Monday, 27 May 2019

Whether pension of district Judge can be withheld if there is misconduct in recruitment process of class 3 and class 4 employees?

In view of the above, the action of the High Court in recommending
withholding of 50% pension of the petitioner and in exonerating all the
other five officers is nothing but discrimination between equals who fall
under the same class, for no recorded reasons and as such the punishment
imposed upon the petitioner by the Hon'ble Governor is not tenable in law.
This apart, as already discussed, the aforesaid punishment was
inflicted upon the petitioner finding him guilty of misconduct in conducting
the recruitment of class-III and class-IV employees. Thus, the punishment
was on the cumulative effect of the misconduct in respect of both the
recruitments and if one of them is deleted, it would certainly not have the
same impact so as to impose a punishment which had been inflicted upon
the petitioner. In respect of the recruitment of class-IV employees, the
inquiry has been held to be without jurisdiction as it was barred by time and
was without the proper sanction of the Hon'ble Governor. Accordingly, the
gravity of the misconduct stands reduced and in that respect of the matter,
the punishment ex-facie turns out to be excessive and disproportionate to
the charge proved.
In the overall facts and circumstances of the case, our considered
conclusion is that the order of punishment dated 07.11.2012 withholding
50% of the pension of the petitioner is unsustainable and deserves to be
quashed.
It is accordingly quashed and the writ of certiorari to that effect is
directed to be issued.

ALLAHABAD HIGH COURT
Delivered on 22.05.2019

Case :- WRIT - A No. - 19813 of 2013

Petitioner :- Shyam Babu Vaish
Respondent :- State Of U.P.And Anr.

Coram:
Hon'ble Pankaj Mithal,J.
Hon'ble Prakash Padia,J.

The petitioner who was a member of the U.P. Higher Judicial Service
and retired on 30.06.2006 as District Judge has preferred this writ petition
questioning the punishment order dated 07.11.2012 passed by the Hon'ble
Governor of U.P. (Annexure-14) withholding 50 per cent of his pension on
the recommendation of the High Court.
The petitioner as District Judge, Barabanki got conducted
examination for the selection of class-III (including clerks and
stenographers) and class-IV employees of the Judgeship for which purpose
he constituted two independent committees of 5 and 3 members
respectively under the Chairmanship of two different Senior Judicial
Officers of the district.
An advertisement inviting applications for the purposes of the above
recruitment was published on 30.07.2004 in the newspapers. The
examination for class-III and class-IV posts were held on 29.09.2004 in
accordance with the provisions of U.P. Subordinate Civil Courts Ministerial
Establishment Rules, 1947/Rules for Recruitment of Ministerial to the
Subordinate Offices, 1950 and the provisions of U.P. Subordinate Civil
Court Inferior Establishment Rules, 1955 respectively. The result of the
class-III examination was prepared on 04.11.2004 and it was declared on
the notice board on 05.11.2004. The result of the class-IV examination was
prepared on 10.09.2004 and after sending a report to the High Court, the
same was declared on 17.09.2004. The completion of the process of the
selection for the above posts was duly notified on 27.11.2004 to the High
Court.

The aforesaid selection was challenged by several persons by means
of different writ petitions filed before the Lucknow Bench of this High
Court. The said writ petitions i.e. Writ Petition No. 7021 (S/S) of 2004
(Dinesh Kumar Vs. State of U.P. And others) along with connected petition
were decided vide judgment and order dated 19.01.2006. The entire
selection process including the select list and the consequential
appointment of class-III and class-IV employees was quashed and cost of
Rs. 1 lakh was imposed upon the petitioner.
The said judgment and order on appeal was partly modified vide the
Division Bench decision dated 19.07.2006. The Appellate Court affirmed
the decision quashing the select list of class-III and class-IV employees but
the appointments of the Stenographers and Drivers were saved and the cost
of Rs. 1 lakh imposed upon the petitioner was deleted. The judgment and
order of the learned Single Judge was accordingly modified with certain
other little changes.
The petitioner was served with a charge-sheet dated 30.10.2008 by
the High Court referring to the above judgment and orders. The petitioner
was charged for misconduct as it was alleged that there was no
transparency and fairness in the entire selection and the selection was an
outcome of favouritism, nepotism, arbitrariness with malafide intention for
extronious considerations. Along with the petitioner, similar charge-sheets
were also given to the other judicial officers who were members of the
committees responsible for conducting the recruitment examination of
class-III and class-IV employees. A department Inquiry was conducted
jointly against all the 6 officers including the petitioner. The inquiry report
submitted on 22.09.2010 held all the officers including the petitioner guilty
of the charges levelled against them.
The Administrative Committee of the High Court accepted the
inquiry report insofar as it related to the petitioner and directed it to be
placed before the Full Court. However, in respect of the other officers, it
was not accepted and the proceedings against them were dropped vide
resolution dated 12.05.2011.
The Full Court in its meeting held on 11.02.2012 resolved for

withholding 50 per cent of the pensionary benefits payable to the petitioner
with immediate effect as by that time the petitioner had retired. In respect to
the remaining 5 officers, it was resolved that as they have been found guilty
by the Inquiry Judge, the Administrative Committee should call for the
explanation of the officers and thereafter consider the question of
punishment, if any to be imposed upon them. Accordingly, the said 
officers were given opportunity to submit their additional explanation and
on consideration of the same, the Administrative Committee on 20.04.2012
resolved to place the matter before the Full Court. The Full Court in its
meeting dated 02.02.2013 resolved to drop the proceedings against the said
officers.
It may be pertinent to mention here that as the petitioner had retired
on 30.06.2006, the disciplinary proceedings against him were initiated after
receiving the sanction of the Hon'ble Governor in terms of Article 351-A of
the C.S.R.1 which was accorded on 21.10.2008 in respect of holding an
Inquiry in the matter of irregularities and illegalities in the recruitment of
class-III employees but not with regard to recruitment of class-IV
employees.
It is on the basis of the above decision of the High Court to withhold
50 per cent of the pension of the petitioner that the Hon'ble Governor has
passed the impugned order dated 07.11.2012.
We have heard Sri Ashok Khare, Senior Counsel for the petitioner
and Sri Manish Goyal, learned counsel appearing for High Court of
Judicature at Allahabad and learned Standing Counsel.
The affidavits exchanged between the contesting parties have also
been perused.
Sri Khare had made three submissions.
The first is that in respect of an incident which had taken place 4
years before the initiation of proceedings, no disciplinary proceedings could
have been initiated, not even with the sanction of the Hon'ble Governor.
The sanction of the Hon'ble Governor is only in respect of holding an
inquiry in the matter of recruitment of class-III employees and not with
1 Civil Service Regulations

regard to recruitment of class-IV employees.
Secondly, some of the findings recorded by the Inquiry Judge are
contrary to the findings returned by the Division Bench on the judicial side
and cannot be sustained.
Lastly, it has been urged that the charges against all the officers
including the petitioner were identical and common and as a joint inquiry
was conducted and a common report was submitted, there was no
justification to accept the report only in respect of the petitioner and to
punish him and at the same time, to exonerate the others. This is clearly a
case of discrimination for no justifiable reason.
Sri Manish Goyal has defended the punishment order by contending
that the sanction dated 21.10.2008 of the Hon'ble Governor is not under
challenge and that no findings of the Inquiry Judge are in conflict with the
findings returned on the judicial side. The disciplinary proceedings were
drawn against the petitioner well within time and that if some other officers
have gone unpunished, it does not mean that the petitioner is innocent and
the punishment inflicted upon him is illegal or discriminatory in nature.
Article 351-A of the C.S.R. authorizes the Hon'ble Governor to
withhold or withdraw pension or any part of it either permanently or for a
fixed period and to recover from the pension, the whole or the part of
pecuniary loss caused to the Government, if a Government employee is
found in a departmental or judicial proceedings to be guilty of grave
misconduct or has caused pecuniary loss to the Government by his
misconduct or negligence, but such departmental proceedings can only be
instituted, if he has retired, with the sanction of the Hon'ble Governor in
respect of an incident which took place not more than 4 years before
institution of such proceedings.
To put it differently and in simple words, the departmental
proceedings can be initiated against a retired employee only with the
sanction of the Hon'ble Governor and that too only in respect of an incident
which had taken place not more than 4 years earlier to the institution of
such proceedings.
The petitioner got the advertisement for the recruitment of class-III
5
and class-IV employees published on 30.07.2004 and the result of class-III
employees was declared on 05.11.2004 and that of class-IV employees on
17.09.2004. A report regarding the completion of the process of the
selection was submitted to the High Court on 27.11.2004.
In view of the above, the event of recruitment of class-III employees
stood completed on 05.11.2004 and that of class-IV employees on
17.09.2004.
It is legally accepted position that the departmental proceedings
commences with the issuance of the charge-sheet2. It was issued on
30.10.2008 in this case. So, in respect of the matter of recruitment of class-
IV employees which was completed with the declaration of result on
17.09.2004, the initiation of departmental proceedings was ex-facie beyond
the period of 4 years and as such could not have been initiated in view of
proviso (a) (ii) of Article 351-A of the C.S.R. In addition to above, no
sanction from the Hon'ble Governor was taken to initiate departmental
proceedings with regard to the matter of recruitment of class-IV employees.
The sanction of the Hon'ble Governor on record dated 21.10.2008 is very
specific and it states that the result of recruitment of class-III employees
was declared on 05.11.2004 and that the sanction is in reference to the said
recruitment. The said sanction order nowhere even impliedly establishes
that it concerns the matter of recruitment of class-IV employees as well.
Thus, the allegations of misconduct levelled against the petitioner in respect
of the recruitment of class-IV employees could not have been inquired into
by way of disciplinary proceedings after the petitioner had retired.
In the case of Ram Kishan Singh3, a retired Assistant Sales Tax
Officer of the Trade Tax Department was charge-sheeted and a
departmental inquiry was instituted against him without the order of the
Hon'ble Governor permitting initiation of departmental inquiry against him.
The Hon'ble Governor was stated to have granted permission under Article
351-A of the C.S.R. on 22.11.2005 by which time a period of more than 4
years from the incident had already lapsed. It was, therefore, held that the
2 AIR 2007 (SC) 1706, Coal India and others Vs. Saroj Kumar Mishra
3 2008 (2) Education and Service Cases 821 (Allahabad) (DB), Ram Kishan Singh Vs. State of U.P. and
others
6
Hon'ble Governor could not have granted permission for any departmental
proceedings against the said officer and that the entire proceedings stood
vitiated in law as they were not initiated against the retired officer within 4
years of the incident.
In the case of Durga Prasad Pachouri4, another Division Bench of
this Court while dealing with the disciplinary proceedings against a retired
Assistant Engineer held that since he had retired, no disciplinary
proceedings could be initiated against him in respect of an event which had
occurred 4 years prior to the institution of the departmental proceedings.
Accordingly, we are of the opinion that the inquiry which was
conducted against the petitioner in respect of charges of misconduct in the
recruitment of class-IV employees was not only barred by limitation but
was also without the sanction of the Hon'ble Governor as contemplated
under Article 351-A of the C.S.R.
The result of class-III employees was declared on 05.11.2004 and the
charge-sheet was issued on 30.10.2008. Thus, the initiation of departmental
proceedings in respect of irregularities in the recruitment of class-III
employees was within four years of the incident on the basis of sanction of
the Hon'ble Governor.
The second submission advanced on behalf of petitioner that some of
the findings of the Inquiry Officer are contrary to the Division Bench
decision is of no force. The petitioner has not specifically challenged the
inquiry report rather only the order of punishment.
A feeble attempt was made to demonstrate that the finding of the
Inquiry Judge turning down the contention of the petitioner that up to the
stage of codification there was no wrong is in conflict with the finding of
the Court of Special Appeal wherein it has been held that there was no
wrong with the selection process up to the stage of answer sheets being
coded by the District Judge is of such a minor contradiction that it is of no
avail to invalidate the entire inquiry. The other contradiction pointed out in
fact goes against the petitioner inasmuch in relation thereto, the Appellate
Court has held that as the learned District Judge himself had conducted the
4 2017 (2) ADJ 471 (DB), Durga Prasad Pachouri Vs. State of U.P. and others
7
interview with the assistance of the Chairman of the Committee, then no
other person can be blamed for the correction and reduction of marks
except the District Judge himself.
Moreover, no other specific findings of the inquiry report have been
pin pointed to be contrary to the findings returned by the Division Bench on
the judicial side.
With this, we move to the last aspect of the matter that all of the
officers including the petitioner faced the same charges in respect of the
same incident and there was a common inquiry report, the petitioner could
not have been segregated so as to inflict punishment and to exonerate the
others.
There is no dispute to the fact that all the officers were proceeded
against departmentally in respect to the same recruitment of class-III and
class-IV employees in the Judgeship of Barabanki. A common inquiry
report was submitted against them holding all of them to be guilty of the
charges levelled against them. The Inquiry Judge has not differentiated
between the role of the petitioner and that of the other judicial officers and
has collectively found all of them to be guilty. In view of the above, all the
charged officers stood on the same pedestal and were not differently
located. All of them were collectively responsible for conducting the
aforesaid recruitment examination rather the members of the committee
were more directly concerned with the holding of the examination and the
declaration of the result then the petitioner who only played the role of the
supervisor. Therefore, apparently no distinction could have been made
between the role played by the petitioner and the other charged officers. No
reason or distinction is implicit either from the inquiry report, the resolution
of the Administrative Committee or the Full Court or even from the order
of punishment.
Sri Manish Goyal has tried to distinguish the case of the petitioner
from other petitioners by contending that the tabulation chart which forms
the basis of the selection was the creation of the petitioner with which the
other officers were not concerned and that the result was declared by the
petitioner after recording his personal satisfaction.
8
No doubt that the result was declared after the petitioner as District
Judge was satisfied with the preparation of the same, nonetheless, the
responsibility to conduct the examination and of preparing the result vested
with the committees. The petitioner in his capacity as a District Judge or as
the Appointing Authority rightly played the role of a supervisor and kept on
guiding the officers and on being satisfied that the selection process had
been conducted in a fair and a clean manner and that there is no
discrepancy or illegality in the preparation of the result approved for its
declaration. Therefore, the satisfaction recorded by the District Judge in no
way means that he had played some kind of pivitol role in the illegality, if
any, committed in the entire recruitment process. His role cannot be
distinguished from that of the others though he may be having a higher
responsibility.
One of the submission of Sri Manish Goyal is that it is not a case of
discrimination and the petitioner cannot claim negative equality. In other
words, what he is trying to say is that if some other officers have been left
unpunished, it is no ground to leave the petitioner also.
The respondents are not pleading and contending that the other 5
officers have been illegally exonerated from the charge of misconduct in
relation to the incident of recruitment of class-III and class-IV employees of
the Judgeship. Therefore, it is not a case of claiming parity with something
which has been done illegally. In a situation where the other officers and the
petitioner are being charged identically in respect of the same incident, they
stand equal to one another and their actions cannot be discriminated unless
separate roles are assigned to each of them distinguishing misconduct on
their part which has not been done in the case at hand. Thus, it is not a case
of claiming equality with an illegality rather a case of victimisation or
singling out the petitioner by arbitrarily picking him and choosing him for
punishment and treating him differently with the other officers.
In the case of Rajpal5, the High Court had considered the nature of
charges levelled against the 5 employees who were charged on account of
incident that happened on the same day and came to the conclusion that
5 2010 (5) SCC 783, State of Uttar Pradesh and others Vs. Rajpal
9
since the gravity of the charges was the same, it was not open for the
disciplinary authority to impose different punishments upon different
delinquent employees. The said reasoning was approved by the Hon'ble
Supreme Court and it was held that as the State has failed to indicate any
difference between the role of the employees, there is no fault in the order
of the High Court.
A similar view has been taken by the Hon'ble Supreme Court in a
case of Pawan Kumar Agrawal6. The Hon'ble Supreme Court in the said
case after giving thoughtful consideration to the rival contentions urged
before it held that imposing a lesser punishment of withholding one
increment to one of the delinquent employees and a higher punishment to
another amounts to discrimination and treating them differently which is
violative of Article 14 of the Constitution of India.
In the case of Man Singh7, the Apex Court reiterated that the concept
of equality as enshrined in Article 14 of the Constitution of India embraces
the entire realm of State action. It would extend to an individual not only
when he is discriminated against in the matter of exercise of right, but also
in the matter of imposing liability upon him. Equals have to be treated
equally. In the said case, after observing as above, it held that imposing of
punishment upon one employee and letting of completely his subordinate
was arbitrary and unfair when both of them were similarly situated and
were accused of misconduct in relation to the same incident.
In the case of Jitendra Prasad Singh8, three workmen of the
company were charged on almost identical grounds and all of them were
found guilty of misconduct in respect of the same incident. One of the
employee was punished with one month suspension, the other was
dismissed from service whereas the punishment imposed upon the third was
set aside and he was directed to be reinstated under the orders of the Court.
The question arose whether the workman who had been dismissed has been
meted out discriminatory treatment. The Apex Court held that the High
6 2015 (15) SCC 184, Pawan Kumar Agrawal Vs. General Manager-II and Appointing Authority, State
Bank of India and others
7 2008 (12) SCC 331, Man Singh Vs. State of Haryana and others
8 2001 (10) SCC 530, Tata Engineering and Locomotive Company Ltd. Vs. Jitendra Prasad Singh and
another

Court is justified in holding that his dismissal amounts to denial of justice
and that the action to dismiss him and to punish the other by one month
suspension is arbitrary and discriminatory and as such is violative of Article
14 and 16 of the Constitution of India.
In view of the above, the action of the High Court in recommending
withholding of 50% pension of the petitioner and in exonerating all the
other five officers is nothing but discrimination between equals who fall
under the same class, for no recorded reasons and as such the punishment
imposed upon the petitioner by the Hon'ble Governor is not tenable in law.
This apart, as already discussed, the aforesaid punishment was
inflicted upon the petitioner finding him guilty of misconduct in conducting
the recruitment of class-III and class-IV employees. Thus, the punishment
was on the cumulative effect of the misconduct in respect of both the
recruitments and if one of them is deleted, it would certainly not have the
same impact so as to impose a punishment which had been inflicted upon
the petitioner. In respect of the recruitment of class-IV employees, the
inquiry has been held to be without jurisdiction as it was barred by time and
was without the proper sanction of the Hon'ble Governor. Accordingly, the
gravity of the misconduct stands reduced and in that respect of the matter,
the punishment ex-facie turns out to be excessive and disproportionate to
the charge proved.
In the overall facts and circumstances of the case, our considered
conclusion is that the order of punishment dated 07.11.2012 withholding
50% of the pension of the petitioner is unsustainable and deserves to be
quashed.
It is accordingly quashed and the writ of certiorari to that effect is
directed to be issued.
The writ petition is allowed with no order as to costs.
Order Date-22.05.2019
Nirmal
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