Allahabad High CourtLakhan Lal Ahirwar Son Of Late Chaman ... vs State Of U.P. Through Secretary ... on 10 April, 2007Author:Amitava LalaBench:Amitava Lala,V.C. MisraJUDGMENT
 

Amitava Lala, J.1. The petitioner was initially appointed to the post of Sub District Inspector of Schools. Later on he was promoted to the post of District Inspector of Schools and at the time of superannuation dated 28th February,2006 he was holding the post of Vice Principal in D.I.E.T. Charkhari, Mohaba.2. In the year 2001 when the petitioner was posted as District Inspector of Schools, Jalaun, the respondent No. 1 vide order dated 21st June 2001, placed him under suspension by exercising provisions of Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules 1999. Enquiry against him was contemplated in view of Rule 7 therein. Departmental proceeding had initiated on 21st June, 2001 and till date of retirement on 28th February, 2006 the same had not been concluded in spite of favourable enquiry report given by the Enquiry Officer on 6th April, 2004.3. The petitioner's contention is that in view of item No. 17 of the Time Schedule under the U.P. Pension Cases (Submission, Disposal and Avoidance of Delay) Rules,1995, the pending departmental proceeding as against the retired employee must be completed within six months after retirement. However, respondent No. 1 illegally and arbitrarily had issued the impugned order on 6th October,2006 for re-starting departmental proceeding under the U.P. Government Servant (Discipline and Appeal) Rules 1999 taking the advantage of the Regulation 351-A of the Civil Service Regulations (hereinafter called as CSR).4. Learned Standing Counsel, did not file any affidavit. But relied upon a letter written by Sri Shyam Sunder Agnihorti, Joint Secretary, Secondary Education, U.P. Government to Sri C.K. Rai, Standing Counsel dated 12th February, 2007 to establish before this Court that petitioner's entire retiral benefits have been deposited. For the purpose of consideration of representation by the authority a date has. been fixed being 20th February,2007. Alongwith the same, he has only intimated that the matter of disciplinary proceeding has been forwarded to the Higher Authorities by a letter of the Public Service Commission only on dated 20th December, 2006 but nothing in respect of any decision.5. The petitioner has thrown challenge not with regard to consideration or reconsideration of release of his retiral benefits or exoneration from the charges, if any but with regard to the applicability of regulation 351 A of CSR in his case. The regulation is as follows:351-A. The Provincial Government reserve to themselves the right to order the recovery from the pension of an officer who entered service on or after 7th August, 1940 of any amount on account of losses found in judicial or departmental proceeding to have been caused to Government by the negligence or fraud of such officer during his service.Provided that-(1) such departmental proceedings, if not instituted while the officer was on duty.(i) shall not be instituted save with the sanction of the 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, 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.Provincial Government:(ii) shall be instituted before the officer's retirement from service or within a year from the date on which he was last on duty whichever is later;(iii) shall be in respect of an event which took place not more than one year before the date on which the officer was last on duty and;(iv) shall be conducted by such authority and in such places whether in India or elsewhere, as the Provincial Government may direct;(2) all such departmental proceedings shall be conducted, if the officer concerned so requests in accordance with the procedure applicable to departmental proceedings on which an order of dismissal from service may be made; and
 

(3) such judicial proceedings, if not instituted while the officer was on duty, shall have been instituted in accordance with Sub-clauses (ii) and (iii) of Clause (1).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.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 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 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.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 351A 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 351A 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 6 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 Ors. v 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.9. Similarly the State has conceded that the ratio ofState of U.P. and Ors. v Harihar Bhole Nath(supra) is based only on the Regulation 351-A of the CSR but not in conformity with the U.P. Pension (Submission, Disposal and Avoidance of Delay) Rules, 1995 which is the basis of the present case. Serial No. 17 under the Time Schedule of such Rules speaks as follows:U.P.Governments Servants Manual 
"TIME SCHEDULE 
[ See Rule 3(b) and 3(k)]
   Sl.   Description of work   Time within which   Person responsible
  No.                         work is to be done  for the work.1.        2                      3                 4(1)      ....                   ....               ....
 (2)      ....                   ....               ....
 (3)      ....                   ....               ....
 (4)      ....                   ....               ....
 (5)      ....                   ....               ....
 (6)      ....                   ....               ....
 (7)      ....                   ....               ....
 (8)      ....                   ....               ....
 (9)      ....                   ....               ....
 (10)     ....                   ....               ....
 (11)     ....                   ....               ....
 (12)     ....                   ....               ....
 (13)     ....                   ....               ....
 (14)     ....                   ....               ....
 (15)     ....                   ....               ....
 (16)     ....                   ....               ....
 (17) Departmental         As per                 Administrative
      proceeding           procedure laid         Department of
      against              down in CSR            the Government/
      retired              Article 351-A          Appointing
      employee.            and decision
                           to be taken
                           within three
                           months after           Authority.
                           receipt of
                           Government
                           Order. If
                           departmental
                           proceeding has
                           been instituted
                           before
                           retirement, it
                           must be
                           completed
                           within six
                           months after
                           retirement.
 (18)     ....                   ....                  ....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.12. Therefore, we hold that the order impugned dated 6th October,2006 is inoperative in nature. The petitioner cannot be put under any embargo from getting pensionary benefits.13. Hence arrears and one time pensionary benefits will be released in favour of the petitioner within a period of two months from the date of communication of the order. The petitioner will also get monthly pension, if any, month by month regularly irrespective of time period of payment of such sum as aforesaid.14. Thus, the writ petition stands disposed of without imposing any cost.Amitava Lala, J.15. I agree.