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CASE NO.: Appeal (civil)  7839-7840 of 2004

PETITIONER: State of U.P. & Others

RESPONDENT: Gulab Shankar Srivastava

DATE OF JUDGMENT: 03/12/2004

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

[Arising out of SLP (C) Nos.12108-12109 of 2003]

KAPADIA, J.

       Leave granted.

       These appeals are directed against two sets of orders  passed by the High Court of Allahabad, both, dated 30.01.2003  dismissing CMWP No.9951 of 2002 filed by State of U.P. and  simultaneously allowing CMWP No.41586 of 1999 filed by the  respondent herein, directing payment of all consequential  benefits, as if the order of punishment dated 19.4.1993 had not  been passed, with interest @ 10% per annum.

       The relevant facts giving rise to these appeals are  necessary to be recapitulated.   

       Gulab Shankar Srivastava, the respondent herein, was  posted on 30.12.1987 as Assistant Deputy Director in the  Finance Department, Directorate of Education, U.P. As  Assistant Deputy Director, he was required to deal with the  matters concerning financial sanction of salaries payable to the  staff under three language formula and reimbursement of fees  of girls and scheduled castes and scheduled tribes from the  allocations made by the State.  On 26.4.1988, he was  suspended.  On 2.1.1989, he was charge-sheeted.  In all, 48  charges were framed and they inter alia related to irregularities  in the matter of preparation of budget and sanctioning grants  without obtaining prior approval from his superiors. On  7.5.1990, he replied and denied the said charges.  On 3.4.1991,  the Enquiry Officer submitted his report, in which charge nos.7  and 20 were found to be fully proved whereas charge nos.2, 4,  5, 8, 9, 10, 13, 14, 19, 21, 22, 28, 35, 36, 38, 42, 43, 44, 45, 46  and 47 were found to be partly proved.  By his report, the  Enquiry Officer proposed stoppage of three annual increments  with permanent effect.  By letter dated 12.10.1992, the  delinquent was asked by the Appointing Authority to submit his  reply to the enquiry report.  By order dated 19.4.1993, the  disciplinary authority, after considering the material on record  imposed the punishment of reduction to the lowest stage of his  pay scale of Rs.2200-75-2600-E.B.-100-4000.   

       To complete the chronology of events, the respondent  herein, challenged the order dated 19.4.1993 by filing Claim  Petition No.1393 of 1993 before the State Public Services  Tribunal, Lucknow, in which he alleged lack of opportunity of

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hearing, non-supply of vital documents, denial of opportunity to  cross-examine the witnesses and breach of Civil Services  (Classification, Control & Appeal) Rules.  He further submitted  that the impugned punishment amounted to a major punishment  which warranted full-fledged enquiry, whereas what was held  was a summary enquiry and consequently, the said order dated  19.4.1993 was arbitrary, illegal and bad in law.

       The said claim petition was contested by the appellants  herein stating, that, the delinquent had committed serious  financial irregularities in performance of his duties; that the  copies of all relevant documents in support of the charges were  supplied; that inspection of the documents was also given; and  that the said order dated 19.4.1993 was passed after giving full  opportunity of hearing to the respondent herein.  That, looking  to the gravity of charges, appropriate punishment of reduction  to the lowest stage in the time scale was awarded both  justifiably and in accordance with the provisions of Civil  Services (Conduct & Disciplinary) Rules.

       By judgment and order dated 28.2.1998, the Tribunal,  held, that, the punishment of reduction to the lowest stage of the  pay scale was a major punishment; that the charge-sheeted  employee was not supplied with the necessary documents  despite repeated demands; that out of 48 charges, no details of  the documents in support of 39 charges were ever given; that  mere permission to inspect the documents was not sufficient  compliance of law, particularly when 48 charges were levelled;  that the respondent herein was prevented from cross-examining  the witnesses; that he was not allowed to produce defence  evidence; that no reasons have been given by the disciplinary  authority for not accepting the punishment proposed by the  Enquiry Officer and consequently, the Tribunal quashed the  said order dated 19.4.1993, with liberty to the appellants to hold  the departmental enquiry, afresh, if so advised, keeping in mind  the factum of respondent’s retirement in 1994.  By the  impugned judgment, the Tribunal gave liberty to the appellants  to hold the departmental enquiry by observing that charges  levelled against the respondent were of serious nature.

       Since there is the controversy regarding text of the  operative part of the judgment of the Tribunal, we quote herein  below the said part, in extenso: "ORDER:  

The petitioner’s petition is allowed in the manner  that the punishment order dated 19.4.1993,  contained in Annexure No.15 and the appellate  order dated 27.4.1994 annexed with the  amendment application are quashed as illegal and  it is directed that the petitioner should be allowed  the consequential service benefits in accordance  with law.  Petitioner’s prayer for the payment of  salary etc. for the suspension period is not allowed  since the matter relating to it is a subjudiced before  the Hon’ble High Court.  It is further directed that  the opposite parties shall be at liberty to hold  departmental enquiry against the petitioner afresh  as observed above.  The departmental enquiry  should be initiated within four months from the  date of communication of the order and it should  then be completed within another four months and  the service benefits given to the petitioner shall be  subject to the final result of the enquiry.  In case  no enquiry is held within the stipulated period, the

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petitioner shall be entitled to get the consequential  service benefits accordingly as per rules."

       As stated above, being aggrieved by the decision of the  Tribunal dated 28.2.1998, the appellants herein, moved the  High Court vide CMWP No.9951 of 2002 whereas the  respondent herein moved the High Court by way of CMWP  No.41586 of 1999 claiming arrears of salary (including  difference of pay for suspension period) and allowances as the  enquiry was not completed within the stipulated period as  ordered by the Tribunal vide its decision dated 28.2.1998.

       By the impugned judgments dated 30.01.2003, the writ  petition filed by the appellants being CMWP No.9951 of 2002  stood dismissed whereas CMWP No.41586 of 1999 filed by the  respondent herein was allowed with a direction to pay the  arrears of salary, allowances and all consequential benefits with  interest @ 10% per annum.  Accordingly, the appellants applied  to this Court under Article 136 and have obtained special leave  to appeal against the impugned judgments.  

       The contention urged before us by the appellants is that  the High Court had erred in directing the appellants to pay the  difference in salary for the period of suspension with all  benefits with 10% interest without deciding upon the rights of  the appellants to continue the departmental proceedings  instituted prior to the respondent’s retirement under regulation  351-A of U.P. Civil Service Regulations (relating to pension).   It was urged on behalf of the appellants that they had right to  continue the departmental proceedings for which leave was  granted by the Tribunal, without Governor’s sanction to enable  them to deduct or withhold the pension in entirety or in part  under the said regulation.                  Per contra, it was urged on behalf of the respondent  herein that no such right vested in the appellants after 1994  (when the respondent retired) and particularly when the  departmental proceedings were not completed within the  stipulated period.   

       In the case of State of U.P. v. Brahm Datt Sharma &  Another reported in [(1987) 2 SCC 179], this Court held that  under regulation 351-A of U.P. Civil Service Regulations, the  Government was authorized to withhold or reduce pension and  merely because a Government servant retired from service on  attaining the age of superannuation, he cannot escape the  liability for misconduct and negligence or financial  irregularities, which he may have committed during the period  of his service.  This decision has been followed by this Court in  the case of Takhatray Shivadattray Mankad v. State of  Gujarat reported in [1989 Supp. (2) SCC 110, paras 24 & 25].   

       There is merit in the argument advanced on behalf of the  appellants.  As stated above, the respondent herein, had moved  the High Court under Article 226 of the Constitution for  difference in the pay during the period of suspension and for  consequential benefits. Before the High Court, the appellants  submitted that they had the right to deduct or withhold the  pension either in part or in toto on account of the alleged  financial irregularities.  In our view, the questions indicated  above ought to have been decided by the High Court  particularly before ordering payment with interest @ 10% per  annum.  Moreover, applicability of regulation 351-A requires  compliance of pre-conditions including the period of limitation  for holding the enquiry.  Hence, the High Court ought to have

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examined the scope and the applicability of the said regulation  in the light of the facts and circumstances of this case.  

       Before concluding, we may mention that the appellants  have paid all the retirement benefits including pension and  gratuity to the respondent herein.  That the omission of word  "no" in the operative part of the order, quoted above, was a  mistake.  We reiterate that the order of the Tribunal holding that  the earlier departmental enquiry stood vitiated by non- compliance of the rules of natural justice does not suffer from  any infirmity and need not be re-examined by the High Court.   

       Subject to what is stated above, the appeals are allowed,  the impugned judgment and orders dated 30.01.2003 are set  aside to the extent indicated above and the matter is remitted to  the High Court to adjudicate and decide the questions  formulated above in the light of the provisions of U.P. Civil  Service Regulations (relating to pension) as expeditiously as  possible.  There will be no order as to costs.