Heard Sri S.K.Kalia, learned Senior Advocate assisted by Sri Birendra Pratap Singh, learned counsel for the petitioner and learned Additional Chief Standing counsel appearing for the State-respondents.
The instant writ petition has been filed praying for quashing of the Office Memorandum dated 21.11.2019, charge sheet dated 10.08.2020 as well as the Memorandum dated 21.12.2020 which are contained as annexures 1, 2 and 3 to the writ petition respectively.
The case set forth by the petitioner is that the petitioner retired on attaining the age of superannuation on 30.06.2020 while working on the post of Deputy Collector. Prior to his retirement, a memorandum dated 21.11.2019, a copy of which is annexure 1 to the writ petition had been issued whereby the petitioner was informed that the respondents were proceeding to take action against him under the provisions of Rule 7 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules ,1999 (hereinafter referred to as "Rules, 1999") and that an inquiry officer is also being appointed. Nothing further transpired and the petitioner retired on 30.06.2020. Subsequent to his retirement, the petitioner has been served with a charge sheet dated 10.08.2020, a copy of which is annexure 2 to the writ petition levelling various charges against him. Subsequent thereto, through a memorandum dated 21.12.2020, a copy of which is annexure 3 to the writ petition, the sanction of His Excellency the Governor has been given for proceedings against the petitioner in terms of CSR 351 A.
Learned counsel for the petitioner contends that once the petitioner had retired on 30.06.2020 and prior to his retirement, no charge sheet has been served to him, as such subsequent thereto, the service of the charge sheet dated 10.08.2020 would have to strictly adhere to the provisions of CSR 351 A inasmuch as the prior sanction of His Excellency the Governor has to be obtained which is lacking in the instant case inasmuch as the sanction has been given by His Excellency the Governor on 21.12.2020. It is argued that considering the provisions of CSR 351 A there cannot be a post facto sanction by His Excellency the Governor. It is also contended that considering the explanation to CSR 351 A, departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him and in this case admittedly the charges have been framed and issued to the petitioner through a charge sheet dated 10.08.2020, as such it is apparent that the proceedings have started after the retirement of the petitioner whereby strictly attracting the provisions of CSR 351 A. It is thus contended that the proceedings are patently vitiated in the eyes of law being in gross violation of 351 A of the CSR.
On the other hand, learned Additional Chief Standing counsel on the basis of instructions sent by Special Secretary, Appointment-3,Government of U.P, Lucknow dated 10.08.2021 submits that it is not that the departmental proceedings have initiated against the petitioner subsequent to his retirement through the charge sheet dated 10.08.2020 rather the disciplinary proceedings have been continued as were initiated against the petitioner on 21.11.2019 as would be apparent from a perusal of the order, a copy of which is annexure 1 to the writ petition. It is also contended that as the petitioner had retired, as such now the sanction of His Excellency the Governor has been obtained which has been granted on 21.12.2020, accordingly there is no illegality or infirmity with the said orders.
Having heard the learned counsel appearing for the contesting parties and having perused the records it transpires that the petitioner has retired on attaining the age of superannuation on 30.06.2020. Admittedly, the charge sheet has been issued to the petitioner subsequent to his retirement on 10.08.2020. The respondents themselves considering the fact that the petitioner has retired and the charge sheet would now require the sanction of His Excellency the Governor have obtained the sanction which has been granted through an order dated 21.12.2020. The provision of CSR 351 A are categoric inasmuch as the proviso to 351 A specifically provides that where departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall not be instituted say with the sanction of His Excellency the Governor. The explanation to CSR 351 A is also categoric which provides that the departmental proceedings shall be deemed to have been instituted when the charges framed against the petitioner are issued to him.
In the instant case, it is apparent that the charge sheet has only been issued on 10.08.2020 and admittedly the sanction of His Excellency the Governor has been granted on 21.12.2020 i.e the post facto approval to the charge sheet has been given. Thus, the sanction and the charge sheet would prima facie run contrary to the provision of 351 A of the CSR.
In this view of the matter, prima facie a case for interference is made out. As such, it is provided that till the next date of listing, the respondents should not proceed further with the disciplinary proceedings as initiated through charge sheet dated 10.08.2020.
Learned Additional Chief Standing counsel prays for and is granted four weeks time to file a counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List thereafter.
Order Date :- 17.8.2021 Pachhere/-