Heard learned counsel for the petitioner, learned Standing Counsel, Shri Gaurav Mehrotra, learned counsel for the High Court and perused the records.
Both these writ petitions arise out of the same cause, therefore, they have been heard together and are being decided by a common judgment.
The petitioner herein is a retired employee of the High Court. In the year 1994 he is said to have been working as Ad-hoc Bench Secretary when an order dated 13.09.1994 is said to have been passed by the Division Bench of this Court in F.A.F.O. No. 50 of 1993. It is said that the said order after being transcribed could not be signed by the Hon'ble Judges who were part of the Division Bench and the file was sent as it is to the concerned F.A.F.O. Section. It is said that after 4-5 months of passing of the said order, the certified copy was applied by one of the parties to the case, whereupon the said file was sent by the F.A.F.O. Section to the Copying Section whereupon the omission of signatures was noticed by one Mr. Jai Kishan Soni copyist, who submitted a report in this regard. Based on his report, an explanation was sought from Mr. Rajiv Kamal, who was the in-charge of the F.A.F.O. Section and the petitioner who was the Ad-hoc Bench Secretary. Thereafter, it is said that a preliminary inquiry was ordered. In the preliminary inquiry which was conducted by the Joint Registrar (Listing) Shri S.K. I. Naqvi, the petitioner was exonerated. Inspite of it, subsequently on 09.03.1999, while the petitioner was still in service, an order was passed on the file by the competent authority taking a decision for initiation of a regular inquiry against the petitioner, but, it is an admitted fact that no charge sheet could be issued to him and he retired from service of the High Court on attaining the age of superannuation on 31.01.2000. More than two and half years after his retirement i.e. 08.10.2002 a charge sheet was served upon the petitioner, a copy of which is annexed as Annexure No. 3 to the writ petition No. 6627(S/S) of 2006. The said charge sheet contains the following charges:-
"(1) That you on 13.9.1994 posted/ acting as Bench Secretary, Court No. 1, Lucknow Bench, Lucknow being duty bound to obtain the signatures of the Hon'ble Judges of the Bench on the orders/judgments in dereliction of duty carelessly and negligently did not obtain signature of the Hon'ble Judges on the order dated 13.9.1994 in F.A.F.O. No. 50 of 1993 State of U.P. & Ors. Vs. Shitala Prasad Pandey even on 2.5.1995 when Mr. Rajiv Kamal, U.D.A. brought this file to you and drew your attention towards this, and thereby failed to maintain absolute devotion to duty and committed misconduct within the meaning of Rule 3 of U.P. Government Servant Conduct Rules, 1956.
Evidence which is proposed to be considered in support of the charge:
(1) Statement of Mr. Rajiv Kamal, U.D.A. Group Incharge, F.A.F.O. Section, Lucknow Bench, Lucknow.
(2) Statement of Mr. Jai Kishan Soni, L.D.A, Copying Section Pending, Lucknow Bench, Lucknow.
(3) Statement of Mr. G.P. Verma, Section Officer, Copying Section Pending, Lucknow Bench, Lucknow.
(4) Your own statement.
(2) That on 2.5.1995 when you were posted/ acting as Bench Secretary, Court No. 1 Mr. Rajiv Kamal, U.D.A., Group Incharge, F.A.F.O. Section brought the aforesaid record to you and requested you to obtain signatures of the Hon'ble Judges on the order dated 13.9.1994, you did not obtain the signatures and asked Mr. Rajiv Kamal to come again on 4.5.1995. Later on the signatures of the Hon'ble Judges on the order dated 13.9.1994 were found to have been forged. You are prima facie responsible for forging the signatures of Hon'ble Judges on the order dated 13.9.1994 and thus, committed misconduct within the meaning of Rule 3 of U.P. Government Servant Conduct Rules, 1956.
Evidence which is proposed to be considered in support of the charge:
(1) Statement of Mr. Rajiv Kamal, U.D.A. Group Incharge, F.A.F.O. Section, Lucknow Bench, Lucknow.
(2) Statement of Mr. Jai Kishan Soni, L.D.A, Copying Section Pending, Lucknow Bench, Lucknow.
(3) Statement of Mr. G.P. Verma, Section Officer, Copying Section Pending, Lucknow Bench, Lucknow.
(4) Your own statement.
Statement of above witnesses shall be recorded during the course of enquiry.
Statement of any other person acquainted with the facts of the case relevant to the enquiry may be recorded during the enquiry."
The first charge was of not getting the order dated 13.09.1994 signed by the Hon'ble Judges forming the Division Bench which was his duty. The second charge was more serious as it contained an allegation that subsequently, the forged signatures were made on the order dated 13.09.1994 for which he was responsible.
As the said charge sheet had been issued to the petitioner after his retirement and was in respect of an incident which took place more than four years earlier, therefore, assuming the applicability of Article 351A of the Civil Services Regulations to the employees or Officers of the High Court, the petitioner herein challenged the same by means of Writ Petition No. 4769(S/S) of 2003 wherein no interim order was passed although counter affidavit was called for. On account of pendency of the said writ petition and the jurisdictional issue raised by the petitioner he did not participate in the Disciplinary Proceedings and the same were held Ex-parte.
It is trite that proceedings under Article 351A are to be held in the same manner in which a proceedings for dismissal of an employee are held, meaning thereby like a regular fulfledged proceeding which necessarily involves fixing date, time and place of inquiry with intimation to the delinquent. This was required to be done irrespective of the fact whether the delinquent had filed any reply to the charge sheet or not, unless of course he had admitted the charges which was not the case as no reply was submitted by him. Even in the event of non submission of reply to the charge sheet ex-parte proceedings were required to be held wherein the charges leveled against the petitioner were required to be proved on the basis of evidence based on the standard proof prevalent in a departmental proceeding. Specific averments have been made in paragraph 44 of the writ petition that no date, time and place of inquiry was communicated to the petitioner. In response, the opposite parties have stated in para 53 of the counter affidavit that as the petitioner did not demand any oral inquiry, therefore, the same was not provided.
Be that as it may, an inquiry report was submitted by the Inquiry Officer who was the Joint Registrar (Listing) at the relevant time, a copy of which is annexed as Annexure No. 11 to the writ petition. The Court has perused the said inquiry report. For convenience, the inquiry report is quoted herein below:-
"On the basis of these charges, Office memos fro service were issued to Sri Om Prakash Srivastava, Bench Secretary and Sri Rajeev Kamal. Sri Om Prakash Srivastava gave representations and moved applications that he has retired for the last 4 years. Therefore, enquiry can not be conducted against him. All the representations were forwarded to the Registrar General, High Court, Allahabad and every time I was directed to proceed with the enqiury. Therefore, I proceeded with the eqnuiry against Sri Om Prakash Srivastava, Bench Secretary exparte.
As regards the enquiry against Sri Rajiv Kamla, I recorded the statement of Sri J.K Soni and Sri Rajiv Kamla. Sri J.K. Soni in his statement stated that on 25-1-1995, he was L.D.A. In Lucknow Bench, Lucknow and remained there till December, 1995. On 25-1-1995 Copying application No. 513 dated 25-1-1995 was received in Copying Section for issuing Copying in F.A.F.O. No. 50/1993 on the Stay-application No. C.M.A No. 134(m)/1993 whereon the order was passed. When the file was received in the Copying Section, the order was not having the signatures of the Hon'ble Judges, Hon'ble Mr. Justice Brijesh Kumar and Hon'ble Mr. Justice I.P. Vasishth. Therefore, the file was sent back to Mr. U.K.Pathak, the then U.D.A. of the F.A.F.O. Section. When on 5-5-1995 the file was again received in the Copying Section, it was having the signatures of their Lordships, Hon'ble Mr. Justice Brijesh Kumar and Hon'ble Mr. Justice I.P. Vasishth. But these signatures were not tallying with the natural signatures of their Lordships and he stated that he could not say that the signatures on the Order under enquiry were forged or true because he was not having the specimen of their Lordships in the Copying Section.
Sri Rajeev Kamal in his statement stated that since January 1995 to May 1995, he was L.D.A. in F.A.F.O. Section and he was dealing with Civil Revision matters and with the oral order of his Section Officer, he was also dealing with the records of F.A.F.Os. When Sri U.K.Pathak, was handing over the charge of F.A.F.A. Section, he did not reveal the fact that some files are pending with some shortcomings. In May 1995 a reminder was received from Copying Section with respect to Copying Application NO. 513 dated 25-1-1995 in F.A.F.O. NO. 50/1993 whereon a slip was attached with the noting "Signatures wanting". When he perused this file. Then, it was found that the signatures of Hon'ble Mr. Justice Brijesh Kumar and Hon'ble Mr. Justice I.P. Vasishth were missing on Stay Application C.M.A. No. 134(m)/1993. Therefore, on the same day at about 4.00/4.15 p.m., he went to the Bench Secretary of Court No. 1 for getting the signatures on the order under enquiry and he requested Sri Om Prakash Srivastava, Bench Secretary to get the signatures of the Lordships on the Order Under Rules 3 & 4 Sub Rule (8) of Chapter VIII of the High Court Rules as it is the duty of the Bench Secretary for getting signaturesof the Lordships on the orders where the signatures are missing or wanting. But Sri Om Prakash Srivastava, Bench Secretary told him to leave the file for getting the signatures of the Lordships and to get back the file on 4/5-5-1995 and on 4/5-5-1995 he got the file from the Bench Secretary Sri Om Prakash Srivastava after getting the signatures on the order under enquiry.
Though Sri Akhilesh Mehrotra, the then Police Superintendent, Crime Branch, C.B.C.I.D. has indicated the Bench Secretary Sri Om Prakash Srivastva and Sri Rajeev Kamal, the then L.D.A. For forging the signatures on the order under enquriy and Sri S.K.I. Naqvi, the then Joint Registrar(C) fixed the responsibility of forging the signatures on Mr. Rajeev Kamal but only witnesses available in the enquiry are Sri J.K.Soni and Sri Rajeev Kamal, the person who has been charged for forging the signatures, both these witnesses Sri J.K.Soni and Sri Rajeev Kamal in their statements have not admitted or given any statement with respect to the forging of the signatures by Mr. Rajeev Kamal. Otherwise, also Mr. Rajeev Kamal can not be believed to have the forged signatures of Hon'ble Judges because of may experience as Joint Registrar (Listing) whenever signatures are missing or left by the Hon'ble Judges, it is either Joint Registrar (Listing) himself or the Bench Secretaries to get the signatures of the Hon'ble Judges on the orders. The finding of Sri S.K.I. Naqvi, the then Joint Registrar (C) that because the shyness of juniors staff, Sri Rajeev Kamal must have the forged signatures of the Hon'ble Judges on the order under enquiry does not appear to be tenable. On the basis of my experience as Joint Registrar (Listing) I may say that Sri Om Prakash Srivastava, Bench Secretary, who was having the duty to get the signatures on the order in question, has avoided to cooperate with the enquiry in the garb that he has retired and therefore, no disciplinary enquiry can be proceeded with against him.
Therefore, I do not hold Mr. Rajeev Kamal guilty of forging the signatures on the order under enquiry. However, I hold Mr. Om Prakash Srivastava, Bench Secretary guilty of forging the signatures on the order in question."
On a very careful reading of the inquiry report, this Court does not find any evidence mentioned therein linking the petitioner to the second charge leveled against him i.e. having made forged signatures. There is nothing mentioned in the inquiry report that the order sheet was ever placed before the Hon'ble Judges whose signatures are said to have been forged nor that they had denied their signatures thereon. There is nothing mentioned therein about any expert opinion of a handwriting expert having been obtained for verifying the signatures from the specimen signatures of the Hon'ble Judges which are alleged to have been made subsequently on the order dated 13.09.1994 so as to support the charge of forgery, that too, by the petitioner. The only evidence discussed in the inquiry report is the statement of Rajeev Kamal that he had taken file after four or five months of passing of the order dated 13.09.1994 to the petitioner who was the then Ad-hoc Bench Secretary informing him about the omission about the signatures and that the petitioner had kept the file with him and when returned back the signatures of the Hon'ble Judges were there on the order dated 13.09.1994. Merely based on this an inference has been drawn against the petitioner and he has been found guilty of charge no. 2 also in addition to charge no. 1. Apart from it, there is no evidence discussed. First of all it has to be proved in the inquiry that the signatures of Hon'ble Judges were forged. Secondly it had to be ascertained as to who had forged it. In this case the first relevant fact itself was not proved. The only evidence which could be of some relevance is the statement of one J.K. Soni Copyist who had stated that signatures were not tallying with the natural signatures of their Lordships even he went on to state (as recorded in the Inquiry Report) that "he could not say that the signatures on the order under enquiry were forged or true because he was not having the specimen of their Lordships in the Copying Section". Thus his statement does not prove forgery.
On a bare reading of the inquiry report, the casual manner in which the alleged inquiry has been conducted is writ large and hardly needs to be emphasised as the inquiry report itself has been quoted hereinabove. After submission of this inquiry report before the Disciplinary Authority, the same was furnished to the petitioner who at this stage submitted a detailed representation challenging the findings of the Inquiry Officer as also the charge sheet, a copy of the said representation is contained in Annexure No. 12 to the writ petition. A perusal of the same reveals that it is a detailed response to the show cause notice and the inquiry report, which was required to be considered by the Disciplinary Authority while passing the final order in the proceedings in question on the same analogy as is required in a proceeding to be done in the case of dismissal, under the Proviso (a) Clause 3 of Article 351A, but this has not been done.
Moreover the Court has no doubt that as far as the charge no. 2 is concerned, there was no evidence worth any credibility even in a departmental proceeding or a proceeding under Article 351A to link the petitioner directly to charge no. 2 and establish that the petitioner had forged the signatures of the Hon'ble Judges. These elements are not proved even based on the standard of proof applicable to such proceedings, as, even this standard does not permit mere suspicion to take the plea of tangible evidence at least linking the petitioner to the charge. Mere conjectures or surmises can not suffice, specially, in the facts of the present case. A serious charge such as forgery can not be held to be proved merely on a hunch. They have to be proved on the basis of tangible and credible evidence even in a disciplinary proceeding. Reference may be made in this regard to the dictum of Supreme Court in the case Nand Kishore Prasad Vs State of Bihar and Ors. (paragraph 18) reported in AIR 1978 SC 1277; Kuldeep Singh Vs. Commissioner of Police & Ors. (paragraph 7, 8, 9) reported in (1999) 2 SCC 10; Sher Bahadur Vs. Union of India & Ors. (paragrph 7) reported in (2002) 7 SCC 142; Bank of India Vs. Degalse Suryanarayana (paragraph 11) reported in (1999) 5 SCC 762; Union of India Vs. H.C. Goel reported in AIR 1964 SC 864.
As already noted hereinabove, the Inquiry Officer did not make any effort to ascertain as to whether the signatures in question were in fact made by the Hon'ble Judges or not. There is nothing to indicate that the Hon'ble Judges denied having made such signatures. There is no report of an expert showing that the signatures were not of the Hon'ble Judges and in fact appeared to be in the writing of the petitioner. Thus the findings of the Inquiry Officer and the impugned order based thereon are absolutely perverse and can not be sustained in law.
As far as Charge No. 1 is concerned, certainly it was the responsibility of the petitioner, as Bench Secretary, to get the order signed by Hon'ble Judges and having failed to do so he could have been made accountable but the moot point is could this be done after his retirement that too 8 years since the alleged incident took place. It is in this context that it is necessary to consider a fundamental issue raised by the petitioner at the very outset i.e. about the of applicability of Article 351A of the Civil Services Regulations to the case of the petitioner. Initially a feeble attempt was made by Sri Manjive Shukla, learned counsel appearing for the petitioner to contend that Article 351A was applicable to Government Servants, which the petitioner was not and there being no provision in the service Rules for undertaking any such proceedings after retirement the impugned order was not sustainable on this score, however, on reliance being placed by Sri Mehrotra on Rule 40 of the Allahabad High Court Officers and Staff (Conditions of Services and Conduct) Rules, 1976, he did not press the plea any further but proceeded to argue that even under Article 351A proceedings could not have been initiated in the year 2002 in respect of an incident which took place in 1994 in view of Proviso (a) to the said Article which puts a bar on such proceedings after retirement based on an incident more than 4 years old.
Shri Gaurav Mehrtra, learned counsel appearing for the High Court submitted that in fact a decision had already been taken on 09.03.1999 (when the petitioner was still in service) to initiate the Disciplinary Proceedings against him, therefore, the bar contained in Article 351A Proviso (a) was not attracted. In this regard he relies upon the judgment of the Supreme Court reported in (2006) 13 SCC 460; State of U.P. And Ors. Vs. Harihar Bholenath. To fortify his contention he relied upon the judgment of the Supreme Court rendered in the case of Delhi Development Authority Vs. H. C. Khurana reported in (1993) 3 SCC 196 to contend that the Disciplinary Proceedings are deemed to have been initiated not from the date of issuance of charge sheet, but from the date a decision is taken to initiate such proceedings, therefore, the said principle will apply even to a proceeding under Article 351A.
With respect, the Court begs to differ, for the simple reason that Article 351A Proviso (a) itself prescribes the stage at which the departmental proceedings shall be deemed to have been instituted i.e. when the charges framed against the pensioners are issued to him or if the officer has been placed under suspension from an earlier date, on such date, therefore, reliance place upon H.C. Khurana case (supra) and Harihar Bholenath's case (supra) is misplaced.
It is not the case of the respondents that the petitioner was placed under suspension, therefore, the irresistible conclusion based on the aforesaid provision is that the proceedings under Article 351A can only be deemed to have been instituted from the date of issuance of charge sheet which in the instant case is 08.10.2002 and is a date subsequent to the date of retirement of the petitioner, therefore, the bar contained in Article 351A Proviso (a) that such departmental proceedings if not instituted while the officer was on duty either before retirement or during re-employment shall not be instituted save with the sanction of the Governor nor shall be in respect of such event which took place not more than four years before the institution of such proceedings, shall apply. Obviously the 'Governor' here would mean the 'Chief Justice', as the provision is to be applied mutatis mutandis. The institution of proceedings as already stated hereinabove is to be deemed from the date of issuance of the charge sheet, therefore, passing of an order on 09.03.1999 deciding to initiate the Disciplinary Proceedings while the petitioner was in service, but, not issuing the charge sheet on the said date or any date prior to retirement, is rendered meaningless for the purposes of application of Article 351A. In view of the above, the respondents have not been able to jump the hurdle created by the bar contained in Proviso (a) to Article 351A.
It was contended by Shri Gaurav Mehrotra, learned counsel for the High Court that in matters of fraud, specially, forging of judicial orders, the plea raised by the petitioner based on the provisions contained in Article 351A would not apply. The Court would have considered this argument provided there was evidence to establish firstly that any such fraud or forgery had been committed secondly it had been done by the petitioner. Apparently, there is none, therefore, this plea is of no consequence.
Shri Gaurva Mehrotra, learned counsel for the High Court referred to a report of the C.B.C.I.D. relating to these very allegations against the petitioner but on a perusal of the charge sheet the Court finds that the said report is not mentioned therein as evidence in support of the charges. The inquiry report, though, it cursorily refers to the said report does not discuss its content, therefore, in these circumstances the said report can not be seen by this Court at this stage.
On a perusal of the final order dated 19.07.2006 forfeiting the pensionary benefits of the petitioner to the extent of 30%, the Court does not find any discussion of the charges leveled against the petitioner nor the evidence adduced in the inquiry, the findings of the Inquiry Officer as contained in the inquiry report, but, most of all, there is a complete silence about the representation submitted by the petitioner to the show cause notice dated 17.09.2005 raising his objections to the findings of the Inquiry Officer. The Disciplinary Authority was under an obligation to have taken into consideration the aforesaid material and after discussing the same should have recorded his reasons/ conclusion based thereon, which has not been done.
On a bare perusal of the final order dated 19.07.2006 it is an absolutely non speaking order, merely stating that "after perusing the inquiry report dated 17.09.2003, Hon'ble the Chief Justice has been pleased to pass an order on 15.07.2006 that Sri O.P. Srivastava, the then Bench Secretary is found guilty of grave misconduct for forging the signatures of Hon'ble Judges on the order dated 13.09.1994" which does not satisfy the requirements of law. The order of Hon'ble the Chief Justice dated 15.07.2006 is not on record and has not been provided to the petitioner.
The opposite parties have filed a counter affidavit but have not annexed the said order of the Hon'ble the Chief Justice, so as to establish that all the parameters referred herein above were considered and the requirements of law were satisfied while taking the impugned action. For convenience, the order dated 19.07.2006 is quoted herein below:-
"In the departmental enquiry pending against Sri Om Prakash Srivastava, the then Ad hoc Bench Secretary, High Court Lucknow Bench, Lucknow (retired on 31.1.2000) for forging the signature of Hon'ble Judges upon the order dated 13.9.1994 in F.A.F.O. No.50 of 1993- State of U.P. Versus Shitla Prasad Pandey, the Enquiry Officer held him guilty for forging the signatures on the order in question. After perusing the enquiry report dated 17.9.2003, Hon'ble the Chief Justice has been pleased to pass an order on 15.7.2006 that Sri O.P. Srivastava, the then Bench Secretary (Retired on 31.1.2000) is found guilty of grave misconduct for forging the signatures of Hon'ble Judges on the order dated 13.9.1994 in FAFO No.50 of 1993- State of U.P. Vs. Shitla Prasad Pandey. Accordingly he is punished with curtailment of 30% pensionary benefit in regard to pension not yet paid for, with cumulative effect."
Shri Gaurav Mehrotra, learned counsel for the High Court made a valiant attempt to defend the order impugned herein by referring to various paragraphs of the counter affidavit but in vain.
In view of the above, the proceedings itself could not have been held against the petitioner after his retirement in view of Proviso (a) to Article 351A of Civil Services Regulations.
For the reasons aforesaid, the impugned orders including the order dated 19.07.2006 and order dated 29.10.2011 ordering forfeiture of pensionary benefits to the extent of 30% and recovery thereof from the pension/ gratuity of the petitioner can not be sustained. The same are, accordingly, quashed.
The recovery of the amount in question had been stayed by this Court vide order 16.01.2012. The respondents shall proceed to release the due amount, if any, to the petitioner as per law, within a period of three months from the date a certified copy of this order is submitted.
Both these writ petitions are disposed of in the aforesaid terms.