State
of U.P. & Others
Vs. Gulab Shankar Srivastava [2004] Insc 736 (3 December 2004)
ARIJIT PASAYAT & S.H. KAPADIA [Arising out of SLP (C) Nos.12108-12109 of 2003] KAPADIA, J.
Leave granted.
These appeals are directed against two sets of orders passed by the High
Court of Allahabad, both, dated 30.01.2003 dismissing CMWP No.9951 of 2002
filed by State of U.P. and simultaneously allowing CMWP No.41586 of 1999 filed
by the respondent herein, directing payment of all consequential benefits, as
if the order of punishment dated 19.4.1993 had not been passed, with interest @
10% per annum.
The relevant facts giving rise to these appeals are necessary to be
recapitulated.
Gulab Shankar Srivastava, the respondent herein, was posted on 30.12.1987 as
Assistant Deputy Director in the Finance Department, Directorate of Education,
U.P. As Assistant Deputy Director, he was required to deal with the matters
concerning financial sanction of salaries payable to the staff under three
language formula and reimbursement of fees of girls and scheduled castes and
scheduled tribes from the allocations made by the State. On 26.4.1988, he was
suspended. On 2.1.1989, he was charge-sheeted. In all, 48 charges were framed
and they inter alia related to irregularities in the matter of preparation of
budget and sanctioning grants without obtaining prior approval from his
superiors. On 7.5.1990, he replied and denied the said charges. On 3.4.1991,
the Enquiry Officer submitted his report, in which charge nos.7 and 20 were
found to be fully proved whereas charge nos.2, 4, 5, 8, 9, 10, 13, 14, 19, 21,
22, 28, 35, 36, 38, 42, 43, 44, 45, 46 and 47 were found to be partly proved.
By his report, the Enquiry Officer proposed stoppage of three annual increments
with permanent effect. By letter dated 12.10.1992, the delinquent was asked by
the Appointing Authority to submit his reply to the enquiry report. By order
dated 19.4.1993, the disciplinary authority, after considering the material on
record imposed the punishment of reduction to the lowest stage of his pay scale
of Rs.2200-75-2600-E.B.-100-4000.
To complete the chronology of events, the respondent herein, challenged the
order dated 19.4.1993 by filing Claim Petition No.1393 of 1993 before the State
Public Services Tribunal, Lucknow, in which he alleged lack of opportunity of
hearing, non-supply of vital documents, denial of opportunity to cross-examine
the witnesses and breach of Civil Services (Classification, Control &
Appeal) Rules. He further submitted that the impugned punishment amounted to a
major punishment which warranted full-fledged enquiry, whereas what was held
was a summary enquiry and consequently, the said order dated 19.4.1993 was
arbitrary, illegal and bad in law.
The said claim petition was contested by the appellants herein stating,
that, the delinquent had committed serious financial irregularities in
performance of his duties; that the copies of all relevant documents in support
of the charges were supplied; that inspection of the documents was also given;
and that the said order dated 19.4.1993 was passed after giving full
opportunity of hearing to the respondent herein. That, looking to the gravity
of charges, appropriate punishment of reduction to the lowest stage in the time
scale was awarded both justifiably and in accordance with the provisions of
Civil Services (Conduct & Disciplinary) Rules.
By judgment and order dated 28.2.1998, the Tribunal, held, that, the
punishment of reduction to the lowest stage of the pay scale was a major
punishment; that the charge-sheeted employee was not supplied with the
necessary documents despite repeated demands; that out of 48 charges, no
details of the documents in support of 39 charges were ever given; that mere
permission to inspect the documents was not sufficient compliance of law,
particularly when 48 charges were levelled;
that the respondent herein was prevented from cross-examining the witnesses;
that he was not allowed to produce defence evidence; that no reasons have been
given by the disciplinary authority for not accepting the punishment proposed
by the Enquiry Officer and consequently, the Tribunal quashed the said order
dated 19.4.1993, with liberty to the appellants to hold the departmental
enquiry, afresh, if so advised, keeping in mind the factum of respondent's
retirement in 1994. By the impugned judgment, the Tribunal gave liberty to the
appellants to hold the departmental enquiry by observing that charges levelled
against the respondent were of serious nature.
Since there is the controversy regarding text of the operative part of the
judgment of the Tribunal, we quote herein below the said part, in extenso:
"ORDER:
The petitioner's petition is allowed in the manner that the punishment order
dated 19.4.1993, contained in Annexure No.15 and the appellate order dated
27.4.1994 annexed with the amendment application are quashed as illegal and it
is directed that the petitioner should be allowed the consequential service
benefits in accordance with law. Petitioner's prayer for the payment of salary
etc. for the suspension period is not allowed since the matter relating to it
is a subjudiced before the Hon'ble High Court. It is further directed that the
opposite parties shall be at liberty to hold departmental enquiry against the
petitioner afresh as observed above. The departmental enquiry should be
initiated within four months from the date of communication of the order and it
should then be completed within another four months and the service benefits
given to the petitioner shall be subject to the final result of the enquiry. In
case no enquiry is held within the stipulated period, the petitioner shall be
entitled to get the consequential service benefits accordingly as per
rules." As stated above, being aggrieved by the decision of the Tribunal
dated 28.2.1998, the appellants herein, moved the High Court vide CMWP No.9951
of 2002 whereas the respondent herein moved the High Court by way of CMWP
No.41586 of 1999 claiming arrears of salary (including difference of pay for
suspension period) and allowances as the enquiry was not completed within the
stipulated period as ordered by the Tribunal vide its decision dated 28.2.1998.
By the impugned judgments dated 30.01.2003, the writ petition filed by the
appellants being CMWP No.9951 of 2002 stood dismissed whereas CMWP No.41586 of
1999 filed by the respondent herein was allowed with a direction to pay the
arrears of salary, allowances and all consequential benefits with interest @
10% per annum. Accordingly, the appellants applied to this Court under Article
136 and have obtained special leave to appeal against the impugned judgments.
The contention urged before us by the appellants is that the High Court had
erred in directing the appellants to pay the difference in salary for the
period of suspension with all benefits with 10% interest without deciding upon
the rights of the appellants to continue the departmental proceedings
instituted prior to the respondent's retirement under regulation 351-A of U.P.
Civil Service Regulations (relating to pension).
It was urged on behalf of the appellants that they had right to continue the
departmental proceedings for which leave was granted by the Tribunal, without
Governor's sanction to enable them to deduct or withhold the pension in
entirety or in part under the said regulation.
Per contra, it was urged on behalf of the respondent herein that no such
right vested in the appellants after 1994 (when the respondent retired) and
particularly when the departmental proceedings were not completed within the
stipulated period.
In the case of State of U.P. v. Brahm Datt Sharma & Another reported in
[(1987) 2 SCC 179], this Court held that under regulation 351-A of U.P. Civil
Service Regulations, the Government was authorized to withhold or reduce
pension and merely because a Government servant retired from service on
attaining the age of superannuation, he cannot escape the liability for
misconduct and negligence or financial irregularities, which he may have
committed during the period of his service. This decision has been followed by
this Court in the case of Takhatray Shivadattray Mankad v. State of Gujarat
reported in [1989 Supp. (2) SCC 110, paras 24 & 25].
There is merit in the argument advanced on behalf of the appellants. As
stated above, the respondent herein, had moved the High Court under Article 226
of the Constitution for difference in the pay during the period of suspension
and for consequential benefits. Before the High Court, the appellants submitted
that they had the right to deduct or withhold the pension either in part or in
toto on account of the alleged financial irregularities. In our view, the
questions indicated above ought to have been decided by the High Court
particularly before ordering payment with interest @ 10% per annum. Moreover,
applicability of regulation 351-A requires compliance of pre-conditions
including the period of limitation for holding the enquiry. Hence, the High
Court ought to have examined the scope and the applicability of the said
regulation in the light of the facts and circumstances of this case.
Before concluding, we may mention that the appellants have paid all the
retirement benefits including pension and gratuity to the respondent herein.
That the omission of word "no" in the operative part of the order,
quoted above, was a mistake. We reiterate that the order of the Tribunal
holding that the earlier departmental enquiry stood vitiated by non- compliance
of the rules of natural justice does not suffer from any infirmity and need not
be re-examined by the High Court.
Subject to what is stated above, the appeals are allowed, the impugned
judgment and orders dated 30.01.2003 are set aside to the extent indicated
above and the matter is remitted to the High Court to adjudicate and decide the
questions formulated above in the light of the provisions of U.P. Civil Service
Regulations (relating to pension) as expeditiously as possible. There will be
no order as to costs.
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