State
of U.P. & Ors Vs. Harihar Bhole Nath
[2006] Insc 734 (1
November 2006)
S.B.
Sinha & Markandey Katju
(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 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 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 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 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 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. 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 :
"After
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 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.
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