Full Judgment Text
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CASE NO.:
Appeal (civil) 4638 of 2006
PETITIONER:
State of U.P. & Ors.
RESPONDENT:
Harihar Bhole Nath
DATE OF JUDGMENT: 01/11/2006
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (C) No.2980/2006)
S.B. Sinha, J.
Leave granted.
Interpretation and application of Regulation 351-A of the Civil
Service Regulations falls for consideration in this appeal which arises out of
a judgment and order dated 29.3.2005 passed by a Division Bench of the
High Court of Judicature at Allahabad, Lucknow Bench at Lucknow
allowing the Writ Petition No.435 of 2002 filed by Respondent herein.
The basic fact of the matter is not in dispute. Respondent was
appointed as a Clerk. He rose up to the position of Deputy Inspector
General of Registration. He was charged with commission of misconduct
involving gross irregularities while he was posted at Faizabad on
preliminary enquiry by the then Inspector General of Registration, pursuant
whereto and in furtherance whereof a charge-sheet dated 22.3.1993 was
served on him on 24.3.1993, and an Enquiry Officer was appointed, stating :
"O.M.No.S.R.1605/11-93-312(58)/93 dtd.24th March, 1993
issued by the Special Secretary to the Government of Uttar
Pradesh
Government of Uttar Pradesh Finance (Stamp and
Registration), Section No.S.R.1605/11-93-312(58)/93
Lucknow : The 24th of March, 1993 (Issued on 24.3.1993)
Office Memorandum
Whereas on the charge of dereliction of duty indulging
in irregularity and causing financial loss to the
(Government) revenue, an enquiry against Shri Harihar
Bhole Nath Misra, Deputy Inspector General of
Registration, Faizabad Division and whereas Shri
Harihar Bholenath Mishra is expected that he will
submit his written explanation, in his defence, to the
charge/charges.
2. Now, therefore, his Excellency the Governor is pleased
to appoint the Inspector General of Registration as
Enquiry Officer, for conducting the enquiry against Shri
Harihar Bholenath Misra.
3. The aforesaid officer Shri Harihar Bholenath Misra will
submit his written explanation, in his defence, to the
Enquiry Officer, within the period prescribed by the
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said Enquiry Officer.
4. The Enquiry Officer will conduct an open enquiry
wherein the delinquent/charged officer. Will, if he so
desires, be afforded an opportunity for his hearing in
person, and the delinquent/charged officer will be given
an opportunity to cross-examine the witnesses
examined in support of the charge and also to produce
witnesses in his defence. In this regard, the procedure
contained in Rule 55 of the Civil Service (Classifica-
tion, Control and Appeal) Rules and the procedure
notified by two Government of Uttar Pradesh, will be
followed.
5. On the completion of the enquiring, the Enquiry
Officer, shall improve the enquiry report under
aforesaid Rule 55.
6. The enquiry officer will complete the enquiry Report as
expeditiously as possible and submit the same.
7. Shri Harihar Bholenath Mishra is hereby informed that
he will appear in person, before the Enquiry Officer on
the date prescribed or the hearing and comply with the
directions given in respect of the said enquiry and
submit his any prayer in respect of the enquiry before
the enquiry officer and the enquiry officer shall dispose
of the same in accordance with the rules.
By the order of the Governor
Sd/-
Sushil Chand Tripathi
Secretary"
He was placed under suspension by on or about 24.3.1993 under the
orders of the Governor.
On a writ petition filed by Respondent questioning the legality of the
said order of suspension, the High Court by its order dated 30.3.1993 stayed
the operation thereof. During pendency of the said writ petition, Respondent
retired from services on 31.3.1993. Departmental Enquiry, however, was
commenced on 4.1.1997. A report was submitted by the Enquiry Officer,
pursuant whereto or in furtherance whereof the competent Authority issued
the second show cause notice on 19.11.1998. Respondent, however, instead
of submitting his reply, demanded certain documents at that stage. As he did
not submit any reply, a decision was taken by the competent Authority on
11.11.1999 in consultation with the U.P. Public Service Commission
(UPPSC) to recover the amount of the monetary loss caused to the
Government Exchequer by reason of various acts of omissions and
commissions on his part, wherefor a punishment of recovery of a sum of
Rs.7,02,279.50p. was awarded on 7.1.2000. The said amount was directed
to be recovered from the amount of gratuity and pension payable to him as
also from the moveable and immovable assets of Respondent.
A writ petition came to be filed by Respondent questioning the said
order of recovery dated 7.1.2000, which was dismissed by an order dated
19.7.2000 on the ground of availability of an alternative remedy. He filed an
original application before the U.P. State Public Services Tribunal, which by
reason of an order dated 18.1.2002 was dismissed. A writ petition
questioning the said order of the Tribunal was filed by Respondent in the
High Court of Judicature at Allahabad in March 2002, which was registered
as Writ Petition No.435/2002. The respondent made the following prayers
therein :
a) To issue a writ, order or direction in the nature of
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certiorari quashing the impugned order dtd.
7.01.2000 passed by the Opp-party 2, contained in
Annexure-8 to the writ petition.
b) To issue a writ, order or direction in the nature of
certiorari quashing the impugned judgment and
order dated 18.01.2002 passed by the learned State
Public Services Tribunal, the true copy of which is
contained as Annexure-1 to the writ petition.
c) To issue a writ, order or direction in the nature of
mandamus commanding the opp-parties to release
the pension of the petitioner, commutation of
pension, gratuity, leave encashment of 10 months,
10% amount of O.P. Funds, salary for the month of
February and March, 1993 and pension for the
month of April, 1993 alongwith the 18% compound
interest on all above mentioned arrears of amount."
In its counter affidavit, Appellants contended that the order dated
7.1.2000 impugned therein was passed after obtaining prior approval of the
Governor of Uttar Pradesh as also the U.P. Pubic Service Commission
following the normal practice prevalent in the State and in terms of the
Conduct of Business Rules.
By reason of the impugned judgment and order, the High Court
allowed the writ petition of Respondent holding that before a departmental
proceeding against a Government servant after his retirement is initiated, it
was obligatory on the part of Appellants to obtain sanction of the Governor.
Requirement to obtain such sanction, it was opined, was also necessary for
continuance of the disciplinary proceedings after superannuation of an
employee even in a case where such proceedings had been initiated prior to
his superannuation.
Appellants are, thus, before us.
A departmental proceeding can be initiated for recovery of amount
suffered by the State Exchequer owing to the acts of omission or
commission of a delinquent employee in three different situations :
i) When a disciplinary proceeding is initiated and concluded
against a delinquent employee before he reaches his age of superannuation;
ii) When a proceeding is initiated before the delinquent officer
reached his age of superannuation but the same has not been concluded and
despite superannuation of the employee, an order of recovery of the amount
from the pension and gratuity is passed; and
iii) An enquiry is initiated after the delinquent employee reaches
his age of superannuation.
Civil Service Regulations are framed in terms of the proviso appended
to Article 309 of the Constitution of India. Regulations 351-A and 470 of
the Civil Service Regulations take care of the situation leading to recovery
of the amount suffered by the Government from the amount of pension and
gratuity payable to a delinquent employee when he is found guilty of
commission of misconduct or negligence causing pecuniary loss to the
Government. The said provisions read 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
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Government by misconduct or negligence, during his
service, including service rendered on re-employment
after retirement:
Provided that \027
(a) Such departmental proceedings, if not instituted
while the officer was on duty either before
retirement or during reemployment \026
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 \026 For the purpose of this article \026
(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."
"470. (a) The full pension admissible under the Rules is
not to be given as a matter of course, or unless the service
rendered has been really approved (See Appendix 9)
(b) If the service has not been thoroughly
satisfactory the authority sanctioning the pension should
make such reduction in the amount as it thinks proper.
Provided that in cases where the authority sanctioning
pension is other than the appointing authority, no order
regarding reduction in the amount of pension shall be
made without the approval of the appointing authority.
Note: For the purpose of this Article ’appointing
authority’ shall mean the authority which is competent to
make substantive appointment to the post or service from
which the officer concerned retires."
It is not in dispute that Respondent was placed under suspension
before he reached his age of superannuation. A departmental proceeding
was not only initiated against him, but an Enquiry Officer was also
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appointed. The order of suspension, however, remained stayed by a judicial
order. But the same paled into insignificance once the employee reached the
age of superannuation. By reason of the same, however, the legal fiction
created in regard to the point of time when the enquiry proceeding would be
deemed to have commenced was not effaced.
Thus, only because the enquiry proceeding was actually stared after
superannuation of Respondent, the same would not mean the enquiry
proceeding had not been initiated. The right to initiate proceedings which
would include a right to continue the proceedings was with the Governor.
Sanction of the Governor is required to be obtained when proceedings are
initiated by an Authority other than the Governor.
The proceedings for recovery of the amount from a Government
servant can be passed in the event he is held to be guilty of grave misconduct
or caused pecuniary loss to Government by his misconduct or negligence
during his service. Some procedural safeguards, however, have been laid
down in terms of proviso appended thereto, including the requirement to
obtain an order of sanction of the Governor. Such order of sanction,
however, would not be necessary if the departmental proceedings have been
initiated while the delinquent was on duty. Proviso appended to Regulation
351-A merely controls the main proceedings. The same would apply in the
exigencies of the situation envisaged therein, namely, even the proceedings
were initiated after retirement and nor prior thereto.
Explanation appended to Regulation 351-A provides for a legal fiction
in terms whereof departmental proceedings would be deemed to have been
instituted when the charges are framed against the pensioner or issued or the
delinquent has been placed under suspension from an earlier date, on such
date.
Regulation 470 of the Civil Service Regulations also provides that
pension is not payable to a Government servant as a matter of course and
may be withheld if the services of the employee have not been thoroughly
satisfactory.
In both the situations, a regular proceeding is required to be initiated
which would include issuance and service of show cause notice and in the
event, cause is shown, application of mind thereupon. On initiation of
departmental proceedings the principles of natural justice must be complied
with. In the instant case, the procedures laid down under the statute have
been complied with. A report was submitted by the Enquiry Officer and
consequent orders have been passed on the basis thereof, in accordance with
the procedure laid down therefor by the disciplinary authority.
The question came up for consideration before this Court in State of
Uttar Pradesh vs. Brahm Datt Sharma & Anr. [AIR 1987 SC 943],
wherein this Court, while interpreting Regulation 470 of the Civil Service
Regulations, held :
"A plain reading of the regulation indicates that full
pension is not awarded as a matter of course to a Govt.
servant on his retirement instead, it is awarded to him if
his satisfactory service is approved. If the service of a
Govt. servant has not been thoroughly satisfactory the
authority competent to sanction the pension is
empowered to make such reduction in the amount of
pension as it may think proper. Proviso to the regulation
lays down that no order regarding reduction in the
amount of pension shall be made without the approval of
the appointing authority. Though the Regulations do not
expressly provide for affording opportunity to the Govt.
Servant before order for the reduction in the pension is
issued, but the principles of natural justice ordain that
opportunity of hearing must be afforded to the Govt.
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servant before any order is passed. Article 311(2) is not
attracted, nonetheless the Govt. servant is entitled to
opportunity of hearing as the order of reduction in
pension affects his right to receive full pension. It is no
more in dispute that pension is not bounty; instead it is a
right to property earned by the Govt. servant on his
rendering satisfactory service to the State."
It was opined that the State is competent to direct reduction in
pension after affording hearing to the Government Servant.
The High Court has placed strong reliance on State of U.P. & Anr.
vs. Shri Krishna Pandey [AIR 1996 SC 1656], wherein the departmental
enquiry was initiated after the delinquent officer reached his age of
superannuation. Noticing Rule 351-A of the Civil Services Rules and that
the departmental proceeding was initiated after the retirement of the
employee, the same was held to be impermissible in law. Although it was
not necessary to pronounce upon the construction of Rule 351-A involving a
case where a departmental proceeding was initiated prior to reaching of the
age of superannuation by the delinquent officer, it was observed that as the
officer had retired on 31st March, 1987 and proceedings were initiated
against him on 12th April, 1991, proviso appended to the Rule would be
applicable.
The right to withhold or withdraw the pension may arise in different
situations. Two different contingencies are clearly envisaged under the
Regulations, viz., if the pensioner is found guilty of misconduct either in
departmental proceedings or in judicial proceedings. Although, prima facie,
the proviso appended to Regulation 351-A does not envisage continuation of
the proceedings, the same must be held to be existing on a plain reading
thereof. Regulations 351-A and 470 provide for a composite scheme; by
emphasizing that payment of pension is not automatical it can be withheld if
the conditions laid down therein are satisfied. Undoubtedly, before an order
of withholding the amount of pension or a part thereof it is passed, the
procedures laid down under the statute are required to be complied with.
The procedural safeguards must be kept in mind. Limitations of application
of the Rules again have to be borne in mind.
But the said Rules read with the Proviso and the Explanation
appended thereto construed in their entirety clearly postulate that the
proceeding initiated before the delinquent officer reached his age of
superannuation would be valid.
The question, however, is whether the sanction of the Governor was
required even for the purpose of continuance of the proceedings which had
already been initiated. Answer thereto must be rendered in the negative.
The proceedings had not only been initiated by the Governor, the order
impugned in the Writ Petition No.2243/93 was also passed by the Governor,
the relevant portion whereof reads as under :
"\005\005After examining the aforesaid all the charges, since
it is found that all the charges have been proved, hence
his excellency, the Governor of Uttar Pradesh has while
finding Shri Harihar Bhole Nath guilty, decided to punish
him as given below :-
1. The financial loss to the tune of Rs.7,02,279.50
(Rupees Seven lakhs two thousand and two
hundred seventy nine and paise fifty only) caused
to the State Government by his irregular acts he set
off and adjourned against his pension/gratuity
payable to him under 351(A) of the CSR by way of
arrears of government revenue and the remaining
amount be realized from the moveable immovable
property of Shri Harihar Bhole Nath by instituting
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a (civil) suit in a court of law.
2. The full pension/gratuity payable to Shri Harihar
Bhole Nath be forfeited with immediate effect,
under Article 351(A) of the CSR. With reference
to the aforesaid decision of the government, prior
to its implementation, the advice of the Public
Service Commission Allahabad has already been
obtained and the Commissioner has concerned
with the aforesaid punishment proposed by the
Government. Hence Shri Harihar Bhole Nath, the
then Deputy Inspector General of
Registration/Deputy Commissioner (Stamp)
Faizabad is published in accordance with what is
stated hereinabove.
By order of his Excellency Governor,
Sd/- T.P. Arya (illegible)
Principal Secretary"
The order was authenticated in terms of Clause (3) of Article 166 of
the Constitution of India, as the proceeding was initiated under the orders of
the Governor and the order of punishment was also passed under the order of
the Governor, no sanction of the Governor was required.
Reliance has also been placed on Bhagirathi Jena vs. Board of
Directors, O.S.F.C. & Ors. [(1999) 3 SCC 666], wherein this Court was
concerned with interpretation of Regulation 17 of the Orissa State Financial
Corporation Employees’ Provident Fund Regulations, 1959.
This Court noticed the relevant Regulations and opined that therein no
specific provision existed for deducting any amount from the provident fund
consequent to any misconduct determined in departmental enquiry, nor was
there any provision for continuance of departmental enquiry after
superannuation. It was in the aforementioned situation opined :
"In view of the absence of such a provision in the
abovesaid regulations, it must be held that the
Corporation had no legal authority to make any reduction
in the retiral benefits of the appellant. 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."
Such is not the position herein. We are, therefore, of the opinion that
the impugned judgment cannot be sustained, which is set aside accordingly.
The appeal is allowed. However, as the other contentions raised by
Respondent have not been determined in the writ petition, the matter is
remitted to the High Court for consideration on the merit in respect of the
other contentions raised by Respondent.
No costs.