Rajendra Prasad Gupta vs State Of U.P.Thru Principal ...
2013 Latest Caselaw 1311 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 36
 
Case :- WRIT - A No. - 10630 of 2013
 
Petitioner :- Rajendra Prasad Gupta
 
Respondent :- State Of U.P.Thru Principal Secretary & Ors.
 
Petitioner Counsel :- Vikas Mani Srivastava,Ashish Tripathi
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Vineet Saran,J.

Hon'ble B. Amit Sthalekar,J.

This writ petition has been filed by the petitioner challenging the order dated 9.1.2012 nominating the Deputy Director, (Panchayat) Panchayati Raj, Lucknow Division, Lucknow as the Enquiry Officer, the order dated 30.3.2012 converting the enquiry proceedings into proceedings under Regulation 351-A of the Civil Service Regulations and the order dated 30.4.2012, which is a communication of the order dated 30.3.2012.

Briefly stated the case of the petitioner is that he was working on the post of District Panchayat Raj Officer, Agra. He retired from service on 29.2.2012. However, during his posting as District Panchayat Raj Officer, Etah in the year 2010-11 some allegations were made against him. The then District Magistrate, Etah by his letter dated 10.3.2011 directed the Chief Development Officer, Etah and Senior Finance and Accounts Officer, District Rural Development Authority, Etah to conduct an enquiry into the matter. An enquiry, as ordered aforesaid, was conducted and a report was submitted on 31.3.2011, a copy of which has been filed as Annexure-2 to the writ petition. According to the petitioner, from a perusal of the enquiry report none of the allegations against the petitioner have been established. However, the District Magistrate not being satisfied with the enquiry report again directed the Senior Accounts Officer, Etah to conduct another enquiry into the matter vide his letter dated 4.4.2011. The enquiry was held and an enquiry report was submitted on 3.5.2011 and this time it was alleged that there were some irregularities committed by the petitioner. On 3.5.2011 itself the District Magistrate, Etah issued a show cause notice to the petitioner to submit his explanation to the enquiry report dated 3.5.2011. The petitioner is stated to have submitted his explanation on 15.6.2011. However, ignoring the said explanation the impugned order dated 9.1.2012 has been passed and the Deputy Director, Panchayat Raj, Lucknow Division, Lucknow has been nominated as an Enquiry Officer. Further by another letter dated 30.3.2012 a direction has been issued to convert the said enquiry into an enquiry under Regulation 351-A of the Civil Service Regulations. The other impugned order dated 30.4.2012 is a communication of the order dated 30.3.2012.

We have heard learned counsel for the petitioner and learned standing counsel appearing for the respondents.

Counter affidavit and rejoinder affidavit have been exchanged. The matter is being taken up at the admission stage itself for consideration.

The contention of the learned counsel for the petitioner is that the petitioner retired from service on 29.2.2012. Although the impugned order dated 9.1.2012 mentions nomination of the Deputy Director, Panchayat Raj, Lucknow Division, Lucknow as Enquiry Officer, no chargesheet was issued to the petitioner till his retirement. His further submission is that by the other impugned order dated 30.3.2012 a direction has been issued to convert the said enquiry into an enquiry under Regulation 351-A of the Civil Service Regulations. This order was communicated to the petitioner by the order dated 30.4.2012. Thus the submission of the learned counsel for the petitioner is that once he had retired from service on 29.2.2012, no departmental proceedings could have been initiated against him without first issuing a chargesheet and that also could have been done only with the sanction of the Governor as specifically provided in the Regulation 351-A of the Civil Service Regulations.

A counter affidavit has been filed wherein it has been stated that by the impugned Govt. Order dated 9.1.2012, disciplinary proceedings were initiated against the petitioner and the same was converted into an enquiry under Regulation 351-A by the impugned order dated 30.3.2012. However, there is nothing on record to show that any chargesheet was issued to the petitioner prior to 29.2.2012, which was the date of his retirement.

A perusal of the impugned order dated 9.1.2012 which the respondents claim to be the chargesheet is not a chargesheet but it only mentions that departmental proceedings against the petitioner are being initiated in terms of the provisions of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999. Although certain allegations have been made relating to the year 2010-11 but in the impugned order dated 9.1.2012 it is only mentioned that the Deputy Director, Panchayat Raj, Lucknow Division, Lucknow is being appointed as Enquiry Officer. Thus the impugned Government Order dated 9.1.2012 is at best an order appointing the enquiry officer and contains a summation of charges against the petitioner. The said Government Order, if it was a chargesheet, does not even call upon the petitioner to submit his reply to the same as required by the provisions of Rule 7 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999.

Sub rule (i) to (v) of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 which are relevant for purposes of the present case read as follows:-

7-Procedure for imposing major penalties- Before imposing any major penalty on a Government Servant, an inquiry shall be held in the following manner :

i.The Disciplinary Authority may himself inquiry into the charges or appoint an Authority Subordinate to him as Inquiry Officer to inquire into the charges.

ii.The Facts constituting the misconduct on which it is proposed to take action shall be reduced in the from of definite charge or charges to be called charge -sheet. The charge-sheet shall be approved by the Disciplinary Authority.

Provided that where the Appointing Authority is Governor, the charge ?sheet may be approved by the Principal Secretary or the Secretary, as the case may be, of the concerned department.

iii.The charge farmed shall be so precise and clear as to give sufficient indication to the charged Government Servant of the facts and circumstances against him. The proposed documentary evidences and the name of the witnesses proposed to prove the same along with oral evidence, if any, shall be mentioned in the charge-sheet.

iv.The charge Government Servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence . He shall also be informed that in case he does not appear or file written statement on the specified date, it will be presumed that he has none to furnish and inquiry officer shall proceed to complete the inquiry ex-parte.

v.The charge-sheet, along with the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government Servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not be served in aforesaid manner, the charge- sheet shall be served by publication in a daily newspaper having wide circulation :

Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charge Government servant shall be permitted to inspect the same before the Inquiry Officer.

None of the mandatory conditions mentioned in Rule 7 of the Rules, 1999 have been complied with in the Government Order dated 9.1.2012, which is being claimed to be the chargesheet and, therefore, we hold that same cannot be said to be a chargesheet.

It is equally interesting that the proceedings, which are stated to be initiated by the Government Order dated 9.1.2012 appointing the Deputy Director, Panchayat Raj, Lucknow Division, Lucknow as the Enquiry Officer have been converted into proceedings under Regulation 351-A of the Civil Service Regulations by the next impugned order dated 30.3.2012 mentioning therein that the same is being done since the petitioner has retired from service on 29.2.2012.

Regulation 351-A of the Civil Service Regulations 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 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 reemployment-

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 proceeding; 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.

[Provided further that of the order passed by the Governor relates to a cash dealt with under the Uttar Pradesh Disciplinary Proceedings, (Administrative Tribunal) Rules, 1947, it shall not be necessary to consult Public Service Commission].

Explanation-For the purposes of this article-

(a) 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; and

(b) judicial proceedings shall be deemed to have been instituted :

(i) in the case of criminal proceedings, on the date on which 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 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."

The first Proviso to Regulation 351-A of the Civil Service Regulations states that such departmental proceedings, if not instituted while the officer was on duty either before retirement or during reemployment shall not be instituted save with the sanction of the Governor.

The Explanation (a) to Regulation-351-A further provides that the departmental proceeding shall be deemed to have been instituted when the charges framed against the pensioner are issued to him.

In the present case we have already recorded our findings that no chargesheet was issued to the petitioner prior to the date of his superannuation i.e. 29.2.2012 and in any case the Government Order dated 9.1.2012 is not a chargesheet as it neither calls upon the petitioner to submit his reply within 15 days nor does it mention the documentary evidence relied upon or names of witnesses to bring home the charge against the petitioner as mandated by the provisions of sub Rule (i) to (v) of Rule 7 of the Rules, 1999.

In the rejoinder affidavit filed by the petitioner there is a categorical averment that the chargesheet was issued to the petitioner on 1.4.2013. This fact has not been disputed by the learned standing counsel.

Such being the facts, the petitioner has also, admittedly, not been paid his regular monthly pension, leave encashment, gratuity, remaining 10% amount of G.P.F. and all increments as per the 6th Pay Commission recommendations. The learned standing counsel sought to justify the impugned order by submitting that the Regulation 351-AA of the Civil Service Regulations provides that in case a government servant retires on attaining the age of superannuation or otherwise and against whom any departmental or Judicial proceedings or any enquiry by Administrative Tribunal is pending on the date of retirement or is to be instituted after retirement, a provisional pension as mentioned in Article 919-A of the Civil Service Regulations may be sanctioned.

Regulation 351-AA of the Civil Service Regulations reads as follow:-

"351-AA. In the case of a Government Servant who retires on attaining the age of superannuation or otherwise and against whom any departmental or Judicial proceedings or any enquiry by Administrative Tribunal is pending on the date of retirement or is to be instituted after retirement a provisional pension as provided in Article 919-A may be sanctioned."

To our mind, the submission is thoroughly unfounded and without any basis. Regulation 351-AA for purposes of payment of provisional pension comes into operation only when departmental proceedings or judicial proceedings or any enquiry by Administrative Tribunal is pending against the government servant on the date of his retirement. In the present case, for the reasons, we have already noted above, no departmental proceedings were pending against the petitioner as contemplated under Regulation 351-A of the Civil Service Regulations prior to his retirement. Admittedly, the chargesheet was issued to the petitioner on 1.4.2013. and that being the position Regulation 351-AA will not come into operation at all as it is consequential to Regulation 351-A of the Civil Service Regulations.

We have already noted above that the Government Order dated 9.1.2012 is not a chargeshet within the meaning of provisions of sub rules (i) to (v) of Rule 7 of the Rules, 1999. The impugned order dated 30.3.2012 also does not mention that the direction to convert the enquiry contemplated by the Government Order of 9.1.2012 into an enquiry under Regulation 351-A has the sanction of the Governor. Both these orders have been issued by the Principal Secretary, Government of U.P. Panchayati Raj Anubhag-1.

Thus in view of the facts noted above, the impugned orders dated 9.1.2012, 30.3.2012 and 30.4.2012 are absolutely illegal and arbitrary and contrary to the provisions of Regulation 351-A of the Civil Service Regulations and are quashed.

The writ petition is allowed.

There shall be no order as to costs.

Order Date :- 25.4.2013

Asha

(B. Amit Sthalekar,J.) (Vineet Saran,J.)