Allahabad High Court
Shiv Charan Lal vs State Of U.P. And Anr. on 20 December, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 32 Case :- WRIT - A No. - 20015 of 2015 Petitioner :- Shiv Charan Lal Respondent :- State Of U.P. And Anr. Counsel for Petitioner :- K.M. Misra,Parvez Alam,Praval Tripathi Counsel for Respondent :- C.S.C.,Manish Goyal Hon'ble Vikram D. Chauhan,J.
At the very outset, learned counsel for respondent No.2 submits that he does not propose to file any counter affidavit and that the matter may be proceeded with.
With the consent of parties, matter is proceeded with.
Heard Sri Parvez Alam, learned counsel for petitioner and Sri Saransh Srivastava, Advocate holding brief of Sri Ashish Mishra, learned counsel for respondent No.2.
The present writ petition has been filed with the following prayer:
"i. to issue a writ order or direction in the nature of certiorari quashing the impugned order dated 24.11.2014 (Annexure No.9) in so far it relates to the petitioner.
ii. to issue a writ order or direction in the nature of mandamus restraining the respondent from deducting 10% pension of the petitioner pursuant to the impugned order dated 24.11.2014 (Annexure No.9)."
It is submitted by learned counsel for petitioner that petitioner was working on the post of Munsarim in District Judgeship, Agra and has retired from the aforesaid post on 31.10.2008. It is further submitted that after retirement of petitioner, charge sheet was issued against petitioner on 12.10.2012 instituting disciplinary proceeding against petitioner on the ground that record of the Court in the year 1988 was lost and in this respect, two employees, namely, petitioner-Shiv Charan Lal and one Pradeep Saxena were alleged to have been negligent for the loss of record while they were on duty. Petitioner has filed his reply to the departmental proceedings and, thereafter, the impugned order has been passed against the petitioner directing deduction of 10% of his pension. The impugned order dated 24.11.2014 is challenged by the petitioner on the ground that the aforesaid order awarding punishment has been on the basis of disciplinary proceedings instituted after retirement of petitioner on 31.10.2008. According to learned counsel for petitioner, charge sheet has been issued on 12.10.2012 i.e. after retirement of petitioner. It is submitted by learned counsel for petitioner that as per Regulation 351-A of Civil Service Regulations, the right to withhold the pension is reserve with the Governor of the State and such a right can only be exercised where the departmental proceedings have been instituted after retirement of petitioner only with the sanction of the Governor.
It is further submitted by learned counsel for petitioner that according to Regulation 351-A of Civil Service Regulations, departmental proceedings shall be in respect of an event which took place not more than four years before institution such proceeding. According to learned counsel for petitioner, departmental proceedings were instituted on 12.10.2012 when the charge sheet was issued to petitioner in respect of incident which is of the year 1988 and as such, is clearly beyond four years time provided in Regulation 351-A of Civil Service Regulations. On the aforesaid basis, learned counsel for petitioner submits that the impugned order is not sustainable under law. Learned counsel for petitioner has further relied upon the judgment of this Court in Writ-A No.31781 of 2014 (Mahendra Prakash Srivastava Vs. District Judge, Allahabad and others) decided on 15.2.2016.
Learned counsel for respondent No.2 does not dispute the fact that provision of Regulation 351-A of Civil Service Regulations are applicable in the facts of the case.
According to learned counsel for respondent No.2, in the year 1988, records of the Court were lost, which were under the custody of petitioner and one Pradeep Saxena and in this respect, departmental charge sheet was issued on 12.10.2012, after retirement of petitioner on 31.10.2008.
It is to be seen that petitioner was working on the post of Munsarim under respondent No.2 and he retired on 31.10.2008. After retirement of petitioner, charge sheet was issued against petitioner on 12.10.2012. Petitioner participated in the disciplinary proceedings and, thereafter, impugned order dated 24.11.2014 has been passed by respondent directing deduction of 10% pension of the petitioner. It is not in dispute between the parties that disciplinary proceedings were instituted against petitioner after retirement of petitioner on 31.10.2008.
In this respect, Regulations 351-A of Civil Service Regulations is quoted hereinbelow:
"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 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 and 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.
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."
According to Regulation 351-A of Civil Service Regulations, disciplinary proceedings against a retired employee can be instituted only after sanction from Governor. Further the aforesaid provision also provided that disciplinary proceedings can be instituted after retirement of employee in respect of an event which took place not more than four years before institution such proceedings.
In the present case, the incident/event is of the year 1988 whereas charge sheet has been issued on 12.10.2012 and as such, disciplinary proceedings and the impugned order are in violation of Regulations 351-A of Civil Service Regulations. Further, it is not in dispute between the parties that disciplinary proceedings and the impugned order has been passed without sanction of the Governor for instituting disciplinary proceedings.
Under the circumstances, the impugned order dated 24.11.2014 is set aside and the writ petition is allowed. Respondents are directed to pay the retiral dues of petitioner within a period of two months from the date of production of a certified copy of this order.
It is also provided that petitioner shall be entitled for payment of retiral dues along with 7% simple interest from the due date till the date of actual receipt.
Order Date :- 20.12.2022 D. Tamang