State of U.P. Thru. Prin. Secy. Deptt. of Labor Govt. of U.P. Civil Secrt. Lko. and Ors. Vs Dhani Ram

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Neutral Citation No. - 2024:AHC-LKO:76557-DB

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Chief Justice's Court

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Case :- SPECIAL APPEAL DEFECTIVE No. - 270 of 2023

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Appellant :- State of U.P. Thru. Prin. Secy. Deptt. of Labor Govt. of U.P. Civil Secrt. Lko. and others.

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Respondent :- Dhani Ram Counsel for Appellant :- Mohit Jauhari, S.C. Counsel for Respondent :- Vijay Kumar Srivastava

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Hon'ble Arun Bhansali, Chief Justice Hon'ble Jaspreet Singh, J.

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This appeal is directed against judgement and order dated 24.11.2022 passed by learned Single Judge in Writ - A No. 7594 of 2022 whereby writ petition filed by the respondent aggrieved of order dated 3.11.2021 and 23.12.2019 whereby he was visited with the penalty of permanent withholding of pension and cancelling third ACP granted to him, has been allowed and orders dated 3.11.2021 and 23.12.2019 have been set aside.

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The respondent was initially appointed on 26.10.1989 on daily wages on a Class-IV post in the ESI Dispensary, subsequently his services were regularized on the post of Ward Boy on 28.2.1990 in Employees State Insurance Scheme, Labour and Health Services. The respondent on attaining the age of superannuation retired on 31.1.2018.

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During his employment, he was issued a charge-sheet dated 10.2.2017 alleging that he was accorded appointment by an incompetent authority. After retirement of respondent, when permission was sought from the Governor under Article 351-A of the Civil Services Regulations ('the Regulations'), by order dated 23.8.2018, the same was refused. Whereafter, the departmental proceedings initiated by charge-sheet dated 10.2.2017 were dropped by order dated 12.9.2018 and the respondent was accorded all retiral dues.

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However, it appears that again permission was sought under Article 351-A of the Regulations, which was granted on 8.6.2020. Whereafter, in the inquiry, which was initiated against the respondent by charge-sheet dated 10.2.2017 and

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was dropped by order dated 12.9.2018, the inquiry officer gave his report dated 1.10.2021 exonerating the respondent. However, the disciplinary authority by its order dated 3.11.2021, came to the conclusion that though the charges against the respondent have not been proved, however, from the charges levelled against him, it is proved that the authority appointing him, was not competent and consequently, ordered that except for payment of amount of GPF and GIS, the respondent would not be entitled to any retiral benefits. Order had also been passed on 23.12.2019 cancelling the third ACP granted to the respondent.

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Learned Single Judge, after hearing the parties, came to the conclusion that no opportunity of hearing was accorded to the respondent despite the fact that the inquiry officer exonerated the respondent from all the charges and that the action is in violation of the U.P. Government Servants (Discipline and Appeal) Rules, 1999 ('the Rules, 1999'). Learned Single Judge also expressed surprise that a person who rendered 29 years' service, his appointment was questioned after three years of his retirement and held the same to be illegal and arbitrary and consequently, allowed the writ petition and set aside the orders dated 3.11.2021 and 23.12.2019. It was further directed to grant all consequential benefits to the respondent and imposed cost of Rs.50,000/-. Feeling aggrieved, the present appeal has been filed.

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The appeal is barred by 129 days.

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An application under Section 5 of the Limitation Act seeking condonation of delay in filing the appeal has been filed.

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For the reasons indicated in the application supported by an affidavit, the same is allowed.

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Delay in filing the appeal is condoned.

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Learned counsel for the appellants made vehement submission that learned Single Judge was not justified in setting aside the orders impugned.

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Submission has been made that once it was found that initial order of appointment of the respondent was beyond the authority of the officer, who

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appointed him, imposing the penalty of withholding of entire pension was justified.

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Submission has been made that provisions of Article 351-A of the Regulations have been followed, which permits withholding the entire pension and therefore, the order impugned passed by the learned Single Judge deserves to be set aside.

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Further submission has been made that imposition of cost of Rs.50,000/- by the learned Single Judge, without there being any malafide involved/alleged, is also not justified and therefore, the cost deserves to be set aside.

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Learned counsel for the respondent supported the order impugned. It has been submitted that the entire exercise of passing of the orders impugned in the writ petition is illegal and are not supported by any provision of law.

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Submission has been made that though disciplinary proceedings were initiated while the respondent was in service, post retirement the same were dropped by order dated 12.9.2018. Without recalling the said order dated 12.9.2018 and without affording any opportunity of hearing, the appellants restarted the disciplinary proceedings, which culminated in inquiry report exonerating the respondent, whereafter also without affording any opportunity as envisaged by Rule 9(2) & (4) of the Rules, 1999, punishment has been imposed , which vitiates the entire exercise.

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Further submission has been made that even in terms of Article 351-A of the Regulations, pension can be withheld only in case the pensioner is found to be guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence. Once the respondent has been exonerated in the disciplinary proceedings, the provisions of Article 351-A of the Regulations would have no application and as such, the order impugned passed by learned Single Judge does not require any interference.

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We have considered the submissions made by counsel for the parties and perused the material available on record.

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Undisputed facts, as noticed hereinbefore, are that the respondent was accorded appointment in the year 1990 and for the first time in the year 2017 a

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charge-sheet was issued to him on the ground that the officer, who accorded appointment to him was incompetent. The respondent attained the age of superannuation while the enquiry was still pending, on 31.1.2018. Whereafter, for reasons best known to the appellants, permission was sought under Article 351-A of the Regulations to continue with the enquiry, which permission, was apparently not required. However, the said permission was subsequently refused on 23.8.2018.

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Whereafter, on 12.9.2018 the disciplinary proceedings initiated in 2017 were dropped and the respondent was accorded all retiral benefits, including payment of pension. The appellants whereafter, for the reasons best known to them, again sought permission under Article 351-A of the Regulations, which was granted on 8.6.2020, post which, as noticed hereinbefore, though the inquiry officer exonerated the respondent, the disciplinary authority disagreeing with the inquiry report, imposed punishment on the respondent withholding the pension permanently.

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The entire exercise conducted by the appellants, apparently is wholly without jurisdiction and cannot be sustained.

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The relevant provisions of the Regulations and Rules, 1999 inter-alia read as under :

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" Civil Service Regulations

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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;

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Provided that—

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(a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment—

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(i) shall not be instituted save with the sanction of the Governor. "

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U.P. Government Servants (Discipline and Appeal) Rules, 1999

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"9. Action on Inquiry Report. - The Disciplinary Authority may, for reason to be recorded in writing, remit the case for re-enquiry to the same or any other Inquiry Officer under intimation to the charged Government Servant. The Inquiry Officer shall thereupon proceed to hold the inquiry from such stage as directed by the disciplinary Authority, according to the provisions of Rule 7.

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(2) The Disciplinary Authority shall, if it disagrees with the finding of the Inquiry Officer on any charge, record its own findings thereon for reasons to be recorded.

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(3) In case the charges are not proved, the charged Government Servant shall be exonerated by the Disciplinary Authority of the charges and informed him accordingly.

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(4) If the Disciplinary Authority, having regard to its finding on all or any of charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charged Government Servant, he shall give a copy of the inquiry report and his finding recorded under sub-rule (2) to the charged Government Servant and require him to submit his representation if he so desires, within a reasonable specified time. The Disciplinary Authority shall, having regard to all the relevant records relating to the inquiry and representation of the charged Government Servant, if any, and subject to the provisions of Rule 16 of these rules, pass a reasoned order imposing one or more penalties mentioned in Rule 3 of these rules and communicate the same to the charged Government Servant."

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A perusal of provisions of Article 351-A of the Regulations would reveal that it is only in case where the departmental proceedings are not instituted while the officer was on duty before retirement, the same cannot be instituted without the sanction of the Governor. However, the said provision would have no application in a case where the departmental proceedings have already been instituted while the officer was on duty.

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In the present case, the departmental proceedings were instituted in the year 2017 by charge-sheet dated 10.2.2017 and therefore, there was no necessity to seek permission under Article 351-A of the Regulations in continuing with the departmental proceedings. However, such permission was sought and was promptly rejected on 23.8.2018, pursuant to which the departmental proceedings against the respondent were dropped by order dated 12.9.2018 and he was accorded all retiral benefits. Once the departmental proceedings instituted prior to the retirement of the respondent were dropped, the same

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could not have been then continued/reinitiated by the appellants, without recalling the order dated 12.9.2018.

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However, it appears that again permission was sought under Article 351-A of the Regulations, which was granted on 8.6.2020, for proceeding against the respondent along with eight other officers. Under the said order dated 8.6.2020 also, only a fresh inquiry could have been initiated against the respondent. This is besides the fact that once the said permission was rejected by order dated 23.8.2018, no fresh permission without there being any other material and without affording opportunity to the respondent could have been sought/granted.

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Be that as it may, instead of initiating fresh proceedings pursuant to the purported permission dated 8.6.2020, it appears that the inquiry officer gave his report in relation to the inquiry initiated on 10.2.2017 and dropped on 12.9.2018 on 01.10.2021, exonerating the respondent.

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Once the enquiry proceedings have been dropped on 12.9.2018, the enquiry officer could not have given his report qua the charge-sheet which already stood dropped and that also without affording any opportunity to the respondent and as such, very giving of the enquiry report itself was bad in law. However, once the enquiry officer exonerated the respondent, in terms of Rule 9(2) and (4) of the Rules, 1999, the disciplinary authority was required to give a copy of the enquiry report and its findings recorded under sub-rule (2) to the respondent and require him to submit a representation within a reasonable specific time and then only he could pass order imposing the penalty. However, admittedly after the enquiry report exonerating the respondent was submitted, no notice along with reason for disagreement was served on the respondent and therefore, the entire action of the disciplinary authority being in gross violation of provisions of Rule 9 of Rules, 1999, the entire action stands vitiated and rendered void.

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Further the powers under Article 351-A of the Regulations can only be exercised by the Governor regarding withholding or withdrawing a pension if the pensioner is found in departmental proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or

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negligence. However, in the present case, neither the respondent has been found guilty of misconduct nor he has caused pecuniary loss to Government by any act of misconduct and as such, the punishment of withholding the retiral benefits cannot be sustained on any count whatsoever.

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We have been informed that after passing of the order impugned, as there was no interim order granted in the present appeal, the directions given by the learned Single Judge have been complied with by the appellants.

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In view of the above discussions, it is apparent that action of the appellants, in initiating proceedings after 27 years of according appointment to the respondent alleging that the officer appointing him was incompetent, reinitiating disciplinary proceedings after dropping the same, seeking permission under Article 351-A of the Regulations once the same was rejected, passing of the order impugned dated 3.11.2021 in violation of Rule 9 of the Rules, 1999 and imposition of punishment being ex-facie contrary to the stipulation in Article 351-A of the Regulations, the order passed by the learned Single Judge cannot be faulted on any count.

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Coming to the imposition of cost of Rs.50,000/- on the appellants, we find that the cost imposed without recording any finding of malafides is apparently exorbitant. However, harassment of the respondent, in the facts and circumstances of the case, cannot be denied and therefore, the cost is reduced to Rs.10,000/-.

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Except for the above reduction in the cost imposed, the appeal stands dismissed .

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Order Date :- 20.11.2024 nd

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(Jaspreet Singh, J) (Arun Bhansali, CJ)

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Digitally signed by :- NISITH DEY High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. Thru. Prin. Secy. Deptt. of Labor Govt. of U.P. Civil Secrt. Lko. and Ors. v. Dhani Ram

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State of U.P. Thru. Prin. Secy. Deptt. of Labor Govt. of U.P. Civil Secrt. Lko. and Ors. v. Dhani Ram

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