Hon'ble Manoj Misra, J.
1. We have heard Shri Indra Raj Singh, learned counsel appearing for the petitioner. Learned Standing Counsel appears for the State respondents.
2. The petitioner, serving as District Inspector of Schools, Jaunpur, was placed under suspension on 30.4.1997. A departmental enquiry was initiated against him in which the Joint Director of Education, Azamgarh Region, Azamgarh was appointed as Enquiry Officer. During the pendency of the departmental enquiry, the petitioner retired on attaining the age of superannuation on 31.1.1998. The departmental enquiry was allowed to continue under Article 351-A of the Civil Services Regulations. In the enquiry report dated 24.7.1999, charge nos. 1 and 2 alleging approval of irregular appointments made by the petitioner, were found proved, causing financial loss to the State Government.
3.By this writ petition, the petitioner is challenging an order dated 19.6.2002, by which the State Government has, after holding the petitioner guilty of financial loss of Rs. 86, 40, 000/- caused to the State Government on account of payment of salaries of twenty four employees from January, 2000, at the rate of Rs. 5000/- per month for six years, forfeited the entire gratuity; proposed deduction of 50% pension and recovery of the entire loss.
4. The petitioner was served with a copy of the enquiry report and was given an opportunity to submit his reply. He denied the charge of illegal appointment of twenty four employees and the consequential loss caused to the State Government.
5. The petitioner's reply was considered by the State Government. It was found that the petitioner did not take timely steps to file appeals against the irregular appointments. The matter, along with proposed punishment, was sent for consultation of the U.P. Public Service Commission. Relying on the recommendations of the Commission, the State Government has directed the recovery of 10% from the pension of the petitioner permanently; to forfeit the entire gratuity and other retiral dues in accordance with the law and to initiate proceedings by filing a civil suit for recovery of Rs. 86, 40, 000/-. The entire period of his suspension has been directed to be treated to be in service, for which he has been made entitled for payment of salary.
6. In the charge sheet dated 30.4.1997 two allegations were imputed, namely that he gave approval to 60 appointments made irregularly between 4.1.1994 to 30.6.1994, inspite of the ban imposed by the State Government on appointments. The petitioner, in collusion with the Accounts Officer and the Managers/Principals of these Schools, was alleged to have ensured payment of salaries to such irregularly appointed employees causing loss of lacs of rupees to the State Government. The second charge is correlated with the first charge, namely that the petitioner allowed the fund allocated by the education department for payment of salaries to irregularly appointed employees. A further allegation was that the petitioner did not deposit the GPF amount of the teaching and non-teaching employees in the concerned account head in the treasury nor maintained proper accounts causing loss of interest on the GPF amount.
7. In his reply dated 25.10.1997, the petitioner denied the charges, and submitted that he had joined as District Inspector of Schools, Jaunpur on 3.3.1994, whereas he was shown to have taken charge on 04.1.1994. He submitted that he was going to retire in January, 1998 and was not given a departmental audit report Part 'A' and 'B', and the details of the teaching and non-teaching employees. The 60 letters, showing the alleged illegal appointments of which the details have been given in the charge sheet, are not related to the appointments, but orders on various matters, which came before him.
8. The petitioner submitted in his reply that from serial nos. 1 to 16, and 39, in the list of employees do not relate to the petitioner's period of posting. The employees mentioned at serial no. 17, 18, 19, 48 and 59 were appointed on compassionate grounds for which the financial approval was given in accordance with the rules, as they were appointed after recommendations by the District Selection Committee. The documents at serial no. 35, 36 and 39 are not appointment letters but letters of regularization of teachers in respect of three schools of which serial no. 39 relates to the period, prior to the petitioner's posting. The remaining two matters relate to Section 10-Ga of U.P. Secondary Education Services Selection Board with which the petitioner had no concern. The petitioner further submitted in his reply that the letter nos. 54, 55, 56, 57, 58 and 60, are the letters written by the petitioner for financial sanction for payment in pursuance to the orders of the High Court. The orders were passed by him to avoid the contempt proceedings. So far as serial nos. 43, 49 and 51 are concerned, these appointments relate to Class-IV employees, Sweeper and Chowkidar, which come under the essential services. These appointments were approved after legal consultation with the Accounts Officer. On these posts the appointments were made by the Principals of the Schools. In respect of serial no. 50 the orders were issued as the College was a minority institution. The appointment was made on the retirement of a permanent employee. Item 38 does not relate to new appointment but for releasing the salary of those teachers in respect of whom orders were issued to stop salaries as they did not cooperate in the board's examinations after giving them warning. Similarly in respect of serial nos. 20, 40, 33, 52, 53, 37, 44 and 45, there are no orders with regard to these appointments in the office of District Inspector of Schools, Jaunpur. The Principals of five Colleges, in which these appointments were made, have verified that no such approvals were granted for such appointments.
9. So far as item no. 34 relating to Brijesh Inter College, Gulalpur, Jaunpur, it was submitted by the petitioner that the letter is not approval for appointment, but a request to give the details of the sanctioned posts. He also submitted in paragraph-10 of his reply that serial nos. 21 to 32 and 41, 42, 46 and 47 (total 16 teachers), were not given any approval for their appointments. The Mangers of the Schools had disapproved the proposals, and in this manner out of 60 appointments 17 letters were issued by his predecessor; 08 are unknown and forged letters; 05 relate to appointments under Dying-in-Harness Rules; 03 relate to Class IV employees; 01 in respect of minority institution; 01 in respect of orders for releasing the salary, which was stopped; 02 for regularisation; 06 in compliance with the orders of the High Court in making payment; 01 in relation to the enquiries and 16 disapproval of the appointments. Consequently, according to the petitioner, the charges were baseless.
10. In the enquiry report of Km. Champa Misra, Regional Joint Director of Education, Azamgarh Region, Azamgarh dated 24.7.1999, she found that the petitioner had joined on 03.3.1994 and not on 04.1.1994. Shri Kripa Shanker Sharma was the District Inspector of Schools, Jaunpur prior to the petitioner's posting. The 60 letters are approval for appointments. Serial nos. 1 to 14, 16 and 39 are signed by Shri Kripa Shanker Sharma-the predecessor of the petitioner and serial no. 15 is signed by Shri Pratap Bahadur Pathak, the then Incharge District Inspector of Schools. Serial nos. 17, 18, 19 and 48 are appointments on compassionate grounds. In the office of the District Inspector of Schools, Jaunpur there was no proceedings register available to prove that these appointments were made by the District Selection Committee. Serial No. 39 is a letter signed by Shri Pratap Bahadur Pathak, whereas the letter nos. 35 and 36 are signed by the petitioner. The records were not available to establish that the regularisations were validly made.
11. So far as letter nos. 54, 55, 56, 57, 58 and 60 are concerned, the petitioner had sent letters to the Directorate for financial approval to the grant of salary in pursuance to the order of the High Court. The petitioner did not make any effort to file the appeals against these orders, and thus the petitioner appeared to be in collusion with the teachers.
12. In respect of other letters, namely serial nos. 43, 49, 51 the enquiry officer found that to support these appointments of Class IV employees the sanctioned strength of the College has not been mentioned. In respect of letter at serial no. 50 on appointment in Mohd. Hasan Inter College, the enquiry officer found that the College is a minority institution, but that does not establish that the procedure of appointment in minority institution was not to be followed. In so far as letter nos. 20, 40, 33, 52, and 53 the enquiry officer did not accept the reply that these letters are not available in the office of the District Inspector of Schools, with observations that when these letters were issued from the office, there is no question that they are not available, and thus the charge was proved.
13. In respect of letter no. 38 the enquiry officer agreed with the petitioner's defence that it is not a letter of approval but for release of the salary, which was stopped on account of the non-cooperation of the teachers. Similarly letter no. 34 is a request to send a report and is not approval for appointment.
14. Lastly, in respect of letter nos. 21 to 32 and 41, 42, 46 and 47 (total 16 teachers) the enquiry officer found that the cancellation of selections were made in collusion with the Principals and that the same reasons were given in respect of all the appointments, so that they should get the benefit of getting interim orders from the High Court.
15. The State Government, on the basis of the enquiry report dated 24.7.1999, in view of the petitioner's retirement, requested the Regional Joint Director of Education, Azamgarh Region, Azamgarh to calculate the other liability as the entire amount of loss of Rs. 86 lacs for illegal appointments of 22 teachers and 02 peons cannot be recovered from his gratuity and pension. The State Government again sent a letter on 29.4.2000 to serve a copy of the enquiry report on the petitioner and to obtain his reply. The petitioner submitted a detailed reply to the enquiry report reiterating his oral reply to the charges and once again explained that on the basis of the enquiry report no loss can be attributed to him to be caused to the State Government. The entire assessment of loss is only notional without appreciating the enquiry report.
16. Shri Indra Raj Singh submits that the entire enquiry has been disposed of mechanically after retirement of the petitioner. The petitioner had given specific reply to both the charges and had denied that he has anything to do with the appointments. The approval of appointments for the period prior to 03.3.1994, do not relate to him and that in respect of appointments on compassionate grounds made by the District Selection Committee, and the appointments of the sweeper, peons and teachers of the minority institutions were made by the Principals of the Colleges. These appointments also could not be attributed to the petitioner. There was absolutely no evidence of collusion nor any oral evidence was led to establish that the petitioner was in collusion with the Principals and Managers of the institution. In respect of 16 letters the petitioner had in fact disapproved the appointments, and that on 06 matters the petitioner had written to the Directorate for financial grants to comply with the orders of the High Court.
17. Shri Indra Raj Singh submits that in none of the cases, which were subject matter of the enquiry, any financial loss was established. No one in the State Government has cared to look into the enquiry report before calculating the alleged loss. In the impugned order a mechanical approach had been adopted by attributing a loss of Rs. 5000/- in respect of 60 appointments without appreciating that most of the letters were not letters of approval of appointments. He submits that finally the State Government had concluded that the petitioner has not taken steps to file appeals in respect of those matters in which the High Court had issued directions to make appointments. Once again there are no specific findings of the nature of the those appointments and whether any steps were taken by the office of the Chief Standing Counsel of the State Government, to vacate interim orders, or to file appeals. In any case there is no finding of collusion or any financial gain to the petitioner.
18. Learned Standing Counsel submits that the charges were proved. Some of the documents may not have been available but that it was the duty of the petitioner to establish that he did not give approval to these appointments.
19. In State of Uttar Pradesh vs. Brahm Datt Sharma and another (1987) 2 SCC 179 the Supreme Court, in a matter arising out of a notice given to the petitioner, who was serving and had retired as Executive Engineer in the Irrigation Department of the State Government to show cause under Article 420 (b) of the Civil Services Regulation, as to why his pension and gratuity be not forfeited, held that the grant of pension to employees of the State Government is regulated by the Civil Services Regulations, which have statutory character. Article 348-A provides that pension shall be granted subject to the conditions contained in the regulations. Article 351-A empowers the Governor to withhold or withdraw pension or any part of it, whether permanently or for a specific period and also to order recovery from pension of the whole or part of the pension, for any pecuniary loss caused to the Government, if the pensioner is found guilty in departmental or in judicial proceedings for any misconduct or negligence during his service. Article 353 lays down that no pension shall be granted to an officer dismissed or removed from service for misconduct, insolvency or inefficiency, but compassionate allowance may be granted on special consideration. The claim of pension is determined by length of service, as provided by Articles 474 to 485. Full pension is admissible under the rules not as a matter of course but only if the service rendered by the government employee is approved. The regulations empower the authority sanctioning the pension to make such reduction in the amount of pension as it may think proper. The Supreme Court thereafter held:-
"6.....These provisions indicate that a Government servant is entitled to pension but the claim of pension is determined in accordance with the statutory rules. No doubt pension is no more a bounty; instead it is a right earned by the Government servant on the basis of length of service. Nonetheless grant of full pension depends on the approval of service rendered by the employee. In other words if the service rendered by the Government servant has not been satisfactory he would not be entitled to full pension and it would always be open to the Govt. to withhold or reduce the amount of pension in accordance with the statutory rules. If the Government incurs pecuniary loss on account of misconduct or negligence of a Govt. servant and if he retires from service before any departmental proceedings are taken against him, it is open to the State Govt. to initiate departmental proceedings, and if in those proceedings he is found guilty of misconduct, negligence or any other such act or omission as a result of which Govt. is put to pecuniary loss, the State Govt. is entitled to withhold, reduce or recover the loss suffered by it by forfeiture or reduction of pension. These provisions ordain the Govt. servant to perform his duties faithfully and honestly. Honest and devoted service rendered by a Govt. servant ensures efficiency in public administration. The statutory rules therefore contain provisions for the forfeiture and deduction in the pension of Govt. servant who have not rendered satisfactory service or who have been found guilty of misconduct or negligence resulting in pecuniary loss to the Govt. Merely because a Govt. servant retires from service on attaining the age of superannuation he cannot escape the liability of misconduct and negligence or financial irregularities.
The Supreme Court thereafter held in paragraph-8 as follows:-
"A plain reading of the regulation indicates that full pension is not awarded as a matter of course to a Govt. servant on his retirement instead, it is awarded to him if his satisfactory service is approved. If the service of a Govt. servant has not been thoroughly satisfactory the authority competent to sanction the pension is empowered to make such reduction in the amount of pension as it may think proper. Proviso to the regulation lays down that no order regarding reduction in the amount of pension shall be made without the approval of the appointing authority. Though the Regulations do not expressly provide for affording opportunity to the Govt. Servant before order for the reduction in the pension is issued, but the principles of natural justice ordain that opportunity of hearing must be afforded to the Govt. servant before any order is passed. Art. 311(2) is not attracted, nonetheless the Govt. servant is entitled to opportunity of hearing as the order of reduction in pension affects his right to receive full pension. It is no more in dispute that pension is not bounty; instead it is a right to property earned by the Govt. servant on his rendering satisfactory service to the State. In State of Punjab v. K.R. Erry and Sobhag Rai Mehta, [1973] 2 SCR 405 this Court held that the State Govt. could not direct cut in the pension of officers without giving a reasonable opportunity of bearing to them. In Deokinandan Prasad v. State of Bihar & Ors., [1971] Suppl. SCR 634 it was held that pension is not bounty pay- able at the sweet will and pleasure of the Govt.; instead the right to pension is valuable right vested in a Govt. servant. Again in D.S. Nakara and Ors. v. Union of India, [1983] 2 SCR 165 this Court held that payment of pension does not depend upon the discretion of the Govt. but it is governed by the rules and Govt. servant coming under those rules is entitled to claim pension. A Govt. employee earns his pension by rendering long and efficient service, the claim of pension is regulated by rules, which provide for reduction in the amount of pension if the Govt. servant has failed to render efficient service. In M. Narasimhachar v. State of Mysore, [1960] 1 SCR 981 this Court upheld the order of the State Govt. in reducing pension of a Govt. employee as the rules regulating the grant of pension made provision for reduction of pension on account of his having rendered unsatisfactory service. Rule 6.4 of Punjab Civil Pension Rules provides for the reduction in the amount of pension if the service of the Govt. employee has not been thoroughly satisfactory. The State Govt.'s order directing reduction of pension of the employee of State of Punjab were set aside by this Court in State of Punjab v. K.R. Erry and Sebhag Rai Mehta (Supra) and in State of Punjab & Anr. v. Iqbal Singh, [1976] 3 SCR 360 on the ground that the orders imposing deduction in the pension had been passed in violation of principles of natural justice as the affected employees had not been afforded opportunity of hearing. These decisions leave no scope for any doubt that the State Govt. is competent to direct reduction in pension after affording opportunity of hearing to the Govt. servant."
20. In State of Maharashtra vs. M.H. Mazumdar (1988) 2 SCC 52 the Supreme Court followed the judgment in State of Uttar Pradesh vs. Brahm Datt Sharma (supra) and held in respect of an enquiry on the two charges namely that the delinquent government servant had collected permits from the Kolhapur Central Co-operative Consumers Khatavane with mala fide intention after passing a receipt thereof to the Godown Keeper to shield Shri K.P. Khatavane and his son Baban Khatavane from criminal prosecution and on charge no. 2 that he had deliberately and intentionally denied to have made any enquiry unauthorisedly lifting of 10 bags of sugar on bogus or forged permit by Shri Baban Khatavane and his son with some ulterior motive and abetted them in the disposal of sugar in black market. Considering the punishment of the reduction in pension by 50% as against the recommendation of the Collector to take a lenient view and reducing the pension to the extent of Rs. 1/- per month the Supreme Court held the punishment to be extremely harsh and disproportionate and observed in paragraph-8 as follows:-
"8.On conclusion of the enquiry charge No. 1 was found to have been established while charge No. 2 was partially proved. In his report to the State Government the Collector of Kolhapur held that the respondent's action was helpful to Shri Khatavane to sell the sugar in the black market, and it amounted to a serious default on his part as a Government servant. He recommended that since the respondent had already retired from service a lenient view should be taken and reduction in pension to the extent of Re. 1 per month be made The State Government accepted the findings and passed the impugned order reducing the pension by 50 per cent In our view the reduction of pension 50 per cent was too harsh and disproportionate to the misconduct proved against the respondent. The State Government should have taken into consideration the fact that the respondent had retired from service and the reduction of pension by 50 per cent would seriously affect his living."
21. In State of West Bengal vs. Haresh C. Banerjee and others (2006) 7 SCC 651 the Supreme Court reiterated, after following the judgments in Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330; State of Punjab v. K.R. Erry (1973) 1 SCC 120; State of Uttar Pradesh vs. Brahm Datt Sharma (supra); and State of Maharashtra vs. M.H. Mazumdar (supra) in holding that the question of an order withholding or reducing pension being invalid and bad in law on a legally permissible ground is one thing but to hold such a rule to be ultra vires is another. The Supreme Court had observed in State of Uttar Pradesh v. Brahm Datt Sharma's case that if the Government incurs pecuniary loss on account of misconduct or negligence of a Government servant and if he retires from service before any departmental proceedings are taken against him, it is open to the State Government to initiate departmental proceedings, and if in those proceedings, he is found guilty of misconduct, negligence or any other such act or omission as a result of which Government is put to pecuniary loss, the State Government is entitled to withhold, reduce or recover the loss suffered by it by forfeiture or reduction of pension.
22. In State of U.P. vs. Harihar Bholenath (2006) INSC) 734 dated 1.11.2006, and Secretary, Forest Department and others vs. Abdur Rasul Chowdhury (2009) 7 SCC the Supreme Court, following the afore-referred judgments, reiterated the same principle, that in the proceedings drawn against a government servant on the charges of misconduct in a departmental enquiry which has proceeded beyond his retirement, the State Government is entitled to withhold, reduce or recover the loss suffered by it for forfeiture and reduction of pension after giving reasonable opportunity of hearing to such government servant.
23. In the present case, we find that the State Government has not applied its mind to the enquiry report, and the reply given by the petitioner to the enquiry report. The entire assessment of loss is notional without appreciating that the enquiry officer had clearly found that the approval to the appointments prior to 3.3.1994 were not referable to the petitioner as he had joined on 3.3.1994. Further no one cared to observe that the letter nos. 35, 36, and 39 were not signed by the petitioner but his predecessors and incharge District Inspector of Schools; the letter nos. 54, 55, 56, 47, 58 and 60 were in fact letters to the Directorate for giving grants to comply with the orders of the High Court and serial nos. 39, 49, 51 were the letters of approval of Class-IV employees for which the appointments were made by the Principals of the Schools.
24. In the present case, neither the enquiry officer nor the State Government has recorded finding of gross misconduct or any loss caused to the State Government. There is nothing to show that any appointments were made illegally, and were subsequently cancelled or that the appointees did not join or performed their duties. There were only a few approvals given by the petitioner, in respect of which there is no finding of collusion or fraud and consequential loss to the State Government.
25. We also find that in the impugned order, by which the petitioner's pension has been deducted at 10%, and a direction has been made to recover Rs. 86, 40, 000/- from the petitioner, there is no finding of loss caused to the State Government. The entire calculation is on presumptive basis, without recording any clear and specific findings of any collusion, fraud or resultant loss. The observations in the punishment order that the petitioner should have taken steps to file appeals against the orders passed by the High Court for payment of salaries rather proves his defence that he had given the subject approvals in compliance with the orders of the High Court. The detail of the orders passed by the High Court and the opinion of the counsels appearing for the State, that any such appeal should have been filed, was not considered. There was no such material brought on record, nor any such charge was levelled or proved against the petitioner.
26. The writ petition is allowed. The impugned order dated 19.6.2002 passed by the Secretary, Secondary Education, Shiksha Anubhag-I, Government of UP, Lucknow is set aside. The petitioner shall be paid the entire arrears of retiral dues and pension within a period of three months along with 9% interest. The petitioner will also be entitled to Rs. 10,000/- as cost of the writ petition to be recovered from the respondents.
Dt.17.2.2012 RKP/