I have heard Sri P.N. Tripathi, learned counsel for the petitioner and learned Standing Counsel for the State.
Affidavits have been exchanged and pleadings are complete. The case is being decided with consent of parties as per Rules of this Court.
By means of the present petition, the order dated 1/4.12.2007, passed by the District Magistrate, Allahabad, has been challenged and further prayer is also made to command the respondent authorities to give provisional pension to the petitioner in pursuance of the order dated 16.8.2006, passed by the District Magistrate, Allahabad.
During the pendency of the present petition, the petitioner, Ramakant Pandey had expired and in this place his heirs were substituted in pursuance of the order of this Court dated 24.2.2012.
The present petition was dismissed on merits by judgement dated 27.4.2012. A review application was filed, which was allowed on the ground that the request was made by learned Standing Counsel to pass over the case as his file was not available. The order recalling the review application is quoted hereinbelow:
"Cause shown for delay in filing the review application is sufficient. Delay is condoned.
The matter is in the revised list. Learned Standing Counsel is not ready with the matter for reasons that his file has not come. The prayer is for review and recall of my judgment dated 27.4.2012.
In view of the fact that the State is never ready with the matter, the order dated 27.4.2012 is recalled. The matter may be listed for fresh consideration before the appropriate Court".
Vide judgement dated 27.4.2012, this Court had dismissed the petition on the ground that the petitioner has not served regular service of qualifying number of years i.e. 10 years.
I have perused the order passed by the District Magistrate, Allahabad which clearly mentions that the petitioner's services were terminated vide order dated 16.9.1978.
By means of the judgement dated 15.4.1993 passed by this Court in Civil Misc. Writ Petition No. 33490 of 1990, Annexure-1 to the writ petition, the petitioner was reinstated in service. The termination order dated 20.9.1978 was set aside and the petitioner was reinstated in service but it was provided that he shall be deprived of all back wages and also two increments. On the strength of the aforesaid judgement, the petitioner had claimed that he may be treated in service for the period during which he was out of service i.e. 16.4.1978 to 21.5.1993 the date on which he was permitted to rejoin the services.
A perusal of the impugned order dated 16.8.2006 clearly discloses the fact that even after his rejoining the services of the petitioner were never satisfactory and he was suspended again on 6.8.1998 on the ground of lesser recovery and also on the ground of embezzlement. On inquiry the charges were found to be proved against the petitioner and apart from censure entry, three annual increments were also stopped permanently and he was reinstated in service vide order dated 7.12.1999. His salary for the suspension period was also forfeited by the the State. It was also found that in the service book the date of birth of the petitioner was shown as 6.2.1946 whereas on verification from the Educational Board the date of birth in his High School Certificate was found to be 6.2.1943 and in this regard the First Information Report was also lodged against him and Case Crime No. 6 of 2005, under sections 467, 468, 419, 420 and 471 I.P.C. was also registered at Police Station Phoolpur, District Allahabad.
The main argument of learned counsel for the petitioner is that since the petitioner was terminated on 16.9.1978 but was reinstated on 21.5.1993 after the Civil Misc. Writ Petition No. 33490 of 1990 (Ramakant Pandey vs. State of U.P. and others) was allowed by this Court on 15.4.1993, the period i.e. 16.4.1978 to 21.5.1993 is liable to be treated in service for the purpose of counting qualifying service for his pension. His second argument was that since by means of order dated 16.8.2006 the District Magistrate, Allahabad has directed for provisional pension, the order dated 4.12.2007 amounts to review of the aforesaid order dated 16.8.2006, which is not permissible under the law inasmuch as the District Magistrate has no power to review. His earlier order has mentioned above.
I have considered the submissions made by the counsel for the petitioner and has carefully gone through the record of the case.
Insofar as first contention of the petitioner that he was reinstated by this Court vide order dated 15.4.1993, passed in Civil Misc. Writ Petition No. 33490 of 1990 is concerned, to understand the nature of the judgement, the same is quoted below:
"This writ petition has been filed with a prayer that the petitioner be reinstated in service. The petitioner was posted as Collection Amin in 1963 and he worked upto 1987 when a criminal case under section 409 I.P.C. was registered against him. He has been acquitted in that criminal case vide judgement dated 5.3.1987 (Annexure-1 to the writ petition). No doubt it has been stated in para 3 of the counter affidavit that departmental proceedings were also held against the petitioner in addition to the criminal proceedings and the order of dismissal was passed after giving opportunity of hearing to the petitioner. However, on the facts and circumstances of the case I am of the view that the termination of service as too harsh punishment. As held by the Supreme Court in Sardar Singh vs. Union of India, AIR 1992 S.C. 417 the punishment should be proportionate to the offence.
In the circumstances, I set aside the termination order dated 20.9.1978 and direct that the petitioner will be reinstated in service within a month from the date of production of certified copy of this order before the appropriate authority, but he will be deprived of all back wages and also two increments.
With these observations the writ petition is disposed of finally."
From the record, it is also clear that special appeal being Special Appeal No. 307 of 1994 was passed by this Court challenging the judgement of this Court on 15.4.1993 as quoted above. The special appeal was allowed to be withdrawn in view of the order of the Supreme Court in SLP filed by the State of U.P. against the same judgement dated 15.4.1993. The judgement passed by the Division Bench of this Court in Special Appeal no. 307 of 1994 (Rama Kant Pandey vs. State of U.P. and others) is quoted below:
"The appellant after regular departmental enquiry had been dismissed from service. This order was challenged in writ proceedings where the learned Single Judge after holding that the punishment of termination of services was too harsh, set aside that order and directed that the petitioner be reinstated in service but would be deprived of all back wages as also two increments. This was the order that the appellant sought to challenge in Special Appeal.
When the matter came up for hearing before us in Special Appeal notice was given to the counsel for the appellant to a support the validity of the impugned judgement to the extent to which the learned Single Judge had reduced the punishment imposed upon the appellant after regular departmental enquiry.
Counsel for the appellant has now placed on record a copy of the order passed by the Supreme Court in the appeal filed against the order of the learned Single Judge.
The Supreme Court dismissed the Special Leave Petition of the State of U.P. with the observations;
"Although we are unable to endorse the direction given by the High Court regarding reinstatement in service of the respondent but having regard to the facts that the respondent has already been reinstated in service on 21st May, 1993 we do not find it necessary to interfere within the order under Article 136 of the Constitution."
In view of of the order of the Supreme Court, the Special Appeal is allowed to be withdrawn by the appellant as prayed for by him".
A bare perusal of the judgement dated 10.5.1994 in Special Appeal no. 307 of 1994, as quoted above, clearly discloses that the SLP filed by the State of U.P. was disposed of with a clear observation that the Hon'ble Apex Court did not endorse the direction of the High Court dated 15.4.1993, passed in Civil Misc. Writ Petition No. 33490 of 1990 regarding reinstatement in service of the petitioner but since he had already been reinstated on 01.5.1993, no interference was made in the judgement of this Court.
Clearly under no circumstances and in view of the fact that even this Court in Civil Misc. Writ Petition No. 33490 of 1990 never held that there was any defect in holding the petitioner guilty of the misconduct, however, it is only on the quantum of punishment, it was observed that the Court was of the view that the termination of service is too harsh punishment and punishment should be proportionate to offence. Therefore, he was reinstated but he was deprived of all back wages and also two increments. It is further to be noticed that there was no direction to treat the period from termination of his services on 16.4.1978 till the date of the judgement dated 15.4.1993 or till the date of his joining, would be treated as the period in service. Moreover, in the special appeal, the Hon'ble Apex Court clearly refused to endorse the direction by this Court regarding reinstatement in service of the petitioner but it is only in view of the fact that he had already been reinstated in service on 21.5.1993, no interference under Article 136 of the Constitution of India was made by the Hon'ble Apex Court. Certainly, the harmonious reading of both the judgements would clearly demonstrates that there was no intention whatsoever of the Court of law that the aforesaid period from 16.4.1978 to 21.5.1993 be counted for the purpose of qualifying service so as to make petitioner entitled for pension. On the top of it as already mentioned the petitioner had entered in service providing false information by showing incorrect date of birth i.e. 6.2.1946 whereas his admitted date of birth, as admitted in paragraph 4 of the rejoinder affidavit was 6.2.1937 and, therefore, he had joined service of supplying false information. It is only during the pendency of the criminal case against him as noted above regarding false date of birth, the petitioner had died. Therefore, no action could be taken in pursuance thereof, whereas from the admission made in paragraph 4 of the rejoinder affidavit, no other conclusion except that the petitioner had supplied false information and continued in service in spite of the false information supplied by him and under these circumstances, the criminal as well as disciplinary action would not have concluded except awarding suitable punishment to the petitioner as holding his appointment void ab initio.
There is no doubt that the pension is a reward of past services as held by the Hon'ble Apex Court in the State of Punjab vs. Justice S.S. Dhawan (1997) 4 SCC 569. In the case of D.S. Nakara vs. Union of India (1983) 1 SCC 305, the Hon'ble Apex Court has held that its payment is dependent of additional criteria of impeccable behaviour and even subsequent to retirement it can be reduced or withdrawn as disciplinary measure.
In the case of Union of India and another vs. P.D. Yadav (2002) 1 SCC 405 in paragraph 14, 23 and 24 the Apex Court while considering the pension regulations for Army 1961 particularly Rule 3 regarding rate of pension on which it is to be payable, it was held by the Apex Court the service has to be satisfactory and if the service has not been satisfactory the competent authority may make such reduction in amount of pension and gratuity as it is proper.
In the present case also from the facts mentioned in previous paragraphs, it is very much clear that the services of the petitioner was never satisfactory, although the word 'satisfactory' has not been mentioned in the provision as applicable to the petitioner. The inference that service has to be 'satisfactory service' can be safely drawn from Article 351 and 351-A of Civil Service Regulation which are being dealt with separately.
Learned counsel for the petitioner has relied upon Article 419(a) to argue that where a government servant who is dismissed, removed or compulsory retired is reinstated on appeal or revision, is entitled to count his past service. For proper disposal, the Articles 418 and 419 of the Civil Service Regulations are quoted herein below:
418. (a) Resignation of the public service, or dismissal or removal from it for misconduct, insolvency in-efficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service.
(b) Resignation of and appointment to take up another appointment, service in which counts, is not a resignation of the public service.
419. (a) a Government servant who is dismissed, removed or compulsorily retired from public service, but is reinstated on appeal or revision, is entitled to count his past service.
(b) the period of break in service between the date of dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement, and the period of suspension (if any) shall not count unless regularised as duty or leave by a specific order of the authority which passed the order of reinstatement.
A glance over Article 418(a) would clearly discloses that dismissal or removal from service for misconduct and for inefficiency not due to age entails forfeiture of past services. Article 419 (b) also provides that the period of break in service between the date of dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement, and the period of suspension (if any) shall not count unless regularised as duty or leave by a specific order of the authority which passed the order of reinstatement.
Clearly no such order of reinstatement was passed by the appropriate authority to reinstate the petitioner. His claim is based on the interpretation of this Court dated 15.4.1993 in Civil Misc. Writ Petition No. 33490 of 1990 whereby the termination order dated 20.9.1978 was set aside and petitioner was reinstated in service without back wages and also depriving him of two increments. Even there was no specific order to count his service for this period as qualifying service either by the authority as per Article 419(b) or by this Court. Clearly in absence of any such direction the same could not have been included for the purpose of qualifying service. Further even the judgement of this Court dated 15.4.1993 directing reinstatement of the petitioner was never approved by the Apex Court. The aforesaid order as already been quoted above and was quoted in the order dated 10.5.1994 by which the petitioner was permitted to withdraw his special appeal. Clearly even on this count his service for this period from 16.4.1978 to 21.5.1993 could not have been counted for qualifying service and was rightly not so counted by the authority.
Learned counsel for the petitioner also relied upon Fundamental Rule 54 of Financial Handbook Vol. II Part II to IV . The extract of the aforesaid provision quoted below:
54. (1) When a Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension or not, the authority competent to order reinstatement shall consider and make a specific order--
(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal, or compulsory retirement, as the case be; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority competent to order reinstatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired, has been fully exonerated the Government servant shall, subject to the provisions of sub-rule (6), be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be:
Provided that where such authority is of opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall, subject to the provisions of sub-rule (7), be paid for the period of such delay, only such amount (not being the whole) of such pay and allowances as it may determine.
(3) In a case falling under sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes.
(4) In cases other than those covered by sub-rule (2) [including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of noncompliance with the requirements of clause (1) or clause (2) of article 311 of the Constitution and no further inquiry is proposed to be held], the Government servant shall, subject to the provisions of sub-rules (6) and (7), be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection, within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.
(5) In a case falling under sub-rule (4), the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated for any specified purpose:
Provided that if the Government servant so desires such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement as the case may be, shall be converted into leave of any kind due and admissible to the Government servant.
A reference to Rule 54-A is also necessary, which also quoted below:
54-A (1) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by a court of Law and such Government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularised and the Government servant shall be paid pay and allowances in accordance with the provisions of sub-rule (2) or (3) subject to the directions, if any, of the court.
(2) (i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the court solely on the ground of non-compliance with the requirements of clause (1) or clause (2) of article 311 of the Constitution, and where he is not exonerated on merits, and no further inquiry is proposed to be held, the Government servant shall, subject to the provisions of sub-rule (7) of rule 54, be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice:
(ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, and the date of judgment of the court shall be regularised in accordance with the provisions contained in sub-rule (5) of Rule 54.
(3) If the dismissal, removal or compulsory retirement of a Government servant is set aside by the court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal, or compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period, to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be.
(4) The payment of allowances under sub-rule (2) or sub-rule (3) shall be subject to all other conditions under which such allowances are admissible.
(5) Any payment made under this rule to a Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of dismissal, removal or compulsory retirement and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than those earned during the employment elsewhere, nothing shall be paid to the Government servant.
Clause 1 of Rule 54 provides that when a government servant who has been dismissed, removed or compulsory retired is reinstated as a result of appeal or review, the authority competent to order reinstatement shall consider and make a specific order as to whether the said period shall be treated as a period spent on duty or not.
It is pertinent to note that in Clause 2 of Rule 54, it is provided that when the competent authority to order reinstatement is of the opinion that the government servant who had been dismissed, removed or compulsory retired, has been fully exonerated. Clearly in this case the competent authority never reinstated the deceased petitioner. Even by this Court the deceased petitioner was never fully exonerated this misconduct and only quantum of punishment was reduced.
Clause 5 of Rule 54 clearly provides that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as period spent on duty unless the competent authority specifically directs that it shall be so treated for any specific purpose.
Clearly Rule 54 applies where the departmental authority itself whether in appeal or review pass the order, and Clause 2 provides for 'fully exonerated', which was not applicable in the present case.
These provisions are not applicable where the reinstatement has been directed by any court of law.
However, Rule 54-A (ii) Clause 2 clearly provides that the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, and date of judgement of the court shall be regularised in accordance with the provisions contained in sub-rule (5) of Rule 54.
In these circumstances, Clause 5 of Rule 54 comes into picture and the words "unless the competent authority specifically directs that it shall be so treated" becomes important and in this respect the judgement of this Court dated 15.4.1993 in Civil Misc. Writ Petition No. 33490 of 1990 and in the judgement dated 10.5.1994, passed in Special Appeal No. 307 of 1994 containing the observation of the Apex Court becomes relevant. A harmonious reading of the provision with the judgements clearly shows that in absence of any specific direction that the period of absence shall be treated as period spent on duty for all purposes including counting the same for qualifying years, is liable to be rejected. Thus, the first argument of the petitioner has no substance and is rejected.
There is yet another aspect of the matter. Indisputably, the reduction of punishment from termination of service to reinstatement without back wages and with stopping of two increments was never approved by the Hon'ble Apex Court as already quoted above. It can be safely presumed that in view of the Hon'ble Apex Court the judgement of this Court dated 15.4.1993 reinstating the petitioner in service was an erroneous order, benefit of which cannot be allowed to be enjoyed by the employee. In the case of Project Officer i.e. IRDP and others vs. P.D. Chacko (2010) 6 SCC 637 while considering the qualifying period/service for grant of pension the Hon'ble Apex Court in paragraph 19 clearly held that the service for the purpose of calculating payment on the basis of the incorrect order of the Court cannot be counted for the purpose of pension and other service benefits. Thus, in my opinion, the District Magistrate has rightly held that the petitioner (now deceased) had not completed his qualifying service of 10 years and therefore was not entitled for pension.
Insofar as the second contention of the petitioner regarding reviewing the earlier order dated 16.8.2006 passed by the District Magistrate on 4.12.2007 is concerned, suffice is to say that the earlier order was regarding grant of provisional pension as criminal case was pending against him and he had withdrawn salary in unauthorised manner.
Provisional pension is provided under Article 351-AA read with Article 919-A of the Civil Service Regulations, which are quoted below:
351-AA. In the case of a Government Servant who retires on attaining the age of superannuation or otherwise and against whom any departmental or Judicial proceedings or any enquiry by Administrative Tribunal is pending on the date of retirement or is to be instituted after retirement a provisional pension as provided in Regulation 919-A may be sanctioned.
919-A. (1) In case referred to in Regulation 351-AA the Head of Department may authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement of the Government servant or if he was under suspension on the date of retirement upto the date immediately preceding the date on which he was placed under suspension.
(2) The provisional pension shall be authorised for the period commencing from the date of retirement upto and including the date on which after conclusion of departmental or judicial proceeding or the enquiry by the administrative Tribunal; as the case may be, final orders are passed by the competent authority.
(3) No death-cum-retirement gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings or the enquiry by the Administrative Tribunal and issue of final orders thereon.
(4) Payment of provisional pension made under clause (1) above shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of the proceedings or enquiry referred to in clause (3) but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or withheld either permanently or for special period.
A bare reading of the aforesaid provisions leaves no room to doubt that the provisional pension is liable to be adjusted against the final retirement benefits or pension and as such the competent authority has every power to review its own order granting provisional pension so as to pass final order regarding final retirement due/benefits. Therefore, the second contention that the District Magistrate has no authority to review its earlier order dated 16.8.2006 is absolutely misconceived and it is held that the order dated 4.12.2007 is well within jurisdiction of the District Magistrate.
Apart from this even this much is provided under Article 351 and 351-A that pension is always subject to good future conduct, and by means of the subsequent order dated 4.12.2007, in view of the finding recorded by the competent authority that the petitioner had not completed ten years of qualifying service, therefore, he was not at all entitled for pension and approval of provisional pension has also liable to be withdrawn, was fully justified.
For convenience Articles 351 and 351-A of Civil Service Regulations are quoted below:
351. Future good conduct is an implied condition of ever grant of a pension. The State Government reserves to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner be convicted of serious crime or be guilty of grave mis-conduct.
The decision of the State Government on any question of withholding or withdrawing the whole or any part of pension under this regulation shall be final and conclusive.
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 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;
Clearly, the District Magistrate was well within his jurisdiction to pass the subsequent order. Apart from this, although not in issue at present, in view of the admitted fact as given in paragraph 4 of the rejoinder affidavit, the petitioner has deliberately given his incorrect date of birth and as such the criminal proceedings against him and any departmental proceedings, had he been alived, if at all proceeded, would have resulted against the deceased petitioner hence Article 351 and 351-A related to good future conduct would have come into play The authority has rightly held that the deceased petitioner has not completed regular service of qualifying number of years. Hence, he was not entitled for pension.
Clearly, apart from the discussions, reasons and reasoning given above, there is no doubt about the fact that past as well as after reinstatement, the services of the deceased petitioner were never satisfactory so as to attract reward in the nature of pension, as held in the State of Punjab vs. Justice S.S. Dhawan (supra). More so when deceased petitioner had given false date of birth while getting service and actually got reinstatement in service on 7.12.1999 whereas as per actual date of birth he would have retired on 28.2.1995 and thus could not have been reinstated at all.
Hence for this reason also this Court is not inclined to exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India.
In the result, I do not find any merit in the case. The petition is devoid of merit and is dismissed.
Date: 16.5.2014 Puspendra