U.P. & Ors Vs.
R.C. Misra  Insc 324 (22 March 2007)
G.P. Mathur & Lokeshwar Singh Panta
(Arising out of Special Leave Petition (Civil) No.16753 of 2004) G. P.
1. Leave granted.
2. This appeal, by special leave, has been preferred against the judgment
and order dated 16.3.2004 of Allahabad High Court (Lucknow Bench), by which the
writ petition filed by the State of U.P.
was dismissed. In the writ petition challenge was laid to the order dated
10.4.2002 passed by U.P. Public Service Tribunal, Lucknow (hereinafter called
'the Tribunal') by which the claim petition filed by the respondent R.C. Misra
had been allowed and the order passed by the State Government for recovery of
certain amount from his pension/gratuity was set aside.
3. The respondent was working as Block Development Officer when he was
placed under suspension by the order dated 20.10.1997 and a charge sheet
containing 12 charges was served upon him on 24.10.1997. The respondent
attained the age of superannuation on 31.10.1997 and retired from service. The
enquiry officer submitted a report on 16.11.1999 that all the 12 charges levelled
against the respondent were found to have been established. Thereafter, an
order was passed by the State Government on 25.1.2001 directing recovery of
Rs.9,69,141.60 from the pension/gratuity of the respondent. The respondent
filed a claim petition before the U.P. Public Service Tribunal, Lucknow,
challenging the aforesaid order passed by the State Government. The Tribunal
allowed the claim petition by the order dated 10.4.2002 and set aside the order
passed by the State Government directing recovery of Rs.9,69,141.60 from the
respondent. It was, however, left open to the State Government to proceed
against the respondent under Regulation 351A of the Civil Service Regulations
after obtaining sanction from the competent authority. The appellant State of U.P.
filed a writ petition challenging the aforesaid order of the Tribunal but the
same was dismissed on 16.3.2004.
4. We have heard Shri Dinesh Dwivedi, learned senior counsel for the
appellant, Shri Sunil Gupta, learned senior counsel for the respondent and have
perused the record.
5. There is no dispute regarding the factual position that the respondent
was placed under suspension on 20.10.1997 and a charge sheet containing 12
charges was served upon him on 24.10.1997 and shortly thereafter he attained
the age of superannuation on 31.10.1997.
The enquiry officer recorded a finding that all the charges were found to
have been established against the respondent. The Tribunal has held that the
disciplinary proceedings were initiated against the respondent prior to his
retirement by issuing a charge sheet but the same could not have continued
after his retirement unless specific order for its continuance had been taken
from the competent authority i.e. the Governor, as provided in Regulation 351A
of the Civil Service Regulations. The High Court has accepted the aforesaid
reasoning of the Tribunal and has observed as under :- ".. This enquiry
was thus, initiated few days before the date of retirement of the respondent
no.1. At that time there was no occasion for the State Government to take any
permission or sanction under Regulation 351A of the Civil Service Regulations.
During continuance of the enquiry the respondent no.1 retired from service on
attaining the age of superannuation but no sanction or permission as required
under Regulation 351A of the Civil Service Regulations was taken from the
Governor by the petitioner."
The High Court repelled the contention raised on behalf of the appellant
State of U.P. that as the enquiry had been initiated before the respondent had
attained the age of superannuation, no sanction of the Governor was required
and for this reliance was placed on a decision of this Court rendered in State
of U.P. v. Shri Krishna Pandey (1996) 9 SCC 395.
6. Regulations 351A and 470 of Civil Service Regulations read as under :-
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.
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
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."
The substantive part of Regulation 351A confers the power upon the
Government 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. There is a proviso appended to the Regulation
which circumscribes the power conferred by the substantive part of the
Regulation. Clause (a) of the proviso with which we are concerned here uses the
expression if not instituted while the officer was on duty either before
retirement or during re-employment. Clause (a) of the proviso will, therefore,
get attracted only when the departmental proceedings are instituted against the
officer after his retirement or when he is not in re- employment. If the
departmental proceedings are instituted before an officer has attained the age
of superannuation and before his retirement, proviso (a) can have no
application. In order to remove any doubt regarding the date of institution of
enquiry or the judicial proceedings an Explanation has been appended after the
According to Explanation (a), departmental proceedings shall be deemed to
have been instituted (i) when the charges framed against the officer are issued
to him, or (ii) if the officer has been placed under suspension from an earlier
date, on such date. By incorporating the explanation, the rule framing
authority has notionally fixed two dates as the date on which the departmental
proceedings shall be deemed to have been instituted against an officer. A
combined reading of the proviso and the explanation would show that there is no
fetter or limitation of any kind for instituting departmental proceedings
against an officer if he has not attained the age of superannuation and has not
retired from service. If an officer is either placed under suspension or
charges are issued to him prior to his attaining the age of superannuation, the
departmental proceedings so instituted can validly continue even after he has
attained the age of superannuation and has retired and the limitations imposed
by sub- clause (i) or sub-clause (ii) of clause (a) of proviso to Regulation
351A will not apply. It is only where an officer is not placed under suspension
or charges are not issued to him while he is in service and departmental
proceedings are instituted against him under Regulation 351A after he has
attained the age of superannuation and has retired from service and is not
under re-employment that the limitations imposed by sub-clauses (i) and (ii) of
proviso (a) shall come into play.
7. The word used in proviso (a) is "institute". The dictionary
meaning of the word "institute" is set up; cause to come into
existence; to originate and get established; to commence. It obviously refers
to the initial action or the commencement of the action. It is entirely
different from continuance of an action already initiated. If the intention of
the rule making authority had been that an enquiry instituted against an
officer while in service should not proceed after his retirement, save with the
sanction of the Governor, then the proviso (a) would have been differently
worded and instead of the word "instituted", the words
"continue" or "proceed" or "go on"
would have been used. This being not the language of the proviso, there is
absolutely no warrant for holding that an enquiry validly instituted against an
officer while he was in service would, after retirement of the officer, require
sanction of the Governor for its continuance and culmination.
8. In the present case, the respondent had been placed under suspension and
charges were also served upon him while he was in service. In such
circumstances, proviso (a) did not come into play at all and there was no
requirement of obtaining sanction of the Governor. The enquiry which had been
instituted prior to the retirement of the respondent and was completed after
his retirement could not, therefore, be held to be illegal on the ground of
want of sanction of the Governor. The view to the contrary taken by the
Tribunal and by the High Court is, therefore, clearly erroneous in law and
cannot be sustained.
9. The provisions of Articles 351A and 470 of Civil Service Regulations have
recently been examined by this Court in State of U.P. & Ors. v. Harihar Bhole
Nath JT 2006 (9) SC 567, and it is held as under in paras 14 and 15 of the
14. 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,
when the proceedings were initiated after retirement and not prior thereto.
15. 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.
10. The High Court has placed reliance upon State of U.P. v. Shri Krishna Pandey
(1996) 9 SCC 395 for coming to the conclusion that even when departmental
proceedings have commenced prior to retirement of an officer, they cannot
continue after retirement without the sanction of the Governor. In this case,
the officer had retired on 31.3.1987 and the proceedings were initiated on
21.4.1991. Thus, the departmental proceedings were instituted long after the
retirement of the officer and in such a situation the limitations imposed by
proviso (a) clearly got attracted and no enquiry could have been instituted
against him save with the sanction of the Governor. This decision has been
noticed and explained in State of U.P. & Ors. v. Harihar Bhole Nath (supra)
in para 20 of the reports which is being reproduced below :-
20. The High Court has placed strong reliance on State of U.P. and Anr. v. 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 decision in State of U.P. & Ors. v. Shri Krishna Pandey (supra) is
clearly not an authority for the proposition that the departmental proceedings
instituted while the officer was on duty either before retirement or during
re-employment cannot be continued after his retirement save with the sanction
of the Governor.
Regulation 351A cannot be interpreted in a manner that a departmental
proceeding validly instituted while the officer is in service would require
sanction of the Governor for its continuance subsequent to his retirement as
the limitation imposed by sub-clause (i) of clause (a) of the proviso is only
on institution of the proceedings and not the continuance thereof.
11. For the reasons discussed above, the appeal is allowed with costs. The
judgment and order dated 10.4.2002 of the U.P. Public Service Tribunal, Lucknow
and judgment and order dated 16.3.2004 of Allahabad High Court (Lucknow Bench)
are set aside. The matter is remitted to the Tribunal for a fresh decision of
the claim petition filed by the respondent on merits and in accordance with
law. The Tribunal shall make all possible endeavour to decide the proceedings
as expeditiously as possible, preferably within a period of four months from
the date of filing of a certified copy of this judgment, which shall be done by
the parties at the earliest.