JUDGMENT

B.N. Kirpal, C.J.

1. The question which has arisen for consideration in this Letters Patent Appeal is whether a Government servant, who is being proceeded against departmentally even after the superannuation, is entitled to receive full amount of gratuity and also commuted pension under orders of the Court.

2. The respondent was working as an Area Development Commissioner under the State of Gujarat and he retired from Government service on 31st December, 1991. Prior to his superannuation, departmental proceedings were initiated and charge-sheet dated 30th December, 1991 was served on him. On 27th December, 1991 the respondent was also informed that, as the departmental inquiry was pending and will be continued after his retirement, his pension and gratuity, etc., would be subject to the relevant provisions of the Bombay Civil Services Rules.

3. The respondent filed a writ petition under Art. 226 of the Constitution, not only challenging the order with regard to his pension and gratuity being regulated by the Bombay Civil Services Rules, but he also sought to impugn the charge-sheet itself; and had also prayed for release of retirement benefits.

4. The writ petition was disposed of by the learned single Judge, who declined to quash the charge-sheet which had been served on the respondent, nor did the learned single Judge interfere with the order dated 27th December, 1991, informing the petitioner that, pending departmental inquiry, he would be continued to be entitled to the pension and gratuity, subject to the Bombay Civil Services Rules (hereinafter referred to as B. C. S. Rules). The learned single Judge, however, directed that, on the respondent furnishing solvent security to the full amount of gratuity the same should be paid to him. Further direction which was issued was, that the respondent should be paid commuted pension on the basis of the provisional pension which was admissible, upon the respondent giving an undertaking that the same should be repaid in the event of the result of the departmental proceeding being against him.

5. The State of Gujarat has challenged the aforesaid directions issued by the learned single Judge with regard to payment of full amount of gratuity and commuted pensions.

6. The contention of the learned Counsel for the appellant is, that, on correct interpretation of the Rules, such payment could not have been ordered and the direction of the learned single Judge is clearly in conflict with the statutory provision.

7. Shri Oza, on the other hand, has submitted that, there have been numerous orders passed by this Court, both by the single Bench and Division Bench, where such reliefs have been granted. He further submits that, the charge-sheet which has been served relates to an event which is alleged to have been taken place long before the superannuation of the respondent, and there has been an inordinate delay on the part of the appellant in holding the inquiry against the respondent. It is further his submission that, in the instant case, discretion has been exercised by the learned single Judge and the same should not be interfered with.

8. The outcome of the appeal depends entirely on the interpretation of the relevant rules.

9. It is not in dispute that, imposition of major penalties take place by having resort to the procedure prescribed under Rules 9 and 10 of the Gujarat Civil Services (discipline and Appeal) Rules, 1971. Such departmental inquiries, if commenced before the date of superannuation, can continue even after the officer has retired. This is precisely what has happened here, and therefore, the question that has arisen is as to what are the benefits which such an employee, who has superannuated but against whom departmental proceedings are pending, entitled to receive. The first relevant rule in the present case is Rule 186(a) of the B. C. S. Rules, which reads as follows :

p "186(a)... A Government servant who is removed or require to retire form Government service for misconduct or insolvency shall be granted no pension other than a compassionate pension".

Rule 189 which is also relevant in this regard is as follows :

"... Good conduct is an implied condition of every grant to pension. Government may withhold or withdraw a pension or any part of it if the petitioner be convicted of serious crime or be found to have been guilty of grave misconduct either during or after the completion of his service provided that before any order to this effect is issued the procedure referred to in Note 1 to Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal rules shall be followed".

10. The reading of Rules 186(a) and 189 clearly shows that a Government servant who is removed or is required to retire from service, inter alia on the ground of misconduct may not be granted any pension. Under Rule 189 this power can be exercised even if the misconduct is discovered after the completion of the service by the officer concerned.

11. Both these rules, namely, Rules 186(a) and 189 have to be read with rule 9(40) of the B. C. S. Rules, which state that "Pension includes a gratuity".

12. Therefore, when power is given under Rule 189 to withhold or withdraw any part of the pension, the effect of this is, that, not only the pension but gratuity can also be withheld if the conditions mentioned in Rule 189 are satisfied. Similarly when Rule 186(a) refers to pension, it must obviously include gratuity, the effect of which could be that, when a Government servant is removed or required to be retired inter alia on the ground of misconduct even gratuity can be withheld.

13. Rule 189-A also gives power of withholding or withdrawing pension, whether permanently or for a specified period. The said Rule also empowers the Governor to order the recovery from the pension, of the whole or part of any pecuniary loss caused to the Government. Power under Rule 189-A can be exercised only in the event of grave misconduct or negligence on the part of the employee concerned. The proviso to Rule 189-A makes it clear and leaves no doubt that such departmental proceedings can be continued even after the retirement of the Government servant concerned.

14. Rule 189-B which is very relevant reads as follows :-

"189-B(1) Where any departmental or judicial proceeding instituted under rule 189-A, or where a departmental proceedings is continued under Clauses (a) of the proviso thereto against Government servant who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period of commencing from the date of his retirement to the date on which upon conclusion of such proceeding final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service upto the date of retirement or if he was under suspension on the date of retirement upto the date immediately preceding the date on which he was placed under suspension, but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereon.

[By virtue of amendment as per notification dated 15-1-1993 in exercise of the powers conferred by the proviso to Art. 309 of the Constitution of India, following proviso has been inserted :]

(a) If a charge-sheet is not issued or criminal prosecution is not launched, as the case may be, on or before the date of retirement, ninety per cent death-cum-retirement gratuity shall be paid, retaining ten per cent or rupees five thousand, whichever is less, if the concerned department is of the opinion that some inquiry or prosecution is contemplated;

(b) If the departmental inquiry or prosecution is launched (i.e., charge-sheet issued or First Information Report filed, as the case maybe) prior to retirement, but the departmental inquiry or prosecution, is not concluded (i.e., the competent authority's order on the inquiry officer's report not issued or judgment of trial Court not delivered, as the case may be), within two years from the date of the retirement, ninety per cent death-cum-retirement, ninety per cent death-cum-retirement gratuity shall be released retaining ten per cent or rupees five thousand, whichever is less.

(2) Payment of provisional pension made under Clause (1) shall be adjusted against the final retirement benefits sanctioned to such Government servant upon conclusion of the aforesaid proceeding but no recovery shall be made where the pension finally sanctioned is less than provisional pension or the pension is reduced or withheld either permanently or for a specified period.

Note :- The grant of pension under this rule shall not prejudice the operation of Rules 188 and 189 when the final pension is sanctioned upon conclusion of the proceeding".

15. Sub-rule (1) of Rule 188-B makes a distinction, with regard to payment between gratuity and pension. Whereas a provisional pension, not exceeding the maximum pension is payable during the pendency of the departmental proceeding against a Government servant who has retired, the latter portion of sub-rule (1) of Rule 189-B, however, provides that, no gratuity or death-cum-retirement gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and the issue of final order thereon.

16. The newly added proviso to sub-rule (1) of Rule 189-B further provides that, under certain circumstances, 90% of death-cum-retirement gratuity shall be paid. The proviso contemplates a situation arising where there may be delay in the issuance of charge-sheet or the criminal prosecution being delayed, or there may be delay in completion of the departmental inquiry or prosecution, if it had commenced before retirement. In the latter case, it provides that, 90% death-cum-retirement gratuity will be released if departmental inquiry is not completed within two years from the date of retirement.

17. The last rule which is relevant is Rule 315 which reads as under :

"315(a) Government may sanctioned commutation for a lumpsum amount, of one-half of the pension or any lesser amount provided that the residue of pension after commutation is not reduced to less than Rs. 20 per mensem.

(b) The commutation of any part of pension is concession and not a matter of right, and Government reserve to themselves the discretion to refuse commutation in any case without stating reasons".

18. Sub-rule (a) of Rule 315 enable the Government to sanction commutation for a lumpsum amount of certain portion of the pension and sub-rule (b) clearly states that commutation of part of pension is a concession and is not a matter of right and the Government reserves to itself to refuse commutation in any case, without stating reasons.

19. Before referring to the various orders which have been passed by this Court, let us first analyse the aforesaid rules, taken together.

20. When a Government servant is proceeded against in any departmental inquiry being instituted while he is in service, the Government have the power to suspend him. During the period of suspension he even is entitled to receive suspension allowance. The suspension allowance is increased, if the inquiry is prolonged.

21. In the case of Disciplinary Proceedings which are initiated and continued against a Government servant, even after his retirement, the question of his suspension does not arise. Whereas such a Government servant could have got suspension allowance in the event of his suspension while still in service, after his retirement and during the disciplinary proceedings, payment of pension would be governed by the provisions of Rules 189-A, 189-B and 315 of the B. C. S. Rules. Keeping in mind that Rule 186(a) and Rule 189 give the power to the Governor to withhold or withdraw pension in the event of a Government servant being found guilty of grave misconduct. Rule 189-A also contains a similar power, and in addition to that it gives the right to the Governor even to order recovery from pension of the whole or any part of pecuniary loss which might have been caused to the Government due to the grave misconduct or negligence on the part of the Government servant.

22. The provisions of Rule 189-B very clear and are free from any ambiguity. Sub-rule(1) clearly provides what is to happen in the event of departmental inquiry continuing against a Government servant who retires. The first part of sub-rule (1) is in relation to pension, and not gratuity and it states in clear terms that such a Government servant "shall be paid during the period commencing from the date of his retirement to the date on which upon conclusion of such a Government servant "shall be paid during the period commencing from the date of his retirement to the date on which upon conclusion of such proceedings final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible.... " A Government servant retired is, in a sense better off than Government servant under suspension against whom disciplinary proceedings have been initiated. The use of the word shall in Rule 189-B(1) shows the mandatory nature of the said sub-rule. A direction is contained therein requiring the Government to pay full amount of pension during the period when the departmental proceedings continue, after the retirement of the Government servant. While duty is cast on the Government to pay this amount, there is obviously, a corresponding right that the Government servant get to demand this amount of provisional pension. Rule 189-B is a special provision which has been made with regard to payment of money to a Government servant against whom departmental proceedings are continuing after his superannuation.

23. With regard to gratuity, the later portion of sub-rule (1) of Rule 189-B injuncts the Government from paying the same until the conclusion of the departmental proceedings and the issuance of final orders thereon. The said sub-rule in other words, prohibits the payment of gratuity or death-cum-gratuity until the conclusion of disciplinary proceeding. The rigor of this sub-rule has, however, now been relaxed with the amendment brought out in 1993, with the insertion of proviso to the said sub-rule. Where departmental proceedings continue after a period of more than two years after the retirement of the Government servant, 90% of the death-cum-retirement gratuity has to be released.

24. Sub-rule (2) of Rule 189-B enables the Government to adjust the provisional pension paid under Sub-rule (1) against the final retirement benefits sanctioned on the conclusion of the departmental proceedings. Another benefit which is given under sub-rule (2) is that under no circumstances the recovery is to be made from the Government servant, if the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period. The said sub-rule (2) besides recognises the power of the Government to inter alia withhold the pension in toto.

25. The note to the said Rule 189-B is also very significant. It provides that, the provisional pension which is granted is not to prejudice the operation of Rules 188 and 189 which contains the power of the Government regarding withholding or reduction of the pension payable to the Government servant whose service was not thoroughly satisfactory or who had been guilty of misconduct.

26. Rule 315 is an enabling provision. Option is given to the Government to sanction commutation of the part of the pension. Sub-rule (b) makes it abundantly clear that such commutation is only a concession and not a matter of right and the Government reserves its right to cancel it in any case, without stating any reason.

27. It is contended by Shri Oza that when discretionary power is vested with the Government it cannot be exercised arbitrarily. There can be no two views with this proposition. In normal circumstances where no disciplinary proceedings are initiated, the demand for pension is more or less a right. But the commutation of pension under Rule 315 depends upon the decision of the Government whether to commute or not. The Government, of course while exercising this discretion, has to do so fairly and justly and not arbitrarily. It cannot, for example, give commuted pension to one Government servant and without justifiable reason for refusing to exercise their discretion in any one case or in any class of cases, while not refusing in other cases when such refusal is called in question. While such discretion has to be exercised fairly and justly. Rule 315 would enable the Government to legitimately decide not to grant commuted pension or postpone the same in the appropriate cases and for good reason. One such case would be where departmental proceedings are pending or are incomplete. This is for the simple reason that on the completion of departmental proceedings the pension itself may be ordered to be withheld or reduced. In view of that uncertainty the question of commutation of pension obviously cannot arise. Rule 189-B gives a direction to the Government to pay the full amount of pension provisionally. The commutation of pension, on the other hand, entails a different formula to be applied which may be at variance with Rule 189-B. Commutation of pension not being a vested right, as clearly provided by Rule 315(b) the question of Government servant against whom the departmental proceeding are in progress demanding the commutation of pension cannot in our opinion arise.

28. Keeping in view the fact that departmental proceedings may ultimately end with the Government servant being exonerated and in order that no hardships should be caused in such a case, the Government of Gujarat passed a Resolution dated 9th April, 1981. Paragraph 3 of this Resolution is as follows :

"A Government servant, against whom departmental or judicial proceedings have been instituted and/or where such departmental proceedings are continued after retirement under B. C. S. R. Rule 189-A, is paid only provisional pension as provided in the B. C. S. R. Rule 189-B. The question, therefore, arises whether in such cases, commutation of provisional pension should be allowed or not and if allowed, whether Medical Examination will be necessary, Government is pleased to decide as follows :

(i) Government servant against whom Judicial or Departmental proceedings has been instituted or continued under the provision of B. C. S. R. Rule 189-A should not be permitted to commute any part of his provisional pension during the pendency of such proceedings.

(ii) If on the conclusion of the proceedings, the entire amount of pension is withheld, the question of commutation of a part of pension will not arise.

(iii) However, if such a person, on the conclusion of proceedings is granted pension in whole or in part, he would be eligible to commute a part of that pension. In such cases commutation of pension will be allowed without Medical Examination, if the application for commutation of a part of pension is made within the period of one year from the date of orders issued on the conclusion of the proceedings".

29. Clause (iii) of the said paragraph 3 would enable such a person to whom pension becomes payable to get the pension commuted. The effect of this is that, if no departmental proceedings were in progress at the time when a Government servant superannuates, then the commutation of pension may take place on his retirement. If departmental proceedings are in progress, but on the conclusion thereof the Government servant becomes entitled to receive pension, then the said Government resolution on 9th April, 1981 would enable him to ask for commutation of pension.

30. In this background of the law, as we understand it, let us now examine the various orders and decisions which have been cited before us.

31. Shri Oza has firstly drawn our attention to the judgment dated 4th August, 1987 of A.M. Ahmedi, J. in Special Civil Application No. 6027 of 1986, in case of V. B. Dave v. State of Gujarat & Anr. That was also a case of Government servant against whom departmental proceedings continued after his superannuation. The learned Judge referred to Rule 189-A, and thereafter keeping in view the delay which had occurred in the completion of the inquiry, a direction was issued to the effect that 50% of the gratuity should be paid to the petitioner in cash and 50% amount should be placed apart and the petitioner should be paid interest at the rate of 12% thereon. Direction was also issued that, on the basis of the provisional pension the petitioner should be permitted to commute pension as per rules and 50% of the amount of commuted Pension should be given to him. He was also to get interest at the rate of 12%. We find that the attention of the learned Judge was not drawn to Rule 189-B. The judgment makes no reference to the said rules, which clearly lay down the amount which can be paid to a Government servant during the pendency of the departmental proceedings. The provisions of Rule 315 have also not been referred to and it is in the absence thereof that the judgment seems to say that there is a denial to 'right to commute the pension'. In fact Rule 315(b) specifically states that a person has no right to have the pension commuted.

32. The aforesaid judgment of A.M. Ahmedi, J. was followed by S. D. Shah, J. in another writ petition being Special Civil Application No. 1663 of 1991 decided on 8-1-1992 in case of K. H. Kavaiyajadav v. State of Gujarat. The short order of S. D. Shah, J. also does not refer to any section or provision to following the direction in the aforesaid judgment dated 4th August, 1987, similarly appear to have been granted.

33. N. B. Patel, J. vide order dated 15th September, 1992 in Special Civil Application No. 2969 of 1992, in case of Ambalal Tribhovandas Rana v. State of Gujarat & Anr. also granted similar relief and also did not refer to any of the B. C. S. Rules which are relevant in this regard.

34. Considerable reliance has been placed on a recent decision of S. M. Soni, J. in Special Civil Application No. 8417 of 1993 decided on 2-2-1984, in case of Madhusadan M. Shah v. State of Gujarat. The learned Judge no doubt, referred to provisions of Rules 189-A and 189-B and held that, withholding the gratuity or commutation of pension was not by way of penalty but with a view to make good any loss that may be suffered by the department as found at the conclusion of the inquiry. Having interpreted the rules in this manner, the learned single judge, on the basis of the charge which has been framed, calculated the extent of loss which could have been suffered and observed as follows :

"The purpose of withholding gratuity and commuted pension is to make good loss that may be caused to the Department. If the estimated loss may not exceed Rs. 40,000/- in any case, it appears to be unreasonable to withhold the whole of the amount of Rs. 2 Lacs of the petitioner under the pretext of provisions of Rule 189-A as well as Rule 189-B of B. C. S. Rules".

35. S. M. Soni, J. also referred to the aforesaid orders which had been passed by A.M. Ahmedi, J. as well as N. B. Patel, J. But unfortunately his attention was not drawn either to Rule 186 or 189 or 315 of the B. C. S. Rules. We are unable to agree with the learned Judge that the pension can be withheld only to the extent of the loss which is suffered. Rule 186(a) as well as 189 leaves no manner of doubt that, if a person is held to be guilty of misconduct, as a result of the departmental proceedings, the Government may order withholding of the whole or part of the pension by way of punishment. It will be seen that, if a Government servant is proceeded against for the misconduct, while he is still in service various orders, including major penalty can be passed, such as dismissal from service, compulsory retirement, reduction in rank, etc. All such orders are passed by way of imposing penalty on the ground of misconduct, and no such order can be passed on the ground of misconduct in the case a Government servant was retired. The only penalty which can be imposed on such a superannuated Government servant is to order the withholding of whole or part of pension, including gratuity. Had the attention of S. M. Soni, J. been invited to provision of Rules 186 and 89, possibly, he would not have held that pension can be deducted only to the extent of the loss which is suffered by the Government. The judgment of S. M. Soni, J. in this regard does not appear to be in conformity with the Rules.

36. It was then submitted by the learned counsel for the respondent that R. K. Abichandani, J. vide his order dated 16th June, 1993 in Special Civil Application No. 2408 of 1993, in case of Purshottambhai A. Patel v. State of Gujarat, had granted similar relief, as has been ordered by A.M. Ahmedi, J. But this was again without referring to any provisions of law. Strong reliance is placed on order dated 16th November, 1992 of the Division Bench of this Court in Letters Patent Appeal No. 451 of 1992, in case of M. R. Gandhi v. State of Gujarat, where again, similar relief was issued. In this case, however, it was observed that :

Keeping in view the provisions of Section 189-B of the B. C. S. R., we are of the view that 50% of the amount of gratuity should be given to the respondent employee on his furnishing security. The rest of the 50% should be paid to him on his undertaking to refund the same in the event of any Government claim being established pursuant to the Departmental Proceedings pending against him. As regards the commutations of pension, we feel that until the pension is finalised the respondent could not be allowed to commute the pension and we, therefore, find no warrant for issuing any interim direction allowing commutation of pension".

37. Special Leave Petition No. 1834 of 1993 was filed against the said judgment and the same was disposed of by the Supreme Court on 16-11-1993, by the following order :

"Since it is an interlocutory order in which no final opinion has been expressed, we do not propose to go into the question raised in this petition. The interest of Government is well safeguarded, we decline to interfere. The petition is dismissed. The order of the High Court would not be treated as a precedent".

38. The Supreme Court having held that the said Division Bench order of 16-11-1992 was not to be treated as a precedent, the said order cannot be regarded as has been binding on this Bench. However, there is one further order in Letters Patent Appeal No. 316 of 1993, in case of State of Gujarat v. Purshottambhai A. Patel, dated 6th July, 1993, also by the Division Bench. The Division Bench took note of the direction of the Supreme Court to the effect that the earlier judgment was not to be treated as a precedent and it was observed in this case that, the learned single Judge had not followed the earlier Division Bench order which was not to be treated as a precedent. In this Letters Patent Appeal No. 316 of 1993 the Bench observed that :

"Our own assessment of the facts and circumstances of the case also convinces us that the order made by the learned single Judge is perfectly justifiable and equitable and does not call for any interference at our hands".

The order of 6th July, 1993, does not make any attempt to construe any of the statutory provisions and is, therefore, not a binding precedent.

39. At the expense of repetition, we may observe that, the aforesaid rules read as a whole clearly spell out is to what can and cannot be paid to the Government servant during the pendency of departmental proceedings. This being so, the question which arises for consideration is, can the Court pass interim orders giving the relief which is not provided for by the Rules?

40. The function and jurisdiction of the Court undoubtedly is to do justice, but then, justice must be done in accordance with law and not in violation thereof. When a statute spells out the rights and liabilities of the parties, a Court cannot and should not, pass any order at variance with the law. When the rules clearly provide that only provisional pension can be paid and that, commutation of pension is not a right, it will be, in our opinion, a wrong exercise of jurisdiction by passing orders which are clearly in conflict with the provision of Rule 189-B and Rule 315 of the B. C. S. Rules. By the orders of this Court, the Government cannot be asked to pay which the Rule clearly prohibits. Similarly the last portion of Rule 189-B(1) contains an absolute prohibition to the payment of gratuity, subject to the provisions of the newly added proviso to the said sub-section. Therefore, for a period of two years after retirement, no gratuity could be ordered to be paid to the respondent. Even thereafter gratuity only to the extent of 90% could have been ordered. Direction to pay in excess thereon even against security would clearly be contrary to the said rule 189-B. We wish to re-emphasise that the Court has to interpret and to apply the law only in accordance with law and not in a manner which is contrary to the Statute. The orders of the Court whether interim or final, cannot be against the statutory provisions. By interpreting the rules in the manner in which we have interpreted, and the said rules having not been interpreted in any other decision so far, it is clear that the rights of a Government servant against whom departmental proceedings are pending to obtain benefits on superannuation are circumscribed by the provisions of Rules 189-B and 315 and he is entitled to receive only the amount specified therein and not more.

41. It is not in dispute that the respondent is receiving as provisional pension the 100% of pension and that, he has also been paid 90% of the death-cum-retirement gratuity, which is in accordance to Rule 189-B(1). This being so no further payment could have been ordered to be paid to the said respondent.

42. Before concluding, we would like to observe that, the disciplinary proceedings should be concluded at the very earliest. Mr. Sompura states that, there are about 35 officers of different cadres who were directly connected with the charges which have been framed. The respondent and those 35 officers have been charge-sheeted. In view of the aforesaid, time has been taken in completing the departmental proceedings, but he assures that, the departmental proceedings would be completed within a reasonable time.

43. For the aforesaid reasons the appeal is allowed and the writ petition filed by the respondent is dismissed. There will, however, be no order as to costs.