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PETITIONER: STATE OF U.P. & ANR.

       Vs.

RESPONDENT: SHRI KRISHNA PANDEY

DATE OF JUDGMENT:       01/03/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 AIR 1656            1996 SCALE  (3)1

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have  heard learned  counsel  on  both  sides.  This appeal by  special leave  arises from  the order of the High Court of  Allahabad, made on December 2, 1993 in Civil Misc. Writ Petition  No.29951 of  1993. The  admitted position  is that before  departmental enquiry  was initiated against the respondent  for   embezzlement  of   Rs.2,47,479/-,  on  hit attaining the  age of  superannuation on  March 31, 1987, he was  allowed   to  retire  from  service.  The  departmental proceedings thereafter  were initiated  against him.  F.I.R. was lodged and investigation is stated to be in progress. No such rule to continue the proceedings after retirement as is in vogue  in some State or Central Service Pension Rules, is in operation.  So the  action  of  departmental  proceedings cannot be  continued. There  would be  no impediment to have the investigation into the offences continued. However, when pension was  not paid to him it came to be challenged in the High Court  in the  above writ petition which the High Court has allowed  it and  has directed  to pay  the pension. Thus this appeal by special leave.      The only  provision brought to our notice is Rule 351-A which reads as under:      "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  mis-conduct,   or  to   have      caused pecuniary loss to Government

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    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 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   institutes           such proceedings shall without           delay intimate the fact to the           Audit Officer concerned."      A reading  thereof clearly  indicates that the Governor reserves to  himself the  power and  right  to  withhold  or

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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 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  than  4  years  before  the institution of such proceedings.      Explanation to the rule purports to give the meaning to the words  ’commencement of  departmental  proceedings’.  It says that  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, from such date the date  of suspension  and the proceedings shall be deemed to have been instituted in the case of criminal proceedings, on the  date on which complaint is made or a charge-sheet is submitted to  a criminal  court; and  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 the civil Court. As  soon as the proceedings of the nature referred in the articles  are instituted, the authority which institutes such proceedings  shall without  delay intimate  the fact to the audit officer of the concerned.      It would  thus be seen that proceedings are required to be  instituted   against   a   delinquent   officer   before retirement. There  is no  specific  provision  allowing  the officer to continue in service nor any order passed to allow him  to  continue  on  re-employment  till  the  enquiry  is completed, without  allowing him  to  retire  from  service. Equally, there  is no  provision  that  the  proceedings  be initiated as  disciplinary measure  and the action initiated earlier would remain unabated after retirement. If Rule 351- A is  to be  operative in respect of pending proceedings, by necessary implication,  prior sanction  of the  Governor  to continue the  proceedings against  him is  required. On  the other hand, the rule also would indicate that if the officer caused pecuniary  loss or committed embezzlement etc. due to misconduct  or  negligence  or  dereliction  of  duty,  then proceedings  should  also  be  instituted  after  retirement against the  officer as  expeditiously as  possible. But the events of  misconduct etc.  which may  have resulted  in the loss to  the Government or embezzlement, i.e., the cause for the institution  of proceedings, should not have taken place more than  four years  before the  date  of  institution  of proceedings. In  other words,  the departmental  proceedings must be  instituted before lapse of four years from the date on which  the event  of misconduct  etc.  had  taken  place. Admittedly, in  this case  the officer  had retired on March 31, 1987  and the  proceedings were  initiated on  April 21, 1991. Obviously,  the event  of  embezzlement  which  caused pecuniary loss  to the  State took place prior to four years from the  date of his retirement. Under these circumstances, the State  had disabled itself by their deliberate omissions to  take  appropriate  action  against  the  respondent  and allowed the  officer to  escape from  the provisions of Rule 351-A of  the Rules. This order does not preclude proceeding with the  investigation into  the offence  and taking action

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thereon.      The appeal is accordingly dismissed. No costs.