be exerciseable not only in case of causing pecuniary loss to Government but also in all other cases"]; (b) such departmental proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment- (i) shall not be instituted save with the sanction of the Governor of Assam; (ii) shall not be in respect of any event which took place more than 4 years before such institution; and (iii) shall be conducted by such authority and in such place as the Governor of Assam may direct and in with procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service; (c) no such judicial proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution; and (d) the Assam Public Service Commission shall be consulted before final orders are passed. Page No.# 12/16 Explanation- For the purpose of this rule- (a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension from an earlier date, on such date; and (b) a judicial proceeding shall be deemed to be instituted- (i) in the case of a criminal proceeding, on the date on which the complaint or report of police officer, on which the Magistrate takes cognizance, is made, and (ii) in the case of a civil proceeding, on the date of presentation of the plaint in the Court.” “Rule (A) of the Assam Services (Discipline and Appeal) Rules, 1964: 9A. Communication of Orders: Orders made by the Disciplinary Authority shall be communicated to the Government Servant who shall also be supplied with a copy of the report of the enquiry, if any, held by the Disciplinary Authority and a copy its findings on each charge, or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with brief reasons for its disagreements, if any, with the findings of the Inquiring Authority (unless they have already been supplied to him) and also a copy of the advice, if any, given by the Commission, and where the Disciplinary Authority has not accepted the advice of the Commission, a brief statement of the reasons for such non- acceptance.” 17. Mere perusal of Rule 21 of the Assam Services (Pension) Rules, 1969 makes it very clear that the power to withhold or withdraw of pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery of a pension of the whole or a part for any pecuniary loss caused to the Government is reserved only for the Governor of the State. There is no provision under Rule 21 which can be exercised by any Disciplinary Authority. The mandate of Rule 21 is very clear that the power is reserved only Page No.# 13/16 for the Governor of the State. 18. It does not appear form the order dated 04.12.2017 that the departmental proceedings against the writ petitioner were not concluded by the Department nor any subsequent order thereafter was passed. The Department does not dispute the enquiry report dated 04-12-2017 submitted by the Additional Deputy Commissioner and Deputy Commissioner & Enquiry Officer, Nagaon. By the said enquiry report, it is clear that the departmental proceedings in respect of the said writ petitioner was recommended for disposal as the entries in the cash book were examined by the Chief Accounts Officer and were reported to be correct. Also, considering that the petitioner to be on the verge of his retirement, the Enquiry Officer held that the petitioner did not derelict Higher Authority's order in the sense of knowledge and belief. This enquiry report was accepted by the Disciplinary Authority which is reflected in the order dated 04-12-2017. Also, the said order of the Disciplinary Authority reflects that the Disciplinary Authority recommended the conclusion of the enquiry report submitted by the Enquiry Officer and thereafter reinstated the petitioner in his original place of posting and in turn was directed to join in the said post immediately and the period of suspension was regularised as on duty for all purposes. Therefore, it appears that the Enquiry Officer had recommended the conclusion of the departmental proceedings and the said Page No.# 14/16 opinion was duly accepted by the Disciplinary Authority. 19. While there may not be a specific order concluding the departmental proceedings, however, it is clear that the Disciplinary Authority had concurred with the conclusions and findings of the Enquiry Officer. If that be so, then the Impugned Order dated 09-11-2021 issued by the Deputy Commissioner, Nagaon reflects that the said Deputy Commissioner, Nagaon accorded sanction to start departmental proceedings under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964. It clearly reveals that fresh departmental proceedings have been initiated by the said Order. Pursuant to the said Order, by a separate Order dated 09-11-2021, Enquiry Officer and Presenting Officers were also appointed. There is no mention in any of these Orders i.e. the order dated 04-12-2017 or order dated 09-11-2021 that this is a continuation of the earlier proceedings which was initiated against the writ petitioner in which the earlier Enquiry Officer had recommended closure of the proceedings by the enquiry report dated 04-12-2017 and which was concurred with by the then Disciplinary Authority-cum-Deputy Commissioner, Nagaon by the Order dated 04-12-2017. 20. Therefore, the contentions of the respondents that it is a continuation of the earlier order cannot be accepted. The order dated 09-11-2021, issued by the Deputy Commissioner, Nagaon, which starts a new departmental proceeding Page No.# 15/16 under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964, this order was passed at a time when the petitioner had already superannuated from his office, with effect from 31-12-2017. 21. Under such circumstances, it was incumbent on the respondent authorities to first seek sanction from the Governor under Rule 21 of the Assam Services Pension Rules, 1969, for initiation of departmental proceedings. In terms of the said Rule 21, it is also necessary to specify whether the event or the incident in respect of which the fresh departmental proceedings are initiated did not take place more than 4 (four) years before the date of initiation of such proceedings. Nowhere in the present proceedings have the respondents placed any material before the Court by the respondents to show that prior sanction of the Governor of the State for withholding and withdrawing of a pension has been obtained by the respondent authorities. 22. Under such circumstances, this Court is inclined to allow the claims of the writ petitioner. The impugned order dated 09.11.2021 is interfered with and set aside as being contrary to the provisions of Rule 21 of the Assam Services (Pension) Rules 1969, as well as the Assam Services (Discipline and Appeal) Rules, 1964. 23. The respondents will forthwith process the pension papers of the writ petitioner and release all pensionary and service dues without any further delay. Page No.# 16/16 The respondents, however, are at liberty to adopt the procedure prescribed under Rule 21 of the Assam Services (Pension) Rules, 1969 and if, in the event, any sanction is accorded by the Governor, then the procedure prescribed under Rule 21 of the Assam Services (Pension) Rules, 1969 can be adhered to. 24. With the above observation, the writ petition stands allowed, disposed of. JUDGE Comparing Assistant