A bare perusal of the afore-quoted provision of Article 351-A
of the CSR shows that once the government servant retires, it is the Governor who has the right of withholding or withdrawing the pension or any part of it, permanently or for a specified period. The Governor under the said provision has also the right of recovery from the pension of the whole or part of any pecuniary loss caused to the Government, if the employee is found in departmental or judicial proceedings to have caused pecuniary loss to Government by misconduct or negligence during his service or he has been found guilty of gross misconduct. {Para 17}
18. It is, thus, clear that after retirement, withholding or
withdrawing a pension and ordering the recovery from pension is permissible to be caused only by the Governor i.e. the State
Government in terms of the Rules of Business, not only in case
such employee is found causing pecuniary loss to the Government by his misconduct or negligence but also in a cases when the employee concerned is found guilty of grave misconduct.
19. The provision of first proviso appended to Article 351-A of
the CSR clearly prohibits institution of departmental proceedings except with the sanction of Governor if such proceedings were not instituted while the employee was on duty either before retirement or during re-employment. Thus, Article 351-A of CSR puts a prohibition of initiating the departmental proceedings in a case of retired government servant, however, such proceedings are permissible to be instituted with the sanction of Governor, that too, in respect of an event which took place not more than four years before institution of such proceedings. The provision further provides that departmental enquiry in such an event shall be conducted by such authority and at such place as the Governor may direct and in accordance with the procedure applicable.
ALLAHABAD HIGH COURT
Case :- SPECIAL APPEAL No. - 408 of 2021
Appellant :- Gaya Prasad Yadav
Respondent :- State Of U.P.Thru.Prin.Secy.Home Lucknow And
Anther
Coram:
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Shree Prakash Singh,J.
Order Date :- 23.9.2022
1. Heard Sri Amit Bose, learned Senior Advocate, assisted by
Sri Mohd. Shujauddin Waris for the appellant-petitioner and the
learned State Counsel representing the State-respondents.
2. We have also perused the record available before us on this
Special Appeal.
3. By means of this Special Appeal instituted under Chapter
VIII Rule 5 of the Rules of the Court, challenge has been made by
the appellant-petitioner to a judgment and order dated 11.08.2021,
passed by the learned Single Judge in Writ Petition No.7483(SS) of
2019 whereby the writ petition has been dismissed and the order
dated 01.11.2018 reiterating the order of dismissal of the appellantpetitioner
has been affirmed.
4. The appellant-petitioner was recruited as Constable of Armed
Police in the establishment of the Uttar Pradesh Police. On certain
charges relating to obtaining employment on the basis of certain
allegedly forged education certificates, he was dismissed from
service by means of an order dated 20.06.2009, passed by the
Superintendent of Police, Sultanpur. The said order of dismissal
was challenged by the appellant-petitioner by filing Writ Petition
No.5847(SS) of 2009, which was allowed by this Court by means
of order dated 11.09.2013 whereby the order of dismissal passed
by the Superintendent of Police, Sultanpur dated 20.06.2009 was
set aside with the direction that the appellant-petitioner will be
reinstated in service. While allowing the Writ Petition No.5847(SS)
of 2009, this Court further observed that it will be open to the
Superintendent of Police, Ambedkar Nagar to take action in
accordance with law.
5. In compliance of the aforesaid order dated 11.09.2013,
passed by this Court, the appellant-petitioner was reinstated by
means of order dated 31.01.2014, passed by the Superintendent of
Police, Ambedkar Nagar, however, the departmental proceedings
were further carried against the appellant-petitioner and he was
again dismissed from service by means of order dated 04.07.2014,
passed by the Superintendent of Police, Ambedkar Nagar. By
means of another order passed on the same day i.e. 04.07.2014, the
representation of the appellant-petitioner regarding payment of
back wages was also rejected.
6. Both the aforesaid two orders dated 04.07.2014 whereby the
appellant-petitioner was dismissed from service and his claim for
payment of back wages was rejected became the subject matter of
the Writ Petition No.5703(SS) of 2014 which was decided by the
learned Single Judge of this Court by means of an order dated
13.03.2018. By the said order, the order of dismissal dated
04.07.2014 was set aside with the further stipulation therein that
the Superintendent of Police, Ambedkar Nagar shall pass a fresh
order in accordance with law. The reason indicated in the order
dated 13.03.2018, passed by this Court while quashing the order of
punishment of dismissal was that the order of punishment of
dismissal which was challenged did not refer to the show cause
notice and the reply submitted by the appellant-petitioner to the
said show cause notice and accordingly it was held that the
appellant-petitioner was denied opportunity of hearing.
7. The appellant-petitioner, in the meantime, attained the age of
superannuation on 31.05.2015. In compliance of the order dated
13.03.2018, passed by this Court in Writ Petition No. 5703(SS) of
2014, a show cause notice was given to the appellant-petitioner on
22.05.2018 to which he submitted his reply by means of his letter
dated 23.07.2018. The Superintendent of Police, Ambedkar Nagar
thereafter passed the order dated 01.11.2018 who reiterated the
earlier order of dismissal and further stated that it will not be
lawful to reinstate the appellant-petitioner in service. It is this order
dated 01.11.2018 which was challenged by the appellant-petitioner
by instituting the proceedings of Writ Petition No.7483(SS) of
2019, which has been dismissed by means of judgment and order
dated 11.08.2021, which is under challenge herein.
8. Learned Senior Advocate, Sri Bose impeaching the judgment
and order passed by the learned Single Judge has vehemently
argued that since the appellant-petitioner had attained the age of
superannuation on 31.05.2015, as such in terms of the provisions
contained in Article 351-A of the Civil Service Regulations (herein
after referred to as “CSR”), it is the Governor who had the
authority to take action which could be confined only to the nature
of action permissible and given in the said provision, that is to say,
curtailment or withholding the pension or recovery therefrom.
9. It has further been argued on behalf of the appellantpetitioner
that once the appellant-petitioner attained the age of
superannuation and retired on 31.05.2015, for all purposes,
relationship between the appellant-petitioner and the State
authorities so far as the employment is concerned, got severed and
hence, having regard to the provision contained in Article 351-A of
the CSR, the appellant-petitioner could not have been inflicted
with the punishment of dismissal from service with retrospective
date.
10. Sri Bose, learned Senior Advocate has, thus, argued that the
issue raised in the writ petition has not been addressed by the
learned Single Judge while passing the judgment and order dated
11.08.2021, inasmuch as that the learned Single Judge went to
examine the issue as to whether after the appellant-petitioner
attained the age of superannuation, any sanction to continue with
the departmental proceedings, from the Governor as per the
requirement of Article 351-A of the CSR was required or not. It has
thus been argued that this issue neither arose nor was argued before
the learned Single Judge. Submission further is that, as a matter of
fact, in view of law laid down by Hon’ble Supreme Court in the
case of State of U.P. and others Vs. Harihar Bholenath,
reported in (2006) 13 Supreme Court Cases 460, the said issue is
well settled according to which in case the departmental
proceedings are instituted against the government servant prior to
the government servant attains the age of superannuation and
retires then in that eventuality, no sanction of the Governor is
required for continuance of the departmental proceedings in terms
of Article 351-A of the CSR.
11. Sri Bose has further argued that the issue raised before the
learned Single Judge was that once the government servant retires
and departmental proceedings were already instituted against him
prior to his retirement, it is not that any sanction for continuance of
the disciplinary proceedings is required; rather in such a situation,
it is only the Governor who can take certain action permissible
under Article 351-A of the CSR. According to him, the only action
permissible against a retired government servant on conclusion of
the departmental enquiry is withholding or withdrawing the
pension or any part of it for permanently or for a specified period
and ordering for recovery from the pension of the whole or part of
it.
12. It has, thus, been argued on behalf of the appellant-petitioner
that in the instant case, the punishment of order of dismissal has
been passed by the Superintendent of Police and not by the
Governor (i.e. the State Government in accordance with the Rules
of Business), that too, retrospectively, as such the order of
dismissal is not sustainable, however, learned Single Judge has,
thus, erred in law in upholding the dismissal of the appellantpetitioner.
13. On the other hand, learned State Counsel defending the
judgment and order under appeal passed by the learned Single
Judge, has submitted that in view of the law laid down by the
Hon’ble Supreme Court in the case of Chairman-Cum-Managing
Director, Mahanadi Coalfields Limited Vs. Rabindranath
Choubey, reported in AIR 2020 Supreme Court 2978, it is
permissible for the Disciplinary Authority to impose punishment of
dismissal after conclusion of disciplinary proceedings, in a
situation where such disciplinary proceedings were initiated
against the employee concerned before he had attained the age of
superannuation and retired. In this view, submission of learned
State Counsel is that the judgment and order under appeal herein
passed by the learned Single Judge does not require any
interference in this Special Appeal, which is liable to be dismissed.
14. We have taken into consideration the rival submissions made
by the learned counsel representing the respective parties and have
also gone through the records available before us.
15. The issue which emerges for our consideration and reflection
in this case is as to whether in view of the provisions contained in
Article 351-A of the CSR, it was open to the State-respondents to
have inflicted punishment of dismissal from service upon the
appellant-petitioner once he had retired which is other than the
action permissible under Article 351-A of the CSR. In other words,
the issue is as to whether the order of dismissal could have been
passed by the Superintendent of Police, Ambedkar Nagar after the
appellant-petitioner had retired on attaining the age of
superannuation. The other issue which needs our consideration is
as to whether the order of dismissal of appellant-petitioner could
have been passed with retrospective date considering the
provisions of Article 351-A of the CSR and the provisions
contained in U.P. Police Officers of Subordinate Ranks
(Punishment and Appeal) Rules, 1991.
16. Article 351-A of the CSR is extracted herein under :
“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 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
proceeding, 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 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 purposes 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 and earlier date, on
such date; and
(b) judicial proceedings shall be deemed to have been
instituted :
(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”.
17. A bare perusal of the afore-quoted provision of Article 351-A
of the CSR shows that once the government servant retires, it is the
Governor who has the right of withholding or withdrawing the
pension or any part of it, permanently or for a specified period. The
Governor under the said provision has also the right of recovery
from the pension of the whole or part of any pecuniary loss caused
to the Government, if the employee is found in departmental or
judicial proceedings to have caused pecuniary loss to Government
by misconduct or negligence during his service or he has been
found guilty of gross misconduct.
18. It is, thus, clear that after retirement, withholding or
withdrawing a pension and ordering the recovery from pension is
permissible to be caused only by the Governor i.e. the State
Government in terms of the Rules of Business, not only in case
such employee is found causing pecuniary loss to the Government
by his misconduct or negligence but also in a cases when the
employee concerned is found guilty of grave misconduct.
19. The provision of first proviso appended to Article 351-A of
the CSR clearly prohibits institution of departmental proceedings
except with the sanction of Governor if such proceedings were not
instituted while the employee was on duty either before retirement
or during re-employment. Thus, Article 351-A of CSR puts a
prohibition of initiating the departmental proceedings in a case of
retired government servant, however, such proceedings are
permissible to be instituted with the sanction of Governor, that too,
in respect of an event which took place not more than four years
before institution of such proceedings. The provision further
provides that departmental enquiry in such an event shall be
conducted by such authority and at such place as the Governor may
direct and in accordance with the procedure applicable.
20. Accordingly, we are of the considered opinion that in the
instant case, since the departmental proceedings were already
instituted against the appellant-petitioner prior to his retirement on
attaining the age of superannuation, no sanction under Article 351-
A of the CSR was required to be taken from the Governor. This
view is fully supported by the judgment of Hon’ble Supreme Court
in the case of Harihar Bholenath (supra). To this extent we do
not find any error in the judgment of learned Single Judge which is
under appeal herein.
21. In terms of the provisions contained in Article 351-A of the
CSR, it is the Governor who reserves to himself the right of
withholding or withdrawing a pension or any part of it and right of
9
ordering the recovery from a pension. Opening words of Article
351-A, namely, ‘The Governor reserves to himself the right’ are
very important to be noticed. The use of this phrase would mean
that no one else has a right including Disciplinary Authority or
Appointing Authority to withdraw or withhold pension and
ordering recovery from pension in respect of government servant
who has retired on attaining the age of superannuation. In this
view, the action, if any, against a government servant, who has
retired, is permissible to be taken only by the Governor and no one
else.
22. Having observed as above, what we further need to reflect
upon is the issue as to whether the order of punishment of
dismissal from service can be passed in case of the appellantpetitioner
who had already retired much prior to the date on which
the order under challenge before the learned Single Judge i.e. order
dated 01.11.2018 was passed.
23. Learned State Counsel has laid great emphasis on the law
laid down by Hon’ble Supreme Court in the case of
Rabindranath Choubey (supra). The judgment in the case of
Rabindranath Choubey (supra) has been rendered by a Bench of
three Hon’ble Judges of Hon’ble Supreme Court. The majority
view in the said judgment was expressed by Hon’ble Mr. Justice
M.R. Shah with Hon’ble Mr. Justice Arun Mishra. The majority
view expressed in the said case based on consideration of the
relevant rules applicable for conducting the disciplinary
proceedings in respect of employee concerned. The employee in
the said case was employed with Mahanadi Coalfields Limited
which had framed Conduct, Discipline and Appeal Rules,1978.
Rule 27 of the said Rules mentions the authority where employer
has the power to impose punishment including punishment of
10
dismissal. Rule 34.2 of the said Rules provides that disciplinary
proceedings, if instituted while the employee was in service before
his retirement, shall be deemed to be proceeding even after the
final retirement of the employee and shall be continued and
concluded as if the employee had continued in service.
24. Rule 34.2 of the Conduct, Discipline and Appeal Rules in the
case of Rabindranath Choubey (supra) as extracted by the
Hon’ble Supreme Court in the said judgment, is as follows :
“34.2. Disciplinary proceeding, if instituted
while the employee was in service whether before his
retirement or during his reemployment shall, after the
final retirement of the employee, be deemed to be
proceeding and shall be continued and concluded by
the authority by which it was commenced in the same
manner as if the employee had continued in service.”
25. From a perusal of Rule 34.2 of Conduct, Discipline and
Appeal Rules as discussed in the case of Rabindranath Choubey
(supra), it is clear that the said rule creates a legal fiction to the
effect that if disciplinary proceedings are instituted prior to
retirement of the employee concerned, such disciplinary
proceedings shall not only be deemed to be proceedings even after
retirement, but also that such proceedings shall be continued in the
same manner, if the employee had continued in service. Thus,
considering the wording of Rule 34.2 of Conduct, Discipline and
Appeal Rules in the case of Rabindranath Choubey (supra) it is
seen that in the organization concerned where the employee was
working, even after retirement the employee is deemed to be in
continued in service even if he retires.
26. The majority view in the case of Rabindranath Choubey
(supra), thus, having regard to the provision contained in Rule
34.2 of the Conduct, Discipline and Appeal Rules applicable to the
11
employee in the said case, has given a finding that on conclusion of
such disciplinary proceedings any of the penalties provided under
the Rule can be imposed by the authority concerned including the
order of dismissal.
27. Hon’ble Supreme Court in the case of Rabindranath
Choubey (supra) has taken into consideration the law laid down
by the Division Bench of Hon’ble Supreme Court in the case of
UCO Bank and others, Vs. Prabhakar Sadashiv Karvade,
reported in (2018) 14 Supreme Court Cases 98, wherein it has
clearly been held that even though a departmental enquiry
instituted against an officer/employee before his retirement can
continue even after his retirement, none of the substantive
penalties, which include dismissal from service, can be imposed on
the officer/employee after his retirement on attaining the age of
superannuation. Hon’ble Supreme Court in the said case has
observed that master and servant relationship between the
employee and the Bank comes to an end for all practical purposes
on the date the employee concerned is superannuated and further
that departmental enquiry initiated against the employee before his
retirement could be continued only for a limited purpose for
determining whether or not he is entitled for pensionary benefits
and gratuity. Hon’ble Supreme Court in the said case has clearly
observed that an order of dismissal or removal from service can be
passed only when an employee is in service and further that if the
person is not in employment, the question of terminating his
services ordinarily would not arise unless there exists a specific
rule in that behalf.
28. However, so far as the case of Rabindranath Choubey
(supra) is concerned, it is relevant to note that the Conduct,
Discipline and Appeal Rules applicable to the employee in the said
12
case created a legal fiction by specifically providing that in case
the departmental proceedings were instituted prior to retirement of
an employee concerned, such proceedings shall be deemed to be
continued and shall be concluded by the authority by which such
proceedings were commenced in the same manner as if the
employee had continued in service.
29. While deducing the ratio in the case of Rabindranath
Choubey (supra), we cannot loose sight of the provisions of the
Rules, specifically Rule 34.2 of the Conduct, Discipline and
Appeal Rules applicable in the said case. Thus, if we read the case
of Rabindranath Choubey (supra) and the case of Prabhakar
Sadashiv Karvade(supra) together, the principle of law, in our
considered opinion, which emerges, is that once the employee
retires on attaining the age of superannuation, punishment of
dismissal or removal from service cannot be inflicted for the
reason that if the person is not in employment, the question of
terminating his services would not arise, unless there exists a
specific rule in that behalf.
30. What we notice in the judgment in the case of Rabindranath
Choubey (supra), which has heavily been relied upon by the
learned State Counsel, opposing the instant special appeal, is that a
specific rule under the Conduct, Discipline and Appeal Rules
provided in the said case that the employee will be deemed to
continue in service even after retirement. In fact, the language of
Rule 34.2 of the Conduct, Discipline and Appeal Rules in the case
of Rabindranath Choubey (supra) is very relevant to cull the
ratio laid down therein. According to Rule 34.2 of the Conduct,
Discipline and Appeal Rules as discussed in the case of
Rabindranath Choubey (supra), in a situation where the
disciplinary proceedings were instituted while the employee was in
13
service, such disciplinary proceedings shall be deemed to be
proceeding and shall be continued and concluded by the authority
which had commenced such proceedings in the same manner as if
the employee had continued in service. It is in the light of the said
Rule that Hon’ble Supreme Court in the case of Rabindranth
Choubey (subra) has observed that on conclusion of the
disciplinary proceedings, the penalty of dismissal could be
imposed under the Conduct, Discipline and Appeal Rules
applicable to the said case.
31. The question, therefore, in this case to be considered as to
whether any such rule, as discussed in the case of Rabindranath
Choubey(supra) by the Hon’ble Supreme Court exists in the
Conduct, Discipline and Appeal Rules governing the appellantpetitioner.
32. The State Government in exercise of its powers vested in it
under the Police Act, 1861 has framed “The U.P. Police Officers of
the Subordinate Ranks(Punishment and Appeal) Rules, 1991”. The
Rules are statutory in nature. Two types of punishment are
provided in Rule 4, according to which major penalties include (i)
dismissal from service, (ii) removal from service and, (iii)
reduction in rank including reduction to a lower-scale or to a lower
stage in a time scale whereas minor penalties include (i)
withholding of promotion, (ii) fine not exceeding one month’s pay,
(iii) withholding of increment, including stoppage at an efficiency
bar and, (iv) Censure. The procedure for award of punishment is
provided in Rule 14.
33. Rule 14(1) provides for the procedure for major penalty,
according to which the proceedings are to be conducted in
accordance with the procedure laid down in appendix-I appended
to the Rules. Rule 14(2) states that minor penalty may be imposed
14
after informing the Police Officer in writing of the action to be
proposed to be taken against him and what imputation of the act or
omission on which action is proposed to be taken after giving him
reasonable opportunity of making representation.
34. In U.P. Police Officers of Subordinate Ranks (Punishment
and Appeal) Rules, 1991 there is no provision akin to the provision
of 34.2 of the Discipline and Appeal Rules, as discussed in the case
of Rabindranath Choubey (supra). Even the Civil Service
Regulations does not contain any such rule or provision which may
permit passing of order of dismissal or for that matter any other
penalty in case the employee has retired. Learned State Counsel
has also not been able to place any such rule before us.
35. In absence of any rule, which permits imposition of
punishment of dismissal after retirement or which deems the
employee-employer relationship to be continued even after
retirement for the purposes of disciplinary proceedings, in our
opinion, the judgment of Hon’ble Supreme Court in the case of
Rabindranath Choubey (supra) does not have any application in
this case. Accordingly the reliance placed by the learned State
Counsel on the said judgment is misplaced. As already observed
above, Hon’ble Supreme Court in the case of Prabhakar
Sadashiv Karvade (supra) has clearly held that penalty of
dismissal cannot be imposed on an officer/employee after his
retirement after attaining the age of superannuation unless there
exists a specific rule in that behalf. If the disciplinary enquiry is
instituted prior to retirement of the employee concerned, the same
will continue by operation of Article 351A of Civil Service
Regulations as held by Hon’ble Supreme Court in the case of
Harihar Bholenath (supra). However, in such a case if the
employee is found to be guilty of grave misconduct of or is found
15
to have caused pecuniary loss to the Government, it is the
Governor who can take action as provided in Article 351-A of the
Civil Service Regulations.
36. Admittedly, in the instant case the proceedings were
instituted prior to retirement of the appellant-petitioner, however,
prior to passing of the order dated 01.11.2018 reiterating the order
of dismissal, he had already retired on 31.05.2015 on his attaining
the age of superannuation and accordingly after 31.05.2015 the
employee-employer relationship had already got severed and thus
only action permissible against him is in terms of the provisions
contained in Article 351A of Civil Service Regulations.
37. Learned Single Judge while passing the judgment and order
under appeal has not addressed the aforesaid issues, though these
issues were contended not only in the writ petition but even in the
reply submitted by the appellant-petitioner to the show cause
notice dated 22.05.2018. Learned Single Judge while passing the
judgment and order under appeal appears to have lost sight of the
aforesaid aspects of the matter and accordingly, in our opinion, the
judgment rendered by the learned Single Judge is not tenable.
38. Resultantly, the special appeal is allowed. The judgment and
order dated 11.08.2021 passed by the learned Single Judge in Writ
Petition No.7483 (S/S) of 2019 is hereby set aside. The order dated
01.11.2018 passed by the Superintendent of Police, Ambedkar
Nagar is also set aside.
39. However, it will be open to the respondents to take action in
terms of the provisions contained in Article 351-A of Civil Service
Regulations and in case decision to take such action is taken, the
process thereof shall be completed within three months from today.
Order Date :- 23.9.2022
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