Lakshmi Narayan Upadhyay vs State Of U.P. And 2 Others
2023 Latest Caselaw 20631 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:157073
 

 
RESERVED
 

 

 
Case :-  WRIT - A No. - 4639 of 2019 
 
Petitioner :- Lakshmi Narayan Upadhyay
 
Respondent :- State of U.P. and 2 others 
 
Counsel for Petitioner :- Harish Kumar Tripathi, Shri Ashok Khare Sr. Advocate, Sunil Kumar Srivastava
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Vikram D. Chauhan,J.

1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Sunil Kumar Srivastava, learned counsel for the petitioner and Sri Vikram Bahadur Yadav, learned Standing Counsel for the State-respondents.

2. The present writ petition is preferred challenging the order dated 26.11.2018 passed by the Deputy Director of Agriculture, Gorakhpur. In the writ petition further prayer has been made to direct the respondents to sanction final pension of the petitioner and pay such final pension including arrears of pension of the petitioner. The petitioner has further sought direction to sanction and disburse all outstanding retirement benefits of the petitioner along with his salary from the date of suspension till date of retirement with interest.

3. The brief facts giving rise to the present writ petition are that the petitioner was appointed as Assistant Soil Conservation Inspector in the Agriculture Department of the State on 26.2.1979. The designation of post of Soil Conservation Inspector was subsequently designated as Technical Assistant Grade - C.

4. On account of non-sanction of the promotion payscale on the post of Senior Technical Assistant Grade - B, petitioner earlier had preferred Writ Petition No. 65509 of 2020 before this Court. On 5.2.2011, petitioner was placed under suspension by Deputy Director of Agriculture, Gorakhpur in contemplation of disciplinary proceedings against petitioner. Petitioner being aggrieved by aforesaid suspension order preferred Writ Petition No. 11759 of 2011 before this Court. On 25.2.2011, a stay order was granted in favour of petitioner in the abovementioned writ petition. However, the aforesaid order dated 25.2.2011 did not preclude the respondent authorities from proceeding with the disciplinary proceedings against the petitioner.

5. The petitioner was served with a departmental charge sheet on 22.1.2011 and by order dated 17.3.2011 an enquiry officer was appointed in respect of disciplinary proceedings against petitioner. Subsequently, a new enquiry officer was appointed by order dated 12.6.2015.

6. The disciplinary proceedings against petitioner remained pending and petitioner stood superannuated from service on 31.1.2016. Petitioner thereafter was granted provisional pension by order dated 21.12.2017 passed by the Soil Conservation Officer.

7. On 16.2.2018, Deputy Director of Agriculture, Gorakhpur passed an order appointing one Sanjay Kumar Yadav, District Plant Protection Officer, Gorakhpur as the Enquiry Officer. The aforesaid order was followed by an order dated 9.9.2018 issued by Soil Conservation Officer serving with a copy of departmental charge sheet.

8. The petitioner being aggrieved by order dated 16.2.2018 and 9.8.2018 preferred Writ Petition No. 18812 of 2018 (Lakshmi Narayan Upadhyay Vs. State of U.P. and others) before this Court. The said writ petition was disposed of by judgement dated 5.9.2018 with a direction for completion of the enquiry within a period of three months. The observations made in the judgement dated 5.9.2018 are quoted hereinbelow :-

"This petition has been filed challenging the order dated 16.02.2018 passed by Deputy Director Agriculture, Gorakhpur, as well as an order dated 09.08.2018 passed by the Soil Conservation Officer/Enquiry Officer whereby disciplinary proceedings already instituted against the petitioner in the year 2011 are being continued. The aforesaid orders are challenged on the ground that petitioner has already superannuated on 31.01.2016, and therefore, the continuance of enquiry is bad inasmuch as no sanction of Governor has been obtained in terms of proviso to Article 351-A of the Civil Service Regulations. Reliance is placed upon a judgment of the Apex Court in Dev Prakash Tiwari Vs. U.P. Cooperative Institutional Service Board reported in 2014, 7 SCC 260.

Petition is opposed by the learned standing counsel by contending, that the disciplinary enquiry since have already been initiated, while petitioner was in service, its continuance would not require any sanction of the Governor.

Heard learned counsel for the parties and perused the record. A bare perusal of regulation 351-A would go to show that the proviso, which restricts the institution of fresh proceedings after superannuation of a government servant, would have no applicability in a case where disciplinary enquiry has already been initiated, while government servant was in service. It is otherwise settled that initiation of disciplinary enquiry in law would be stated to have commenced with service of charge sheet. A charge sheet has already been served upon the petitioner in the year 2011 itself and the enquiry is pending. Therefore, the direction of the competent authority for proceeding further pursuant to the aforesaid enquiry, even if, it includes issuance of a supplementary charge sheet, would not be rendered invalid, on the ground that the petitioner has superannuated.

However as disciplinary enquiry has remained pending for substantially long, it would be appropriate to dispose of this petition with the direction upon the concerned authorities to ensure conclusion of enquiry initiated against the petitioner, while he was in service, within a period of three months from the date of presentation of certified copy.

This writ petition is accordingly consigned to records."

9. The petitioner being aggrieved by the above-mentioned judgement dated 5.9.2018, preferred Special Appeal Defective No. 824 of 2018 before Division Bench of this Court. In the aforesaid special appeal, the respondent authorities had filed an affidavit bringing on record the order dated 26.11.2018 (being challenged in the present petition) directing for recovery of Rs 14,39,249/- from the petitioner's retirement benefits. The aforesaid order dated 26.11.2018 was passed in the disciplinary proceedings against the petitioner. The aforesaid liability of Rs 14,39,249/- was fixed towards the loss caused to the employer on account of misappropriation by the petitioner. The petitioner being aggrieved by the above-mentioned order dated 26.11.2018 passed by Deputy Director of Agriculture, Gorakhpur has preferred the present writ petition.

10. It is submitted by learned counsel for petitioner that impugned order dated 26.11.2018 has been passed in contravention of the provisions of Article 351A of the Civil Service Regulations. Learned counsel for petitioner submits that order of recovery of the amount could not have been passed by the respondent authorities without the prior sanction of the Governor in terms of Article 351A of the Civil Service Regulations. According to learned counsel for the petitioner, the impugned order is not tenable in law and as such the amount directed to be recovered from the retiral benefits of the petitioner by the impugned order is liable to be set aside. In this reference learned counsel for petitioner has relied upon Division Bench judgement of this Court passed in Gaya Prasad Yadav Vs. State of Uttar Pradesh and another, 2022 SCC Online All 685.

11. Learned Standing Counsel for the State-respondents has opposed the argument raised by the learned counsel for the petitioner. Paragraph nos. 4 and 5 of the counter affidavit are quoted hereunder:-

"4. That the petitioner, Lakshmi Narayan Upadhyay was appointed on the post of Assistant Soil Conservation Inspector in the department on 26.02.1979 and subsequently, the post was designated as Technical Assistant Grace-C. In the Financial Year 2005-06 and 2006-07 the petitioner was Incharge/Secretary of the Scheme Gaurjitpur Nainsar, Jindapur and Jahda run under Bhumi Sena Yojna. For work under the said scheme a sum of Rs.23,60,250/- was transferred in his account. The petitioner withdrawn all the aforesaid amount, but he made available the Voucher of Rs.9,20,885/-. In addition thereto, he paid Rs.2,42,092/- without any necessary proceedings. The petitioner has not produced any document with regard to remaining amount of Rs.6,17,273/- and in this regard, the petitioner has embezzled the government fund of Rs.8,59,365/-. It is also relevant to mention here that in Nainsar Pariyojna in Financial Year 2006-07 a sum of Rs.39,962/-, in Jindapur Scheme in Financial Year 2006-07 a sum of Rs.2,39,946/- and in scheme (Pariyojna) Jahda in the Financial Year 2006-07 a sum of Rs.2,99,976/- has been embezzled by the petitioner. In this way the petitioner has embezelled a sum of Rs.14,39,249/-. Therefore, the Deputy Director Agriculture Gorakhpur vide order dated 5.2.2011 has suspended the petitioner and the Soil Conservation Officer, Gorakhpur vide office letter dated 22.11.2011 made available the copy of suspension order to the petitioner. During tenure of petitioner the Assistant Director (Mrida Parikshan) Gorakhpur was appointed as Enquiry Officer. Since the charge of Soil Conservation Officer was with the Enquiry Officer, as such he has not made enquiry. Thereafter, the Deputy Agriculture Director, Gorakhpur vide letter dated 13.6.2012 has appointed Shri Sudarshan Singh, Additional District Agriculture Officer, Gorakhpur as Enquiry Officer and he has also not made enquiry and thereafter vide letter dated 30.06.2015 Shri Nepal Singh, Senior Technical Assistant Group-A has been nominated as Enquiry Officer.

5. That on 31.01.2018 Shri Nepal Singh after attaining the age of superannuation retired from the service and vide letter dated 16.02.2018 Shri Sanjay Kumar Yadav, District Agriculture Protection Officer, Gorakhpur has been nominated as Enquiry Officer and thereafter vide letter dated 23.08.2018 the Deputy Director of Agriculture, Gorakhpur has been appointed as Enquiry Officer and has also requested to nominate some other officer for enquiry and thereafter Joint Director of Agriculture, Gorakhpur has been nominated as Enquiry Officer vide order dated 9.7.2018 who completed the enquiry and submitted his report to the appointing authority, Deputy Director of Agriculture, Gorakhpur who has given the opportunity of hearing and has directed to submit representation within 14 days and thereafter, the order dated 26.11.2018 has been passed. After recovery from the retiral benefits the retiral benefits and pension is being paid to the petitioner. The petitioner was paid medical leave of 119 days to the tune of Rs.1,08,108/- vide order dated 6.2.2019, the remaining salary of 149 days to the tune of Rs.1,27,263/- has been paid to the petitioner. It is relevant to mention here that the provisional pension from February 2016 to February 2019 to the tune of Rs.8,67,867/- has been paid vide office letter no.606 dated 21.12.2017. Amount of total General Provident Fund to the tune of Rs.1,12,396/- has been paid to the petitioner. Vide office letter dated 27.2.2019 the pension prapatra has been prepared and sent to the competent authority. After considering all facts and circumstances of the case an order of recovery of Rs.14,39,249/- has been passed and after deduction from the retiral benefits for payment of Rs.1,73,703/- has been sent to the Treasury. True copies of letter dated 20.2.2019, 21.12.2017 letter for payment of GPF and letter for payment of amount of Rs.1,73,703/- are being filed herewith and marked as Annexure No.CA-1, CA-2, CA-3 and CA-4 respectively to this counter affidavit."

12. It is submitted by learned Standing Counsel that the enquiry proceedings as well as the recovery of the amount in question shall not be vitiated as the enquiry in the present case was initiated against the petitioner prior to superannuation of petitioner. He submits that disciplinary proceedings against the petitioner would continue and would not be hit by Article 351A of the Civil Service Regulations. Learned Standing Counsel has relied upon the judgement of the Apex Court in the State of Uttar Pradesh & Ors. Vs. R.C. Mishra, Appeal (Civil) No. 1539 of 2007, decided on 22.3.2007.

13. Under service jurisprudence, relationship of employer and employee is governed by the statutory rules and government orders issued from time to time. The government servant are also entitled to the provisions of Article 311 of the Constitution. The tenure of the government servant is subject to the age of retirement however the service of the government employee can be interrupted by way of disciplinary proceeding resulting in punishment as well as by way of resignation, by way of voluntary retirement. Such a premature interruption of the service of the employee entails consequences.

14. The service of employee comes to an end on the date when the aforesaid employee reaches the date of superannuation in accordance with the rules applicable to such an employee. The effect of the retirement may be that there is severance of employment however retirement maintains the relationship of master and servant for the purpose of grant of pensionary and retirement benefits. After retirement of an employee, relationship between the employer and employee is subject to the relevant rules.

15. In UCO Bank Vs. Sanwar Mal, (2004) 4 SCC 412, the Supreme Court while noticing the distinction between a resignation and retirement of an employee has observed as under :-

"9. We find merit in these appeals. The words "resignation" and "retirement" carry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. The effect of resignation and retirement to the extent that there is severance of employment (sic is the same) but in service jurisprudence both the expressions are understood differently. Under the Regulations, the expressions "resignation" and "retirement" have been employed for different purpose and carry different meanings."

16. The right of an employer to initiate disciplinary proceedings against the employee is established in service jurisprudence. The employee has to face the consequences of his misconduct (while in service) on the basis of disciplinary proceedings initiated in accordance with the service rules applicable. In the disciplinary proceedings, the charges against the employee are required to be proved by the employer and a finding of misconduct is to be recorded against the employer so that the punishment can be inflicted against the employee for his misconduct while in service.

17. There may be circumstances where the employer would have initiated the disciplinary proceedings against its employee while he was in service however the disciplinary proceedings could not be concluded before the employee has superannuated. The effect of the retirement/superannuation is that there is severance of employment however there exists a relationship of master and servant for grant of retirement and pensionary benefits.

18. The employer can withdraw the retirement emoluments of any erstwhile employee only when there exists a provision and the law to the aforesaid effect. The Regulation 351A of the Civil Service Regulations recognises the right of the employer for withholding, withdrawing pension and recovery from pension whole or part of any pecuniary loss caused to the employer 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 during his service. Regulation 351A of the Civil Service Regulations is quoted hereinbelow:-

"351A. 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 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 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, UP 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 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 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."

19. The aforesaid provision recognises and establishes the right of an employer to withdraw/recover from pension the loss suffered by the employer from the pension of the employee. The authority under Regulation 351A of the Civil Service Regulations for sanction of such a drastic step is vested in the Governer of the State. The withholding of pension or recovery from pension can be made by the employer in accordance with the above-mentioned provision in the Civil Service Regulations.

20. In the present case, it is not in dispute between the parties that the disciplinary proceedings against the petitioner was initiated at the point of time when the petitioner was in service however the disciplinary proceeding against the petitioner remained pending and subsequently the petitioner has retired from service on 31.1.2016. The order impugned has been passed against the petitioner for recovery of the loss from the retirement benefits on 26.11.2018 by the Deputy Director of Agriculture, Gorakhpur. The order impugned was passed by the Deputy Director of Agriculture, Gorakhpur as a Disciplinary Authority is not in dispute.

21. The employer is the State of Uttar Pradesh and the power for withdrawal/recovery of the retirement benefits, in consonance with Regulation 351A of the Civil Service Regulations vests with the Governor. The impugned order has not been passed by the Governor of Uttar Pradesh. It is also not in dispute between the parties that there is no prior sanction of the Governor of Uttar Pradesh in terms of Regulation 351A of the Civil Service Regulations.

22. A Division Bench of this Court in Gaya Prasad Yadav (supra) while considering a similar issue has held that after the retirement of an employee, the power of withholding or withdrawing pension or ordering the recovery from the pension is permissible to be caused only by the Governor. The relevant extract of the aforesaid judgement is quoted hereinbelow:-

"17. A bare perusal of the afore-quoted provision of Article 351-A of the CSR shows that once the government servant retires, it is the Governor who has the right of withholding or withdrawing the pension or any part of it, permanently or for a specified period. The Governor under the said provision has also the right of recovery from the pension of the whole or part of any pecuniary loss caused to the Government, if the employee is found in departmental or judicial proceedings to have caused pecuniary loss to Government by misconduct or negligence during his service or he has been found guilty of gross misconduct.

18. It is, thus, clear that after retirement, withholding or withdrawing a pension and ordering the recovery from pension is permissible to be caused only by the Governor i.e. the State Government in terms of the Rules of Business, not only in case such employee is found causing pecuniary loss to the Government by his misconduct or negligence but also in a cases when the employee concerned is found guilty of grave misconduct.

35. In absence of any rule, which permits imposition of punishment of dismissal after retirement or which deems the employee-employer relationship to be continued even after retirement for the purposes of disciplinary proceedings, in our opinion, the judgment of Hon'ble Supreme Court in the case of Rabindranath Choubey (supra) does not have any application in this case. Accordingly the reliance placed by the learned State Counsel on the said judgment is misplaced. As already observed above, Hon'ble Supreme Court in the case of Prabhakar Sadashiv Karvade (supra) has clearly held that penalty of dismissal cannot be imposed on an officer/employee after his retirement after attaining the age of superannuation unless there exists a specific rule in that behalf. If the disciplinary enquiry is instituted prior to retirement of the employee concerned, the same will continue by operation of Article 351A of Civil Service Regulations as held by Hon'ble Supreme Court in the case of Harihar Bholenath (supra). However, in such a case if the employee is found to be guilty of grave misconduct of or is found to have caused pecuniary loss to the Government, it is the Governor who can take action as provided in Article 351-A of the Civil Service Regulations."

23. No provision has been shown by the learned Standing Counsel to establish that even after the retirement of an employee the punishment (for recovery from the pension and other retiral benefits) under the disciplinary proceedings can be passed against a retired employee otherwise than in accordance with Regulation 351A of the Civil Service Regulations. No provision is shown whereby the employment of the petitioner shall be deemed to have been extended on account of pendency of the disciplinary proceedings. Once there is severance of the employment on the retirement of an employee, the disciplinary authority although have the power to continue with the disciplinary proceedings which were initiated prior to retirement of the employee however the power of punishment by way of recovery from pensionary benefits of retired employee shall stand eclipsed by Regulation 351A of the Civil Service Regulations.

24. In the present case, a finding with regard to embezzlement/loss to the State has been recorded against the petitioner in the disciplinary proceedings and thereafter the loss has also been quantified in the disciplinary proceeding however after recording of the aforesaid finding an order for recovery of the loss to the State Government has been directed to be recovered from the retiral dues of the petitioner by the respondent No. 2.

25. It is to be noted that the only argument raised by learned counsel for the petitioner is with regard to the authority of respondent No. 2 to direct recovery of the loss from the retiral benefits/pension of the petitioner. The aforesaid authority of respondent No. 2 has been challenged on the ground that the order for recovery from retiral benefits is regulated by Regulation 351A of the Civil Service Regulations.

26. Once by means of the impugned order the loss to the State/employer has been quantified in the pending disciplinary proceedings which were initiated prior to the retirement of the petitioner although the disciplinary proceedings are concluded after the superannuation of the petitioner from the post in question, it was imperative on the part of the respondent authorities to have complied with the mandate of Regulation 351A of the Civil Service Regulations. The finding with regard to fixation of the liability of the petitioner in disciplinary proceedings is not under challenge however the only challenge raised by the petitioner is with regard to the direction issued in the impugned order for recovery of the loss quantified in the disciplinary proceeding from the retiral benefits of the petitioner.

27. A special procedure has been prescribed under Regulation 351A in respect of employees who have attained superannuation and from whom the recovery of loss to the State is being recovered. The purpose of the aforesaid special provision for recovery of loss from the retiral benefits is to provide the authority to the respondent State to recover its loss from employee after retirement. Once an employee has retired, Regulation 351A of the Civil Service Regulations would require the employer to obtain the sanction of the Governor for recovery of loss from the retiral benefits of the employee. The aforesaid provision is in nature of protection provided to the retired employee against any arbitrary action being taken by the department and empowers the highest executive authority of the State to accord sanction to recover the loss from the pension of the retired employee.

28. The judgement relied upon by the learned Standing Counsel in R.C. Mishra (supra) was on the issue whether disciplinary proceeding can continue after the retirement of employee and in this context the Apex Court held that proceedings been initiated against the employee when in service, the same can be continued after his retirement. In the present case, the petitioner has not raised argument challenging the continuation of the disciplinary proceedings after the retirement of the petitioner. The only challenge in the present writ petition is to the effect that the direction for recovery of the loss from the retirement benefits of the petitioner is not in accordance with Regulation 351A of the Civil Service Regulations.

29. Once the admitted fact between the parties is that no prior permission has been obtained in terms of Regulation 351A of the Civil Service Regulations, the direction in the impugned order to the extent of recovery of the loss suffered by the State on account of the act of the petitioner, to be recovered from the retiral dues of the petitioner including the pension, the same is not tenable under law.

30. However, considering the fact that there is no challenge to the finding of the loss sustained by the State on account of the act of the petitioner in the present case, the impugned order dated 26.11.2018 is set aside to the extent it directs recovery of loss of an amount of Rs. 14,39,249/- from the retiral dues of the petitioner. However, it is open for the respondents to take action for recovery of the loss quantified in the disciplinary proceedings in terms of provisions contained in Article 351A of the Civil Service Regulations and disciplinary authority shall be entitled to forward the papers to the State Government and in case decision to take such an action is taken by the respondent, the process shall be completed within a period of four months. In case no decision in terms of Article 351A of the Civil Service Regulations is taken within a period of four months from the date of production of certified copy of the order, the petitioner shall be entitled to release all the retiral dues without delay.

31. Accordingly, the writ petition is partly allowed.

Order Date :- 4.8.2023

VMA

(Vikram D. Chauhan, J.)