Hon. Aditya Nath Mittal, J.
1. The petitioner has prayed for calling for the record and quashing the order dated 26.4.2003 communicating the decision of the Board of Directors of U.P. Power Corporation Ltd. imposing punishment of deduction of 5% from pension; not to pay any gratuity to him and for treating the period from 17.6.2000 to 30.9.2000 on which day he has retired on attaining the age of superannuation, for not paying him pay and allowance other than the suspension allowance and to treat the period as break in service.
2. We have heard Shri Manu Mishra holding brief of Shri Ashok Trivedi, learned counsel for the petitioner. Shri Sandeep Srivastava appears for the respondents.
3. Brief facts giving rise to the writ petition are that a first information report was lodged on 25/26th February, 2000, on a preliminary enquiry conducted by Shri Ashok Kumar, the then Deputy General Manager, Electricity Distribution Division, Mainpuri, against the petitioner, then serving as Asstt. Engineer (Revenue) alleging that he is responsible for negligence on which Rs.4,81,499/- were stolen from the cash chest. He was placed under suspension with immediate effect on 17.6.2000 under the U.P. State Electricity Board (now U.P. Power Corporation Ltd.) Officers and Employees (Conditions of Service) Regulations, 1975.
4. A chargesheet was issued by the Enquiry Committee on 7.8.2000, which was received by the petitioner on 11.8.2000. During the pendency of the disciplinary enquiry the petitioner retired on 30.9.2000, on attaining the age of superannuation. The petitioner submitted his reply on 14.9.2001 along with documentary evidence and was allowed opportunity of hearing in which his statement was also recorded on 4.3.2000.
5. The Enquiry Committee found that during the period September, 1994 to June, 2000, when the petitioner was posted as Asstt. Engineer (Revenue) in the Electricity Distribution Division, Mainpuri, he was entrusted with a key of the cash chest. The other key of the double lock was entrusted with the cashier (revenue). Both the persons counted the cash in cash chest at Rs.4,81,499/- and had closed the chest on 25.2.2000. The petitioner gave his key to the cashier/ revenue, who gave his key along with the petitioner's key to one Shri Sukhram Singh, Dafedar. In the preliminary enquiry it was found that since both the keys were given to Shri Sukhram Singh, Dafedar, the entire cash in the chest was stolen. The petitioner was charged with misconduct for failing to safely keep and secure the keys entrusted to him in pursuance to the order of the Board No.2820 dated 22.11.1974. The petitioner's defence that since he was given an additional charge on which he had taken leave and had handed over the keys to the cashier/ revenue in the interest of the operation of the cash chest was not accepted. It was found that under Para 220 of the HMO the Executive Engineer was ultimately liable for safe keeping of the chest.
6. The Board of Directors as appointing authority of the petitioner did not accept the explanation of the petitioner and found that if the petitioner was aware of the procedure, he should atleast have informed the Sections Officers of allowing his key being handed over to cashier / revenue, and in any case he should have made an arrangement for keeping the key with the Executive Engineer in the headquarters. In any case he should have protested to the arrangement in which both the keys were made available to single person. He was grossly negligent in performing his duties on account of which the corporation suffered a loss of Rs.4,81,499/-. He was found guilty of misconduct under the Regulations and was required to submit an explanation as to why he should not be punished in proceedings after his retirement under Art.351A of the Civil Services Regulations.
7. The petitioner's reply dated 28.4.2002 was considered by the Board of Directors, as competent authority under Art.351A of the Civil Services Regulations. The petitioner was found guilty of misconduct of having committed acts, which created circumstances in which the amount was embezzled. The petitioner was punished with the punishment detailed as above, giving rise to this writ petition.
8. Learned counsel for the petitioner submits that the petitioner's services are governed by the U.P. State Electricity Board (Engineers) Regulations, 1970, which do not provide for the continuation of disciplinary enquiry after the superannuation. There are no provisions either in the Electricity Act or the Rules or Regulations to continue the disciplinary enquiry after retirement and as such the continuance of the disciplinary proceedings against the petitioner was wholly illegal. It is submitted that the Regulation 351A of the Civil Services Regulations (CSR) is not applicable to the services of the petitioner. The Board's Order No.2820 dated 22.11.1974 is not applicable, nor extends the provisions of Art.351A of CSR to the employees of the Board, who are not government servants.
9. It is submitted that UPSEB Administrative Tribunal Regulations, 1973 were framed by which it was proposed that the Regulations were applied to even those employees in respect of acts, omissions or conduct committed while the employee is in service after his retirement, but the Regulation of 1973 were not enforced.
10. It is admitted that the U.P. State Electricity Board (Officers and Servants) (Conditions of Service) Regulations, 1975 were applicable to the petitioner's services. These Regulations, however, do not provide nor do they extend the provisions of Art.351A to the retired employees of the Board.
11. Shri Sandeep Srivastava appearing for the respondent Corporation submits that the Civil Services Regulations were adopted in the 72nd Meeting of the Board held on 26th December, 1963. By this Resolution circulated by the Boards Circular No./265E/SEB-13-1900 dated 19.2.1964 the Board decided in principle to adopt the U.P. Government Rules and Regulations viz. classification, control and appellate rules, Government Servant Conduct Rules, traveling allowance rules, medical attendance rules, and the pensionary rules as amended from time to time. The Circular further provided that accordingly Rules and Regulations shall apply mutis mutandis to all categories of officers and staff of the Board, other than, who are governed by the separate agreements or covenance. As regards the employees coming under the category of ''industrial workmen' the matter was proposed being examined separately and finally decision to be taken and communicated in due course. By this Circular the Board also decided to crate a part of fund for the Board's employees.
12. It is admitted that the petitioner was an employee of the Board and his service conditions were governed by U.P. State Electricity Board (Officers and Servants) (Conditions of Service) Regulation, 1975; and that the U.P. Power Corporation has taken over all the liabilities of the Board. The U.P. Power Corporation was the employer, and Board of Directors, the appointing authority of the petitioner on the date of alleged misconduct and his retirement.
13. Art.351A of CSR as amended on January 6th 1981 provides the departmental proceedings, if not instituted while the officer was on duty either before retirement or during reemployment shall not be instituted, saved with the sanction of the Governor of the State, in respect of an event, which took place not more than 4 years before the institution of such proceedings. This Rule saves the powers of the provincial government to order the recovery from the pension of an officer, who entered into service on or after 7th August, 1940 of any action on account of loss found in judicial or departmental proceedings, to have been caused to the government by negligence or fraud of such officer during his service. If chargesheet is served during service, the departmental enquiry may continue against the employee in pursuance to which if the employee found guilty of misconduct causing loss to the government, the government reserves the powers to recover from the pension any amount on account of such loss after holding judicial or departmental proceedings. Regulation 351A of the Civil Services Regulations bars the initiation of the departmental proceedings for an event, which took place not more than 4 years before the institution of such proceedings except with the sanction of the Governor of the State. The punishment, however, in either case whether the enquiry was initiated before or after the retirement has to be awarded with the sanction of the Governor, if such employee is found in such 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 reemployment.
14. It is submitted by learned counsel appearing for the petitioner that the Board's Circular dated February 19th, 1964 does not state whether the Board in its 72nd meeting dated 26th December, 1963, had specifically adopted Art.351A of the Civil Services Regulations. He submits that the enquiry was not held in accordance with law. The enquiry committee did not find the petitioner guilty of having committed any misconduct, which caused loss to the State Government, to recover the amount from his pension.
15. Learned counsel appearing for the petitioner has relied upon R.B. Agnihotri (Dr.) v. State of U.P. & Ors., 2000 (2) UPLBEC 1099 in which it was found by this Court that the First Statute of the Bundelkhand University made under the U.P. State Universities Act, 1973 does not allow disciplinary proceedings to continue even after superannuation of the employee. Relying upon Bhagirathi Jena v. Board of Directors, O.S.F.C. & Ors., 1999 (82) FLR 143 it was held by this Court that the Vice Chancellor had passed the order according to approval of the resolution terminating the services of the petitioner, much after the statutory superannuation of the petitioner and thus in the absence of the authority to continue the departmental enquiry after the retirement, the punishment could not be sustained.
16. Shri Manu Mishra submits relying upon Jacob M. Puthuparambil & Ors. v. Kerala Water Authority & Ors., AIR 1990 SC 2228, that when the authority adopts by resolution, conditions of service regulating the services of its staff the rules do not continue to remain statutory in their application to the staff of the authority. The adopted Rules in such case are like any other administrative rules, which do not have any statutory force. He submits that though Art.351A was not adopted, even if it be taken to be adopted, the rule will be an administrative rule and not statutory rule, which may give authority the employer to continue departmental enquiry after retirement of the employee.
17. The respondents have filed counter affidavit of Shri Sudhir Kumar Shah, Deputy Secretary, U.P. Power Corporation Ltd., Shakti Bhavan, Lucknow in which it is stated in para 28 as follows:-
"That the contents of paragraph no.35 and 36 of the writ petition are strongly denied. it is stated that the board order no.2820 dated 22.11.74, Service Conduct Rules 1956 and 351A of Civil Service Regulations were all adopted by the Corporation and the Corporation acted in accordance with the above mentioned rules and regulations. Therefore no infirmity in the impugned order."
18. The disciplinary powers come to an end with the cessation of employer-employee relationship, unless the statutory rules expressly confer the power to punish the employee or to forfeit the pension, or to recover from the pension the loss caused to the employer, the employer cannot withheld or forfeit the pension. The pension is not bounty but valuable right given to an employee. In the absence of any statutory rule the pension cannot be withheld, forfeited or reduced. The service regulations may provide for deduction from pension, when an employee, who retires from service, before the completion of departmental proceedings, initiated prior to such department is found guilty of misconduct. Art.351A of the CSR authorises the appointing authority to recover from pension the pecuniary loss caused, on account of gross misconduct or negligence of the government servant.
19. The respondents have not placed on record the decision of the Board, by which Art.351A of the CSR was alleged to be adopted for the purposes of continuing the disciplinary enquiry, after retirement or to initiate disciplinary proceedings against the retired employee within four years of the incident, with the permission of the employer and with the sanction of the Board. The Board's Circular dated 19th February, 1964, refers to the 72nd meeting held on 26th December, 1963, in which the Board decided in principle to adopt the U.P. Government Rules and Regulations viz. qualifications, control and appellate rules, Government Servant Conduct Rules, Traveling Allowance Rules; Medical Attendance Rules, and the Pensionary Rules as amended from time to time and accordingly directed that the Rules and Regulations shall apply mutis mutandis to all categories of officers, and staff of the Board other than those, who are governed by separate agreement or covenance. The U.P. State Electricity Board (Officers and Servants) (Conditions of Services) Regulation, 1975, were made after the issuance of the Circular of the Board dated February 19th, 1964. These Regulations of 1975, provide for Rules regarding the authority competent to remove, dismiss, all matters on conduct and discipline (including matters relating to punishment, constitution of committee) to enquire into the case and the appeal and representation to the Chairman of the Board. They, however, do not provide for applicability of the Rules stated to have been adopted by the Board on 26th December, 1963, nor do they specifically authorised the Board to continue with the departmental proceedings after the employee attained the age of superannuation and retires. The Regulations of 1975, also do not mention of any adoption or incorporation of the Classifications, Control, and Appeal rules, Government Servant Conduct Rules etc. We thus find that with the enforcement of the Regulations of 1975, w.e.f. October 18th, 1975 all the rules relating to conditions of service including discipline and appeal were consolidated and thus only these resolutions of the Board relating to the conditions of service, which are incorporated in the Regulations of 1975, were made applicable to the employees.
20. The Regulations of 1975 in so far as it applies the Rules applicable to government servants or the employees, who were originally employee of the State Government and after resignation in the services of the Board in pursuance to the State Government order dated July 1st, 1971, do not apply to the employees of the Board. This Rule gives powers to the Board to initiate or recommend disciplinary proceedings in respect of such State Government employee and does not give any powers to apply Rules applicable to the State Government to the employees of the Board.
21. The writ petition is allowed. The order dated 28.4.2003 passed by the U.P. Power Corporation is set aside. The entire amount, which have been deducted from the pension shall be paid back to the petitioner with simple interest at 8% per annum within three months. The petitioner will also be paid the entire amount of gratuity with 8% interest from the date the gratuity was due to be paid to the petitioner, within the same period.
Dt.08.11.2012/SP/