HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 8 Case :- SERVICE SINGLE No. - 145 of 2006 Petitioner :- Dinesh Narayan Mishra Respondent :- State Of U.P.Through Prn.Secy.Agriculture And 3 Others Counsel for Petitioner :- Rakesh Kumar Singh Counsel for Respondent :- C.S.C. Hon'ble Attau Rahman Masoodi,J.
Heard learned Counsel for the petitioner and learned Standing Counsel for respondents.
By means of this writ petition, the petitioner has assailed the order dated 12.12.2005 whereby a recovery of Rs. 89728.02 has been imposed on him and proportionate amount of gratuity stands withheld from the post-retiral dues admissible to the petitioner. There is a prayer for release of the amount coupled with the prayer for setting aside the impugned order.
The impugned order has come to be passed on the basis of show cause notice issued to the petitioner on 08.07.2005 in respect of allegations which relate from 1993-94 to 1996-97. Concededly the allegations are stale and relate to period of time beyond four years from the date of petitioner's attaining the age of superannuation on 30.11.2005.
Learned Counsel for the petitioner while assailing the impugned order has made submissions which are two fold, firstly, that the reply submitted against the show cause notice on 09.10.2005 has not been adverted to at all by the punishing authority and secondly, the impugned order could not have been passed by the departmental authority after the date when the petitioner had already attained the age of superannuation and that too without initiation of regular disciplinary proceeding.
On the contrary learned Standing Counsel has submitted that show cause notice was issued to the petitioner prior to his retirement on 08.07.2005 for the alleged loss, therefore, the punishing authority was well within his jurisdiction to pass the impugned order, as such, the impugned order does not suffer from any jurisdictional error. On the aspect of the matter as to why reply submitted by the petitioner was not considered, learned Standing Counsel has pointed out that no such reply was filed by the petitioner, therefore, the question of consideration of such a reply did not arise at the time of passing of the impugned order.
In the context of rival submissions advanced, the question that crops up for consideration is as to whether the disciplinary proceedings on the strength of show cause notice dated 08.07.2005 could at all be treated to be pending on attaining the age of superannuation against the petitioner who retired on 30.11.2005 or the show cause notice dated 08.07.2015 which was intended to impose minor penalty after the petitioner's retirement stood abated and fresh proceedings ought to have been initiated in accordance with Regulation 351-A of the Civil Service Regulations applicable to the petitioner being a pensioner before imposing the penalty of recovery. For better appreciation of the issue involved in the writ petition, it is necessary to reproduce Rule-3 and Rule-10 of The Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, which envisage the penalties minor and major :-
"Rule 3. Penalties.-The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed upon the Government servants:
Minor Penalties:
(i) Censure;
(ii) Withholding of increments for a specified period;
(iii) Stoppage at an efficiency bar;
(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders:
(v) Fine in case of persons holding Group 'D' posts;
Provided that the amount of such fine shall in no case exceed twenty-five percent of the month's pay in which fine is imposed.
Major Penalties:
(i) Withholding of increments with cumulative effect;
(ii) Reduction to a lower post or grade or time scale or to a lower stage in a time scale;
(iii) Removal from the service which does not disqualify from future employment;
(iv) Dismissal from the service which disqualified from future employment;
Explanation.-The following shall not amount to penalty within the meaning of this rule, namely:
(i) Withholding of increment of a Government servant for failure to pass a departmental examination or for failure to fulfil any other condition in accordance with the rules or orders governing the service;
(ii) Stoppage at the efficiency bar in the time scale of pay on account of ones not being found fit to cross the efficiency bar;
(iii) Reversion of a person appointed on probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation;
(iv) Termination of the service of a person appointed on probation during or at the end of the period of probation in accordance with the terms of the service or the rules and orders governing such probation.
Rule 10- Procedure for imposing minor penalties-
(1) Where the Disciplinary Authority is satisfied that good and sufficient reasons exist for adopting such a course, it may, subject to the provisions of sub-rule (2) impose one or more of the minor penalties mentioned in Rule 3.
(2) The Government Servant shall be informed of the substance of the imputations against him and called upon to submit his explanation within a reasonable time. The Disciplinary Authority shall, after considering the said explanation, if any, and the relevant records, pass such orders as he considers proper and where a penalty is imposed, reason thereof shall be given.
(3) The order shall be communicated to the concerned Government Servant."
It is undisputed that issuance of notice dated 08.07.2005 in terms of Rule-10 was with an intention of imposing minor penalty, however, no penalty was imposed till the petitioner attained the age of superannuation and after his retirement, the impugned punishment order of recovery has been passed without holding any fresh enqiry.
Once the punishment of recovery is imposed by a departmental authority, it is necessary to look into the scope of an order of recovery in the context of minor penalties envisaged under Clause IV of Rule- 3 which is reproduced as under :-
"Minor Penalties:
(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders;"
A plain reading of the relevant rule extracted above makes it clear that a recovery order passed against a delinquent employee has necessarily to be passed for recovery from pay. In the instant case, although the order of recovery has been passed but the said order is incapable of being enforced against the petitioner after his retirement in as much as, the petitioner ceased to be on the pay roll from the date of his retirement and recovery from his pay became impossible.
From a plain reading of the entire set of Minor Penalties prescribed under the rules, it can be reasonably deduced that the proceedings in respect of minor penalties have to culminate into final order before a government servant attains the age of superannuation. Once the scope of minor penalty is of a description like this, the natural conclusion is that the proceedings initiated in respect of minor penalty consequent upon the retirement of a government servant stand abated.
Now coming to the question as to whether the proceedings of recovery can be initiated against the Government servant after the date of retirement or not, reference to Regulation 351-A is necessary and the same is extract below:-
Regulation 351-A : The Governor 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 Government, if the pensioner is found in departmental or judicial proceedings to have been guilty or 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."
From a perusal of Regulation 351-A, it is seen that there are two essential requirements as a condition precedent for the initiation / continuation of disciplinary proceedings against government servant after attaining the age of superannuation; firstly, the disciplinary proceedings for penalty other than minor have to be pending against the Government servant on the date of retirement or he has to be placed under suspension as on the date of retirement. The existence of any of the two eventualities are sufficient for continuing disciplinary proceedings against the Government servant after attaining the age of superannuation. In the instant case, the petitioner was merely issued a show cause notice which stood abated as has been observed herein above, therefore, in absence of the petitioner being either placed under suspension or regular charge sheet issued against him, it can be safely concluded that no disciplinary proceedings were pending against the petitioner as on the date of his retirement.
Secondly, the disciplinary proceedings are permissible to be drawn against a pensioner with the sanction of his excellency the Governor, provided the allegation levelled against the pensioner pertain to a period of time which does not relate to a period beyond four years from the date of his retirement. In the instant case, neither there is any sanction of His Excellency the Governor nor the allegations in the show cause notice pertain to a period of time which fall within the scope of statutory rule being beyond a period of four years from the date of petitioner's retirement, therefore, on this account also there is no scope for subjecting the petitioner to the disciplinary proceedings as is permissible under Regulation 351-A.
Once it is concluded that no disciplinary proceedings were pending against the petitioner and the same are incapable of being initiated against him after retirement, passing of the impugned order merely on the strength of show cause notice which stood abated is void-abnitio and the impugned order of recovery cannot be enforced against the petitioner.
The submission of learned Counsel for the petitioner regarding non consideration of his reply to the show cause notice as pleaded by him does not merit consideration once this Court is of the opinion that the impugned order passed against the petitioner is wholly without jurisdiction.
In the result writ petition succeed and the impugned order of recovery is hereby set aside.
Accordingly, the writ petition is allowed and respondents are directed to release the balance amount of gratuity of Rs. 89728.02 in favour of the petitioner along with interest as admissible according to the Government Orders applicable in this behalf. Necessary compliance of this order passed by this Court be made within a period of three months from the date a certified copy of this order is filed before the competent authority.
No order as to cost.
Order Date :- 15.7.2015 I.A. Siddiqui