Court No. - 37 Case :- WRIT - A No. - 25551 of 2009 Petitioner :- Ansar Ahmad Siddiqui Respondent :- High Court Of Judicature At Allahabad And Others Counsel for Petitioner :- J.H. Khan,Gulrez Khan Counsel for Respondent :- Yashwant Verma,Ashish Mishra
Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Subhash Chand,J.
1. Heard Sri W.H. Khan, learned counsel assisted by Sri J. H. Khan, learned counsel for the petitioner and Sri Ashish Mishra, learned counsel for the High Court of Judicature at Allahabad.
2. By way of this petition, the petitioner has prayed for following relief:-
"i. issue a writ, order or direction in the nature of certiorari quashing the charge sheet (date illigible) (Annexure 1) issued under the signatures of Inquiry Judge (Hon'ble Justice Arun Tandon, J), High Court, Allahabad served on the petitioner on 22.4.2009 and the proceeding consequent thereon;"
3. The difficulty of the petitioner started in the year 1998 when he acquitted a person of the charges levelled in sessions case. The complainant's side advocate complained to the Vigilance Cell of the High Court as early as 1998. The Vigilance Cell started enquiry and submitted its report much after the petitioner had retired.
4. The dates would be more relevant for our purpose as he retired on 31st of July 2005. The Vigilance Officer post retirement of the petitioner submitted his report that departmental enquiry should be initiated against the retired judicial officer. The matter was placed before the Administrative Judge and the Administrative Committee and the Full Court which accepted the report of the Vigilance Officer and directed the matter to be sent to the Governor for his permission to start departmental enquiry. The Governor gave his permission on 17th December 2010 before period of four years was to get over.
5. Main contention of Sri Khan is that period of four years shall be considered from the date of event and not from the date of superannuation of an employee. It is submitted by Sri Mishra that four years have to be reckoned from the date the person superannuates or event occurs. According to Sri Mishra, four years have to be reckoned from the date when Vigilance Enquiry completed which is vehemently objected by Sri Khan that it has to be as per Section 351A of the Civil Service Regulations and it has to be from the date when vigilance enquiry was started.
6. Rule 351-A of Civil Service Regulations reads as under:-
"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 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 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 constituted 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 proceeding shall be deemed to have been instituted:
(i) in the case of criminal proceedings, on the date on which the 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."
7. According to Sri Khan, the date of even is of 1998 and the vigilance enquiry culminated in the year 2008, and, therefore, permission even if authoritatively given by the Governor should be quashed.
8. The complaint which is the only basis of charge sheet was made available to the petitionerby Sri O.P. Srivastava the then District Judge and later on an Hon'ble Judge of this court for petitioner's comments on 22.4.1998. The petitioner submitted his comments on the complaint and denied each and every allegation made therein and submitted that the petitioner has passed the judgment and order dated 31.3.1998 on the materials on record and on the basis of facts and law applicable. The allegation in paragraph no. 6 of the complaint that the said judgment was given in collusion with Mohd. Sharif Advocate belonging to chamber of Laxmi Narain Sharma counsel for the accused in the case was specifically denied by the petitioner in paragraph no.2 of his comments dated 22.4.1998. Further allegation in paragraph 12 of the complaint about the rumour that the accused procured the judgment some how with the help of stenographer was also specifically denied by the petitioner in his comment vide paragraph no. 7.
9. The charge sheet mentioned that two set of documentary evidence in support of charge which were attached with and after receiving one set the delinquent was required to make an endorsement of its admission or denial on another of its set which is to be returned part for the record. As no two set of documents were made available to the petitioner, the applicant gave an application on 29.4.2009 for supplying documentary evidence sought to be adduced in support of the charge.
10. In response to the petitioner's application, the petitioner was supplied photocopy of the statement of PW-1 Kumari Seema & P.W.-3 Dr. Poonam Gupta given by them during trial and the Judgment dated 31.3.1998 were supplied.
11. It is submitted that epartmental enquiry against the petitioner is against the mandate of provision of Section 351 A as Sessions Trial No. 364 of 1985 was decided on 31.3.1998, namely, 13 years after the case was committed to the court of sessions. Since 1998 when the petitioner gave his comments to the then District Judge, none heard 11 years and after a period of eleven years, he was intimated of disciplinary enquiry on the basis of said complaint and order to be initiated departmental enquiry.
12. Learned counsel for the petitioner has pressed into service following Judgments:-
1. Ishwar Chand Jain Vs. High Court of Punjab & Haryana, AIR 1988 (SC) 1395
2. P.C. Joshi Vs. State of U.P., AIR 2001 (SC) 2788
3. Ramesh Chand Singh Vs. High Court, Allahabad, 2007 (4) SCC 247
4. PV. Mahadevan Vs. MDNT Housing Board, 2005 (4) ESC 559 SC
5. Vijendra Pal Singh Vs High Court of Allahabad, 2009 (2) AWC 1243
6. State of U.P. Vs. Sri Krishna Pandey, AIR 1996 SC 1656
7. Lal Saran Vs. State of U.P, 2011 (10) ADJ 311
8. Punjab State Power Corporation Vs. Atma Singh, 2014 (2) AWC 1933 (SC)
9. R.C. Sood Vs. High Court of Rajasthan, AIR 1999 (SC) 707
10. Krishna Prasad Verma Vs. State of Bihar & another, AIR 2019 SC 4852
11. Mahendra Prakash Srivastav Vs. District Judge, Allahabad, 2016 (3) ADJ 35
12. Chief Engineer & Head of the Department Irrigation 2012 (1) UC 446
13. The Judgments on which reliance is placed by Sri Khan will not apply as the decision in Ishwar Chand Jain (supra) related to proceedings, which had culminated into dismissal of the delinquent employee. Here we are at a pre-enquiry stage. The decision in P.C. Joshi (supra) will also not apply to the facts of this case as it related to grant of super time scale and is also related to termination of service on the basis of grant of bail application. It will be open to the delinquent employee to substantiate his case at the Departmental Enquiry. The decision in Ramesh Chand Singh's case (supra) also will not apply to the facts of this case as, prima facie, the committee has felt that there was some material before the Vigilance Officer for which disciplinary proceedings could be initiated. The Judgment in Ramesh Chand Singh's case (supra) would enure for the benefit of the petitioner in penultimate paragraph of our order. the Rest of the Judgments are only repetitive Judgments and, hence, are not discussed.
14. It is true that the Judgment in P.V. Mahadevan (supra) also holds that departmental proceeding at distant time should not be initiated. Distance of time was because Vigilance Officer has submitted his report only in the year 2008. The High Court thereafter decided that the matter required to be departmentally looked into and gave its permission. The petitioner initially participated in the enquiry and filed reply to the charge sheet and thereafter moved this High Court.
15. Proviso has to be interpreted so as not to frustrate the purpose of such enquiry. Departmental proceedings would not be instituted without the sanction of the Government. In our case, Governor's sanction is already there and 351 (a) (ii) of the Civil Service Regulations would be in respect of event, which took place not more than four years before the institution of such proceeding. The event can be said to have culminated when the High Court on its administrative side decided to accept the report of the Vigilance Officer. The narrow construction as suggested by Mr. Khan that the event occurred on 1998 when the delinquent employee had acquitted the accused that cannot be said to be an event as had the High Court decided not to go ahead with the complaint of the complainant. It would not have been considered to be an event. Term 'event' would mean that the detailed report was placed before the High Court only in the year 2008. We hasten to deprecate this delay on the part of the Vigilance Officer but can it be, prima facie, held that the order of holding enquiry stands vitiated? The answer is in the negative.
16. Further considering the enquiry report as a whole and the material, the High Court was of the view that the delinquent should be dealt with. The office, therefore, decided to issue what is known a enquiry. The delinquent employee even replied to the same and demanded documents. In light of the contention raised before us and the decisions cited, we are aware that family has undergone a lot of stress but will that be an act for the High Court to exercise his jurisdiction when the Disciplinary Committee, the Administrative Committee as well as the Full Court of the High Court on its administrative side have decided to hold enquiry. No doubt, there is inordinate delay in completion of the enqiury. The charge sheet was communicated to the delinquent. In our case, still the charges are not proved against the delinquent employee. There is no penalty imposed on the petitioner. Reference may be made to the decision of the High Court in Kamleshbhai B. Mehta Vs. Registrar, Gujarat High court, 2004 (3) GLR 2290.Time consumed in initiating and deciding the departmental proceedings by the High Court cannot be viewed on the scale of number of days or months, because, that is not the only work to be done by the High Court on its administrative side. The delinquent herein challenged the issuance of charge sheet belatedly, i.e., after period of one year. The petition stood dismissed. The reasons for instantiating the departmental enquiry have been given by the Full Court. Having found that there is no illegality in the same, we cannot strike down the issuance of the charge sheet to the delinquent employee.
17. Thus, we are convinced that event occurs when the Vigilance Officer comes to the definite conclusion that there is a case which requires to be placed before the Administrative Committee. Just because a complaint was filed with the High Court, it will not be an event the reason being if the Vigilance Officer on the said complaint comes to the decision that no case is made out, can it be said that event has occurred. Therefore, the necessary corollary would be when the authority gives its decision that would be date of an event in the peculiar facts and circumstances of this case. Rule 96 and Regulation 351-A has to be read so as to subserve the purpose for which the same are framed. The purpose is to save an officer who has already retired and if nothing is done for four years, he should not be punished. We are convinced that the delay was on the part of the Vigilance Officer. High Court immediately thereafter took decision to accept the report of the Vigilance Officer. We are unable to persuade ourselves to take a different view than that of Full Court taken on administrative side on the fact that incident for which enquiry is to be held had taken place in 1998.
18. With these observations, writ petition is dismissed.
19. However, we request the Registrar General to place this matter before the Administrative Committee as the matter has remained pending before this High Court since 2009. The petitioner would be now above 70 years of age and, therefore, if the High Court thinks, it may take a fresh decision.
20. Stay if any shall stand vacated. All incidental applications shall stand disposed of.
Order Date :- 28.9.2021/Ram Murti