Chandra Bhushan Tripathi vs State Of U.P. And 3 Ors.
2017 Latest Caselaw 3004 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 60
 
Case :- WRIT - A No. - 51546 of 2016
 
Petitioner :- Chandra Bhushan Tripathi
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Ved Prakash Tripathi,Virendra Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manoj Kumar Gupta,J.

Heard learned counsel for the petitioner and learned standing counsel for the State-respondents.

The petitioner has assailed the order dated 9 September 2016 passed by the first respondent directing deduction of 10% of the pension for a period of five years in exercise of power under Regulation 351-A of Civil Service Regulations. The petitioner has retired from the post of Supply Inspector on 31 July 2009. The challenge is two fold; first, on the ground that the charge against the petitioner relates to a period more than four years before the institution of the proceedings and thus in view of sub clause (ii) of clause (a) of the first proviso to Regulation 351-A, the proceedings could not have been initiated and second, that the charge levelled against him, even if found proved, does not amount to grave misconduct; consequently, it does not warrant recourse to power under Regulation 351-A.

The petitioner was served with a charge sheet on 19 December 2011. It contains only one charge, i.e., while the petitioner was posted as Supply Inspector at development block Handia, District Allahabad, he failed to carry out monthly inspections of the shops of fair price dealers which amounts to infraction of the guidelines laid down in government order dated 20.12.2004. As a consequence, the petitioner could not come to know that Asman Singh son of a fair price shop dealer, Sukhraj Singh was elected as Village Pradhan during period 2005-06. The government order dated 18.7.2002 provides that in case any family member of fair price shop dealer is elected as Pradhan or Up-Pradhan, it would entail cancellation of license of the fair price shop. Since the petitioner failed to carry out monthly inspections, therefore, he could not come to know of the election of Asman Singh son of a fair price shop dealer as Pradhan of the village. Resultantly, no action could be taken against the fair price shop dealer for cancellation of allotment.

The petitioner replied to the charge sheet by pointing out that he was posted as Supply Inspector of development block Handia during the period November 2007 to July 2008 and during this period, he was also given additional charge of development block Dhanupur. On account of excessive work load, he could not carry out regular inspections of the fair price shop dealers of both the development blocks. He also did not receive any complaint regarding election of son of fair price shop dealer as Pradhan of the village. Consequently, he could not report about the said fact. In other words, the explanation offered by the petitioner was that since he was given the responsibility of more than one development block, therefore, there was acute pressure of work, on account of which regular monthly inspections of the shops of the fair price dealers could not be carried out.

The enquiry officer in his report dated 15.5.2012 has accepted the case of the petitioner that he remained posted at development block Handia only from November 2007 to July 2008 and during this period, he was also given additional responsibility of block Dhanupur. However, the enquiry officer opined that since the petitioner had not disclosed the details of inspections, if any, made by him during this period and therefore, it seems that he was negligent in discharge of his duties.

Regulation 351-A reads as under :-

"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.

Provided further that if the order passed by the Governor relates to a case 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 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 compliant 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."

The alleged misconduct on part of the petitioner relates to the period November 2007 to July 2008, during which he remained posted as Supply Inspector at development block Handia and was having additional charge of development block Dhanupur. Since under the government order, he was required to carry out monthly inspections, consequently, the charge against the petitioner would also relate to a misconduct having been committed in the month of July 2008 when he was concededly posted at development block Handia and Dhanupur. The charge sheet has been served on the petitioner in December 2011. The Explanation to Regulation 351-A provides that 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. In the instant case, admittedly the petitioner was not under suspension and therefore, the date of institution of proceedings would be the date on which the charges framed had been served upon him i.e., December 2011. That being so, this Court is of the opinion that the proceedings had commenced well within four years from the date on which the alleged misconduct had taken place. Thus, there is no force in the first submission of learned counsel for the petitioner.

Coming to the second submission that the charge levelled against the petitioner does not amount to grave misconduct, it may be noted that the fact that the petitioner was given additional charge of development block Dhanupur during the period he was posted as Supply Inspector at Handia is not in dispute. Thus, apart from his regular duties, he was also conferred with the responsibility of one more Block. The explanation given by the petitioner in course of disciplinary proceedings, as noted above, is that he was over-burdened on account of having additional charge of block Dhanupur. As a consequence thereof, he could not make regular monthly inspections.

The Supreme Court in Union of India and others vs. J. Ahmed1 observed that failure to attain the highest expectation of an Officer holding responsible post or lack of aptitude of quality of leadership would not constitute as failure to maintain devotion to duty because if it is so then every Officer rated average would be guilty of misconduct. In the said case the charges levelled against the Officer indicated lack of efficiency, lack of foresight and lack of indecisiveness but the Supreme Court observed that these deficiencies in personal character or personal ability would not constitute misconduct for the purposes of disciplinary proceedings.

In M.M. Malhotra vs. Union of India and others2 the Supreme Court observed:-

"Misconduct" as stated in Batt's Law of Master and Servant (4th Edition) (at page 63) is "comprised positive acts and not mere neglects or failures". The definition of the work as given in Ballentine's Law Dictionary (148th Edition) is "A transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law, a forbidden act. It differs from carelessness."

The Supreme Court in D.V. Kapoor vs. Union of India and others3 considered Rule 9(1) of the Central Civil Services (Pension) Rules, 1972 which invests the President of India with similar power to direct withholding of whole or part of pension in case of any pecuniary loss having been caused to the government on account of grave misconduct or negligence during period the pensioner was in service. In that case, charge against the retired employee was that he did not join duties after leave sanctioned in his favour was over despite specific direction by the employer. The defence of the employee was that he sought leave in the first instance as his wife was ailing and as she could not recover from ailment, he was not in a position to leave her and join the duties. The Supreme Court held that the alleged delinquency does not come within the ambit of "grave misconduct" to warrant action against the employee after retirement. The Supreme Court took into account the right of the pensioner recognised by the Constitution Bench in D.S. Nakara and others vs. Union of India4 and thereafter held as under :-

"8. It is seen that the President has reserved to himself the right to withhold pension in whole or in part thereof whether permanently or for a specified period or he can recover from pension of the whole or part of any pecuniary loss caused by the government employee to the government subject to the minimum. The condition precedent is that in any departmental enquiry or the judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service of the original or on re-employment. The condition precedent thereto is that there should be a finding that the delinquent is guilty of grave misconduct or negligence in the discharge of public duty in office, as defined in Rule 8(5), explanation (b) which is an inclusive definition, i.e. the scope is wide of the mark dependent on the facts and circumstances in a given case. Myriad situations may arise depending on the ingenuity with which misconduct or irregularity is committed. It is not necessary to further probe into the scope and meaning of the words 'grave misconduct or negligence' and under what circumstances the findings in this regard are held proved. It is suffice that charges in this case are that the appellant was guilty of willful misconduct in not reporting to duty after his transfer from Indian High Commission at London to the Office of External Affairs Ministry, Government of India, New Delhi. The Inquiry Officer found that though the appellant derelicted his duty to report to duty, it was not willful for the reason that he could not move due to his wife's illness and he recommended to sympathetically consider the case of the appellant and the President accepted this finding, but decided to withhold gratuity and payment of pension in consultation with the Union Public Service Commission.

9. As seen the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs.60".

In the instant case, the alleged misconduct has not resulted in any financial loss to the State-Exchequer. There is no allegation against the petitioner that he did not submit report regarding son of fair price shop dealer having been elected as Pradhan, despite having knowledge of the said fact. It is also not the allegation that the petitioner had indulged in misconduct in order to extend undue benefit to any individual. The tenure of Gram Pradhan is five years and during this period, apart from the petitioner, who remained posted only for a short period, number of other supply inspectors must also have been posted but there is no material on record to indicate that any disciplinary proceedings were initiated against them.

Regulation 351-A, which empowers the Governor to subject a pensioner to disciplinary proceedings is in the nature of exception to the well recognised principle of service jurisprudence that after retirement a government servant could not be subjected to disciplinary proceedings. The power conferred upon the Governor to subject the pensioner to disciplinary proceedings is hedged with various safeguards stipulated under the Proviso. Apart from it, the substantive part of Regulation 351-A itself confines the power of the Governor to subject a pensioner to the disciplinary proceedings only when the alleged misconduct is of grave nature or has resulted in pecuniary loss to the Government. Not all misconducts have been brought within the ambit of the said Proviso but only those which are of grave nature. The phrase "grave misconduct" has to be given due significance and proceedings under Regulation 351-A could be drawn only for misconduct which are of serious nature.

In the instant case, there is no finding in the impugned order that alleged misconduct amounts to "grave misconduct". In the absence of any such finding in the impugned order and also having regard to the nature of charge levelled against the petitioner, this Court is of the firm opinion that the recourse to power under Regulation 351-A was not warranted.

Accordingly, the impugned order dated 9 September 2016 passed by the first respondent is quashed. The writ petition is allowed. Any deduction made in pursuance of the impugned order shall be made good alongwith 9% interest within three months from the date of production of a certified copy of this order.

Order Date :- 4.8.2017

skv

(Manoj Kumar Gupta, J)