1. The petitioner, a class III employee of the judgeship of Allahabad retired on 31.3.2011 on attaining the age of superannuation. By impugned order dated 12.11.2013 passed by the first respondent (District Judge, Allahabad), he has been punished in a disciplinary proceeding held against him by providing for deduction of 20% of his pension. In the year 2004, it transpired that the record of Misc. Case no. 285 of 1978 Rajkali vs. State, decided on 13.1.1979 is not traceable. At the relevant time, the petitioner was posted as Misc. Case Clerk. A preliminary enquiry was held by Civil Judge (Senior Division) (East), Allahabad following which a report dated 20.5.2005 was submitted holding the petitioner prima facie guilty of loss of record. By an order dated 9.9.2005, the District Judge, Allahabad directed for holding a regular departmental enquiry against the petitioner. The Additional Chief Judicial Magistrate, Court No.5 was appointed as Enquiry Officer and he was required to frame the charge sheet and after getting it approved from the District Judge, Allahabad to proceed with the enquiry. Subsequently, the second respondent (Additional Sessions Judge, Court no. 10, Allahabad) came to be appointed as Enquiry Officer and he framed a charge sheet dated 6.3.2013 and got it approved from the first respondent on 13.3.2013. The Enquiry Officer submitted a report dated 13.9.2013 indicting the petitioner of the charges leveled against him. On basis thereof, the first respondent issued a show cause notice dated 17.9.2013 seeking his explanation as to why major penalty including termination of service be not awarded to the petitioner. The petitioner replied to the show cause notice contending that he having retired on 31.3.2011, disciplinary proceedings initiated against him by issuing charge sheet dated 13.3.2013 without there being sanction of the Governor, is in violation of Regulation 351-A of the Civil Service Regulations. It was further contended that the charge relates to an event which took place more than four years before the institution of the proceedings and consequently the entire proceedings are illegal. It was pleaded that the copy of the charge sheet was never served on the petitioner and the proceedings were held in gross violation of the principles of natural justice.
2. The first respondent by impugned order dated 12.11.2013 imposed punishment of deduction of 20% of pension after repelling the contention of the petitioner that proceedings were held in violation of Regulation 351-A. It is held that the officer conducting the preliminary enquiry submitted the report on 20.5.2005. On basis thereof, the then District Judge by order dated 9.9.2005 directed for holding regular enquiry. The petitioner had moved applications in the year 2005 and again in the year 2008 for perusal of the record and for making available various documents to him. On 1.11.2012, the petitioner made a complaint to the Administrative Judge, High Court and whereupon the Administrative Judge issued direction on 5.11.2012 following which the then District Judge on 15.11.2012 directed the Enquiry Officer to submit report within 15 days. Enquiry Officer got the charge sheet approved on 13.3.2013 and thereafter conducted the departmental proceeding followed by enquiry report dated 13.9.2013. On the basis of these facts, the first respondent concluded by holding as under :-
"The above facts show that enquiry was not initiated after retirement of Sri Mahendra Prakash Srivastava, the enquiry is pending since 2005 much before the retirement of Sri Mahendra Prakash Srivastava on 31.3.11. The record also shows that on one or other pretext, he was avoiding and seeking time. During enquiry he never cooperated in the enquiry. He can not get any benefit, if there is any delay in enquiry. The Hon'ble Supreme Court in 1996 AIR S.C. Page 280 Union of India Vs. A.K. Patnaik held that if any disciplinary proceedings is pending and employee retires, then on the basis of the retirement, the proceedings can not be ceased in the enquiry.
The Article 351 A also provides that if there is any enquiry initiated before retirement, the disciplinary proceedings can be taken up against an employee, hence there is no force in the contention of Sri Mahendra Prakash Srivastava that there can be no enquiry against him after his retirement regarding his misconduct during his service period when enquiry is pending prior to his retirement."
3. Learned counsel for the petitioner submitted that the impugned order is in the teeth of the mandatory provisions of Regulation 351-A. It is urged that in view of the Explanation to Regulation 351-A, the departmental proceedings shall be deemed to have been instituted when the charges framed against the petitioner were issued to him. The proceedings relating to the preliminary enquiry instituted in the year 2004 nor the proceedings prior to the date on which charge sheet was issued, are relevant for determining the applicability of Regulation 351-A. It is urged that the petitioner was not provided with the copy of chalan bahi and rasid bahi which he had been asking for since the inception of the preliminary enquiry and thus, merely on account of the fact that the same request was made by him in the year 2005 and 2008, would not be of any relevance while determining the date of initiation of departmental proceedings. It is further submitted that the charge sheet was never served on the petitioner; the departmental proceedings were held in gross violation of the principles of natural justice; that even if the departmental proceedings were held exparte, it was incumbent upon the respondents to have proved the charges by leading oral evidence, which was not done in the instant case; the report of the Enquiry Officer itself mentions that Goswara of the relevant year is not traceable and thus the respondents failed to contradict the specific case of the petitioner that the file of Misc. Case No. 285 of 1978 was consigned to the record through the Goswara.
4. On the other hand, Sri Ashish Mishra, learned counsel appearing on behalf of the respondents submitted that the report of the preliminary enquiry was submitted on 20.5.2005 and soon thereafter the District Judge, Allahabad by order dated 9.9.2005 appointed an Enquiry Officer for holding regular departmental proceedings against the petitioner. The petitioner was aware of the pendency of the departmental proceedings and he prayed for being shown certain documents and for time to file reply. It is urged that the petitioner himself being guilty of delay cannot be permitted to take benefit of his own wrong. It is urged that in the fact and circumstances of the case, the disciplinary proceedings would be deemed to be pending from 9.9.2005 when District Judge Allahabad directed for institution of regular departmental proceedings. Consequently, departmental proceedings were pending since before the retirement of the petitioner and thus Regulation 351-A would have no application to the facts of the instant case. In this regard, reliance has been placed on the decision of the Supreme Court in the case State of U.P. and others vs. R. C. Mishra1.
5. In the counter affidavit, a plea has been raised on behalf of the respondents that the petitioner had an alternative remedy of filing appeal under Rule 23 of the U.P. State District Court Service Rules, 2013. Rule 23 provides for a remedy of appeal in case any of the penalties specified by sub-rule (9) is awarded to the delinquent. It does not include a penalty of deduction from the pension after retirement. Thus, in the opinion of the Court, the aforesaid provisions will have no applicability to the facts of the instant case. Even otherwise, availability of alternative remedy is not an absolute bar in entertaining a writ petition particularly when the main challenge is to the power of the respondents to initiate the proceedings after the retirement of the employee.
6. Regulation 351-A of the Civil Service Regulations is extracted below for convenience of reference :-
"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 reemployment-
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 consulted 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 proceedings shall be deemed to have been instituted :
(i) in the case of criminal proceedings, on the date on which 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. Regulation 351-A empowers the Governor to withhold or withdraw the pension or any part of it, permanently or for a specified period and to order recovery from a pension whole or part of any pecuniary loss caused to the Government if the pensioner is found in the departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to the Government by misconduct or negligence during his service. The said power is hedged with various safeguards in favour of the pensioner. The departmental proceedings could not be instituted after retirement (i) without the sanction of the Governor; (ii) shall not be instituted in respect of an event which took place more than four years before the institution of the proceedings; and (iii) shall be conducted by such authority or 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.
8. The main issue before the Court is the date on which the departmental proceedings would be deemed to have been instituted against the petitioner as that would determine whether Regulation 351-A is attracted or not. According to the petitioner, the date of institution of the departmental proceedings shall be the date when the charges framed against the petitioner were issued to him. It is submitted that since the charges were framed on 6.3.2013 and approved on 13.3.2013 and thus, even if it is assumed that the charge sheet was duly served on the petitioner, the same would be after his retirement on 31.3.2011. On the other hand, according to the respondents, the departmental proceedings shall be deemed to have been instituted on 9.9.2005 when the District Judge passed an order for holding regular departmental proceedings and appointed an Enquiry Officer.
9. The Explanation to Regulation 351-A specifically provides that the 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. Concededly, in the instant case, the petitioner was never placed under suspension. Thus, the proceedings would be deemed to have been instituted on the date when the charges framed against the petitioner were issued to him. Sub clause (iii) of clause (a) to the first Proviso to Regulation 351-A specifically provides that for holding proceedings under Regulation 351-A, the procedure applicable to proceedings on which an order of dismissal from service could be passed, shall be applicable. Under rule 7 of the U.P. Government Servant (Discipline & Appeal) Rules, 1999, whereunder the disciplinary proceedings were held against the petitioner as well as Rule 23 of the U.P. State District Court Service Rules, 2013 stipulates that the first step towards holding an enquiry is by issuing a charge sheet on which action is proposed to be taken. The allegations shall be reduced in the form of definite charge or charges to be called Charge-sheet. The charge-sheet shall be approved by the Disciplinary Authority. The charges framed shall be so precise and clear as to give sufficient indication to the charged employee of the facts and circumstances against him. The proposed documentary evidence, and the name of the witnesses proposed to prove the charges alongwith the oral evidence, if any, is required to be mentioned in the charge sheet. The charged employee shall be required to put in a written statement in his defence in person on a specified date, which shall not be less than 15 days from the date of issue of charge sheet. The Supreme Court in Union of India vs. K. V. Jankiraman2 was considering the question as to when the disciplinary proceedings would be deemed to have commenced to enable the authorities to adopt sealed cover procedure in relation to an employee whose case for promotion is under consideration. It was held that such procedure could be resorted to only after the charge sheet is issued. The pendency of the criminal investigation prior to that stage was held to be wholly irrelevant. The relevant observation of the Supreme Court in this regard is extracted below :-
"6. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a chargesheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/ criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many-cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/chargesheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy."
10. Indisputably, the report in the preliminary enquiry was submitted on 20.5.2005 followed by order of the District Judge, Allahabad dated 9.9.2005 for conducting regular disciplinary proceedings against the petitioner. For such purpose, initially the Additional Chief Judicial Magistrate, Court no.5 was appointed as Enquiry Officer. He was required to frame charge sheet and after getting it approved from the District Judge, issue the same to the petitioner. The record of the case reveals that during the course of preliminary enquiry, the petitioner by a written representation dated 17.5.2005 requested for being made available the copies of the chalan bahi and rasid bahi. According to him, these documents were not made available to him. Consequently, he continued to make request for looking into the original records as according to him, the incident related to the year 1979 while he was posted as Misc. Case Clerk and since then considerable time had elapsed. Same request was made by him on 20.10.2008 followed by a complaint to the Administrative Judge, High Court on 1.11.2012. Ultimately, it seems that on intervention of the Administrative Judge, the District Judge passed an order dated 15.11.2012 directing the Enquiry Officer to submit report within 15 days and thereafter the second respondent, who subsequently came to be designated as Enquiry Officer, prepared a charge sheet on 6.3.2013 and got it approved from the District Judge on 13.3.2013. It was allegedly served on the petitioner on 4.8.2013.
11. The charge sheet has been brought on record as Annexure 3 to the writ petition. It contains imputation of charge against the delinquent and mentions evidences which were to be read against him. It calls upon the petitioner to submit his written statement of his defence and to specify whether he desires to cross-examine any witness or not. In the opinion of the Court, the departmental proceeding is thus deemed to have been instituted when the charge sheet framed against the petitioner was issued to him. As noticed above, the charge sheet itself having been framed on 6.3.2013, approved on 13.3.2013, even if assumed to have been served on the petitioner, was after the petitioner had superannuated on 31.3.2011. The proceedings anterior to the date on which the charge sheet was issued to the petitioner are of no relevance for determining the applicability of Regulation 351-A. The mere fact that the District Judge had ordered for a regular disciplinary proceedings being held against the petitioner in the year 2005 or the petitioner had moved certain applications for being permitted to look into the documents or being made available copies thereof prior to the issuance of the charge sheet, are of no relevance. Likewise, the fact that preliminary enquiry was initiated in 2004 and the petitioner was aware of the nature of charge, would also be of no relevance, as the Explanation to Regulation 351-A creates a deeming fiction whereby the departmental proceedings are assumed to be initiated on the date the charges are issued to the delinquent. The only exception to it is in case where the delinquent is placed under suspension prior to the issuance of the charge sheet. In the instant case, the petitioner was never placed under suspension and thus, the departmental proceedings would be deemed to have been instituted only on the date charges were issued to the petitioner, which as noticed above, was after the date of his retirement. In such view of the matter, the conditions stipulated under the Regulation shall be attracted i.e., the departmental proceedings were required to have the sanction of the Governor and should be in respect of an event which took place not more than four years before the institution of such proceedings. Admittedly, in the instant case, the sanction of the Governor was never obtained and even the incident in respect of which the petitioner was charged, had taken place four years before the institution of the proceedings. Thus, there is no escape from the rigour of Regulation 351-A. Consequently, the entire departmental proceedings initiated after the retirement of the petitioner, culminating in passing of the impugned order are rendered coram non-judice.
12. Sri Ashish Mishra has placed reliance on paragraph 11 of the judgement in the case of R. C. Mishra (supra) which is as under :-
"11. The word used in proviso (a) is "institute". The dictionary meaning of the word "institute" is : set up; cause to come into existence; to originate and get established; to commence. It obviously refers to the initial action or the commencement of the action. It is entirely different from continuance of an action already initiated. If the intention of the rule making authority had been that an enquiry instituted against an officer while in service should not proceed after his retirement, save with the sanction of the Governor, then the proviso (a) would have been differently worded and instead of the word "instituted", the words "continue" or "proceed" or "go on" would have been used. This being not the language of the proviso, there is absolutely no warrant for holding that an enquiry validly instituted against an officer while he was in service would, after retirement of the officer, require sanction of the Governor for its continuance and culmination."
13. In the said case, the delinquent was placed under suspension as well as served with the charge sheet prior to his retirement. However, the disciplinary enquiry could not be concluded before his retirement. Ultimately an order of recovery of certain amount from his pension was passed after his retirement. The High Court held that the proceedings could not have continued without the sanction of the Governor. The Supreme Court did not agree with the view taken by the High Court and held that Regulation 351-A will get attracted only if the proceeding were instituted after retirement. It was held that there is no fetter in instituting departmental proceedings against the delinquent if he had not attained the age of superannuation. The proceedings initiated prior to the delinquent attaining the age of superannuation can validly continue even after he had retired and the limitation embodied in Regulation 351-A would not apply. The Supreme Court after noticing the meaning of the word "instituted" in paragraph 11, concluded in paragraph 12 as under :-
"12. In the present case, the respondent had been placed under suspension and charges were also served upon him while he was in service. In such circumstances, proviso (a) did not come into play at all and there was no requirement of obtaining sanction of the Governor. The enquiry which had been instituted prior to the retirement of the respondent and was completed after his retirement could not, therefore, be held to be illegal on the ground of want of sanction of the Governor. The view to the contrary taken by the Tribunal and by the High Court is, therefore, clearly erroneous in law and cannot be sustained."
14. The issue before the Supreme Court was only whether the proceedings if instituted prior to the delinquent attaining the age of superannuation could continue without sanction of the Governor after the retirement of a government servant. Admittedly, the proceedings were instituted prior to the retirement of the delinquent. The date on which the departmental proceedings would be deemed to be initiated was not in issue before the Supreme Court. In such view of the matter, the aforesaid judgement does not, in any manner, advance the submission made by the learned counsel for the respondents.
15. In consequence and for the reasons given above, the impugned order dated 12.11.2013 is quashed. The writ petition is allowed. The respondents are directed to forthwith ensure payment of the balance retiral dues of the petitioner which were withheld on the basis of impugned order, alongwith 8% simple interest from the date the amount became payable to the petitioner.
Order Date :- 15.2.2016 skv (Manoj Kumar Gupta, J.)