HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 28 Case :- WRIT - A No. - 34283 of 2013 Petitioner :- Govind Singh Sisodia Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Anil Bhushan,Adarsh Bhushan Counsel for Respondent :- C.S.C.,B.K. Yadav,K.S.Shukla Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Anil Bhushan, Sr. Advocate assisted by Shri Adarsh Bhushan, learned counsel for the petitioner. Learned Standing Counsel appears for State respondent nos.1 and 2. Shri B.K. Yadav appears for respondent nos.3 and 4.
By means of this writ petition, the petitioner has prayed for quashing the order dated 3.4.2013 passed by the Director of Education (Basic) and orders dated 18.4.2013, 6.5.2013 and 15.5.2013 passed by the District Basic Education Officer, Firozabad and further prayed for direction to the respondents to release the entire retiral benefit of the petitioner.
Brief facts giving rise to the present writ petition are that the petitioner was appointed as Asstt. Teacher in Primary Pathshala Bhondela Second, Distt. Firozabad in 1984. In 2001 he has been promoted as Assistant Teacher in Junior High School Rajmal Tundla, Distt. Firozabad. The date of birth of the petitioner is 7.7.1949 and he has attained the age of superannuation on 6.7.2011 but after getting the sessions benefit he has been allowed to continue upto 30.6.2012. It is averred that before retirement no dues certificate has been issued to the petitioner for the purposes of pension by the Asstt. Basic Education Officer vide order dated 6.6.2012. It is also averred that during the posting of petitioner in Junior High School Rajmal, Tundla Distt. Firozabad in 2007-08 the petitioner was directed to construct the building of Primary Pathshala, Pahadipur, Tundla, Distt. Firozabad. The said work was required to be completed with the help of Gram Pradhan of the aforesaid village. On the oral direction of the Assistant Basic Education Officer to utilize the fund of boundary wall in making kitchen for school for the purposes of mid day meal, the petitioner has got constructed kitchen and utilized the fund of boundary wall. As such the allocation, which was earmarked for the construction of boundary wall was utilised for the construction of kitchen. It is categorically averred in the writ petition that no dues certificate had been issued by the Asstt. Basic Education Officer after completion of the work.
Some complaints have been made by the villagers as well as teachers of the aforesaid school after the retirement of the petitioner and as such the District Basic Education Officer vide order dated 13.9.2012 had stayed the retiral benefits of the petitioner. In this background the petitioner had filed Writ Petition No.66126 of 2012 challenging the order dated 13.9.2012. The said writ petition was finally disposed of vide order dated 18.12.2012 with direction to the Director of Education (Basic) to decide the claim of the petitioner. In compliance thereof the Director of Education (Basic) vide order dated 3.4.2013 had issued a recovery of Rs.1,13,290/- from the petitioner.
Shri Anil Bhushan, Sr. Advocate submits that the District Basic Eduction Officer is the appointing authority hence the Director of Education has no authority under the law to pass such punishment order and since the petitioner has attained the age of superannuation on 30.6.2012 as such relation of master and servant was automatically come to an end and therefore the Director of Education (Basic) had no jurisdiction to pass such punishment order without holding any enquiry. He also submitted that the petitioner was working as teacher in Junior High School as such rules of U.P. Basic Education Staff Rules, 1973 (in short 'Rules of 1972') and for the purposes of disciplinary proceedings the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (in short 'Rules of 1999') would be applicable in the present case. He further makes submission that with regard to departmental proceedings in case of minor punishment Rule 10 of the Rules of 1999 will apply and as per Rule 10 the punishment order can only be passed against an employee only after information regarding substance of charges levelled against him and as such the chargesheet ought to be served to the delinquent employee. But in the present matter neither any chargesheet was given nor the department had initiated any disciplinary proceedings and as such the order for recovery cannot be sustained. It is further submitted that the order impugned also cannot be sustained in the absence of any approval of Hon'ble the Governor under Regulation 351-A of Civil Service Regulations, which is mandatory for initiation of any enquiry proceedings after the retirement.
Shri Anil Bhushan, learned senior counsel for the petitioner also submits that in the present matter there was no pecuniary loss caused to the government and as per the oral instructions of the Asstt. Basic Education Officer the petitioner had constructed the kitchen for the purposes of mid day meal and as such he has not siphoned or embezzled any amount. Therefore, the recovery order cannot be sustained in the aforesaid facts and circumstances.
The counter affidavit has been filed in the matter on behalf of respondent nos.1 and 2 and specific stand has been taken in the matter. It has been averred that the matter relates to school building, which is controlled throughout the State under the Sarv Shiksha Abhiyan (Sabhi Ke Liya Shiksha Pariyojana Parishad), which is an autonomous and independent body duly registered under the Societies Registration Act, 1860. The U.P. State Project Director is the Chief Executive of the Parishad. The State Project Director interalia is the Controlling Authority in the matter relating to school building under the Sarv Shiksha Abhiyan, which also time to time issue guidelines, disbursing fund also and controls the quality etc. and at the district level the lowest officer is the District Coordinator (Building), who happens to be the immediate supervisory authority under the District Basic Shiksha Adhikari in every district.
It has also been averred that the school building has to be constructed in accordance with norms and guidelines and map/drawing prescribed by the Project Directorate and the fund has to be utilised strictly headwise. The money released by the Project Directorate for school building was withdrawn by the petitioner/Pradhan in their joint account for being used for the construction of school building according to the plan and guidelines but in violation of the guidelines money has been siphoned and as such the petitioner being custodian / trustee of the government money is liable to repay the loss to the government. Learned Standing Counsel on the basis of counter affidavit has tried to justify his stand.
Heard rival submissions and perused the record.
In the present matter the specific stand has been taken by the petitioner that in the present matter neither any chargesheet nor any disciplinary enquiry has been initiated against the petitioner and at no point of time the department has taken any permission from the Hon'ble Governor as per the Regulation 351-A of the Civil Service Regulations and as such the order impugned is against the principle of natural justice and cannot be sustained. Nowhere in the counter affidavit the department has taken any stand regarding any enquiry nor the department has taken any stand to justify under what circumstances through the present impugned order they have directly proceeded for recovery of the said amount without any enquiry in the matter. They have also not controverted the stand, which has been taken regarding any sanction from the Hon'ble Governor as per the Regulation 351-A.
The Supreme Court in State of U.P. vs. Bramhdutt Sharma 1987 (2) SCC 179 has held that grant of pension is important right of the petitioner. In State of Punjab vs. K.R. Erry and State of Punjab vs. Iqbal Singh 1976 (3) SCR 360 the Supreme Court held that the order of imposing deduction in pension cannot be passed without giving any opportunity of hearing and thus the order passed against the petitioner without giving any opportunity of hearing is also illegal.
In order to resolve the present controversy, Regulation 351-A of the Civil Services Regulation is being extracted below:-
"351-A. The Provincial Government reserve to themselves the right to order the recovery from the pension of an officer who entered service on or after 7th August, 1940 of any amount on account of losses found in judicial or departmental proceeding to have been caused to Government by the negligence or fraud of such officer during his service.
Provided that-
(1)such departmental proceedings, if not instituted while the officer was on duty.
(i) shall not be instituted save with the sanction of the specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave mis-conduct, or to have caused, pecuniary loss to government by misconduct or negligence, during his service, including service rendered on re-employment after retirement.
Provided that
(a)such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment-
(i) shall not be instituted save with the sanction of the Governor,
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings, and
(iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.
(b) judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause
(ii)(a), and
(c) the Public Service Commission, U.P., shall be consulted before final orders are passed.
Provincial Government:
(ii) shall be instituted before the officer's retirement from service or within a year from the date on which he was last on duty whichever is later;
(iii) shall be in respect of an event which took place not more than one year before the date on which the officer was last on duty and;
(iv) shall be conducted by such authority and in such places whether in India or elsewhere, as the Provincial Government may direct;
(2)all such departmental proceedings shall be conducted, if the officer concerned so requests in accordance with the procedure applicable to departmental proceedings on which an order of dismissal from service may be made; and (3)such judicial proceedings, if not instituted while the officer was on duty, shall have been instituted in accordance with sub-clauses (ii) and (iii) of clause (1).
Note- As soon as proceedings of the nature referred to in this article are instituted the authority which institutes such proceedings shall without delay intimate the fact to the Audit Officer concerned.
Explanation- For the purpose of this article-
(a)departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him, or, if the officer has been placed under suspension from an earlier date, on such date; and
(b)judicial proceedings shall be deemed to have been instituted;
(i)in the case of criminal proceedings, on the date on which a complaint is made, or a charge-sheet is submitted to a criminal court; and
(ii)in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made, to a civil court.
Note- As soon as proceedings or the nature referred to in this article are instituted the authority which institutes such proceedings shall without delay intimate the fact to the Audit Officer concerned."
A Division Bench of this Court has considered the present controversy in great length in Z.U. Ansari vs. State of UP and others 2014 (3) adj 671 (DB). The relevant paragraph nos. 10, 13, 15, 16 and 17 are reproduced herein below:-
"10. It is admitted on record that there is no order of the Governor sanctioning the departmental proceedings. The stand taken by the State before us is that since the minister of the department had granted approval to the initiation of the departmental proceedings vide order dated 07.01.2011, this order of the minister read with Chapter 7 of U.P. Secretariat Instructions, 1972 framed under the Rules of Business, 1975 has to be deemed to be the sanction of the Governor. In support of this contention the State has placed reliance upon paragraph 12 of the judgment in the case of State of Orissa vs. Kanhu Charan Majhi (supra). Paragraph 12 reads as follows :
"We have considered the provisions of Rule 31 of the Rules, whereby power has been given to the Governor to review the order dated 16.10.1995. Now the question is whether the order was passed by the Governor. It is true that when any statute empowers the Governor to pass an order, the Governor himself need not sign and need not pass the order. The rules of business of any particular State deal with the procedure as to how an order is to be passed by the Governor or in the name of the Governor. In the instant case, the order dated 04.09.2000 was passed by the Under-Secretary, Food Supplies and Consumer Welfare Department of the Government of Orissa. According to Rules 11 and 12 of the Orissa Government Rules of Business, an Under-Secretary is empowered to sign in the name of the Governor. Thus, in view of said legal position, the order dated 04.09.2000 can be said to have been passed by the Governor, exercising power under Rule 31 of the Rules.
13.We are of the considered opinion that the provisions of Article 309 of the Constitution of India operate in a separate field vis-a-vis the conduct of government business under Article 166 of the Constitution of India. They are not overlapping. Therefore, if under the service rules framed under Article 309 of the Constitution of India namely the Civil Services Regulations, 1975, it has been provided that sanction of the Governor would be necessary before initiation of the departmental proceedings with the service of the charge sheet upon the retired employee then such sanction has to be that of the Governor and not of the minister with reference to the U.P. Secretariat Instructions 1982 framed under the Rules of Business, 1975. We may also record that the U.P. Secretariat Instructions 1982, Chapter VII only provide that all business allocated to a department under the Rules of Business, 1975 is to be disposed of by or under the General or special directions of the minister in charge (Reference Business Regulations 3). It is, therefore, clear that only such business as allocated to the department under the Rules of Business, 1975 can be disposed of under the general or special directions of the minister in charge.
15. We have, therefore, no hesitation to hold that the sanction of the minister referable to the Business Regulations in the facts of the case will not amount to the sanction of the Governor as contemplated by Regulation 351-A of the Civil Services Regulations, 1975.
16. So far as the judgment relied upon by the counsel for the respondent in the case of State of Orissa (Supra), we may record that the same is clearly distinguishable in the facts of the case specifically with reference to the Rules of Business, 1975 of the State of U.P. referred to by us.
17. In absence of sanction of the Governor, no departmental proceedings can be initiated against a government servant after his retirement, the impugned charge-sheet cannot be legally sustained. Accordingly, the charge-sheet dated 27.06.2011 is hereby quashed as also the departmental proceedings initiated thereto against the petitioner. The petitioner shall be entitled to all the consequential benefits with the result of the quashing of the charge-sheet and the departmental proceedings. The State is directed to take appropriate action in that regard within two months from the date a certified copy of the order is served upon the State Government."
In Civil Misc. Writ Petition No.11601 of 2010 (Ambika Prasad Singh vs. State of UP and others) decided on 16.2.2011 this Court held as follows:-
"On the parameter of the aforementioned regulations, here accepted position is that petitioner has attained the age of superannuation on 31.8.2009. This is also accepted position that after attaining the age of superannuation, he has been placed under suspension on 4.11.2009, which clearly shows that in mechanical manner proceedings have been sought to be undertaken by the authority concern and coupled with this charge sheet has been served upon the petitioner on 4.2.2010. Said charge sheet is dated 9.7.2009 and most surprisingly in the said charge sheet, in hand writing the word "Seva Nibriti" has been mentioned which clearly reflects that charge sheet in question had never been served upon the petitioner, and after attaining the age of superannuation, maintaining on the same date "Seva Nibriti" has been inserted and same has been sought be served upon the petitioner on 4.2.2010. Explanation added to Regulation 351-A of Civil Service Regulation clearly proceeds to mention that departmental proceeding shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the officer has been placed under suspension from and earlier date, on such date. Here in the present case by no stretch of imagination departmental proceeding can be deemed to have been instituted as charges framed had never been issued to the petitioner, and accepted position is that suspension order is subsequent to the date of superannuation and charge sheet in question has been served on 4.2.2010. In view of this by no stretch of imagination on the relevant date i.e. 31.8.2009, it can be said that any departmental proceeding had been instituted against the petitioner. Once departmental proceedings were to be undertaken after attaining the age of superannuation, then in all eventuality sanction of Governor was mandatory, as per Regulation 351-A. Once said statutory provision has not been complied with which is a mandatory provision, then any departmental action without sanction of Governor cannot be approved of.
In view of this, entire action pursuant to the aforementioned charge sheet in question dated 9.7.2009 is hereby quashed and set aside. However, in the event of there being sanction of Governor, proceeding can be undertaken in accordance with law."
Learned counsel for the petitioner submits that the similar view was also taken by this Court in Writ Petition No.49835 of 2012 (Sri Ram Gopal Sharma v. State of U.P. & Ors.), which was affirmed by the Division Bench of this Court in Special Appeal Defective No.500 of 2015 (Executive Engineer Electricity Urban & Ors. v. Sri Ram Gopal Sharma & Anr.).
The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fairplay in action." As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, I am of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. No doubt, the extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement.
In A.K. Kraipak and others Vs. Union of India and Others, reported in (1970) 1 SCR 457 the Supreme Court has held as under:-
"The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (i) no one shall be a Judge in his own cause (nemo dabet esse judex propria causa) and (ii) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice." (P. 468-69).
In view of the aforesaid facts and circumstances, nothing has been brought on record to indicate in the matter that at any point of time the department has taken any initiative to conduct any departmental enquiry or any leave has been sought from the Hon'ble Governor in the matter for initiation of any enquiry. Therefore, in the absence of any department enquiry, the order impugned is hit by the principle of natural justice and as such cannot be sustained. .
In view of above, the orders impugned are set aside. The writ petition is allowed. A mandamus is issued to the respondents to release the entire retiral dues to the petitioner within six weeks from the date of production of certified copy of this order.
(Mahesh Chandra Tripathi,J.) Order Date :- 5.8.2015 SP/