HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 28 Case :- WRIT - A No. - 35089 of 2007 Petitioner :- Satya Narayan Vishwakarma Respondent :- State Of U.P. And Others Counsel for Petitioner :- Tarun Verma,N.Dubey,S.D.Dubey,S.Dhar Counsel for Respondent :- C.S.C. Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner and the learned Standing Counsel.
This petition lays challenge to orders dated 13 April 2005, 23 June 2005 and 27 January 2006. The orders dated 13 April 2005, 16 April 2005, 16 April 2005 and 23 June 2005 sought to effect recovery from the pensionary dues of the petitioner. These orders were preceded by issuance of a show cause notice dated 29 January 2005, which was admittedly served on the petitioner on 25 February 2005. The last order of 23 June 2005 was subjected to challenge in a writ petition before this Court on the ground that although the petitioner in response to the initial show cause notice had submitted a detailed reply on 28 March 2005, the same had not been taken into consideration before passing of the order dated 23 June 2005. Considering the above challenge a learned Single Judge of this Court on 22 August 2005 while disposing of the writ petition provided that the State respondents would revisit the entire exercise and take into consideration the reply of the petitioner and pass fresh orders in accordance with law. It is pursuant to the above direction of this Court that the order dated 27 January 2006 came to be passed. The validity of these orders fall for determination in these writ proceedings.
The petitioner, who was a Junior Engineer with the National Highway Division of Public Works Department, Deoria is stated to have been transferred by an order dated 23 June 2003. It is contended on the petition that pursuant to the above transfer order, the charge was forcibly taken from the petitioner on 30 June 2003 by one Sri Hare Ram Pandey. The writ petition carries further allegations of Sri Hare Ram Pandey making interpolations in the relevant records. It transpires that the quality of construction materials and the charges levelled in respect thereof came up for scrutiny before the respondents, who constituted a four member committee which visited the site between 16 August 2004 to 30 August 2004 and submitted a report with respect to the shortcomings and quantified the loss caused to the Government to the extent of Rs. 8,13,910.61. Based on the conclusions recorded by the above Committee, a show cause notice dated 29 January 2005 is stated to have been issued to the petitioner. The petitioner who attained the age of superannuation on 31 January 2005 averred in his rejoinder affidavit that this show cause notice was served on him only on 25 February 2005. The State respondents did not dispute or deny this fact as would be evident from the pleadings taken in the supplementary counter affidavit and more particularly in paragraph 7 thereof. As noticed above, upon receipt of the above show cause notice, the petitioner submitted a detailed reply on 28 March 2005. Without noticing or taking into consideration the aforesaid reply, the order dated 23 June 2005 came to be made holding that a sum of Rs. 8,13,910.61 stood recoverable and in case no reply is submitted within the period of 15 days, the same would be recovered from the petitioner. It is this direction which stands reiterated in the order dated 27 January 2006.
Sri Dube learned counsel appearing on this petition has advanced the following submissions while assailing the validity of the orders impugned herein.
A. The charge of shortfall or loss caused to the Government in the construction of the bridge is not a gross misconduct which would warrant the invocation of Regulations 351 and 351-A of the Civil Service Regulations1 as applicable in the State of U.P.
B. No proceedings were initiated prior to the retirement of the petitioner nor was the sanction of the Governor obtained in proceedings under Regulation 351A;
C. The word 'initiated' as used in Regulation 351 A are liable to be interpreted to mean the date when the show cause notice or chargesheet is served upon the petitioner;
D. No departmental proceedings were initiated prior to the retirement of the petitioner and therefore, the order of recovery from the retiral dues is unsustainable;
F. The recovery from pension and other retiral benefits cannot be equated with the minor punishment of recovery from pay; and lastly on merits he contended that it was Sri Hare Ram Pandey who manipulated the record and consequently the report of the Committee was not liable to be countenanced and made the basis for the passing of the orders impugned.
The learned standing Counsel on the other hand while referring to the pleas taken in the supplementary counter affidavit has contended that the orders came to be passed validly in exercise of the powers under Regulation 351A and do not commend interference by this Court.
Dealing with the first two submissions advanced by Sri Dube, this Court finds that Regulations 351 and 351A which have been referred to and relied upon first need mention. It is on the strength of the provisions of the aforementioned regulations that Sri Dube contends that recovery of loss caused to the State Government is not gross misconduct and that the proceedings initiated against the petitioner fall foul of the procedure prescribed under Regulation 351A. Regulation 351-A as applicable in the State of U.P. reads as follows:
" 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 of grave misconduct, 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) of clause (a), and
c) the Public Service Commission, U.P., shall be consulted before final orders are passed.
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. "
In the opinion of this Court, the first submission with respect to gross misconduct is liable to be rejected outright. The petitioner was a Junior Engineer, who was employed in the Public Works Department. He was therefore, engaged in and employed by the Government to bring into existence the essential infrastructure for the people of the State. If in the creation of such infrastructure and facilities, discrepancies are found and/or the Government is overbilled and caused loss, such actions shall clearly fall within the ambit of the expression 'gross misconduct'.
The second submission of Sri Dube however, requires further elaboration. Regulation 351-A confers a power on the Government to recover from the pension of an officer any amount on account of loss found in judicial or departmental proceedings to have been caused to the Government by the negligence or fraud of such officer during his service. The rules which admittedly govern the terms and conditions of service of the petitioner are the Uttar Pradesh Government Servant (Discipline & Appeal) Rules, 19992. Sri Dube has rightly submitted that the recovery from pension cannot stand covered under the minor penalties prescribed in clause (iv) of Rule 3 of the 1999 Rules.
To appreciate the submissions of Sri Dube, it would be appropriate to breakdown the provisions of Regulation 351-A as they stand presently consequent to being amended vide notification dated 6 January, 1981. Regulation 351-A confers a power on the Governor to withhold, withdraw or to recover from pension any pecuniary loss that may have been caused to the Government on account of misconduct or negligence or grave misconduct as the case may be. For ease of reference, if the said provisions were to be broken up in parts, it would read as follows:
(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,
(b) the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Government,
(c) if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence,
(d) during his service including service rendered on re-employment after retirement.
When the amended provision is compared with as it stood originally, it appears that the words 'withholding or withdrawing a pension or any part of it whether permanently or for a specified period' have been significantly added. More importantly, the key words in the provisions as amended appear to be "found in departmental or judicial proceedings" and "during his service, including service rendered on re-employment after retirement." The provision as it originally stood sanctioned action being taken only if the employee or officer had been found guilty of causing loss and upon such finding being returned in judicial or departmental proceedings during his service.
From the above, it therefore, clearly follows that the employee or officer concerned must be 'found in' departmental proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Government by his misconduct or negligence. The second part of the provision which is equally important is that such such finding in a departmental or judicial proceedings must be recorded and returned during his service or service rendered on re-employment after retirement. It is only when the aforementioned twin conditions are fulfilled can proceedings be taken under the provisions of Regulation 351-A. Admittedly, on the record, there is no denial of the fact that no sanction of the Governor was obtained in terms of the proviso to Regulation 351-A. It is therefore, not the case of the respondents that the departmental proceedings were continued or were instituted with the sanction of the Governor either before retirement or during re-employment. The sequence of the events including the issuance of show cause notice on 29 January 2005, the remit by this Court and the final order passed by the respondents on 27 January 2006 clearly establish that till 31 January 2005 no finding of guilt or grave misconduct stood finally recorded against the petitioner. As noticed above, the communication dated 29 January 2005 was only a show cause notice and not a determination of misconduct if any committed by the petitioner. There is also no recital in the orders impugned nor do the affidavits of the State respondents carry any recital that any order had been passed for continuing the petitioner in service for the purposes of conclusion of the departmental inquiry. In fact and to the contrary significantly paragraph 10 of the supplementary counter affidavit avers that there was no need for passing any order for continuing disciplinary proceedings against the petitioner under Regulation 351-A of the Civil Service Regulations. In the above state of the record, this Court finds that the petitioner having retired on 31 January 2005 there was complete absence of any sanction for continuation of proceedings against him. The recovery of the alleged loss of Rs. 8 lacs approximately could have been effected only if a finding of guilt and grave misconduct had come to be recorded against the petitioner prior to 31 January 2005. In absence thereof, the orders of recovery and the notice issued in this regard cannot be sustained. The Court draws sustenance in arriving at the above conclusions from what was held by a Division Bench of the Court in Harihar Bhole Nath Misra Vs. State Public Services Tribunal and others 3 where their Lordships held as follows:
"19. Undisputedly, in an enquiry which is instituted during the service tenure, recourse to Regulation 351-A is not taken nor can be taken and, therefore, if the argument of the learned Counsel for the State is assumed to be correct, namely, that it is only for the purpose of instituting the disciplinary proceedings after retirement or during the course of re-employment such a sanction would require, it would mean that the enquiry which has been instituted during the service tenure of the Government servant under the given Service Rules, would be allowed to continue even after his retirement without any sanction of the Governor at any point of time though the punishment would be awarded to him, if any, under the aforesaid provision of Regulation 351-A and not under the Service Rules under which disciplinary enquiry was instituted. This would mean that although the punishment would be awarded under the provision of Regulation 351-A but enquiry under the said provision was neither instituted nor was directed to be continued after retirement at any point of time. That being so, the very purpose of the aforesaid provision would be frustrated. The punishment under the said provision also cannot be awarded if the enquiry has not been held under the said provision. It is only after the retirement of the Government servant that the requirement of Regulation 351-A is to be fulfilled. The sanction of the Governor thus, would be required both for initiating disciplinary proceedings after retirement of the Government servant or during the course of his re-employment and also for continuance of the disciplinary proceedings after his retirement even in cases where the disciplinary proceedings had been initiated or instituted prior to the retirement of the Government servant.
22. No provision has been brought to our notice nor any rules have been placed before us, which would permit the continuation of the disciplinary proceedings after the retirement of a Government servant, without the sanction of Governor, nor any Rule has been indicated which would permit the disciplinary proceedings once initiated during the course of service to remain continued even after retirement. On retirement of a Government servant, the relationship of master and servant ceases and, therefore, unless there is a Rule to that effect that the disciplinary proceedings already in vogue would continue even after retirement and for that purpose, the Government servant would be deemed to be in service, no disciplinary proceedings can continue after retirement of the Government servant. It is for this purpose alone that provision of Regulation 351-A has been framed.
24. Thus, a departmental enquiry cannot proceed after retirement, unless due sanction under Regulation 351-A is obtained, and the enquiry is held under that very provision, which gives a complete procedure and the manner in which the enquiry has to be held and what punishment can be awarded, if the misconduct given therein is established in such proceedings."
Similarly the right of the employer to proceed against an employee even in cases where proceedings have come to be initiated prior to retirement must and can be continued only in case there be a provision in terms of which the officer may have been continued in service or re-employed for the purposes of conclusion of the departmental proceedings. This principle has been clearly laid in the judgements rendered by the Supreme Court in Anant R. Kulkarni Vs. Y.P. Education Society and others4 where their Lordships held as follows:
"18. This Court in NOIDA Entrepreneurs Association v. NOIDA and Ors. AIR 2011 SC 2112, examined the issue, and held that the competence of an authority to hold an enquiry against an employee who has retired, depends upon the statutory rules which govern the terms and conditions of his service, and while deciding the said case, reliance was placed on various earlier judgements of this Court including B.J. Shelat v. State of Gujarat and Ors. AIR 1978 SC 1109; Ramesh Chandra Sharma v. Punjab National Bank and Anr. (2007) 9 SCC 15; and UCO Bank and Anr. v. Rajinder Lal Capoor AIR 2008 SC 1831.
20. In State of Punjab v. Khemi Ram AIR 1970 SC 214, this Court observed:
There can be no doubt that if disciplinary action is sought to be taken against a government servant it must be done before he retires as provided by the said rule. If a disciplinary enquiry cannot be concluded before the date of such retirement, the course open to the Government is to pass an order of suspension and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final order is passed therein.
22. In Bhagirathi Jena v. Board of Directors, O.S.F.C. and Ors. AIR 1999 SC 1841, this Court observed:
"7. ... There is also no provision for conducting a disciplinary enquiry after retirement of the Appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the Appellant had retired from service on 30-6-1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the Appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the Appellant was entitled to full retiral benefits on retirement.
34. We may add that the court has not been apprised of any rule that may confer any statutory power on the management to hold a fresh enquiry after the retirement of an employee. In the absence of any such authority, the Division Bench has erred in creating a post-retirement forum that may not be permissible under law."
The learned Standing Counsel has not been able to indicate to the Court any provision under which the petitioner may have been continued in service or re-employed for the purpose of conclusion of the proceedings, which were initiated on 29 January 2005. More fundamentally and as has been noted above, there is no order, material or record to indicate that even if such power existed the same was exercised in the case of the petitioner.
Consequently and in light of the above, this Court is of the opinion that the orders impugned in the present petition cannot be sustained. Accordingly, this petition shall stand allowed. A writ of certiorari shall accordingly issue quashing the orders dated 13 April 2005, 16 April 2005, 23 June 2005 and 27 January 2006. The petitioner shall be entitled to all consequential reliefs including the release of pensionary dues and retiral benefits. The above payments shall also carry simple interest at the rate of 6% from the date of payment and release of provisional pension till the date of actual payment to the petitioner.
Order Date :- 27.11.2015 LA/-