This writ petition has been filed by the petitioner with a prayer to quash the order dated 2.2.2007 passed by respondent No. 1 and further for a direction to respondent No. 3 to pay the retiral benefit as well as pension of the petitioner.
The facts of the case in brief are that the petitioner was initially appointed on the post of Temporary Clerk in a leave vacancy in the City Board Muzaffar Nagar i.e. Nagar Palika Parishad. He was confirmed on 25.8.1968. On 17.5.1996, he was transferred on deputation from Nagar Palika Parishad to District Urban Development Authority, Muzaffar Nagar. He retired on 31.12.2006 while still working under the District Urban Development Authority, Muzaffar Nagar. After his retirement, three show-cause notices all dated 12.1.2007 were issued to him by the District Magistrate/Chairman, District Urban Development Authority, Muzaffar Nagar. The petitioner submitted his reply denying the allegations made in the show cause notices. Thereafter, by impugned orders all dated 30.10.2007 in the connected writ petitions, recovery have been made from the retiral benefits of the petitioner.
I have heard Sri Pramod Kumar, learned counsel appearing for the petitioner, Sri Sujeet Kumar appearing for respondent Nos. 2 and 3 and learned Additional Chief Standing Counsel appearing for the respondent No. 1. None appears for Nagar Palika Parishad, Respondent No. 4. List has been revised.
The contention of the learned counsel for the petitioner is that the U.P. Palika (Centralised) Service Rules, 1966, are applicable to him which fact is disputed to the learned counsel for the respondents present. According to the petitioner, prior to the passing of the impugned order, it was necessary to take sanction of the Governor in terms of the provisions of Rule 351-A and since no sanction has been taken from the Governor, the impugned orders are bad in law. Rule 351-A of the U.P. Civil Services Regulation reads as follows:
"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 f ordering the recovery from a pension of the whole 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 re-employment--
(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 not 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.
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
(i) in the case of criminal proceedings, on the date on which a 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 instituted such proceedings shall without delay intimate tht fact to the Audit Officer concerned."
The Supreme Court, in the case reported in 1996 (9) SCC 395, State of U.P. and Another Vs. Krishna Pandey has held as follows:
"4. A reading thereof clearly indicates that the Governor reserves to himself the power and right to withhold or withdraw pension or a part thereof, whether permanently or for a specified period. Equally, he has right to order recovery from pension of the whole or part of any pecuniary loss caused to Government when it is found in a departmental or judicial proceedings that the delinquent was guilty of grave misconduct or has caused pecuniary loss to the Government by his misconduct or negligence while he was continuing in service including the period of his re-employment after retirement. But the continuing in service including the period of his re-employment after retirement. But the conditions precedent are that the departmental proceedings should be initiated only either before retirement or during re-employment and the same shall not be instituted without the sanction of the Governor. It should be in respect of an event which may have taken place not more that 4 years before the institution of such proceedings."
The petitioner has admittedly retired from service on 31.12.2006. The respondents have not been able to show that sanction was taken from the Governor before proceeding departmentally, therefore, the law laid down by the Supreme Court in the case of Krishna Pandey (Supra) squarely applies in the present case.
In view of the particular facts of this case and the law laid down by the Supreme Court, the impugned order dated 2.2.2007 deserves to be quashed and is accordingly quashed. The writ petition is accordingly allowed. The impugned orders dated 30.10.2007 and 5.2.2007 in the connected Writ Petition Nos. 5060 of 2008, 5061 of 2008 and 5063 of 2008 are quashed and the said writ petitions are also allowed.
A direction is issued to the respondent No. 4, Nagar Palika Parishad to release the entire retiral benefits of the petitioner. This direction shall be carried out by the respondent No. 4, the Executive Officer, Nagar Palika Parishad within a period of three months from the date of receipt of a certified copy of this order by him.
Order Date :- 2.7.2012/Arun K. Singh