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RUDRA NATH TRIPATHI versus STATE OF U.P. THROUGH PRIN. SECY. LUCKNOW AND OTHERS

High Court of Judicature at Allahabad

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Rudra Nath Tripathi v. State Of U.P. Through Prin. Secy. Lucknow And Others - WRIT - A No. 18661 of 2005 [2007] RD-AH 1486 (29 January 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 38

Civil Misc. Writ Petition No. 18661 of 2005

Rudra Nath Tripathi

Versus

State of U.P. and others

Hon'ble V.K. Shukla,J

Petitioner has approached this Court for quashing of the order dated 11.11.2004 and for quashing the proceedings pursuant to charge sheet dated 18.05.2004.

Brief background of the case is that petitioner had been performing and discharging duties as Assistant Development Officer (Minor Irrigation) as Class III employee.  Petitioner has attained the age of superannuation on 30.05.2000 from the office of Minor Irrigation Department situated at Deoria. Petitioner has not been paid his retiral benefits and as such petitioner submitted his representation for ensuring payment of the same. As nothing has been done, petitioner filed Civil Misc. Writ Petition No. 34951 of 2004. This Court on 26.08.2004 directed the authority concerned to decide the representation and thereafter representation in question has been decided and it has been held that against the petitioner departmental proceedings under CSR Article 351-A is going on and petitioner has not submitted his reply, as such petitioner is not entitled for benefits as such claim has been rejected. At this juncture present writ petition has been filed.

Counter affidavit has been filed and therein it has been contended that irregularities have been committed by the petitioner for which proceedings have been initiated for causing loss to the Department to the tune of Rs. 12,50,511.80/- It has further been contended that petitioner has not participated in the proceedings which has been undertaken and as such writ petition as it has been framed and drawn is liable to be dismissed.

Rejoinder affidavit has been filed and therein statement of facts mentioned in the counter affidavit has been disputed that of writ petition has been reiterated.

After pleadings mentioned above have been exchanged present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Sri H.S.N. Tripathi, learned counsel for the petitioner that contended in the present case initiation of departmental proceedings after retirement is clearly barred as charge sheet has been issued after more then four years when event took place and as such by no stretch of imagination, proceedings are permissible in law and respondents in all eventuality post retiral benefits are liable to be released.

Learned Standing counsel on the other hand contended that proceedings have been validly initiated against the petitioner and there is no scope of interference as petitioner has not participated in the proceedings in question, writ petition deserves to be dismissed.  

After respective arguments have been advanced in order to get much more clear picture qua plea of limitation, requisite instructions were asked for and instructions dated 16.01.2007 and 24.01.2007 has been produced by the learned Standing Counsel which forms part of the record.

In order to appreciate respective contention of the parties. Article 351-A as contained under Chapter XV which deals with Ordinary Pension- General Rules is being quoted below:-

351-A  The Provincial Government reserve to themselves the right to order the recovery from the pension of an officer who entered service on or after 7th August 1940 of any amount on account of losses found in judicial or department proceedings to have been caused to Government by the negligence or fraud of such officer during his service-

Provided that-

(i) Such departmental proceedings, if not instituted while the officer was on duty-

(ii) shall be instituted before the officer's retirement from service or within a year from the date on which he was last on duty whichever is letter:

(iii) shall be in respect of an event which took place not more then one year before the date on which the officer was lost on duty and

(vi) shall be conducted by such authority and in such places whether in India or elsewhere, as the Provincial Government may direct;

(2) all such departmental proceedings shall be conducted, if the officer concerned so requests in accordance with the procedure applicable to departmental proceedings on which an order of dismissal from service may be made and

(3) such judicial proceedings of not instituted while the officer was on duty, shall have been instituted in accordance with sub-clause (ii) and (iii) of Clause (1).

Note- As soon as proceedings of the nature referred to in this article are instituted the authority which institutes such proceedings shall without delay intimate the fact to the Audit Officer concerned.

pecuniary loss to Government by mis-conduct 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 to 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) 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 an 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.

Note- As soon as proceedings of the nature referred to in this article are instituted the authority which institutes such proceedings shall without delay intimate the fact of the Audit Officer concerned.

A bare perusal of the provision quoted above would go to show that the Governor has reserved 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 any pecuniary loss to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct or to have been caused loss to Government by mis-conduct or negligence, during his service including service rendered on re-employment after retirement. To this particular provision, proviso has also been added  when the departmental proceedings have not been instituted while the officer was on duty either before retirement or during re-employment and further pre requisite terms which are to be fulfilled for initiating departmental proceedings has also been provided for. Sub-clause (i) of Clause (a) of Article 351-A provided that such departmental proceedings shall not be instituted save with the sanction of the Governor and sub-clause 2 of Clause (ii) further provided that said departmental proceedings shall be in respect of an event which took place not more than four years before the institution of such proceedings. Explanation has also been provided for to this Article, providing for that departmental proceedings shall be deemed to have been instituted when charges framed against the pensioner are issued to him and if the officer has been placed under suspension from an earlier  date, on such date.

These are relevant provision which are essential to be looked  into, and on the touchstone of provisions quoted above facts of present case are being adverted to. In the present case this fact has not been disputed that petitioner has attained the age of superannuation on 31.05.2000. On 15.06.2001 State Government wrote a letter to get inquiry conducted. On 25.11.2002 charge sheet was prepared by Superintending Engineer and presented to Chief Engineer, Irrigation on 27.12.2002, matter was referred to the State Government wherein on 03.09.2003 permission was accorded for initiating action. On 14.05.2004 Naresh Chandra was appointed as Inquiry Officer for which letter was written on 18.05.2004 and it was also mentioned that charge sheet be issued to the petitioner. Factual position which has also emerged is that petitioner functioned up till 29.04.2000, at Kushinagar and he has been transferred on 27.04.2000 from Kushinagar to Deoria and petitioner joined at Deoria on 30.04.2000. Entire charges are in respect to Kushinagar.  In the present case charge sheet from the own showing of the respondents has been issued on 18.05.2004. In this backdrop factual position which has emerged is to the effect that in terms of provision as contained Article 351-A of Chapter XV of Ordinary Pension- General Rules, as departmental proceeding has been instituted in respect of an event which has taken place more than four years back, same was not at all permissible and proceedings are clearly barred. Consequently in the facts and circumstance of the case departmental proceedings pursuant to charge sheet dated 18.05.2004 is clearly barred by limitation and same can not be permitted to continue as limitation clause is absolute, clear and categorical, and no provision has been made for extension of time, as such entire proceedings undertaken against the petitioner in the shape of departmental proceedings after his retirement is unsustainable and in breach of statutory provisions.

Consequently departmental proceedings pursuant to charge sheets dated 18.05.2004 is hereby quashed and set aside. Respondents are directed to ensure that post retrial benefits  are finalised and the same paid to petitioner within next three moths from the date of receipt of certified copy of the order.

In the present case charge sheet was prepared on 25.11.2002 and same was sent for taking sanction from the State Government on 27.12.2002 and sanction was accorded on 03.09.2003 and thereafter charge sheet has been served on 18.05.2004. In the present case incumbent who is responsible for delay in making proceedings time barred has to be hauled up. Once permission was accorded on 03.09.2003 for initiation of departmental proceedings then as to under what circumstances delay has been caused by making the proceedings time barred by serving charge sheet on 18.05.2004 is serious issue, which requires inquiry, inasmuch as on account of lapse on the part authority concerned serious allegations which were to be inquired has been sought to be closed by virtue of being time barred.

Consequently in these circumstances and in this background the State Government is directed to make inquiry for fixing responsibility qua the incumbents on account of whom no action was taken against the petitioner for departmental action and who were responsible for making the proceedings as time barred. Thereafter against the aforesaid incumbents suitable action be taken in accordance with law.

In terms of observations and directions made above, present writ petition is allowed and disposed of.

29th January, 2007

Dhruv  


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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