Allahabad High Court
Rajpal Singh Sengar vs State Of U.P. And 2 Others on 3 April, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:56768 RESERVED A.F.R. IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD *** WRIT - A NO. 14430 OF 2023 Rajpal Singh Sengar ....Petitioner Versus State of U.P. and others ....Respondents Appearance :- For Petitioner : Mr. Ashish Kumar, Advocate For Respondents : Mr. Adarsh Bhushan, Advocate for respondents Nos. 2 and 3 Mr. P.K. Giri, Additional Advocate General assisted by Mr. Girijesh Kumar Tripathi, Additional Chief Standing Counsel for respondent No. 1 HON'BLE J.J. MUNIR, J.
This writ petition is directed against an order dated 13.03.2020 passed by the Deputy Director, Administration and Distribution, Rajya Krishi Utpadan Mandi Parishad, U.P., Kanpur, ordering initiation of departmental proceedings against the petitioner, a retired Mandi Nirikshak. A writ of mandamus is also prayed by the petitioner to be issued, commanding the Secretary, Rajya Krishi Utpadan Mandi Parishad, Kanpur Nagar to pay a sum of ₹1,33,000 towards the petitioner's salary, revised according to the Seventh Pay Commission and a sum of ₹1,42,000 in gratuity, along with interest at the rate of 10% per annum.
2. The facts giving rise to the writ petition show, in substance, that the petitioner was a Mandi Nirikshak in the employ of the Rajya Krishi Utpadan Mandi Parishad. He retired from service, upon attaining the age of superannuation, on 31.05.2016. The petitioner belonged to the Uttar Pradesh Agricultural Produce Market Committees Centralized Services. The conditions of the petitioner's service were governed and regulated by the Uttar Pradesh Agricultural Produce Market Committees (Centralized Services) Regulations, 19841.
3. On 24.09.2019, an explanation was sought from the petitioner by the Secretary, Rajya Krishi Utpadan Mandi Parishad, U.P., Kanpur relating to the issue of a Mandi License to a certain firm by the name of M/s. Baba Anandeshwar Trading Company, wholesale traders and stockists. Business was done by the said firm during the agricultural years 2014-15 and 2015-16. The details of matters, regarding which the petitioner's explanation was sought, can best be appreciated by a reference to the material part of the memo dated 24.04.2019 issued by the Secretary, Rajya Krishi Utpadan Mandi Parishad, U.P., Kanpur, which reads :
कृपया अवगत कराना है कि कृषि उत्पादन मण्डी समिति, कानपुर के अन्तर्गत नवीन खाद्यान्न मण्डी स्थल, नौबस्ता में कार्यरत फर्म नैसर्स- बाबा आनन्देश्वर ट्रेडिंग कंपनी के मण्डी शुल्क एवं विकास सेस के कर अपवचन की जाँच व आर.सी, निर्गत हैं. जिसकी कार्यवाही गतिमान है।
(2) उक्त के सन्दर्भ में उल्लेखनीय है कि कृषि उत्पादन मण्डी समिति के अन्तर्गत नवीन खाद्यान्न मण्डी स्थल, नौबस्ता में कार्यरत फर्म मेसर्स- बाबा आनन्देश्वर ट्रेडिंग कंपनी, थोक व्यापारी एवं आढ़ती के लाईसेन्स निर्गत किए जाने हेतु आप द्वारा सस्तुति की गयी, जिसके आधार पर कृषि वर्ष 2014-15 हेतु उक्त फर्म को थोक व्यापारी एवं आढ़ती का लाईसेन्स मण्डी समिति द्वारा निर्गत किया गया और कृषि वर्ष 2015-16 हेतु लाईसेन्स नवीनीकरण भी किया गया। फर्म मेसर्स बाबा आनन्देश्वर ट्रेडिंग कम्पनी का किस व्यक्ति को लाईसेन्स निर्गत किया गया और किस व्यक्ति के लाईसेन्स नवीनीकरण हेतु आवेदन करने पर लाईसेन्स नवीनीकरण किया गया? के सम्बन्ध में सुसंगत साक्ष्यों सहित स्थिति स्पष्ट किया जाना अति महत्वपूर्ण / आवश्यक है।
(3) नवीन मण्डी स्थल, नौबस्ता के सेक्टर संख्या-03 में भी कार्यरत अवधि में फर्मों की मांग वसूली पंजिका का अंकन किया जाता रहा है, जिसके अन्तर्गत फर्म मैसर्स- बाबा आनन्देश्वर ट्रेडिंग कंपनी को व्यापार कार्य करने हेतु प्रथम बार मण्डी समिति से यथा 9 आर, 6 आर, स्टाक रजिस्टर एवं मण्डी शुल्क रजिस्टर जारी किये जाने हेतु संस्तुति की गयी, जिसके आधार पर तत्समय में कार्यरत भण्डार लिपिक श्री देवेन्द्र कुमार निगम द्वारा उक्त वांछित अभिलेख निर्गत / जारी किए गए। उक्त निर्गत प्रपत्र मांग वसूली पंजिका में अंकन करते हुए फर्म मेसर्स- बाबा आनन्देश्वर ट्रेडिंग कंपनी के द्वारा किए गए कारोबार (क्रय-विक्रय) के सापेक्ष देय मण्डी शुल्क व विकास सेस आदि की धनराशि आप द्वारा नकद व चेक के माध्यम से भुगतान प्राप्त / जमा किया गया व किस व्यक्ति से चेक व नकद के रूप में धनराशि प्राप्त की गयी? और किसको रोकड़ रसीद प्राप्त करायी जाती रही। के सम्बन्ध में सुसंगत साक्ष्यों सहित एवं फर्म द्वारा किए गए व्यापार कार्य (क्रय-विक्रय) की स्थिति स्पष्ट किया जाना आवश्यक है।
अतः आपको उपरोक्त बिन्दुओं के सन्दर्भ में निर्देशित किया जाता है कि फर्म मैसर्स बाबा आनन्देश्वर ट्रेडिंग कंपनी को किस आधार पर लाईसेन्स निर्गत / लाईसेन्स नवीनीकरण करते हुए रोकड़ रसीद किस व्यक्ति को प्राप्त करायी गयी? एवं उक्त फर्म द्वारा किए गए क्रय-विक्रय के सापेक्ष मण्डी शुल्क आदि का भुगतान किस व्यक्ति से प्राप्त किया जाता था और किस व्यक्ति द्वारा सम्बन्धित फर्म में व्यापार कार्य किया जाता रहा, के सम्बन्ध में तर्कसंगत सुसंगत साक्ष्यों सहित एक सप्ताह के अन्तर्गत स्थिति स्पष्ट करना सुनिबित करें, जिससे उक्त प्रकरण के सम्बन्ध में वैधानिक कार्यवाही की जा सके।
4. On 21.05.2019, another notice was issued to the petitioner by the Secretary, Rajya Krishi Utpadan Mandi Parishad, saying that according to the orders passed by the Mandi Parishad Headquarters, which were issued with reference to the petitioner's claim for arrears of the Seventh Pay Commission, it was mentioned that the firm, M/s. Baba Anandeshwar Trading Company, had indulged in evasion of Mandi Fee and Development Cess, and for the purpose, a recovery certificate had been issued against the said firm. The sum of money, for which the recovery certificate had been issued against the firm, could not be realized, and on this account, a First Information Report2 was lodged against the petitioner as well. It was also mentioned that on account of non-realization of Mandi Fee from the firm, recovery from the petitioner was also contemplated. In the circumstances, the Secretary directed stoppage of payment of the petitioner's dues. It was also remarked that the claim and the allegations made by the petitioner regarding withholding of his emoluments and related benefits was concocted and without basis. The petitioner's application made to the Mandi Parishad for realization of his arrears and related dues etc. was said to be rejected by the said notice dated 21.05.2019.
5. The petitioner submitted a reply both to the memo dated 24.04.2019 calling his explanation as well as the notice/communication dated 21.05.2019, copies whereof are annexed as Annexures Nos. 3 and 5 to the writ petition. The petitioner's reply in answer to the notice dated 21.05.2019 bears a seal of receipt dated 30.05.2019. The petitioner's stand was that he was posted at Kanpur Nagar from 18.02.2015 to 18.06.2015. During this period of time, the firm under reference did not carry on any trade or business. As such, there was no liability incurred by the firm on account of Mandi Fee etc. by then. It was submitted that the firm's license was renewed on 16.06.2015. On 18.06.2015, the petitioner was transferred from Kanpur Nagar to Jhansi and until then, there was no evasion by the firm concerned. The period of evasion was from July 2015 to April 2016, by which time, the petitioner was already posted to Jhansi. The stand taken further was that a license was recommended by the petitioner on the basis of proof of residence issued by the Sub-Divisional Magistrate, a Caste Certificate by the Tehsildar, a TIN by the Assistant Commissioner (Commercial Tax), a Voter ID issued by the Election Commission and after a spot inspection of Premises No. 318E, Block Shyam Nagar, Kanpur Nagar.
6. An FIR was lodged against Gopal Singh, son of Ram Charan, proprietor of the firm, the petitioner and ten other co-accused on 16.05.2021, giving rise to Crime No. 465 of 2019, under Sections 409, 420 of the Indian Penal Code, 18603, Police Station Naubasta, District Kanpur Nagar. It is the petitioner's further case that the Investigating Officer submitted a Final Report in favour of Santosh Yadav, Ramdeen, Mahesh Kumar Sharma, Rahul Singh, Sanjay Singh, Yadunath Rathore, saying that there was no material available against them. However, for conspiring with the main accused Gopal Singh, one Anil Kumar, son of Radhey Lal, a guarantor and another Chandra Prakash son of Pratap Singh, were charge-sheeted with the aid of Section 120B of the Penal Code on 12.02.2020. Against the main accused Gopal Singh and the petitioner, besides Som Prakash Nigam and Pramod Kumar Shukla, the investigation was reported to be still underway until 12.02.2020, when the aforesaid Police Report was submitted before the Magistrate. It is the petitioner's case that till date, no charge-sheet has been filed against him, as asserted in paragraph No. 16 of the writ petition. It is also the petitioner's case that on the basis of the FIR, the respondent-Authorities have stopped payment of the sum of ₹1,33,000 towards arrears of the petitioner's salary, revised as per the Seventh Pay Commission, and ₹1,42,000 on account of gratuity, as already indicated.
7. Much after the petitioner's retirement, it was on 13.03.2020 that an order was passed by the Deputy Director, ordering initiation of departmental proceedings against the petitioner on allegations of causing the Firm under reference evade Mandi Fee and Development Cess. It is specifically pleaded by the petitioner that the departmental proceedings initiated vide order dated 13.03.2020 is way beyond the limitation of four years from the event, in relation to which, the said proceedings were initiated. This Court must remark that it needs examination if at all the order dated 13.03.2020 would constitute initiation of departmental or disciplinary proceedings against the petitioner within the meaning of the Regulations of 1984, read with sub-clause (ii) of Clause (a) of the proviso to Article 351-A of the Civil Service Regulations.
8. Aggrieved by the order dated 13.03.2020 and the withholding of arrears of his salary on account of revision in terms of the Seventh Pay Commission, besides gratuity, the petitioner has instituted the present writ petition under Article 226 of the Constitution of India.
9. A counter affidavit was filed on behalf of respondents Nos. 2 and 3 jointly, to which, the petitioner filed a rejoinder affidavit. The petition was admitted to hearing on 04.10.2023, which proceeded forthwith. Judgment was reserved.
10. Heard Mr. Ashish Kumar, learned Counsel for the petitioner, Mr. Adarsh Bhushan, learned Counsel appearing on behalf of respondents Nos. 2 and 3 and Mr. P.K. Giri, learned Additional Advocate General assisted by Mr. Girijesh Kumar Tripathi, learned Additional Chief Standing Counsel on behalf of respondent No. 3.
11. We have carefully heard learned Counsel appearing for both parties and perused the record.
12. It must be observed that in paragraph No. 14 of the writ petition, there is a categorical assertion that no departmental proceedings have been intiated against the petitioner and straightaway, an FIR was registered against him. In paragraph No. 16, it is averred that investigation against the petitioner is continuing, but no charge-sheet filed till date.
13. In the counter affidavit filed on behalf of respondents Nos. 2 and 3, the contents of paragraphs Nos. 14 and 16 of the writ petition have been answered in paragraph No. 5, which reads :
5. That the contents of the paragraph 12, 13, 14, 15 and 16 of the Writ Petition are incorrect and denied and, in reply thereto it is stated that the on the basis of the ex-parte enquiry report dated 08.01.2018 was submitted by the Respondent no. 3 a First Information Report was lodged against the Petitioner and by impugned order dated 13.03.2020 departmental proceedings was initiated against the Petitioner. It is stated that on the basis of ex-parte enquiry report dated 08.01.2018 was submitted by the Respondent no. 3 notice dated 21.05.2019 was issued to the Petitioner to initiate departmental proceedings.
14. This Court has perused the inquiry report dated 18.01.2018 annexed to the counter affidavit filed on behalf of respondents Nos. 2 and 3. A perusal of the said report shows that it is not at all an inquiry report relating to departmental proceedings ordered to be initiated against the petitioner by the order impugned dated 13.03.2020. Possibly, the inquiry report, a copy of which is annexed as Annexure C.A.-1 to the counter affidavit, cannot be the report of a departmental inquiry against the petitioner, because it is a document dated 08.01.2018. It is a report looking into the causes and circumstances about the issue of Mandi license to the firm M/s. Baba Anandeshwar Trading Company, Kanpur and evasion of Mandi Fee and Development Cess by them. So far as the petitioner is concerned, it could, at best, be said that it was the material, on the foot of which, the respondents thought that the petitioner's complicity was there and reported him to the Police, besides passing the order impugned dated 13.03.2020, directing that disciplinary proceedings be instituted against the petitioner. The reference to the ex-parte report in paragraph No. 5 of the counter affidavit is, therefore, not to be confounded with an inquiry report submitted in departmental proceedings at all.
15. The crux of the matter is if post retirement, departmental proceedings against the petitioner, said to be initiated by the order impugned, can be validly done. The other is whether on account of the pendency of investigation against the petitioner on the basis of the FIR lodged by the respondents, the petitioner's gratuity and revised emoluments in terms of the Seventh Pay Commission can be withheld. It would be convenient to look into the issue, for a first, if departmental proceedings can be initiated against the petitioner in terms of the impugned order dated 13.03.2020. Disciplinary proceedings against an employee of the Centralized Services, governed by the Regulations of 1984, like the petitioner, are mentioned in Regulation 43 of the aforesaid Regulations. Regulation 43 of the Regulations of 1984 reads :
43. Disciplinary Proceedings.--The rules relating to disciplinary proceedings, appeals and representations against punishment, applicable to the employees of the State Government shall mutatis mutandis apply to the members of the Centralised Service.
16. A perusal of the Regulation 43 aforesaid shows that the rules relating to disciplinary proceedings, applicable to employees of the State Government, shall mutatis mutandis apply to members of the Centralized Service of the Mandi Parishad, like the petitioner. The relevant rule governing initiation of proceedings against a retired government servant is governed by Article 351-A of the Civil Service Regulations. It reads :
351-A The Governor reserves to himself the right of witholding 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 mis-conduct, or to have caused. Recuniary 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) of clause (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 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.
17. A perusal of Article 351-A shows that the right to withhold or withdrawing any pension from a government servant or directing recovery from a pensioner of the whole or part of any pecuniary loss caused to the Government, if the pensioner is found, in departmental or judicial proceedings, to be guilty of grave misconduct, is vested in the Governor. By virtue of sub-clause (i) of Clause (a) of Article 351-A, departmental proceedings, if not instituted while the government servant was on duty either before retirement or during re-employment, cannot be initiated, except with the Governor's sanction. Sub-clause (ii) of Clause (a) of Article 351-A engrafts a rule of limitation. It says that departmental proceedings, if not instituted while the government servant was on duty, either before retirement or during re-employment, with the Governor's sanction, can be initiated in respect of an event that happened not more than four years before the institution of such proceedings. In the present case, it is not in dispute that there was no initiation of departmental proceedings against the petitioner until 13.03.2020, if that order can be regarded as a valid initiation. The evasion of Mandi Fee and Development Cess took place during the agricultural years 2014-15 and 2015-16. Agricultural year, as defined under Rule 2(ii) of the Uttar Pradesh Krishi Utpadan Mandi Niyamawali, 1965 defines an agricultural year thus :
2. Definitions. -(1) in these rules, unless, there is anything repugnant in the subject or context. -
(i) x x x x x
(ii) "agricultural year" means the year commencing on the first day of July and ending on the thirtieth day of June;
........
18. Therefore, the agricultural year 2015-16 would end on the 30th of June, 2016. The impugned order directing initiation of departmental proceedings against the petitioner was passed on 13.03.2020. Therefore, evasion of Mandi Fee and Development Cess, that took place during the agricultural year 2015-16 has to be taken as one that happened at any time right up to 30th June, 2016, in the absence of any specific date of the event taking place during that agricultural year. The impugned order directing initiation of departmental proceedings against the petitioner was passed on 13.03.2020. The said order was, therefore, clearly within the period of four years of the event, in respect of which, departmental proceedings against the petitioner were sought to be initiated. The proceedings against the petitioner, therefore, purported to be initiated by the impugned order dated 13.03.2020, are not hit by sub-clause (ii) of Clause (a) of Article 351-A of the Civil Service Regulations.
19. This takes us to the other issue i.e. whether the order dated 13.03.2020 can be regarded as institution or initiation of departmental proceedings against the petitioner at all. A perusal of the explanation appended to Article 351-A shows that Clause (a) of the explanation provides that departmental proceedings shall be deemed to have been instituted when charges framed against the pensioner are issued to him, to borrow the phraseology of the Article or if the government servant has been placed under suspension from an earlier date, the date of the suspension order. Admittedly, the petitioner was never suspended while in service in relation to the allegations, in respect of which, the impugned order directs initiation of proceedings against him.
20. The other action, by which proceedings would be deemed to have been initiated against the petitioner is "when the charges framed against the pensioner are issued to him". Cast in more understandable terms, proceedings would be deemed to have been initiated against a retired employee other than the case of a suspension pending inquiry, while he was in service, when a charge-sheet is issued to him. Now, the order impugned dated 13.03.2020 passed by the Deputy Director (Administration and Distribution) is, by no means, a charge-sheet issued to the petitioner. At best, it is an order which directs the initiation of proceedings against him under some rule. An order of this kind could well have been regarded as initiation of departmental proceedings, but bearing in mind Clause (a) of the Explanation appended to Article 351-A, it is difficult to accept that the order dated 13.03.2020 constitutes initiation of departmental proceedings. The initiation is also bad, because, there is no sanction by the highest authority of the respondent-Establishment, that is to say, the Director of the Uttar Pradesh Rajya Krishi Utpadan Mandi Parishad.
21. This issue arose for consideration before the Supreme Court in Prahlad Sharma v. State of U.P. and others4. The question arose in the context of an employee of the U.P. State Agro Industrial Corporation, a Government company. Prahlad Sharma, who was the writ petitioner-appellant before the Supreme Court, had been held guilty after disciplinary proceedings and dismissed from service by the Managing Director of the U.P. State Agro Industrial Corporation. He had successfully appealed to the Chairman of the Corporation, who reinstated him in service with a remark that if the Managing Director desired, he could inflict a minor punishment of censure. The Appellate Authority had set aside the findings regarding proof of charges relating to financial loss and instead, held the writ petitioner-appellant guilty of not following the departmental rules and procedure, besides being careless in dealings, as the report in Prahlad Sharma (supra) would show. The Corporation invoked the revisional jurisdiction of the State Government under Rule 13 of the U.P. Government Servants (Discipline and Appeal) Rules, 19995. The State Government entertained the revision, assumed jurisdiction over the Authorities of the Corporation, set aside the order of the Chairman, and, holding the appellant guilty of the charges of serious financial irregularities, restored the order of dismissal passed by the Disciplinary Authority.
22. When a writ petition was carried to the High Court from the order of the State Government, an objection was taken that the Government had no jurisdiction to entertain the revision under Rule 13 of the Rules of 1999. It was defended on the ground that the Board of Directors had adopted the Rules of 1999. This Court noted that by means of a Resolution dated 10.07.2001, the Corporation had adopted the Rules of 1999 mutatis mutandis. It was, therefore, held by this Court that the provisions of the Rules of 1999 were applicable, and so were powers of revision available to the State Government under Rule 13 of the said Rules. The writ petition was, accordingly, dismissed.
23. Upon appeal by Special Leave to their Lordships of the Supreme Court, their Lordships, in answering the question, if, by adoption of the Rules of 1999 mutatis mutandis, the State Government would also acquire jurisdiction over the Corporation in matters where the adopted rules were followed, held in Prahlad Sharma :
7. ......The U.P. Rules of 1999 relate to the employees of the State Government. The revisional power has thus been vested in the State Government to exercise the same on its own motion or on the representation of the government servant concerned. In exercise of this power the State Government could call for the record of any case decided by an authority subordinate to it and pass appropriate order confirming or modifying or reversing the order under revisional scrutiny besides other powers as provided for under the Rules. The question for consideration is as to whether or not this revisional power is available to the State Government in relation to the employees of the Corporation. In this connection it may be observed that a corporation or any other organization may adopt the rules on any subject, as may be applicable in the State Government or any other organization. But by doing so only the rules are adopted not the authorities unless specifically provided for. Otherwise, it would result in a queer situation where the authorities of the organization whose rules on a particular subject have been adopted by another organization would start exercising those powers in relation to the matters of the organization adopting the rules, which would obviously not be permissible. If the organization adopts the rules pertaining to disciplinary matters as prevalent in the government or other organization, it would only mean that same procedure would be applicable in respect of the employees of the organization adopting the rules, namely, the manner of holding an enquiry into the charges, opportunity of hearing, provision for appeal or revision would be applicable in respect of the employees of the organization adopting the rules but such powers would be exercisable by the corresponding authorities in the organization adopting the rules. If some power is vested in a particular authority, for example, in this case in the State Government or for that matter it could be with any other officer or functionary of the State Government, that would not subject the employees of a corporation or organization to the control of those authorities of the organization whose rules have been adopted. If an appeal is provided to be preferred against an order of punishment, to an authority who is higher than the punishing authority, that remedy may be available to the employees of the organization adopting the rules for preferring the appeal to the higher authority of his own organization but not that the Appellate Authority would also be the same belonging to the organization whose rules are adopted. Similarly, if any authority corresponding or parallel to the State Government is available in the corporation, such authority may exercise revisional powers as conferred upon the State Government in the U.P. Rules of 1999. The authorities of a foreign organization cannot be vested with such powers merely because of adoption of the rules on a particular subject as applicable to other organizations. The same procedure or protection will be applicable and available to the employees of the Corporation as may be provided under the U.P. Rules of 1999 but the corresponding authorities would obviously be different. Otherwise authorities of the other department whose rules are adopted may get wide powers like looking into any records of the organization, adopting the rules and exercising powers like in this case vested under Rule 13, upsetting, modifying, reversing orders passed by the authorities of the adopting organization.
8. The learned counsel for the appellant also draws our attention to Rule 13 to indicate that if the rule is to be applicable, as it is, then the Government will have power to revise the order only in case it has been passed by an authority subordinate to it. The Managing Director or the Chairman are the authorities and functionaries of the corporation. Incumbent of such offices may even though sometimes be government servants on deputation but while working as Chairman or the Managing Director or any authority in the organization or the corporation, they would not be subordinate to the Government. It is again to be noticed that then perhaps the right to invoke the revisional powers may be available only to the "government servant concerned" as provided under Rule 13 and may not be available to the employee of the corporation. Therefore, it is submitted and in our view, rightly, that adoption of rules is implemented in a manner as they fit in the structure of the adopting organization and not as a straitjacket application to the adopting organization. It has also been pointed out that according to the provisions of Rule 13, as it is, an order can be subjected to the revisional power of the State only if the order has been passed in exercise of any power conferred under the Rules of 1999. It is submitted that the orders passed by the Managing Director or the Chairman cannot be said to be orders passed under the U.P. Rules of 1999 and not under the Rules as adopted by the Corporation.
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11. The expression "mutatis mutandis" itself implies applicability of any provision with necessary changes in points of detail. The rules which are adopted, as has been done in the present case, make the principles embodied in the rules applicable and not the details pertaining to particular authority or things of that nature. In the present case, we find that the High Court has found that the U.P. Rules of 1999 have been adopted mutatis mutandis. Therefore, in our view, the revisional power which has been vested in the State Government in respect of the employees of the State may be exercisable by an authority parallel or corresponding thereto in the Corporation in regard to employees of the Corporation.
12. Learned counsel appearing for the appellant submits that the revision was filed before the State Government prior to the resolution dated 10-7-2001 by which the U.P. Rules of 1999 have been adopted by the Corporation. On that ground also, the State Government had no power to interfere in the matter since the appeal had already been decided in the year 2000 which order had become final before adoption of the U.P. Rules of 1999. It is also submitted that since it is provided under Rule 13 of the U.P. Rules of 1999 that the revisional powers would be exercisable in respect of the orders passed under the U.P. Rules of 1999 it also leads to the inference that they are prospective in nature and would not be applicable to the orders which have not been passed under the U.P. Rules of 1999. We, however, find no substance in this submission as learned counsel for the respondent has drawn our attention to the resolution dated 16-2-1991 passed by the Board of Directors of the Corporation. The office order dated 16-2-1991 in relation to the decision of the Board of Directors of the Corporation as taken on 21-6-1990 vide Resolution No. 7 is quoted below:
"24-A. Disciplinary action, suspension and subsistence allowance, payment-related rules and orders of the U.P. Government will be applicable on officers and employees of the Corporation."
In pursuance of the abovenoted resolution, Rule 24-A was substituted in Chapter I of the General Service Regulations of 1984 of the Corporation. Rule 24-A, as substituted, reads as under:
"24-A. Disciplinary action, suspension and subsistence allowance, payment-related rules and orders of the U.P. Government will be applicable on officers and employees of the Corporation."
In view of the decision of the Board of Directors and the resolution and later on as a consequence thereof, substitution of Rule 24-A in the General Service Regulations of 1984 of the Corporation, it is clear that the rules as applicable to the employees of the U.P. Government, in matters relating to disciplinary action, suspension or subsistence allowance, etc. were made applicable to the employees of the Corporation. It appears that since for the employees of the State Government some new rules were promulgated, namely, the U.P. Government Servants (Discipline and Appeal) Rules, 1999, a second resolution was passed on 10-7-2001 specifically incorporating those Rules for the purposes of disciplinary matters against the employees of the Corporation. In this light of the matter the question of giving retrospective effect to the U.P. Rules of 1999 does not arise. We feel that even if no specific resolution was passed for incorporation of the U.P. Rules of 1999 on 7-10-2001, even then it would not have made any difference since Rule 24-A was substituted in the Regulations of 1984 in the year 1991 itself by virtue of which the U.P. Rules, 1999 would also be applicable without any further resolution as whatever rules as may apply to the employees of the State Government in matters relating to disciplinary action etc. would be applicable to the employees of the Corporation.
13. In our view, the judgment of the High Court holding that the revisional power as vested in the State Government under Rule 13 of the U.P. Rules of 1999 shall be available in respect of the employees of the Corporation is erroneous and not sustainable. The High Court abruptly formed the opinion without examining the question at all.
14. We, however, need not go into the question, as sought to be raised, as to who would be an authority parallel or corresponding to the State Government in the Corporation to whom a revision may lie, since it is not involved in this case.
24. It would be observed that like Prahlad Sharma, where the Rules of 1999 applicable to government servants had been adopted by a Resolution of the Board dated 16.02.1991, which led to incorporation of those rules into the Service Regulations of 1984 framed by the U.P. State Agro Industrial Corporation by virtue of Rule 24A, in the present case, by virtue of Regulation 43 of the Regulations of 1984, the rules relating to disciplinary proceedings, punishment and appeal etc. applicable to the employees of the State Government have been made applicable to members of Centralized Service, like the petitioner, mutatis mutandis. There is little doubt on the terms of the wide adoption of service rules relating to disciplinary matters of the State Government employees that these would apply to the petitioner, including Article 351A, mutatis mutandis.
25. Now, this would spare little doubt on the issue that proceedings after retirement can be initiated in accordance with the provisions of Article 351A of the Civil Service Regulations; not otherwise. But, bearing in mind the principle in Prahlad Sharma, the adoption of Article 351A would go this far and no more than that, that proceedings against a retired employee of the Centralised Service governed by the Regulations of 1984 can be initiated with the sanction of an Authority, corresponding to the Governor under the Civil Service Regulations. It would not be the Governor, as held in Prahlad Sharma, and likewise, as there has been no sanction secured by the respondents before initiating disciplinary proceedings against the petitioner, it is not necessary for this Court to decide as to who amongst the functionaries of the Mandi Parishad, exercising powers under the Regulations of 1984, would correspond to the Governor's position under Article 351A. The said question is left open.
26. The other issue, which survives for consideration is whether the pending investigation in the FIR lodged against the petitioner is enough, by itself, to withhold payment of the petitioner's post-retiral dues and his emoluments. The right to withhold pension, which could include, on extended principle, the right to withhold other post-retiral benefits, such as gratuity, or confer upon the respondents the right to recover pecuniary loss from a retired government servant, depends upon the government servant being found guilty in departmental proceedings or judicial proceedings. In the context of the FIR, departmental proceedings have no relevance, which, in any case here, have been held to be otherwise not maintainable against the petitioner. So far as the judicial proceedings go, sub-clause (i) of Clause (b) of the Explanation appended to Article 351-A shows that criminal proceedings are taken to be initiated against a government servant on the date on which a complaint is made or a charge-sheet submitted to a Criminal Court. The complaint obviously bears reference to a complaint made to a Criminal Court in accordance with the procedure of setting the criminal law in motion, otherwise than on a Police Report. Here, the petitioner's case that investigation is pending against him, but, till date, no charge-sheet has been filed, a fact asserted in paragraph No. 16 of the counter affidavit, has not been rebutted by the respondents at all. This Court has no option, therefore, but to hold that until date, no criminal proceedings are pending against him. Even if the proceedings are pending, the right to withhold or recover pecuniary loss caused to the Government from a pensioner, out of his pension, which may be taken to include his gratuity, including his revised salary for the period while in service, would crystallize, upon the government servant concerned being found guilty of grave misconduct in judicial proceedings, in the context. The petitioner, admittedly, has not been held guilty in any judicial proceedings. His right to receive gratuity, which is a facet of the petitioner's right to his pension, arises on the date he retired and the date that he instituted the petition and continuously thereafter, that he has prosecuted it before this Court. Until the present time, there is no case of the petitioner being held guilty in a judicial proceeding. Rather, it has not been shown to this Court that the FIR lodged against the petitioner has led to a charge-sheet being submitted against him before the Criminal Court.
27. Before parting with the matter, this Court may clarify that the reference in this judgment to a government servant would bear reference to an employee, like the petitioner, covered by the Regulations of 1984 and belonging to the Centralized Service of the Mandi Parishad. The expression "Government Servant" in this judgment has been employed, because the Civil Service Regulations are applicable in disciplinary proceedings mutatis mutandis, by virtue of Regulation 43 of the Regulations of 1984.
28. In the circumstances, there is no justification for the respondents to withhold payment of the petitioner's due gratuity, which he is entitled to along with simple interest at the rate of 6% per annum. Likewise, there is no justification for the respondents to withhold payment to the petitioner of arrears on account of his revised salary in terms of the Seventh Pay Commission, if otherwise admissible and paid to similarly circumstanced employees.
29. In the result, this writ petition succeeds and stands allowed. The impugned order dated 13.03.2020 passed by the Deputy Director, Administration and Distribution, Rajya Krishi Utpadan Mandi Parishad, U.P., Kanpur Nagar is hereby quashed. A mandamus is issued to the respondents to forthwith pay the petitioner's gratuity, together with 6% simple interest per annum from the date of the petitioner's retirement, until realization. The respondents are also ordered to pay arrears of the petitioner's salary on account of revision in terms of the Seventh Pay Commission, if due and paid to other similarly circumstanced employees.
30. There shall be no order as to costs.
31. The Registrar (Compliance) is directed to communicate this order to the Secretary, Krishi Utpadan Mandi Samiti, Kanpur Nagar and the Deputy Director, Administration and Distribution, Rajya Krishi Utpadan Mandi Parishad, U.P., Kanpur Nagar.
Allahabad April 03, 2024 I. Batabyal (J.J. MUNIR, J.)