Tuesday 27 September 2022

Allahabad HC: Only Governor Can Take Action Under Art. 351 Of CSR If Govt Servant Is Found Guilty Of Grave Misconduct After Retirement

 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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