of U.P. & Anr Vs. Shri Krishna Pandey
 INSC 353 (1
K.Ramaswamy, K.G.B. Pattanaik (J)
1996 AIR 1656 1996 SCALE (3)1
O R D
have heard learned counsel on both sides. This appeal by special leave arises
from the order of the High Court of Allahabad, made on December 2, 1993 in Civil Misc. Writ Petition
No.29951 of 1993. The admitted position is that before departmental enquiry was
initiated against the respondent for embezzlement of Rs.2,47,479/-, on hit
attaining the age of superannuation on March 31, 1987, he was allowed to retire from
service. The departmental proceedings thereafter were initiated against him.
F.I.R. was lodged and investigation is stated to be in progress. No such rule
to continue the proceedings after retirement as is in vogue in some State or
Central Service Pension Rules, is in operation. So the action of departmental
proceedings cannot be continued. There would be no impediment to have the
investigation into the offences continued. However, when pension was not paid
to him it came to be challenged in the High Court in the above writ petition
which the High Court has allowed it and has directed to pay the pension. Thus
this appeal by special leave.
provision brought to our notice is Rule 351-A which reads as under:
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 part of any pecuniary loss
caused to Government, if the pensioner is found in departmental or judicial
proceedings to have been guilty of grave mis-conduct, or to have caused
pecuniary loss to Government by misconduct or negligence, during his service,
including service rendered on re-employment after retirement:
departmental proceedings, if not instituted while the officer was on duty
either before retirement or during re-employment-
not be instituted save with the sanction of the Governor,
be in respect of an event which took place not more than four years before the
institution of such proceedings, and
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.
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.
- For the purpose
of this article –
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
the case of criminal proceedings, on the date on which a complaint is made, or
a charge sheet is submitted, to a criminal court; and
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." A reading thereof clearly indicates that the Governor
reserves to himself the power and right to withhold or withdraw pension or a
part thereof, whether permanently or for a specified period. Equally, he has
right to order recovery from pension of the whole or part of any pecuniary loss
caused to Government when it is found in a departmental or judicial proceedings
that the delinquent was guilty of grave misconduct or has caused pecuniary loss
to the Government by his misconduct or negligence while he was continuing in
service including the period of his re- employment after retirement. But the
conditions precedent are that the departmental proceedings should be initiated
only either before retirement or during re-employment and the same shall not be
instituted without the sanction of the Governor. It should be in respect of an
event which may have taken place not more than 4 years before the institution
of such proceedings.
to the rule purports to give the meaning to the words 'commencement of
departmental proceedings'. It says 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, from such date the date of suspension and the proceedings shall
be deemed to have been instituted 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 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 the civil Court. As
soon as the proceedings of the nature referred in the articles are instituted,
the authority which institutes such proceedings shall without delay intimate
the fact to the audit officer of the concerned.
would thus be seen that proceedings are required to be instituted against a
delinquent officer before retirement. There is no specific provision allowing
the officer to continue in service nor any order passed to allow him to
continue on re-employment till the enquiry is completed, without allowing him
to retire from service.
there is no provision that the proceedings be initiated as disciplinary measure
and the action initiated earlier would remain unabated after retirement. If
Rule 351- A is to be operative in respect of pending proceedings, by necessary
implication, prior sanction of the Governor to continue the proceedings against
him is required. On the other hand, the rule also would indicate that if the
officer caused pecuniary loss or committed embezzlement etc. due to misconduct
or negligence or dereliction of duty, then proceedings should also be
instituted after retirement against the officer as expeditiously as possible.
But the events of misconduct etc. which may have resulted in the loss to the
Government or embezzlement, i.e., the cause for the institution of proceedings,
should not have taken place more than four years before the date of institution
of proceedings. In other words, the departmental proceedings must be instituted
before lapse of four years from the date on which the event of misconduct etc.
had taken place.
in this case the officer had retired on March 31, 1987 and the proceedings were initiated
on April 21, 1991. Obviously, the event of
embezzlement which caused pecuniary loss to the State took place prior to four
years from the date of his retirement. Under these circumstances, the State had
disabled itself by their deliberate omissions to take appropriate action
against the respondent and allowed the officer to escape from the provisions of
Rule 351-A of the Rules. This order does not preclude proceeding with the
investigation into the offence and taking action thereon.
appeal is accordingly dismissed. No costs.