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Gopi Chand Bishnoi v. State Of U.P. & Others - WRIT - A No. 52792 of 2000 [2007] RD-AH 11343 (6 July 2007)


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                                                     Reserved on 11.5.2007

                                    Delivered on

Civil Misc. Writ Petition No.52792 of 2000

Gopi Chand Bishnoi


State of U.P. and another


Hon'ble Anjani Kumar, J.

Hon'ble Sudhir Agarwal, J.

Aggrieved by the order dated 30th September 2000 passed by respondent no.1 imposing punishment of deduction of pension by 20% in exercise of power under Article 351-A of Civil Service Regulation (hereinafter referred to as CSR) the petitioner has sought a writ of certiorari for quashing the said order and has also sought a writ of mandamus commanding the respondents to release the entire pension, gratuity and other retiral benefits along with interest at the rate of 18%.

The facts in brief, as stated in the writ petition, are that the petitioner was appointed as Naib Tahsildar and promoted to the post of Tahsildar and Deputy Collector where-from he retired on attaining the age of superannuation on 30.6.1997. Just a few months earlier to the date of retirement the petitioner received a charge sheet dated 20th December 1996 which contained four charges with respect to alleged irregularities committed by the petitioner while working as Land Acquisition Officer between 1994-95. The Commissioner, Meerut Division, Meerut was appointed Enquiry Officer under Rule 55 of the Civil Services (Classification, Control And Appeal) Rules, 1930 as applicable in U.P. (hereinafter referred to as CCA Rules, 1930). The petitioner vide letter dated 24th January 1997 requested that he may be supplied the documents relied in support of charges so that he may submit his reply. Reminders also sent on 18th February 1997 and 28th June 1999. The petitioner was informed that documents pertaining to charges no.2, 3 and 4 are lying in the Vigilance Department and hence could not be made available for inspection but some documents pertaining to charge no.1 were made available which were inspected by him. Thereafter he submitted reply on 16th October 1998 with respect to charge no.1 only. It appears that documents pertaining to charges no.2, 3 and 4 were not made available to the Enquiry Officer as well. The Commissioner, Meerut Division, Meerut i.e. the Enquiry Officer after receiving petitioner's reply dated 16th October 1998 submitted his report dated 2nd August 1999 confining his findings to charge no.1 only and held that charge no.1 was established against the petitioner. Copy of the enquiry report was furnished to the petitioner along with show cause notice dated 17th August 1999 where against he submitted reply dated 8th October 1999. Respondent no.1 ultimately passed impugned order of punishment dated 30th September 2000 imposing punishment of deduction of pension by 20% since the petitioner in the meantime had attained the age of superannuation and therefore various other punishments as provided under Rule 49 of CCA Rules 1930 could not have been imposed.

Learned counsel for the petitioner has assailed the impugned order of punishment mainly on two grounds -

(1) After retirement of the petitioner on 30th June 1997 enquiry proceedings could not have been continued unless sanction of the Governor is obtained and therefore the entire proceedings are void ab initio.

(2) Before submitting enquiry report it was incumbent upon the Enquiry Officer to conduct oral enquiry in the manner proceedings are conducted where punishment of dismissal could have been imposed upon a Government servant but no such procedure has been adopted by the Enquiry Officer, no oral enquiry was conducted and on the contrary Enquiry Officer proceeded as if charges once levelled stood proved unless disproved by the delinquent employee. The procedure thus being contrary to Rule 55 of CCA Rules 1930, it vitiates the entire proceedings including the order of punishment.

The respondents have filed counter affidavit stating that the Enquiry Officer gave full opportunity of defence to the petitioner. Further more the petitioner was also given opportunity by the State Government before passing the impugned order of punishment and if there was any possible defence available to the petitioner, it was always open to him to bring such facts to the notice of the State Government. Since the petitioner has made illegal appointments and that was the allegation in charge no.1 which has been found true, the punishment has rightly been imposed upon him and it is neither inconsistent with law nor the allegation that there is violation of Article 351 of CSR is incorrect.

We have heard learned counsel for the parties and perused the record. Pursuant to the direction issued by this Court the State Government also produced original record pertaining to enquiry which has been conducted against the petitioner and the Court has also perused the same. The first question is whether impugned order is vitiated in law since proceedings continued after retirement of the petitioner without any sanction of Governor. In order to answer the said question it would be necessary to find out whether sanction of Governor for continuance of disciplinary proceedings in the case in had was at all necessary. The entire submission of the petitioner is based on Article 351-A which reads as 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 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 mis-conduct, 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 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) (a), and

(c) the Public Service Commission, U.P., shall be consulted before final orders are passed."

The proviso to Article 351-A of CSR makes it clear where departmental proceeding was not instituted when the officer was on duty in such case the proceeding shall not be instituted except with the sanction of Governor. It reveals where proceedings have already been instituted when the government servant was on duty, for continuance of such proceedings after his retirement, sanction of Governor is not a condition precedent under Article 351-A of CSR. The issue is no more res integra having been decided by the Apex Court in State of U.P. and others Vs R.C. Misra, JT 2007 (4) SC 558, wherein the Apex Court in para 6 and 7 of the judgment has held as under :-

"...... 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 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.

The word used in proviso (a) is "institute". The dictionary meaning of the word "institute" is 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, same 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."

Admittedly in the case in hand the charge sheet was issued to the petitioner on 20th December 1996 when he was on duty and he actually received the same also while he was on duty  since on 24th January 1997 he requested the Enquiry Officer to supply documents enabling him to submit reply to the charge sheet. At that time, admittedly, the petitioner was posted as Deputy Collector at Mathaura and was in service. Hence it cannot be said that continuance of proceedings after retirement of the petitioner without sanction of Governor is illegal since issue stands replied by the Apex Court in the aforesaid judgment. Even otherwise it is very clear on a bare reading of Article 351A of CSR. This issue is decided accordingly against the petitioner.

Now coming to the second submission as to whether there is violation of principle of natural justice or the procedure prescribed under Rule 55 of CCA Rule 1930 has been flouted. It is not disputed by learned standing counsel that the departmental proceedings could have been conducted in accordance with the procedure prescribed under Rule 55 of CCA Rule 1930 as it was applicable at that time. The said rule reads as under:-

"55 (1) Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order (other than an order based on facts which had led to his conviction in a criminal Court or by a Court Martial) of dismissal, removal or reduction in rank (which includes reduction to a lower post or, time-scale but excludes the reversion to a lower post of a person who is officiating in a higher post) shall be passed on a person who is member of a Civil Service or holds a civil post under the State unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced in the form of definite charge or charges which shall be communicated to the person charged and which shall be so clear and precise as to give sufficient indication to the charged Government servant of the facts and circumstances against him. He shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned to directs, an oral inquiry shall be held in respect of such of the allegations as are not admitted. At that inquiry such oral evidence will be heard as the inquiring officer considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the inquiry may, for sufficient reasons to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. The officer conducting the inquiry may also separately from these proceedings, make his own recommendation regarding the punishment to be imposed on the charged Government servant.

(2) Where the punishing authority it self inquires into any charge or appoints an inquiring officer for holding an inquiry into such charge, the punishing authority, if it considers it necessary to do so, may, by an order, appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge.

(3) The Government servant may take the assistance of any other Government servant to present the case on his behalf, but not engage a legal practitioner for the purpose unless the presenting officer appointed by the punishing authority is a legal practitioner or the punishing authority having regard to the circumstances of the case so permits.

(4) This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may for sufficient reasons to be recorded in writing he waived where there is difficulty in observing exactly the requirements of the rule those requirements can in the opinion of the inquiring officer be waived without injustice to person charged.

(5) This rule shall also not apply where it is proposed to terminate the employment of either a temporary Government servant or of a probationer whether during or at the end of the period of probation. In such cases a simple notice of termination which in the case of a temporary Government servant must conform to the conditions of his service will be sufficient."

From the record it is evident that petitioner sought inspection of certain documents and in respect to charge no.1 documents were allowed to be inspected by him whereafter he submitted his reply dated 16th October 1998. The Enquiry Officer fixed 26th March 1999 giving opportunity of oral hearing to the petitioner. It does not appear that on 26th March 1999 when the date of oral hearing was fixed, the department produced its evidence to prove charges and thereafter the petitioner was given opportunity to disprove the charge, if any. On the contrary the Enquiry Officer, it appears, allowed the petitioner to appear before him and make oral submissions, if any, in his defence. In our view it is not the prescribed procedure for oral enquiry at all. When the charges are levelled against a government servant and he is required to reply the same, after receiving his reply, if he has not admitted the charge, and the matter requires further investigation, an oral enquiry has to be conducted wherein the department is to lead its evidence to prove charges levelled against the government servant. After completion of evidence on the part of the department, the Enquiry Officer shall give an opportunity to the delinquent employee to place his evidence, if any, to disprove the charges. In the absence of evidence led by the department to prove the charges, the delinquent employee is not supposed to lead any evidence since the charges levelled in the charge sheet by itself cannot be said to be established and the delinquent employee cannot be required to disprove the same merely on the basis of allegations contained in the charge sheet unless the department produces and leads its evidence before the Enquiry Officer to prove charges against the delinquent employee. This appears to have not been done  in the case in hand and on the other hand the Enquiry Officer though had fixed 26th March 1999 as the date of oral enquiry, but on the said date he directed the delinquent employee only to give his statement in defence, if any, against the charges. There was no evidence led by the department to prove the charges on the said date. The procedure adopted by the Enquiry Officer cannot be said to be consistent with Rule 55 of CCA Rules 1930 giving adequate opportunity of defence to the petitioner.

At this stage learned standing counsel submitted that there was no occasion for the department to lead any evidence for the reason that in his reply submitted by the delinquent employee i.e., the petitioner, he has admitted the entire charge. We have seriously considered the aforesaid submission and have gone through the charge sheet as well as the reply submitted by the petitioner but unable to accept the aforesaid submission. The charge levelled against the petitioner is not only with respect to certain appointment made by him while working as Land Acquisition Officer but contain more serious allegations, namely, unauthorised and illegal appointments of certain employees, obtaining their orders of transfer by concealing relevant information and thereby guilty of entering into a conspiracy of making illegal appointments. The petitioner in the reply has neither accepted the allegations of conspiracy nor concealment of relevant information. Thus it cannot be said that charge no.1 was admitted by the petitioner on account whereof there was no occasion for the department to lead its evidence. Had it been so, in that case, no oral enquiry is required and the disciplinary authority on the basis of such admission of delinquent employee could have passed order of punishment. Since there was no admission of the petitioner of the allegation levelled against him in charge no.1 of the charge sheet, therefore, oral enquiry by the Enquiry Officer was necessary and failure in holding such enquiry, in our view, shall vitiate the entire proceedings. We are fortified in taking this view by a Division Bench of this Court in Sharad Kumar Verama Vs. State of U.P. and others, Writ Petition No.318 (SB) of 2005, decided on 3rd April 2006, wherein it was held:

"In departmental proceedings, the charges unless proved, cannot form the basis of any punishment. The standard of proof is different as against required standard in the case of criminal trial the charges levelled must stand proved on the basis of relevant material. The moment charge is required to be proved necessity would arise to adduce evidence which may be documentary or oral or both. The burden to prove charges lies upon the department and therefore department owes its liability first to adduce evidence and take steps for proving the charge. It is after this stage that the delinquent would be required to rebut the evidence adduced and also cross-examine the witnesses produced or to nullify it by adducing such evidence that may be available or to show unworthiness of the documents which are sought to be relied upon but this can only be done if the Enquiry Officer fixes a date for adducing evidence not otherwise. Merely because delinquent did not say a solely word about his participation in the enquiry despite the charges not being admitted to him and they having been denied, the Enquiry Officer does not stand absolved of his legal obligation of holding enquiry in the manner prescribed. It is to be kept in mind that denial of charges and admission of charges cannot be taken on the same footing. There may be case where delinquent denying charge specifically and there may be cases where delinquent does not refer to charges and in such case also the Enquiry Officer would be under obligation to hold enquiry to see that the charges are proved or not. It is only where in a case the delinquent admits charge, the department need not to lead any evidence before the Enquiry Officer and the charges can be taken as proved."

Since the enquiry has not been conducted consistent to the Rules, we of the considered opinion that this has resulted in denial of principles of natural justice vitiating the impugned order of punishment.

There is another aspect which is also very important to be noticed herein. Article 351-A of CSR is attracted where a retired government servant is found guilty of grave misconduct or to have caused pecuniary loss to government by misconduct or negligence during his service including service rendered in re-employment after retirement. Enquiry report shows that the Enquiry Officer did not find the petitioner guilty either of any grave misconduct or of any pecuniary loss caused to the government by his misconduct or negligence. In the punishment order issued by respondent no.1, the conduct of the petitioner has not been found to be of grave misconduct though it is said that the allegation of making irregular appointment is of serious nature. It also nowhere says that the petitioner has caused any pecuniary loss to the government on account of his misconduct or negligence though it says that appointment has caused unnecessary expenses on the revenue. The charges, therefore, levelled against the petitioner do not satisfy the requirement of Article 351 of CSR. In our view an action under Article 351A is permissible only when charges against the retired government servant are found proved, which are either in the nature of grave misconduct or have caused pecuniary loss on account of misconduct or negligence of government servant and not otherwise. In these circumstances the impugned order cannot be justified by reference to Article 351A of CSR.

In the result the writ petition is allowed. The impugned order dated 30.9.2000 is hereby quashed. The petitioner shall be entitled for all consequential benefits. However, there shall be no order as to cost.




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