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

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Who is competent authority for dismissal, removal, reduction in rank or termination of judicial officers?

This Court in Registrar (Admn.), High Court of Orissa, Cuttack v. Sisir Kanta Satapathy (dead) by L.Rs. and Anr. MANU/SC/0573/1999 : (1999) 7 SCC 725, while considering the scope of Articles 233, 234 and 235 of the Constitution of India has held

that the control vested in the High Court over the subordinate judiciary though absolute and exclusive, has to be exercised without usurping the power vested in the executive under the Constitution.

The High Court retains the power of disciplinary control over the subordinate judiciary, including the power to initiate disciplinary proceedings, suspend them pending enquiry and impose punishment on them. But when it comes to the question of dismissal, removal, reduction in rank or termination of judicial officers on any count whatsoever, the High Court becomes only the recommending authority and cannot itself pass such an order. The High Court has to send its recommendations to the Governor because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10244 of 2017 (Arising out of SLP (C) No. 13525/2016)

Decided On: 08.08.2017

 P.D. Goel Vs.  High Court of Himachal Pradesh

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Whether Negative opinion of chief justice on point of sanction for prosecution of judge is binding on governor?

 The power to appoint Special Judge to try and decide the cases under the provisions of the Act of 1988 is with the Central Government or the State Government, as per section 3 of the Act. Sanction to prosecute the Judge of the subordinate Court, amongst whom appointment of a Special Judge is made, therefore, should be issued by the Governor - irrespective of the language of section 19(1)(c). However, as the opinion of the learned Chief Justice is binding on the Governor, for the same reason, even the negative opinion of the learned Chief Justice - not to prosecute the Judge of the subordinate Court - is equally binding on the Governor. Thus, in case of negative opinion, the question of processing the proposal any further, would not arise. In other words, the proposal 6 of 8

must stand terminated on expression of negative opinion by the learned Chief Justice. That is the process of decision making in case of refusal to accord sanction to prosecute the judicial officers of the subordinate Court.

Bombay High Court

Devendra S. Doctor vs The State Of Maharashtra & Ors on 25 July, 2012

Bench: A.M. Khanwilkar, A. R. Joshi

JUDGEMENT (PER A.M. KHANWILKAR, J.):

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