Post-Retirement Disciplinary Action Not Permissible | Pension Recovery Allowed Only If Loss Due to Negligence or Fraud Is Proven During Service: J&K High Court
Isabella Mariam
The High Court of Jammu & Kashmir and Ladakh, Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar held that disciplinary proceedings cannot be initiated against a government servant after retirement, and recovery from pension is permissible only when a specific charge of financial loss to the Government due to negligence or fraud is duly framed and proved. The Court therefore set aside the government’s order directing recovery of the honorarium paid by the Jammu & Kashmir Cricket Association to a retired police officer, noting that the charge of financial loss had never been established through proper proceedings.
The petitioner, a former officer of the Jammu & Kashmir Police, was appointed as Sub-Inspector in 1990, promoted to Inspector in 2000, and later placed as In-charge Deputy Superintendent of Police in 2012. It was reported to the Police Headquarters in 2015 that he had simultaneously held the position of Joint Secretary of the Jammu & Kashmir Cricket Association (JKCA) during various periods between 2003 and 2016, without obtaining prior permission from the Government as required under Rule 21(2) of the Jammu & Kashmir Government Employees (Conduct) Rules, 1971. It was further noted that he had received an honorarium of ₹12,000 per month from JKCA.
A complaint was filed alleging that his official duties in the police department were being neglected due to his involvement with JKCA. The Police Headquarters referred the matter to the State Vigilance Organization, which recommended departmental action. In February 2016, the petitioner applied for post-facto permission to hold the JKCA position, but such permission was not granted. In June 2018, the Director General of Police recommended initiation of disciplinary proceedings.
Before any departmental proceedings could be concluded, the petitioner retired in May 2021. Nevertheless, in May 2022, the Home Department issued a memorandum under Rule 33 of the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, framing two charges: that the petitioner had held an outside assignment without government approval and had accepted remuneration from JKCA while serving in government.
An inquiry officer appointed in July 2022 reported in September 2022 that the petitioner had violated the Conduct Rules by holding the post and accepting remuneration while in government service. Relying on this report, the Government ordered recovery of the amount paid by JKCA from the petitioner’s pension, citing Article 168-A of the Jammu & Kashmir Civil Service Regulations, 1956.
The petitioner disputed the initiation of disciplinary proceedings after retirement and argued that there had been no inquiry or findings regarding any loss to the public exchequer. The respondents maintained that recovery was justified in light of the petitioner’s unauthorized engagement with JKCA and acceptance of honorarium while in service.
The Court recorded that “no government employee can accept assignment outside his office for remuneration or honorarium without prior permission of the Government and if any employee does so, he invites the wrath of Sub Rule (2) of Rule 21 of the Conduct Rules.” However, the Court also observed that “a retired person like the petitioner cannot be subjected to departmental proceedings for the misconduct which such employee has committed during the period he was in service.”
Referring to Rule 30 of the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, the Court stated that penalties under these provisions apply only to a “member of service,” defined as a person holding a whole-time pensionable post. The Bench held that “a person not holding or appointed on a whole time pensionable post under the Government cannot be construed to be a ‘member of service’ for the purposes of Rule 30.” Therefore, “a retired person like the petitioner cannot be subjected to departmental proceedings for the misconduct which such employee has committed during his service career.”
Citing its earlier decision in UT of J&K and others v. Qazi Qamer U Din, the Court noted that recovery from pension can be ordered only when the loss to the Government is established through such proceedings. The Bench observed that “there were no judicial or disciplinary proceedings conducted by the respondents to determine the loss caused to the Government by an act of negligence or fraud by the petitioner.”
The Court observed, “we are at loss to find any charge with regard to the loss, if any, caused by the petitioner to the Government by his negligence or fraud.” The inquiry was confined only to allegations of misconduct under the Conduct Rules. Consequently, “Government Order dated 16.11.2022 imposing recovery of the amount, which the petitioner had received from JKCA as remuneration/honorarium, is clearly in violation of the principles of natural justice.”
It stated, “the inquiry, which was initiated by the disciplinary authority was proposed to be initiated in terms of office memo dated 12.05.2022 on the twin charges... was an inquiry contemplated in terms of Rule 33 of the Rules of 1956 and not an inquiry in terms of Article 168-A of the Regulations of 1956.” The Bench stated that “there was no inquiry with regard to the loss caused to the Government by the negligence or fraud of the petitioner ever conducted by the respondents.”
“Government Order dated 16.11.2022 imposing recovery of the amount, which the petitioner had received from JKCA as remuneration/honorarium is clearly in violation of the principles of natural justice and, therefore, cannot sustain.” Accordingly, “the impugned judgment to the extent it upholds the action of the respondents for recovery of remuneration received by the petitioner from JKCA from his pension vide Government Order No.403-Home of 2022 dated 16.11.2022 is quashed and set aside.”
Advocates Representing The Parties
For the Petitioner: Mr. Parveen Kapahi, Advocate
For the Respondents: Ms. Monika Kohli, Senior Additional Advocate General
Case Title: Sudershan Mehta v. Union Territory of Jammu & Kashmir and Others
Case Number: WP(C) No. 2027/2024
Bench: Justice Sanjeev Kumar, Justice Sanjay Parihar
