State Of U.P. Thru. Addil. Chief ... vs Ahmad Zubair
2023 Latest Caselaw 14006 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 

 
Court No. - 1
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 228 of 2023
 

 
Appellant :- State Of U.P. Thru. Addil. Chief Secy. (Labour) U.P. Govt. Civil Secrt. Lko. And Others
 
Respondent :- Ahmad Zubair
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Sunil Kumar Chaudhary
 

 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Om Prakash Shukla,J.

C.M.A. No.1 of 2023 (Application for condonation of delay)

1. Heard the learned State counsel for the appellants-State authorities and Shri Sunil Kumar Chaudhary, learned counsel representing the sole respondent.

2. Having regard to the averments made in the affidavit filed in support of the application seeking condonation of delay, we are satisfied that delay has sufficiently been explained.

3. Accordingly, the application is allowed and delay in filing the special appeal is hereby condoned.

Order on Appeal

4. By instituting the proceedings of this special appeal under Chapter VIII Rule 5 of the Rules of the Court, the appellants - State authorities have questioned the judgment and order dated 10.02.2023 whereby Writ- A No.129 of 2022 filed by the respondent- petitioner has been allowed and the charge sheet dated 08.06.2021 as also the orders dated 17.06.2021 and 24.05.2021 have been set aside/quashed by the learned Single Judge.

5. Submission of the learned counsel for the appellants -State authorities is that since the charge sheet issued against the respondent-petitioner has been quashed by the learned Single Judge only on the technical ground that no sanction from the Governor under Article 351-A of Civil Service Regulations was obtained, as such it was incumbent on the part of the learned Single Judge to have granted liberty to the appellants-State authorities to initiate departmental proceedings in accordance with law afresh after seeking requisite permission of Hon'ble the Governor as required under Article 351-A of Civil Service Regulations.

6. The aforesaid submission of the learned counsel for the appellants-State authorities is to be examined on the basis of what exactly is provided in Article 351-A of Civil Service Regulations, which is quoted hereinunder :-

"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 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 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."

7. As per the aforequoted provision of Article 351-A, the Governor is vested with the right of withholding or withdrawing pension or any part of it if a 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. However, the proviso appended to Article 351-A states that in case such departmental proceedings are not instituted before retirement of the government servant or during his re-employment, the same shall not be instituted except with the sanction of the Governor. It further provides that such departmental proceedings can be instituted only in respect of an event which took place not more than four years before the institution of such proceedings. Thus, Article 351-A (a)(ii) of Civil Service Regulations clearly forbids sanction of the Governor in respect of departmental inquiry which is instituted pertaining to an event which took place more than four years before institution of such departmental proceedings.

8. In the instant case, admittedly, the respondent-petitioner has retired on 30.09.2020, accordingly, in terms of the requirement of Article 351-A no departmental proceedings could have been instituted against him except with the sanction of the Governor, that too, only in respect of an event which might have taken place not more than four years before the institution of the departmental proceedings. In the proceedings of the writ petition, the State authorities have admitted that prior to issuance of the charge sheet to the respondent-petitioner on 08.06.2021 the respondent-petitioner had already retired.

9. The prayer being made by learned counsel for the appellant-State authorities before us in this special appeal is highly misconceived for the reasons that the charge sheet dated 08.06.2021 contains four charges in respect of events which had taken place in the years 2015-2016, i.e. before four years prior to issuance of the charge sheet dated 08.06.2021.

10. If we peruse the charge sheet dated 08.06.2021 what we find is that there are five charges against the respondent -petitioner. Charge no.1 relates to alleged irregular proposal submitted by the respondent-petitioner for making appointment against certain Group-C posts. The said proposal is said to have been submitted by the respondent-petitioner on 14.09.2015. Charge nos.2 and 3 also relate to the submission of the proposal by the respondent-petitioner for appointment against Group-C posts, which admittedly was submitted by him on 14.09.2015 which is more than four years before the issuance of the charge sheet dated 08.06.2021.

11. Similarly, charge nos.4 and 5 relate to opening of joint bank account of which the respondent -petitioner was one of the signatories and the said bank account was opened in the year 2015, which fact is not denied. The alleged transaction made from the said bank account was also made in the year 2015-16. Thus, even the events which took place in respect of charge nos.4 and 5 are the events which occurred four years prior to the issuance of the charge sheet dated 08.06.2021.

12. In the aforesaid view of the matter, in our opinion, the proceedings under Article 351-A of the Civil Service Regulation, in this case, are now not permissible. Thus, the prayer made by learned counsel for the appellants- State authorities is highly misconceived, which is hereby rejected.

13. Consequently, the special appeal is also hereby dismissed.

14. No order as to costs.

Order Date :- 03.05.2023

Anand Sri./-