Court No. - 36
Case :- WRIT - A No. - 17446 of 2019
Petitioner :- Brahma Datt Sharma
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Prem Sagar Verma,Madan Mohan
Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Madan Mohan, learned counsel for the petitioner and Shri Sanjay Kumar Singh, learned Additional Chief Standing Counsel for the State respondents.
Petitioner before this Court is assailing the validity of order dated 15.10.2019 passed by fourth respondent, whereby, the claim set up by petitioner for pension and gratuity has been rejected. Further prayer has been made to command the respondents to ensure payment of post retiral benefits i.e. gratuity, leave encashment etc. and to determine and pay the pension of the petitioner by treating him to have retired on 31.12.2015 from the post of Administrative Officer and keeping in view the last pay drawn on the said post forthwith in accordance with law and also ensure 18% interest payable from the date of retiral benefits had become due till its actual payment.
Petitioner was initially appointed as Tele Printer Operator on 01.04.1979 on a substantively vacant post and was posted in Collectorate Agra. His services were confirmed on the said post on 16.05.1983. Thereafter he was allowed to work as Senior Assistant and was posted to discharge the duties on various posts including the Nazool Peshkar w.e.f. 01.02.1993 to 31.07.1996. Subsequently, he was posted on the post of Administrative Officer on the recommendation of Departmental Promotion Committee (in brevity 'D.P.C.') vide order dated 19.12.2013 from where he retired on 31.12.2015.
The present dispute relates to the period while petitioner was working as Nazool Peshkar. It is stated that on 25.04.1930 a lease of State Land i.e. Plot no.49 area 2738.9 Square Yard situated in village Lashkarpur was executed in favour of Faiyyaz Ali etc. for a period of 30 years with a condition that it can be renewed twice for a further period of 30 years at a time. It appears that the original lessee transferred their rights to M/s Rana Construction Private Limited, who applied for further renewal of lease and said lease was duly renewed by the Additional District Magistrate (Finance and Revenue) Agra on 25.09.1995.
Initially, the enquiry was conducted in the matter and petitioner was served with a charge-sheet on 03.12.2012 on the ground that he has submitted the report for the purpose of renewal of aforesaid lease deed. The same was duly responded by the petitioner on 11.02.2013 refuting the charges levelled against him. Consequently, the District Magistrate, Agra/disciplinary authority had found that the charges levelled against the petitioner were unfounded and vide order dated 08.04.2013 the same were dropped. Thereafter, the D.P.C. was convened and the petitioner was promoted on the post of Administrative Officer on 19.12.2013.
Meanwhile, the Commissioner, Agra Division, Agra vide order dated 01.10.2014 again initiated the disciplinary proceeding against the petitioner on the ground that while renewal of the lease had taken place, the permission of the Collector has not been taken. The petitioner was again served with the charge- sheet on 16.01.2015 levelling three charges against him. The same was duly responded by the petitioner on 04.03.2015 denying all the charges with further mention that on the similar charges, earlier the enquiry proceeding has been dropped against the petitioner. Subsequently, the Enquiry Officer submitted his report on 24.11.2015. Meanwhile the petitioner has attained his age of superannuation. Thereafter, the punishment order of reversion dated 31.12.2015 was passed, which was served upon the petitioner on 08.01.2016. The said order was subjected to challenge by filing an appeal under Rule 11(1) of the U.P. Government Service (Discipline & Appeal) Rules 1999 before the Board of Revenue. Eventually, the same was allowed on 09.04.2018 and the order of punishment has been set aside on the ground that before the petitioner's retirement, the order of punishment could not be served upon with liberty to the Disciplinary authority to obtain approval from Hon'ble the Governor, if required, and to re-initiate the disciplinary proceedings against the petitioner under Article 351(A) of Civil Service Regulations. It is alleged that till date the said order has not been assailed before any higher forum and as such, the same has attained finality. In response thereto, the petitioner has been sanctioned pension etc. treating him to be reverted vide order dated 31.12.2015. The said situation again impelled the petitioner to be before this Court by preferring Writ Petition no.10008/2019, which was disposed of on 08.07.2019 with following observations:-
"Petitioner claims to have superannuated from the post of Administrative Officer in Tehsil Khairgarh, District Agra in the year 2015. It is stated that disciplinary proceedings were initiated against the petitioner and an order imposing major punishment was imposed upon him but the order of punishment was set aside on 09.04.2018 by the Board of Revenue. While setting aside the punishment order dated 31st December 2015, liberty was granted to the concerned department to proceed afresh against the petitioner, keeping in view tWith these observations, the Writ Petition is allowed.he provisions of Civil Services Regulations 351A. It is submitted that in terms of the liberty granted, no fresh proceedings have been drawn but retiral benefits have been granted to the petitioner in accordance with the punishment order passed against him on 31st December 2015. It is submitted that once the order of punishment has been set aside in appeal, the authorities were expected to release petitioner's retiral benefits as per his entitlement, by ignoring the punishment order dated 31st December 2015. It is stated that grievance raised in that regard before the authorities has not been bestowed any consideration. Submission is that the petitioner is being denied the retiral benefits due to him.
Learned Standing Counsel states that such grievance of the petitioner can be examined by respondent no.4. In such circumstances, this writ petition is disposed of with the direction upon respondent no.4 to accord consideration to petitioner's claim, as is noticed above, by passing a reasoned order within a period of three months from the date of presentation of certified copy of this order.
Needless to say that in case petitioner's claim is accepted, all consequential action would be taken within a further period of two months."
In response thereof, the order impugned has been passed and as such, the petitioner is before this Court with the aforesaid prayer.
Learned counsel for the petitioner vehemently contended that once the appeal has been allowed by judgement and order dated 09.04.2018 by the Board of Revenue, even though leave was accorded to the competent authority to initiate the inquiry denovo but the same has not been initiated well within time and while passing the order impugned, again the authority has taken a view that the denovo inquiry is under contemplation, therefore, the relief as has been asked for cannot be accorded.
The present matter was taken up on 14.11.2019 and on the said date, the Court has passed detailed order:-
"Petitioner was working as Administrative Officer in the Revenue Department against whom disciplinary action was initiated in the year 2012. He attained the age of superannuation on 31.12.2015. By an order of the date when petitioner was to superannuate a punishment of reversion was imposed upon him by the disciplinary authority. This order dated 31.12.2015 has been served upon the petitioner after his retirement. The order in that regard was challenged in appeal before the Board of Revenue. The appeal preferred by the petitioner has been allowed and the order of punishment has been set aside on the ground that after petitioner's retirement the order of punishment could not have been served. The petitioner has been sanctioned pension etc. treating him to have been reverted vide order dated 31.12.2015, which had otherwise been quashed in appeal. Petitioner consequently raised a grievance before this Court by filing Writ Petition No.10008 of 2019 which was disposed of vide following orders passed on 8.7.2019:-
"Petitioner claims to have superannuated from the post of Administrative Officer in Tehsil Khairgarh, District Agra in the year 2015. It is stated that disciplinary proceedings were initiated against the petitioner and an order imposing major punishment was imposed upon him but the order of punishment was set aside on 09.04.2018 by the Board of Revenue. While setting aside the punishment order dated 31st December 2015, liberty was granted to the concerned department to proceed afresh against the petitioner, keeping in view the provisions of Civil Services Regulations 351A. It is submitted that in terms of the liberty granted, no fresh proceedings have been drawn but retiral benefits have been granted to the petitioner in accordance with the punishment order passed against him on 31st December 2015. It is submitted that once the order of punishment has been set aside in appeal, the authorities were expected to release petitioner's retiral benefits as per his entitlement, by ignoring the punishment order dated 31st December 2015. It is stated that grievance raised in that regard before the authorities has not been bestowed any consideration. Submission is that the petitioner is being denied the retiral benefits due to him.
Learned Standing Counsel states that such grievance of the petitioner can be examined by respondent no.4. In such circumstances, this writ petition is disposed of with the direction upon respondent no.4 to accord consideration to petitioner's claim, as is noticed above, by passing a reasoned order within a period of three months from the date of presentation of certified copy of this order.
Needless to say that in case petitioner's claim is accepted, all consequential action would be taken within a further period of two months."
The Commissioner thereafter has proceeded to pass a fresh order holding that permission from the Governor under para 351-A of the Civil Service Regulations has not been obtained, therefore, the pension already sanctioned to petitioner needs no interference.
Learned counsel for the petitioner submits that once petitioner's appeal stood allowed on 9.4.2018 and a fresh order of punishment has been quashed, it would not be open for the authorities to treat the petitioner as having been reverted.
In the facts and circumstances of the present, it would be worth noticing that till date no fresh order of punishment has been passed against the petitioner. The order of punishment passed earlier has already been set aside in appeal. Without passing any fresh order of punishment the authorities would not be justified in treating the petitioner to have been reverted and fix his pension, accordingly. This aspect of the matter has completely been omitted from consideration by the Commissioner while passing the order impugned.
Learned Standing Standing may obtain specific instructions from the concerned Commissioner, in light of the observations made above.
Post as fresh on 25.11.2019."
In response thereof, detailed instructions dated 21.11.2019 sent by Commissioner, Agra Division, Agra have been placed by Shri Sanjay Kumar Singh, learned Additional Chief Standing Counsel indicating therein that in response to the leave accorded by the Board of Revenue, the authority has taken a decision for denovo inquiry in the matter and as such, in response thereof, the matter has already been placed before Hon'ble the Governor for according permission under Regulation 351-A of Civil Services Regulations, in such a situation, the relief as has been asked for cannot be accorded.
Confronted with this situation, learned counsel for the petitioner submits that the denovo inquiry cannot be conducted in the matter as the same pertains to the lease, which was accorded on 25.04.1990 and at this belated stage, Article 351-A of Civil Service Regulations does not accord leave to the competent authority to initiate denovo inquiry after lapse of 4 years period of retirement, whereas, the incident is much prior before the age of superannuation. In support of his submission, he has placed reliance on the order dated 14.12.2016 passed in Writ Petition no.8460/2010, Durga Prasad Pachouri vs. State of U.P. 2017
(2) ADJ 471 and as such, even in case the permission is accorded for denovo inquiry under Regulation 351, then at this belated state, after expiry of statutory period, the same would be futile exercise.
Heard rival submission and perused the record.
In order to resolve the present controversy, Regulation 351-A of the Civil Services Regulation is being extracted below:-
"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."
In the present matter admittedly the the petitioner has attained his age of superannuation on 31.12.2015 and requisite no dues certificate has also been issued in his favour. This is also admitted situation that the earlier enquiry was dropped by the order passed by competent authority.
Controversy wrecked up as the disciplinary action has been initiated against the petitioner in the year 2014. Specific stand has been taken by the petitioner that the order of reversion has been passed in back date and the same was served upon him on 08.01.2016.
In the present case, the discrepancy arises in the 1995 when the lease was renewed on the report so submitted by the petitioner and admittedly the petitioner has attained his age of superannuation on 31.12.2015. The controversy has travelled upto the Board of Revenue and liberty was accorded to initiate fresh enquiry with the permission of Hon'ble the Governor under Article 351-A. While passing the order impugned and from the pleadings set up on behalf of respondents, at no point of time, it is reflected that any permission has been accorded by Hon'ble the Governor in response to the said liberty and in bereft of the same, discrimination in the retiral benefits that is to be accorded to the petitioner on the ground that matter is pending before Hon'ble the Governor cannot be appreciated by any means. So far as the statutory period of four years under para 351-A of the Civil Service Regulations is concerned, the same is to be computed from the date of occurrence of discrepancy and as such, even the permission is accorded by Hon'ble the Governor, denovo enquiry cannot be initiated against the petitioner.
The Supreme Court in State of U.P. vs. Bramhdutt Sharma 1987 (2) SCC 179 has held that grant of pension is important right of the petitioner. In State of Punjab vs. K.R. Erry and State of Punjab vs. Iqbal Singh 1976 (3) SCR 360 the Supreme Court held that the order of imposing deduction in pension cannot be passed without giving any opportunity of hearing and thus the order passed against the petitioner without giving any opportunity of hearing is also illegal.
A Division Bench of this Court has considered the present controversy in great length in Z.U. Ansari vs. State of UP and others 2014 (3) adj 671 (DB). The relevant paragraph nos. 10, 13, 15, 16 and 17 are reproduced herein below:-
"10. It is admitted on record that there is no order of the Governor sanctioning the departmental proceedings. The stand taken by the State before us is that since the minister of the department had granted approval to the initiation of the departmental proceedings vide order dated 07.01.2011, this order of the minister read with Chapter 7 of U.P. Secretariat Instructions, 1972 framed under the Rules of Business, 1975 has to be deemed to be the sanction of the Governor. In support of this contention the State has placed reliance upon paragraph 12 of the judgment in the case of State of Orissa vs. Kanhu Charan Majhi (supra). Paragraph 12 reads as follows :
"We have considered the provisions of Rule 31 of the Rules, whereby power has been given to the Governor to review the order dated 16.10.1995. Now the question is whether the order was passed by the Governor. It is true that when any statute empowers the Governor to pass an order, the Governor himself need not sign and need not pass the order. The rules of business of any particular State deal with the procedure as to how an order is to be passed by the Governor or in the name of the Governor. In the instant case, the order dated 04.09.2000 was passed by the Under-Secretary, Food Supplies and Consumer Welfare Department of the Government of Orissa. According to Rules 11 and 12 of the Orissa Government Rules of Business, an Under-Secretary is empowered to sign in the name of the Governor. Thus, in view of said legal position, the order dated 04.09.2000 can be said to have been passed by the Governor, exercising power under Rule 31 of the Rules.
13.We are of the considered opinion that the provisions of Article 309 of the Constitution of India operate in a separate field vis-a-vis the conduct of government business under Article 166 of the Constitution of India. They are not overlapping. Therefore, if under the service rules framed under Article 309 of the Constitution of India namely the Civil Services Regulations, 1975, it has been provided that sanction of the Governor would be necessary before initiation of the departmental proceedings with the service of the charge sheet upon the retired employee then such sanction has to be that of the Governor and not of the minister with reference to the U.P. Secretariat Instructions 1982 framed under the Rules of Business, 1975. We may also record that the U.P. Secretariat Instructions 1982, Chapter VII only provide that all business allocated to a department under the Rules of Business, 1975 is to be disposed of by or under the General or special directions of the minister in charge (Reference Business Regulations 3). It is, therefore, clear that only such business as allocated to the department under the Rules of Business, 1975 can be disposed of under the general or special directions of the minister in charge.
15. We have, therefore, no hesitation to hold that the sanction of the minister referable to the Business Regulations in the facts of the case will not amount to the sanction of the Governor as contemplated by Regulation 351-A of the Civil Services Regulations, 1975.
16. So far as the judgment relied upon by the counsel for the respondent in the case of State of Orissa (Supra), we may record that the same is clearly distinguishable in the facts of the case specifically with reference to the Rules of Business, 1975 of the State of U.P. referred to by us.
17. In absence of sanction of the Governor, no departmental proceedings can be initiated against a government servant after his retirement, the impugned charge-sheet cannot be legally sustained. Accordingly, the charge-sheet dated 27.06.2011 is hereby quashed as also the departmental proceedings initiated thereto against the petitioner. The petitioner shall be entitled to all the consequential benefits with the result of the quashing of the charge-sheet and the departmental proceedings. The State is directed to take appropriate action in that regard within two months from the date a certified copy of the order is served upon the State Government."
In Civil Misc. Writ Petition No.11601 of 2010 (Ambika Prasad Singh vs. State of UP and others) decided on 16.2.2011 this Court held as follows:-
"On the parameter of the aforementioned regulations, here accepted position is that petitioner has attained the age of superannuation on 31.8.2009. This is also accepted position that after attaining the age of superannuation, he has been placed under suspension on 4.11.2009, which clearly shows that in mechanical manner proceedings have been sought to be undertaken by the authority concern and coupled with this charge sheet has been served upon the petitioner on 4.2.2010. Said charge sheet is dated 9.7.2009 and most surprisingly in the said charge sheet, in hand writing the word "Seva Nibriti" has been mentioned which clearly reflects that charge sheet in question had never been served upon the petitioner, and after attaining the age of superannuation, maintaining on the same date "Seva Nibriti" has been inserted and same has been sought be served upon the petitioner on 4.2.2010. Explanation added to Regulation 351-A of Civil Service Regulation clearly proceeds to mention that 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. Here in the present case by no stretch of imagination departmental proceeding can be deemed to have been instituted as charges framed had never been issued to the petitioner, and accepted position is that suspension order is subsequent to the date of superannuation and charge sheet in question has been served on 4.2.2010. In view of this by no stretch of imagination on the relevant date i.e. 31.8.2009, it can be said that any departmental proceeding had been instituted against the petitioner. Once departmental proceedings were to be undertaken after attaining the age of superannuation, then in all eventuality sanction of Governor was mandatory, as per Regulation 351-A. Once said statutory provision has not been complied with which is a mandatory provision, then any departmental action without sanction of Governor cannot be approved of.
In view of this, entire action pursuant to the aforementioned charge sheet in question dated 9.7.2009 is hereby quashed and set aside. However, in the event of there being sanction of Governor, proceeding can be undertaken in accordance with law."
Learned counsel for the petitioner submits that the similar view was also taken by this Court in Writ Petition No.49835 of 2012 (Sri Ram Gopal Sharma v. State of U.P. & Ors.), which was affirmed by the Division Bench of this Court in Special Appeal Defective No.500 of 2015 (Executive Engineer Electricity Urban & Ors. v. Sri Ram Gopal Sharma & Anr.).
In the facts and circumstances of the case, the order impugned cannot sustain and accordingly the same is set aside. The writ petition is allowed. Direction is issued to the respondents to ensure the payment of post retiral benefits i.e. gratuity, leave encashment etc. and to determine the pension of the petitioner treating him to have retired on 31.12.2015 from the post of Administrative Officer keeping in view the last pay drawn by him. The said exercise to be finalized within the period of six weeks from the date of production of certified copy of this order.
Order Date :- 27.11.2019
A. Pandey