Heard learned counsel for the petitioner, learned State Counsel for State-respondents and Sri Ashok Kumar Shukla, learned counsel appearing for respondent no.3.
Under challenge is the order dated 09.12.2016 passed by respondent no.2 i.e. the Director of Local Bodies Lucknow whereby in pursuance to an inquiry conducted in terms of Regulation 351-A of the Civil Service Regulations for which permission had been granted through order dated 15.09.2010, the respondent no.2 has proposed a punishment of 10% cut in the pension of the petitioner. The order has been sent to the Government for its approval.
It is contended that without there being approval from the Government, the respondents have proceeded to recover the amount from the pension of the petitioner as per specific averments made in paragraph 25 of the petition. It is also contended that the impugned order dated 09.12.2016 also indicates that admissible retiral dues are being paid to the petitioner except 10% deduction from the pension.
Upon a specific query being put to learned State Counsel as to whether any such approval to the order dated 09.12.2016 has been given by the Government till date, Sri Vishal Verma, learned State Counsel, on the basis of instructions given by the Director, Local Bodies, Lucknow, has submitted that no such approval has been granted.
Regulation 351-A of the Civil Service Regulations under which the respondents have proceeded against the petitioner reads as under:-
"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 to 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 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 reemployment, shall have been instituted in accordance with Sub-clause(ii) of Clause (a); and
(c) The Public Service Commission, UP shall be consulted before final orders are passed.
(Provided further that if the order passed by the Governor relates to a case 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 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 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. "
Thus, the sine-qua-non for withholding or withdrawing the pension or any part of it is where a 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. The power to withdraw, as already indicated above, has been reserved with His Excellency the Governor. In the instant case, it is apparent that the order dated 09.12.2016 is only a proposal that has been sent by the Director, Local Bodies, Lucknow to the Government for its approval meaning thereby the approval from His Excellency the Governor. It is admitted that no such approval has been given as on date by his Excellency the Governor to the proposed punishment, meaning thereby that the punishment continues to remain what it was - a proposed punishment. As such, the respondents are not entitled to withhold 10% of pension as has been indicated in the impugned order dated 09.12.2016 inasmuch as, as already indicated above, the order still continues to remain a proposal without having approval from His Excellency the Governor and consequently any such withholding or withdrawal of pension would run foul to the specific provisions of Regulation 351-A of the Civil Service Regulations.
In this view of the matter, the impugned action on the part of the respondents in withholding 10% of the pension is legally unsustainable. As such, the writ petition is partly allowed. The part of the order dated 09.12.2016, a copy of which is Annexure-1 to the petition, by which the respondent no.2 has withheld 10% of the pension of the petitioner is set-aside. A mandamus is also issued directing respondent no.2 to refund the entire amount of withheld pension to the petitioner within a period of two months from the date of receipt of a certified copy of this order.
So far as the prayer of the petitioner for grant of arrears of salary w.e.f. 01.01.1996 and for fixation of correct pension is concerned, it would be open to the petitioner to submit a fresh representation in this regard annexing all documents that are available with him to respondent no.2 within a period of four weeks from today along with certified copy of this order. In case such representation is submitted within the specified time then respondent no.2 shall proceed to decide the same in accordance with law by passing a speaking and reasoned order within a further period of three months from the date of receipt of the representation.
Order Date :- 26.9.2019 A. Katiyar