Hon'ble Rakesh Srivastava, J.
We have heard Sri R.C.Saxena assisted by Sri Gaurav Saxena, the learned counsels for the petitioner and the learned Standing Counsel for the respondents.
The petitioner was functioning as officiating Principal at Jhansi Ayurvedic College, Jhansi (hereinafter referred to as the College) in 1993. It transpires that one Dr. Zafiruddin Ansari filed a Writ Petition No. 7981 of 1992 (S/S) before the Lucknow Bench in which an interim order dated 23.12.1992 was passed. The operative portion of the order is extracted hereunder:-
"This petition shall come up for hearing sometime in the month of February, 1993. Opposite parties Nos.1 and 2 in the meantime, but not later than 2 weeks from today, shall issue orders posting the petitioner, namely, Pr. Zafauddin Ansari on the post of Principal either at Varanasi of Haridwar or any where else where the post of Principal is available."
Based on this order, the State Government issued an order dated 03.03.1993 transferring Dr. Ansari as Principal of the College. By the said order, the petitioner was also directed to hand over the charge. The petitioner, being aggrieved by this order of transfer of Dr. Ansari, filed Writ Petition No. 8410 of 1993 in which an interim order was passed. For facility, the said order is extracted hereunder:-
"Issue notice.
The learned counsel for the petitioner has submitted that the petitioner was promoted to the post of professor on 21st January, 1985 while Dr. Zafaruddin Ansari, respondent no.4 was promoted to the said post on 4th June, 1987. If these facts are correct the petitioner will be entitled to hold the post of Principal at Bundelkhand Government Ayurvedic College, Jhansi. It is clarified that the transfer of Dr. Ansari respondent no.4 is not stayed.
It will be open to the Government to retain Dr. Ansari at Jhansi as Professor."
This order was subsequently, confirmed by an order dated 06.07.1994. It is not known as what is the status of this writ petition. However, we find from the pleadings that Dr. Ansari took charge of the Principal on 20.03.1993. According to the petitioner, this charge was forcibly taken by Dr. Ansari, which resulted in filing of the F.I.R. by the petitioner.
Be that as it may. The fact remains that Dr. Ansari assumed the charge on the post of Principal w.e.f. 20.03.1993 and, since then, the petitioner has remained absent unauthorizedly till the date of his retirement, i.e., till 30.06.1998.
According to the petitioner, he was not allowed to work or attend the office as officiating Principal and, in this regard, made several representations which fell on deaf ears.
On the other hand, the stand of the State is, that several notices were issued to the petitioner asking him to join his duties. Failing any respond from the petitioner, several advertisements in various news papers were issued over a period of time. The petitioner did not respond to the notices so published in various news papers.
The petitioner retired on 30.06.1998 and, on 09.02.2000, a charge sheet was served upon him under Regulation 351-A of the Civil Services Regulations. The petitioner, in response to the said charge sheet, submitted a representation dated 20.02.2000. Thereafter nothing was done, no enquiry was held nor any witnesses were examined and, eventually, the respondents, by the impugned order dated 23.07.1998 passed an order withholding 5% of his pension per month. The petitioner, being aggrieved by the said order, has filed the present writ petition praying for the following reliefs:
"(a) issue a writ, direction or order in the nature of certiorari quashing the approval letter dated 30.6.1998, chargesheet dated 8.2.2000, order dated 30.11.1993, rejecting the representations, the enquiry report dated 10.7.2004 and the punishment order dated 23.7.2008, contained in Annexure No.1, 2, 3, 4 and 5 respectively to the writ petition.
(b) issue a writ or order in the nature of mandamus commanding the opposite parties to pay the arrears of salary and allowances of the petitioner from March, 1993 upto 30.6.1998 together with interest deeming the petitioner to have continuously continued in service.
(c) a further writ direction or order in the nature of mandamus commanding the opposite parties to release the entire retiral benefits of the petitioner as admissible for the post of Principal and Superintendent without any deduction and also pay interest at the amount due and payable.
(d) any other writ direction or order which is deemed fit and proper under the circumstances of the case may also be issued in favour of the petitioner imposing the heavy cost against the opposite parties and directing them to further pay appropriate compensation in the shape of damages for running the family of the petitioner and allow the writ petition.
Having heard the learned counsel for the parties, we find that the charge sheet was served upon the petitioner on 08.02.2000 i.e. after the date of his retirement, which occurred on 30.06.1998. No charge sheet could have been served upon the petitioner unless and until prior sanction was taken from the Governor under Regulation 351-A of the Civil Services Regulation, which admittedly had not been obtained by the respondents. From the impugned order, we find that necessary permission was obtained on 21.12.2000 i.e. post facto sanction was obtained. For facility, Regulation 351-A of the Civil Services Regulations, is extracted hereunder:
"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 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:
(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 on duty either before retirement or during re-employment, shall be 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 institutes such proceedings shall without delay intimate the fact to the audit officer concerned."
In view of the aforesaid provision, it is essential that if departmental proceedings are not initiated prior to the retirement of a government employee, three conditions are required to be fulfilled, namely, that a sanction of the Governor is required and that proceedings should not be beyond a period of four years and thirdly it can be done when the order of dismissal may be passed. We of the opinion that post facto sanction could not be obtained by the respondents on 21.12.2000 from the Governor under Regulation 351-A of the Civil Services Regulations nor any sanction could cure the initial defect, namely, issuance of a charge sheet which was invalid at the initial stage itself. Once a person retires, no charge sheet could be issued unless prior sanction was obtained from the Governor, which in instant case was not obtained.
Consequently, on this short ground, the entire disciplinary proceeding initiated against the petitioner are ex-facie illegal and invalid. The punishment order passed pursuant to these proceedings are wholly illegal and cannot be sustained. The impugned order dated 23.07.2008 is quashed. All disciplinary proceedings initiated pursuant to the charge sheet are also quashed.
The petitioner has further prayed that arrears of salary and allowances from March, 1993 till the date of retirement i.e. till 30.06.1998 along with interest should be granted. The contention of the petitioner is, that he was forcibly restrained from officiating as the Principal and, that he had made various representations praying that he should be given back the charge of officiating Principal of the College, which fell on deaf ears and that Dr. Ansari was neither transferred to any other place nor the order of the writ Court dated 16.03.1993 was ever complied with by the respondents. The learned counsel has placed a lot of stress on the interim order granted by this Court dated 08.04.1993 contending that the petitioner being senior to Dr. Ansari was entitled to hold the post of officiating Principal of the College and that it was open to the Government to retain Dr. Ansari at the College as a Professor but not as the officiating Principal of that College. The learned counsel further stressed that on account of these extenuating circumstances he could not join the post and, consequently, he should be given the salary and that the principle of "no work no pay" should not be made applicable in the instant case. In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in Commissioner, Karnataka Housing Board Vs. C. Muddaiah, (2007) 7 SCC 689, wherein the Supreme Court held:
"34. We are conscious and mindful that even in absence of statutory provision, normal rule is "no work no pay". In appropriate cases, however, a court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering "as if he had worked". It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a court of law and if such directions are issued by a court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected."
Having given our thoughtful consideration in the matter, we are of the opinion that the petitioner is not entitled to the relief of grant of arrears of salary for the period 1993 to 1998. In the instant case, we cannot go into the question as to who was senior, namely, Dr. Ansari or the petitioner nor can we go into the circumstances as to why the petitioner could not join the duty. Admittedly, notices were sent to the petitioner, which were also published. It cannot be said by the petitioner that he was unaware about these notices. Petitioner did not apply for leave nor replied to those notices. In any case, the petitioner questioned the transfer of Dr. Ansari in Writ Petition No. 8410 of 1993 and, if during the pendency of that writ petition, the petitioner was dispossessed or was not allowed to work as officiating Principal, he should have moved an appropriate application in that writ petition. We are also fortified by the observation made in the interim order dated 16.03.1993, namely, that the transfer of Dr. Ansari was not stayed. Once that observation falls from the Court, it was always open to Dr. Ansari to join as the officiating Principal of the College since there was no impediment before him or before the State authorities.
Consequently, for the reasons stated aforesaid, the petitioner is not entitled to the relief of salary for the period from 1993 to 1998.
For the reasons stated aforesaid, the writ petition is partly allowed. The impugned order is quashed. The petitioner would be entitled to the pensionary benefit, which will be recalculated in the light of the observations made above.
Dated:16.12.2014 MAA/-