Allahabad High Court
Diwakar Pandey vs State Of U.P. Thru Secy.Food & Civil ... on 16 May, 2018
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved on 03.04.2018 Delivered on 16.05.2018 Court No. - 17 Case :- SERVICE SINGLE No. - 28942 of 2017 Petitioner :- Diwakar Pandey Respondent :- State Of U.P. Thru Secy.Food & Civil Supplies Lucknow & Ors. Counsel for Petitioner :- Ram Ji Trivedi Counsel for Respondent :- C.S.C. Hon'ble Irshad Ali,J.
Heard learned counsel for the petitioner Sri Ram Ji Trivedi and learned Additional Chief Standing counsel on behalf of respondent nos. 1 to 4.
The present writ petition has been filed challenging the order dated 13.11.2017 passed by respondent no. 1 whereby disciplinary proceedings have been initiated against the petitioner under Regulation 351(A) of the Civil Services Regulations.
Brief facts of the case are that the petitioner was holding the post of Marketing Inspector under the respondents. Vide order dated 5.12.2008, he was suspended and a charge sheet in regard to the incident took place in the year, 2005 was issued to the petitioner. The petitioner submitted reply to the charges levelled against him vide reply dated 5.8.2011. The Inquiry Officer initiated inquiry proceedings against the petitioner, therefore, the petitioner filed a Writ Petition No. 152 (SS)/ 2009 before this Court which was finally disposed of vide order dated 14.1.2009 directing to the Inquiry Officer to complete the Inquiry proceedings within a period of two months from the date of submission of reply by the petitioner. It was further provided that in case the inquiry is not completed within the time stipulated, the order of suspension shall stand revoked.
In spite of direction issued by this Court, the inquiry initiated against the petitioner could not be completed, therefore, vide order dated 3.9.2009 the petitioner was reinstated in service. Thereafter, an order was passed on 25.9.2009, providing that departmental proceeding shall continue and the order of suspension was revoked and thereafter the petitioner was assigned the work at Achalda Centre, District Auraiyya vide order dated 13.10.2009. The petitioner on attaining the age of superannuation retired from service on 31.1.2011 but his retiral dues including pension were not paid to him then he approached to the respondents with request to release the retiral dues including pension but no action was taken by the respondents. Thereafter, the petitioner filed Writ Petition No. 7676 (SS)/2011 which was disposed of vide order dated 19.10.2011 with a direction to the respondents to clear all admissible dues of the petitioner within a period of one months from the date of receipt of a certified copy of this order. In spite of service and knowledge of the order passed by this Court on 19.10.2011, no payment whatsoever was made to the petitioner.
Feeling aggrieved, the petitioner filed a contempt petition before this Court wherein notices were issued to the respondent no. 2 and during the pendency of the contempt petition, the petitioner has been paid pension, amount of G.P.F. and group insurance. Although, disciplinary proceeding against the petitioner was pending and vide order dated 28.2.2012, the respondent sought permission for continuance of departmental proceedings under the provisions of Regulation 351(A) of Civil Services Regulations from the Governor which was accorded by him. The petitioner again filed Writ Petition No. 1540 (SS) of 2012 challenging the said action which is pending before this Court.
The disciplinary proceedings continued against the petitioner after taking permission from the Governor. The Inquiry Officer without fixing any date, time and place provide oral hearing and to cross-examine the witnesses, submitted inquiry report and on the basis of ex parte inquiry report the respondent no. 1 passed an order on 16.6.2017 whereby the amount of gratuity has been forfeited and 1/3 portion of the pension has been deducted permanently.
Feeling aggrieved by the order dated 16.6.2017, the petitioner filed Writ Petition No. 14795 (SS) of 2017 (Diwakar Pandey Vs. State of U.P. and others) whereby the order dated 16.6.2017 was quashed by this Court vide order dated 3.8.2017 and the State Government was given liberty to pass fresh order in accordance with law within a period of two months from the date of presentation of certified copy of the order with further direction to pay all retiral dues to the petitioner in terms of fresh order to be passed within further period of six weeks thereafter.
Upon service of the order passed by this Court, the State Government again passed an order on 13.11.2017 whereby order of fresh inquiry has been passed on the charges levelled in the year, 2005.
Assailing the order dated 13.11.2017, learned counsel for the petitioner submitted that on earlier point of time this Court vide judgement and order dated 3.8.2017 passed in Writ Petition No. 14795 (SS) of 2017 set aside the order dated 16.6.2017 on the ground that there was no finding of guilt returned against the petitioner and by giving liberty to the respondents to pass fresh order for initiation of proceedings against the petitioner under Regulation 351(A) of Civil Services Regulations. Now the order dated 13.11.2017 has been passed under Regulation 351(A) of Civil Services Regulations in spite of the allegation which pertains to the year, 2005 and 2008, therefore, submission of learned counsel for the petitioner is that the same is not permissible under the proviso of Regulation 351(A) of Civil Services Regulations. He further submitted that the respondents are acting arbitrarily and or somehow harassing the petitioner, therefore, interference is required by this Court under Article 226 of the Constitution of India. In support of his argument, learned counsel for the petitioner relied upon the judgement in the case of Mahendra Nath Pandey Vs. State of U.P. and others, 2016 (4) U.P.L.B.E.C. 3004, Km. Shuva Dutta Vs. State of U.P., 2012 (30) LCD 216 and Mahesh Narain Gupta Vs. State of U.P. and others, 2011 (2) U.P.L.B.E.C. 1510.
Per contra learned Standing counsel submitted that the impugned order does not suffer from any infirmity or illegality and is just and valid order, therefore, no interference is required by this Court under Article 226 of the Constitution of India.
Having heard learned counsel for the parties and perused the impugned order along with other material on record.
Before considering the submissions advanced by learned counsel for the petitioner provisions contained under Regulation 351(A) of Civil Services Regulations is being quoted below :-
"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 re-employment :
(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) (a), and
(c) the Public Service Commission, U.P., shall be consulted before final orders are passed.
Explanation. -- For the purposes 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 a complaint is made, or a charge-sheet is submitted to a criminal court ; and
(ii) in the cases 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 or 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."
On perusal of regulation, it is evident that fist proviso to the regulation certain aspects are very much categories, if departmental proceeding is not instituted prior to retirement, three conditions are to be fulfilled :-
(i) sanction of Governor is required;
(ii) proceeding should not be beyond a period of four years;
(iii) it can be done where the order of dismissal be passed.
The proceeding now has been initiated by means of the impugned order dated 13.11.2017 under the prior concurrence accorded by the Governor.
On perusal of the of the impugned order, it is apparent on the face of it that the charges are of the year 2005 and 2008, therefore, the proceedings is barred by second condition of the proviso of Regulation 351(A) of Civil Services Regulations and is not permissible in law. Thus, the impugned order vitiates and is not sustainable in law.
In the case of Mahendra Nath Pandey Vs. State of U.P. and others (supra) paragraph 7, 11 and 12 are being quoted herein below :
"7. The main issue before the Court is the date on which the departmental proceedings would be deemed to have been instituted against the petitioner as that would determine whether Regulation 351-A is attracted or not. According to the petitioner, the date of institution of the departmental proceedings shall be the date when fresh charge-sheet is served upon the petitioner in pursuance of the impugned order. It is submitted that any charge-sheet which would now be issued would attract the rigour of Regulation 351-A as it would be after the petitioner has retired. On the other hand, according to the respondents, the departmental proceedings shall be deemed to have commenced on 18 October 2005 when the charge-sheet was initially issued culminating in passing of the impugned order.
11. Undoubtedly, the permission of the Governor to hold enquiry against the petitioner after his retirement is contained in the impugned order itself, but the charges against the petitioner are in relation to the alleged misconduct on his part while he was posted as Assistant Engineer, Provincial Division, Public Works Department, Bansi during the period May 1998 to June 2000. The charge-sheet dated 7 June 2011 brought on record alongwith the counter affidavit proves the same. Thus, the fresh departmental enquiry is in relation to an event which took place more than four year. It is contrary to the safeguard provided in favour of pensioner under clause (a)(ii) of the proviso to Regulation 351-A. In such view of the matter, the direction contained in the impugned order dated 2 September 2009 for holding a de novo enquiry by issuing a fresh charge-sheet cannot be sustained and is hereby quashed.
12. The claim for grant of second promotional pay scale to the petitioner has been negatived only on the ground of pendency of the disciplinary proceedings in pursuance of the order dated 2 September 2009. In view of the findings recorded above that the disciplinary proceedings cannot be initiated against the petitioner at this stage, the order dated 15 April 2015 also cannot be sustained. Resultantly, the respondents shall now consider the claim of the petitioner for grant of second promotional pay scale, in accordance with law, preferably within a period of three months from the date of filing of a certified copy of this order before the concerned respondent. The petitioner shall also become entitled to his post retiral dues and other pensionary benefits, in accordance with law."
On perusal of the ratio decided by the Division Bench of this Court, it has been held that the departmental inquiry against the petitioner has been initiated on expiry of more than four years, therefore, contrary to the proviso of Regulation 351(A) of Civil Services Regulations and the proceedings cannot be sustained and is liable to be quashed. In the present case also charges against the petitioner is of the year 2005 and 2008 and under the impugned order direction has been issued for initiation of disciplinary proceeding on the charges of the aforesaid years, therefore, ratio of the judgement is fully applicable to the present facts and circumstances of the case.
Other judgement relied upon by the learned counsel for the petitioner is in the case of Lakhan Lal Ahirwar Vs. State of U.P. and others, 2007 (25) LCD 1148, relevant paragraphs are being quoted hereby below :
"6. From the first proviso to the Regulation, certain aspects are very much categorical. If departmental proceedings is not instituted prior to retirement, three conditions are to be fulfilled. Firstly, sanction of the Governor is required. Secondly, proceedings should not be beyond a period of four years. Thirdly it can be done where the order of dismissal may be passed. State instituted the enquiry proceedings under order impugned on 6th October, 2006 with the approval of the Governor under Article 351-A of the CSR but no decision was taken before filing of the writ petition on 30th January,2007..
7. From the fact, it appears to the Court that the petitioner was put under suspension on 21st June, 2001 and disciplinary proceedings were initiated on 30th June, 2001. Therefore, under no stretch of imagination such initiation of disciplinary proceeding can be construed less than the period of four years to attract the proviso (a) (ii) under Article 351-A of the CSR. Moreover, Governor's sanction is required only when a departmental proceeding is not instituted before retirement but not in respect of disciplinary proceeding already instituted before retirement as per clause (a) and sub clause (i) thereunder of the proviso of Article 351-A CSR. In the instant case not only departmental proceedings were initiated but also the Enquiry Officer placed a favourable report on 6th April,2004, long before the date of retirement i.e. 28th February,2006.
8. The State has cited a Supreme Court judgment reported in (2007) 1 UPLBEC 56 (State of U.P. and others vs Harihar Bhole Nath) in support of their cause. It was held therein that the right to initiate proceedings would include a right to continue the proceedings with the Governor. However, according to us, two significant parts of the judgment of the Supreme Court have been misconstrued by the respondents. In such case departmental inquiry was initiated and an Enquiry Officer was appointed but the order of suspension was stayed by the appropriate Court. In the present case the Enquiry Officer has already submitted a report long before the retirement of the petitioner on 6th April, 2004 but no order had been passed by the disciplinary authority either accepting or rejecting the enquiry report. So far as the question of suspension is concerned, although a stay order was obtained from a Division Bench of this High Court on 5th November,2001 keeping the enquiry proceeding pending but such suspension order was withdrawn by the State itself on 16th August, 2002. Secondly, it was held by the Supreme Court that the proceeding for recovery of amount from a government servant can be passed in the event he was held guilty of grave misconduct or caused pecuniary loss to the Government by his misconduct or negligence, during his service. In the present case out of four charges, the petitioner was exonerated from the two charges but in the third charge, he was held partial responsible, when the necessary step was taken to comply with the order of the High Court and under the fourth charge he was held responsible for showing sympathy to an ad hoc appointee and held the same was not done in accordance with departmental rules. Therefore, whether by virtue of first proviso i.e. (a) (iii) under Regulation 351-A of the CSR an order of dismissal from service can be passed against to the petitioner or not is a matter of doubt.
10. As per time schedule there are two modes of taking decision. As per first part of the time schedule the decision will be taken within three months after receipt of Government Order. The impugned Government Order has been passed on 6th October, 2006 with the sanction of the Governor and even such period has expired before filing of the writ petition without any decision thereof. As per the second part of the time schedule i.e. departmental proceeding, which has been instituted before retirement must be completed within six months after retirement. Even such period has already expired since the petitioner retired from service on 28th February,2006.
11. Even if we hold that right to initiate proceedings would include right to continue the proceedings but the mandatory part of the rules 1995 says that the departmental proceedings, if instituted before retirement, it must be completed within six months after retirement. Therefore, such mandatory part of the Rules cannot be ignored being special in nature which overrides general. Such period is already over. If we go independently with authority of the Governor's as per Article 351-A CSR only on initiation, we are of the view that such period has also expired as per the aforesaid Rules."
The aforesaid judgements lay down the similar view as has been laid down in the case of Mahendra Nath Pandey Vs. State of U.P. and others (supra).
In view of the above judgements and on perusal of the impugned order, it is evident on the face of it that the charges are of the year, 2005 and 2008. Thus, the fresh departmental inquiry in relation to an event which took place more than 4 years is contrary to the safeguard provided in favour of a pensioner under Clause (a) (ii) of the proviso to Regulation 351-A. In such view of the matter, the direction contained in the impugned order dated 13.11.2017 for holding a de novo inquiry cannot be sustained. Therefore, the order dated 13.11.2017 being contrary to the provisions contained under proviso of Regulation 351-A of Civil Services Regulations is hereby set aside.
The writ petition succeeds and is allowed.
No order as to costs.
Order Date :- 16.05.2018 Manoj