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CASE NO.: Appeal (civil)  1539 of 2007

PETITIONER: State of U.P. & Ors

RESPONDENT: R.C. Misra

DATE OF JUDGMENT: 22/03/2007

BENCH: G.P. Mathur & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T (Arising out of Special Leave Petition (Civil) No.16753 of 2004)

G. P. MATHUR, J.

1.      Leave granted.

2.      This appeal, by special leave, has been preferred against the   judgment and order dated 16.3.2004 of Allahabad High Court  (Lucknow Bench), by which the writ petition filed by the State of U.P.   was dismissed.  In the writ petition challenge was laid to the order  dated 10.4.2002 passed by U.P. Public Service Tribunal, Lucknow  (hereinafter called ’the Tribunal’) by which the claim petition filed by  the respondent R.C. Misra had been allowed and the order passed by  the State Government for recovery of certain amount from his  pension/gratuity was set aside.  

3.      The respondent was working as Block Development Officer  when he was placed under suspension by the order dated 20.10.1997  and a charge sheet containing 12 charges was served upon him on  24.10.1997.  The respondent attained the age of superannuation on  31.10.1997 and retired from service.  The enquiry officer submitted a  report on 16.11.1999 that all the 12 charges levelled against the  respondent were found to have been established.  Thereafter, an order  was passed by the State Government on 25.1.2001 directing recovery  of Rs.9,69,141.60 from the pension/gratuity of the respondent.   The  respondent filed a claim petition before the U.P. Public Service  Tribunal, Lucknow, challenging the aforesaid order passed by the  State Government.   The Tribunal allowed the claim petition by the  order dated 10.4.2002 and set aside the order passed by the State  Government directing recovery of Rs.9,69,141.60 from the  respondent.   It was, however, left open to the State Government to  proceed against the respondent under Regulation 351A of the Civil  Service Regulations after obtaining sanction from the competent  authority.  The appellant State of U.P. filed a writ petition challenging  the aforesaid order of the Tribunal but the same was dismissed on  16.3.2004.   

4.      We have heard Shri Dinesh Dwivedi, learned senior counsel for  the appellant, Shri Sunil Gupta, learned senior counsel for the  respondent and have perused the record.

5.      There is no dispute regarding the factual position that the  respondent was placed under suspension on 20.10.1997 and a charge  sheet containing 12 charges was served upon him on 24.10.1997 and  shortly thereafter he attained the age of superannuation on 31.10.1997.

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The enquiry officer recorded a finding that all the charges were found  to have been established against the respondent.  The Tribunal has  held that the disciplinary proceedings were initiated against the  respondent prior to his retirement by issuing a charge sheet but the  same could not have continued after his retirement unless specific  order for its continuance had been taken from the competent authority  i.e. the Governor, as provided in Regulation 351A of the Civil Service  Regulations.  The High Court has accepted the aforesaid reasoning of  the Tribunal and has observed as under :- "\005\005\005\005..  This enquiry was thus, initiated few days  before the date of retirement of the respondent no.1.  At  that time there was no occasion for the State Government  to take any permission or sanction under Regulation  351A of the Civil Service Regulations. During  continuance of the enquiry the respondent no.1 retired  from service on attaining the age of superannuation but  no sanction or permission as required under Regulation  351A of the Civil Service Regulations was taken from  the Governor by the petitioner."   

       The High Court repelled the contention raised on behalf of the  appellant State of U.P. that as the enquiry had been initiated before the  respondent had attained the age of superannuation, no sanction of the  Governor was required and for this reliance was placed on a decision  of this Court rendered in State of U.P. v. Shri Krishna Pandey (1996)  9 SCC 395.

6.      Regulations 351A and 470 of Civil Service Regulations read as  under :- 351A.  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  reemployment - 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, UP shall be  consulted before final orders are passed. (Provided further that if the order passed by the Governor  relates to a case dealt with under the Uttar Pradesh  Disciplinary Proceedings (Administrative Tribunal)  Rules, 1947, it shall not be necessary to consult Public  Service Commission.)

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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  (b) judicial proceedings shall be deemed to have been  instituted: (i) 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 (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. 470. (a) The full pension admissible under the Rules is  not to be given as a matter of course, or unless the service  rendered has been really approved (See Appendix 9) (b) If the service has not been thoroughly satisfactory the  authority sanctioning the pension should make such  reduction in the amount as it thinks proper. Provided that  in cases where the authority sanctioning pension is other  than the appointing authority, no order regarding  reduction in the amount of pension shall be made without  the approval of the appointing authority. Note: For the purpose of this Article ’appointing  authority’ shall mean the authority which is competent to  make substantive appointment to the post or service from  which the officer concerned retires."         The substantive part of Regulation 351A confers the power  upon the Government 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.  There is a proviso  appended to the Regulation which circumscribes the power conferred  by the substantive part of the Regulation.  Clause (a) of the proviso  with which we are concerned here uses the expression \026 if not  instituted while the officer was on duty either before retirement or  during re-employment.  Clause (a) of the proviso will, therefore, get  attracted only when the departmental proceedings are instituted  against the officer after his retirement or when he is not in re- employment.   If the departmental proceedings are instituted before an  officer has attained the age of superannuation and before his  retirement, proviso (a) can have no application. In order to remove  any doubt regarding the date of institution of enquiry or the judicial  proceedings an Explanation has been appended after the proviso.     According to Explanation (a), departmental proceedings shall be  deemed to have been instituted (i) when the charges framed against  the officer are issued to him, or (ii) if the officer has been placed  under suspension from an earlier date, on such date.  By incorporating  the explanation, the rule framing authority has notionally fixed two  dates as the date on which the departmental proceedings shall be  deemed to have been instituted against an officer.  A combined  reading of the proviso and the explanation would show that there is no  fetter or limitation of any kind for instituting departmental  proceedings against an officer if he has not attained the age of  superannuation and has not retired from service. If an officer is either  placed under suspension or charges are issued to him prior to his  attaining the age of superannuation, the departmental proceedings so  instituted can validly continue even after he has attained the age of

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superannuation and has retired and the limitations imposed by sub- clause (i) or sub-clause (ii) of clause (a) of proviso to Regulation  351A will not apply.   It is only where an officer is not placed under  suspension or charges are not issued to him while he is in service and  departmental proceedings are instituted against him under Regulation  351A after he has attained the age of superannuation and has retired  from service and is not under re-employment that the limitations  imposed by sub-clauses (i) and (ii) of proviso (a) shall come into play. 7.      The word used in proviso (a) is "institute".  The dictionary  meaning of the word "institute" is \026 set up; cause to come into  existence; to originate and get established; to commence.  It obviously  refers to the initial action or the commencement of the action.  It is  entirely different from continuance of an action already initiated. If  the intention of the rule making authority had been that an enquiry  instituted against an officer while in service should not proceed after  his retirement, save with the sanction of the Governor, then the  proviso (a) would have been differently worded and instead of the  word "instituted", the words "continue" or "proceed" or "go on"  would have been used.   This being not the language of the proviso,  there is absolutely no warrant for holding that an enquiry validly  instituted against an officer while he was in service would, after  retirement of the officer, require sanction of the Governor for its  continuance and culmination.   8.      In the present case, the respondent had been placed under  suspension and charges were also served upon him while he was in  service.  In such circumstances, proviso (a) did not come into play at  all and there was no requirement of obtaining sanction of the  Governor.  The enquiry which had been instituted prior to the  retirement of the respondent and was completed after his retirement  could not, therefore, be held to be illegal on the ground of want of  sanction of the Governor.   The view to the contrary taken by the  Tribunal and by the High Court is, therefore, clearly erroneous in law  and cannot be sustained.   9.      The provisions of Articles 351A and 470 of Civil Service  Regulations have recently been examined by this Court in State of  U.P. & Ors. v. Harihar Bhole Nath JT 2006 (9) SC 567, and it is held  as under in paras 14 and 15 of the report :- 14.    The proceedings for recovery of the amount from a  Government servant can be passed in the event he is held  to be guilty of grave misconduct or caused pecuniary loss  to Government by his misconduct or negligence during  his service. Some procedural safeguards, however, have  been laid down in terms of proviso appended thereto,  including the requirement to obtain an order of sanction  of the Governor. Such order of sanction, however, would  not be necessary if the departmental proceedings have  been initiated while the delinquent was on duty. Proviso  appended to Regulation 351-A merely controls the main  proceedings. The same would apply in the exigencies of  the situation envisaged therein, namely, when the  proceedings were initiated after retirement and not prior  thereto.  15.     Explanation appended to Regulation 351-A  provides for a legal fiction in terms whereof departmental  proceedings would be deemed to have been instituted  when the charges are framed against the pensioner or  issued or the delinquent has been placed under  suspension from an earlier date, on such date. 10.     The High Court has placed reliance upon State of U.P. v. Shri  Krishna Pandey (1996) 9 SCC 395 for coming to the conclusion that  even when departmental proceedings have commenced prior to  retirement of an officer, they cannot continue after retirement without  the sanction of the Governor.   In this case, the officer had retired on  31.3.1987 and the proceedings were initiated on 21.4.1991. Thus, the  departmental proceedings were instituted long after the retirement of

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the officer and in such a situation the limitations imposed by proviso  (a) clearly got attracted and no enquiry could have been instituted  against him save with the sanction of the Governor.  This decision has  been noticed and explained in State of U.P. & Ors. v. Harihar Bhole  Nath (supra) in para 20 of the reports which is being reproduced  below :- 20.  The High Court has placed strong reliance on State  of U.P. and Anr. v. Shri Krishna Pandey (AIR 1996 SC  1656), wherein the departmental enquiry was initiated  after the delinquent officer reached his age of  superannuation. Noticing Rule 351-A of the Civil  Services Rules and that the departmental proceeding was  initiated after the retirement of the employee, the same  was held to be impermissible in law. Although it was not  necessary to pronounce upon the construction of Rule  351-A involving a case where a departmental proceeding  was initiated prior to reaching of the age of  superannuation by the delinquent officer, it was observed  that as the officer had retired on 31st March, 1987 and  proceedings were initiated against him on 12th April,  1991, proviso appended to the Rule would be applicable.

       The decision in State of U.P. & Ors. v. Shri Krishna Pandey  (supra) is clearly not an authority for the proposition that the  departmental proceedings instituted while the officer was on duty  either before retirement or during re-employment cannot be continued  after his retirement save with the sanction of the Governor.    Regulation 351A cannot be interpreted in a manner that a  departmental proceeding validly instituted while the officer is in  service would require sanction of the Governor for its continuance  subsequent to his retirement as the limitation imposed by sub-clause  (i) of clause (a) of the proviso is only on institution of the proceedings  and not the continuance thereof.   11.       For the reasons discussed above, the appeal is allowed with  costs.   The judgment and order dated 10.4.2002 of the U.P. Public  Service Tribunal, Lucknow and judgment and order dated 16.3.2004  of Allahabad High Court (Lucknow Bench) are set aside.   The matter  is remitted to the Tribunal for a fresh decision of the claim petition  filed by the respondent on merits and in accordance with law.  The  Tribunal shall make all possible endeavour to decide the proceedings  as expeditiously as possible, preferably within a period of four months  from the date of filing of a certified copy of this judgment, which shall  be done by the parties at the earliest.