Allahabad High Court
Anil Kumar Sharma vs State Of U.P. And 5 Others on 23 July, 2021
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 6 Case :- WRIT - A No. - 6544 of 2021 Petitioner :- Anil Kumar Sharma Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- R.K. Mishra Counsel for Respondent :- C.S.C.,Abhishek Srivastava,Krishna Agarawal Hon'ble Pankaj Bhatia,J.
1. Heard Sri R.K. Mishra, counsel for the petitioner, Sri Abhishek Srivastava, counsel appearing on behalf of the Power Corporation, Respondents No. 2 and 3, Sri Krishna Agarwal, Advocate, who appears on behalf of the Respondents No. 4 to 6, learned Standing Counsel and perused the record.
2. The present writ petition has been filed alleging that the petitioner is not being paid his retiral dues and thus, is being denied of his rights enshrined and protected under Article 300-A of the Constitution of India without any authority of law.
3. Brief facts leading to the filing of the present writ petition are as under:
4. The petitioner was initially appointed on 4.6.1974 on a permanent and regular post of Petrol Man and it is stated that he was promoted to the post of Junior Engineer in the year 2014 and since then he continued to discharge his duties as Junior Engineer. The petitioner retired from services on 31.12.2018 from the post of Junior Engineer while he was working in the office of Respondent No. 6 at the time of retirement. The retiral dues of the petitioner are not being paid which has led to the filing of the present writ petition.
5. Counsel for the respondents have filed compilation of documents as well as a short counter affidavit detailing the reasons for non-payment of pension to the petitioner.
6. From the material on record, the contention of the counsel for the respondents for non-payment of pension in short are that on 5.11.2018 while the petitioner was in service, a report was received regarding involvement of the petitioner in various acts of theft of electricity. Another complaint was made on 14.11.2018, to the effect that the petitioner and his brother had obtained appointment under the dying in harness rules while only one of the brothers was entitled for appointment. On the basis of the preliminary enquiry dated 14.11.2018 which was based upon a report, the services of the petitioner was placed under suspension vide order dated 22.11.2018. On 28.12.2018, the suspension of the petitioner was revoked. In the said order of revocation, it was specified that the suspension was being revoked on account of retirement of the petitioner which was due on 31.12.2018. Subsequently on 31.12.2018, the petitioner retired from services.
7. In the compilation filed by the counsel for the respondents, it bears that on 11.4.2019, the papers were sent for sanction for carrying out the disciplinary proceedings in respect of two draft charge sheets, which were annexed in the letter dated 11.4.2019 sent for approval and for continuation of disciplinary proceedings against the petitioner. On dates starting from 11.4.2019 to 24.4.2019 sanction was accorded by the Managing Director for continuing disciplinary proceedings against the petitioner. The said sanction was communicated vide letter dated 1.5.2019.
8. The case of the respondents is that on 30.8.2019, a show cause notice was served upon the petitioner along with two charge sheets, which the petitioner denies having received and the case of the petitioner is that he received two charge sheets on 7.11.2019.
9. Counsel for the respondents argue that although the first charge sheet was sent on 30.8.2019, however, on the request of the petitioner, the same were resent on 5.11.2019 which, according to the petitioner, were received by the petitioner on 7.11.2019. It is also argued that the sanction of Governor in the case of respondent corporation would mean Managing Director of the Corporation in terms of Circular of Board dated 21.6.91 and Resolution of Board of Directors dated 2.8.2007
10. In the light of the facts of the case, as disclosed above, what emerges for decision is whether payment of pension to the petitioner can be withheld by the respondents or not. It is common ground in between the parties that Regulation 351-A of the Civil Service Regulations (in short '' CSR Regulations) is applicable to the employee of the Power Corporation, which was earlier a Board. The said question is no more disputed in view of the full Bench judgment of this Court in the case of UP Power Corporation Ltd. and another Vs. Kanti Prasad Varshney and others, 2019 (6) ADJ 684 (LB)(FB) wherein this Court had categorically held that Regulation 351-A of the Civil Service Regulation framed by the State Government are applicable to the employees of the UP Power Corporation. On the strength of Regulation 351-A, the stand of the counsel for the respondents is that the petitioner is not entitled to payment of pension and at best the petitioner may apply for provisional pension in accordance with the provisions of Regulation 351-AA and 919-A of the said CSR Regulations and if the petitioner pursues for payment of provisional pension, the same shall be considered by the department in accordance with law. He lastly argues that the respondents be permitted some reasonable time to conclude the disciplinary proceedings against the Petitioner.
11. Although the proceedings initiated and carried out against the petitioner are not challenged in the present writ petition, however, as the main prayer of the petitioner for payment of pension is to be considered and is intrinsically linked to the pending disciplinary proceedings against the petitioner, the same cannot be decided without considering the merit of the pending disciplinary proceedings vis a vis bar created under Regulation 351-A. This Court is going into the validity of the departmental proceedings moreso, in the light of the specific defence taken by the counsel for the respondents justifying the withholding the pension in view of the pending departmental proceedings against the Petitioner.
12. Thus, what precipitates from the arguments raised at the Bar is whether the department was justified in withholding the pension on the strength of Regulation 351-A as applicable in the State of Uttar Pradesh. Regulation 351-A of the Civil Service Regulation is quoted herein below:
"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 proceeding; 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, U.P. shall be consulted before final orders are passed.
[Provided further that of the order passed by the Governor relates to a cash 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 purposes of this article-
(a) Departmental proceeding 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 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."
13. A plain reading of the said Regulation 351-A makes it clear that the Government reserves the right to recover the pecuniary loss caused to the Government on account of act of an employee by ordering recovery from the pension either wholly or in part after a departmental proceeding/judicial proceeding. Further, the said power to recover under Regulation 351-A stands circumcised by the proviso to the said Regulation which prohibits recourse to disciplinary proceedings except in the circumstances as enumerated in the proviso a (i),(ii),(iii), read with Explanation to the said proviso. The scope of Regulation 351-A and the explanation attached thereto came up for consideration before another Full Bench of this Court in the case of Shivgopal and others Vs. State of UP and others, 2019 (5) ADJ 441 (FB) wherein the scope of Regulation 351-A, the proviso and the explanation to the said proviso were dealt with and the Court recorded as under:
"41. Explanation to Article 351-A clarifies that departmental proceedings shall be deemed to have been instituted: (i) when charges are framed against the pensioner; or (ii) the officer has been placed under suspension from such date. Further, judicial proceedings is deemed to have been instituted against the pensioner: (i) in the case of criminal proceedings, on date on which complaint is made or charge-sheet is submitted to a criminal court; (ii) in case of civil proceedings on the date on which plaint is presented or as the case may be, an application is made to Civil Court.
42. Now we will refer to the proviso to Article 351-A. The proviso speaks about initiation of disciplinary proceedings or judicial proceedings against the government servant after retirement. For initiating proceedings the conditions specified therein must be satisfied, that is, departmental proceedings as indicated in proviso (a) if not instituted while the officer was on duty then it shall not be instituted except:
(i). with the sanction of the Governor;
(ii). it shall be initiated on an event which took place not more than 4 years before the institution of the proceedings;
(iii). such proceedings would be conducted by such authority and in such place 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.
43. On perusal of Proviso and its Explanation, referred to above, deals only with the conditions for initiation for disciplinary proceedings/judicial proceedings and the limitation within which such initiation of the proceedings can be done has been made explicit.
14. Thus, to invoke the bar under Regulation 351-A, it is essential that on the date of retirement, the departmental proceedings should have been instituted against the petitioner and if instituted after retirement should be in after satisfying the test as laid down in clause(i) to(iii) of Proviso (a) to CSR Regulation 351 -A
15. The term ''institution' of departmental proceedings is explained in Explanation (a) to the proviso(a) to the Regulation 351-A and it creates a legal fiction of the date of institution of proceedings, being either the date of issuance of charges framed against the pensioner, or if the officer is placed under suspension prior to the service of charge sheet on such date. The cumulative effect of Explanation (a) to the proviso (a) to Regulation 351-A is that either the suspension order should be passed against the petitioner prior to the retirement of the pensioner or the charge sheet ought to be served upon the pensioner prior to the date of the retirement.
16. In the present case, the admitted ground in between the parties is that the petitioner was placed under suspension on 22.11.2018 and suspension was revoked on 28.12.2018. Thus, what calls for consideration as to whether on the date of retirement, the petitioner can be considered to be under suspension or not.
17. Sri Krishna ji Agarwal, counsel appearing on behalf of the respondents, on a query, argues that revocation of the suspension was only in view of the event of retirement of the petitioner due on 31.12.2018 and thus, the normal logic would be that the petitioner was under suspension and thus, in terms of the explanation (a) to the proviso to Regulation 351-A, the departmental proceedings stood instituted and thus, no sanction was required from the Governor and the recourse to stopping payment of pension by resorting Regulation 351-A is wholly justified in the alternative he argues that in any case the sanction of Managing Director was obtained who is to be read as substituted for Governor as prescribed under CSR Regulation 351 -A in terms of Circular of Board dated 21.6.91 and Resolution of Board of Directors dated 2.8.2007. He further clarifies his stand by arguing that once the petitioner was placed under suspension on 22.11.2018, the enquiry would stand instituted even if revocation of suspension order dated 28.12.2018 is taken into account.
18. It is well settled that the pension is not a bounty and is a right vested on account of the services rendered by any person and qualifies to be property in terms of Article 300-A of the Constitution of India. Article 300-A of the Constitution of India specifically prohibits depriving of a citizen of his property save by ''authority of law'. The ''authority of law' as used under Article 300-A has to be interpreted strictly in view of the fact that the law (in the present case CSR Regulation 351A) prescribes for deprivation of property of a citizen and in that sense is an ' ex-propriatory' legislation. Any liberal interpretation given to law which is basically 'ex-propriatory' in nature would be in clear violation of Article 300-A of the Constitution of India and would militate against the spirit of Article 300-A of the Constitution of India.
19. A plain reading of explanation(a) to the proviso (a) to Regulation 351-A leaves no doubt that the date of institution of the enquiry has to be the date when charge sheet are issued to the pensioner or the date from when the petitioner is placed under suspension. One the said acts are required to be performed prior to the date of retirement. In the facts of the present case, on the date of retirement i.e. 31.12.2018, there was no suspension order in force as the suspension order dated 22.11.2018 stood revoked vide order dated 28.12.2018 in very clear terms and as the charge sheet admittedly was served after the date of retirement thus, I have no hesitation in holding as on 31.12.2018 neither the petitioner was under suspension nor any charge sheet was served upon him or issued to him. Thus, in view of the specific bar created by Regulation 351-A, no proceedings could have been initiated against the petitioner except with sanction of Governor and after satisfying the test of clase (i) to (iii) of proviso (a) to CSR 351-A .
20. Now coming to the second argument of Shri Agarwal that the departmental proceedings were being continued against the petitioner after sanction from the Managing Director who has to be read in substitution of Governor as specified under CSR 351 A based upon a Circular dated 21.6.1991 whereby word 'Governor' was substituted by 'Board' and Respondents Companies Resolution dated 2.8.2007 whereby all the powers under Regulation 351 A were resolved to be with sanction of Managing Director. The circulars as well as Company's Resolution has been placed on record. The circular dated 21.6.1991 was issued by the Secretary of the Board which existed prior to the creation of the companies wherein with a view to simplify the payment of pension certain guidelines were issued. In the said guidelines, it was provided that the words used in the Government Order dated 28.7.2009 shall be substituted by the other words, the word ''Governor', shall be substituted by the ''Board'. After the creation of the companies, the companies proceeded to pass resolution on 2nd August, 2007 wherein it was provided that all the powers related to Regulation 351-A shall be exercised by the Managing Director. The same is not worth of acceptance in as much as the CSR Regulations have been framed in pursuance to the powers conferred under Article 309 of the Constitution of India and have been adopted and made applicable to the State and can be modified/amended only by the amendment in Regulations in respect of services in the State and not by issuance of Circular or a Company resolution as is being contended by the Counsel for Respondents. The sanctioning Authority specified as 'Governor' in the CSR Regulations cannot be read as 'Managing Director' of a corporation except when it is amended in accordance with law .In the present case there being no sanction of Governor and no delegation of power by Governor in favour of Managing Director the sanction by Managing Director cannot be accepted as sanction as mandated in Proviso a to CSR 351 -A.
21. As discussed above on both the counts the defence of the respondents is not worthy of acceptance,to clarify further in the present case no Disciplinary proceedings were instituted against the Petitioner prior to his date of Retirement and no sanction of Governor as required under CSR 351 A exists for initiating disciplinary proceedings against the Petitioner after his retirement.
22. Thus, in the light of what has been decided, I have no hesitation in holding that denial of pension to the petitioner taking recourse to Regulation 351-A as well as continuation of proceedings against the petitioner by taking recourse to Regulation 351-A is wholly arbitrary and bad in law and contrary to the provisions of Article 300-A as well as CSR Regulation 351-A, accordingly, petitioner is entitled to relief from this Court by issuance of a mandamus. The respondents are directed to pay all the retiral dues of the petitioner including the gratuity along with interest at the rate of 9% per annum from the date of retirement till actual payment. The said payment shall be made to the petitioner within a period of two months from today failing which the respondents shall be further liable to penal cost at the rate of 6% over and above 9% interest granted by this Court.
23. Considering the stand taken by the respondents, which is arbitrary on the face of record, I deem it appropriate to award a cost of litigation to the petitioner for being harassed for a period of three years, which are quantified at Rs. 25,000/-. The said cost shall also be paid to the petitioner within a period of two months from today.
24. The writ petition stands allowed in terms of the said order.
Order Date :- 23.7.2021 vinay