Fostering accountability

A misconduct, such as financial bungling, is considered a serious misconduct only until the day of retirement. However, a day after retirement, the same cannot be investigated under disciplinary provisions unless the rules permit it. This is a well-established legal principle. Consequently, many cases of corruption linger until retirement, and the errant, corrupt official goes scot free thereafter. Of course, there is no restriction on criminal prosecution. Civil remedies are also possible to the extent of limitation, but these are not commonly pursued.

Continuation of disciplinary proceedings against an employee of an organisation after retirement is invalidated unless the rules permit it. This means that even a corrupt employee can continue to receive a pension, gratuity, and other retirement benefits if no inquiry was initiated before retirement. According to judgments in such cases, full arrears of salary, allowances, and retirement benefits are generally paid following the rules and regulations, as if there had been no disciplinary proceeding or order passed. Courts have argued that actions should have been taken when officers were still in their positions, and management should not have turned a blind eye.

There is a need to frame uniform regulations for such contingencies. According to some views, a retired employee should be allowed to live in peace during their twilight years. The rationale behind this perspective is, "let bygones be bygones." However, the reality is that sometimes such cases are intentionally not pursued while the person is employed, as many individuals could be involved, or the culprit themselves may be in an influential position.

In any case, corruption or financial bungling is always a bungling. It is clearly prejudicial to the public interest. When there can be criminal proceedings, disciplinary actions should also be permitted in various organisations, along with the forfeiture of pension, gratuity, etc. Of course, there should be a reasonable time frame within which such matters can be investigated, such as about 4 to 5 years after retirement or until a prescribed reasonable age. The nature of misconducts that can be subject to investigation should also be limited. Needless to say, the continuation of an inquiry post-retirement should not be mandatory for private entities, as it may be misused for self-gain by certain organisations or for personal vendettas, etc. Private entities, as the current practice stands, should be allowed to establish their own regulations as they see fit, in addition to following Model Standing Orders as applicable.

The Rules of CCS (Pension Rules), 1972 are reasonable in this regard. According to Rule 9(1), an inquiry initiated while the government servant was in service, whether before retirement or during re-employment, shall, after the final retirement of the government servant, be continued and concluded by the same authority that began it, in the same manner as if the government servant had remained in service. Furthermore, Rule 9(2) specifies that departmental proceedings, if not initiated while the government servant was in service, shall not be instituted without the sanction of the President and should not pertain to any event occurring more than four years prior to the institution, etc. This Rule can serve as a model with necessary amendments such as with respect to the authority granting sanction. Just as there are instances of gross misconduct in the government, similar cases arise in other sectors, including public sector organisations, semi-government bodies, and state government entities.

The Supreme Court, in its decision in Mahanadi Coalfields, 2020, observed that disciplinary inquiries against employees could continue even after their retirement, with major punishments being imposed in accordance with the Rules. It was noted that Rule 34 of the Conduct, Discipline & Appeal Rules, framed by Mahanadi Coalfield Limited, provides a special procedure in certain cases and allows the continuation of disciplinary proceedings after an employee's final retirement, provided that the proceedings were initiated while the employee was in service.

Such amendments will enhance accountability and responsibility among officials at all levels. Red-tapism, characterised by excessive and unnecessary adherence to formal regulations, which hampers actions and decision-making, can also be mitigated in such cases. To control unscrupulous behaviour within systems, appropriate rules must be established to close any existing loopholes.

The writer is a practising Advocate in Supreme Court and High Court of Delhi. Views expressed are personal