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Narendra Kumar Bhargawa v. U.P. Pashudhan Udyog Nigam Ltd. & Ors. - WRIT - A No. 49644 of 2002  RD-AH 4422 (14 March 2007)
Civil Misc.Writ Petition No.49644 of 2002
Narendra Kumar Bhargawa
U.P. Pashudhan Udyog Nigam Ltd. & others
Hon.Shishir Kumar, J.
The petitioner was appointed on 19.1.1971 on the post of purchase officer in Central Dairy Firm, Aligarh, U.P. on the recommendation of the Public Service Commission, U.P. Allahabad. By Government order dated 14.5.1975 Central Dairy Firm Aligarh was converted into Public Sector Undertaking under the name of U.P. Pashudhan Udyog Nigam Ltd. The petitioner was appointed as Assistant Manager (Purchase) and joined on 30.4.1984. On 8th June, 1993 the scheme framed by the Government for voluntary retirement was adopted by the Board of Directors by resolution dated 14.9.1993. On 10.3.1998 the petitioner applied to the U.P. Pashudhan Udyog Nigam Ltd seeking voluntary retirement. The application of the petitioner was accepted by the competent authority on 31.3.1998 but by mistake in the order, the word 'resignation' was mentioned instead of voluntary retirement. The petitioner was relieved from service by the Corporation on 3.4.1998. The typing mistake in the order dated 31.3.1998 was corrected by the respondents by order dated 8/9.6.1998. The petitioner has not been paid his post retiral benefits, therefore, he filed a Writ Petition No.1575 of 2001 before the Lucknow Bench of this Court. In the above writ petition on 9.11.2001 counter was called and the writ petition is still pending. On 11.9.2001 a show cause notice was issued by the Managing Director of the Corporation that the petitioner should submit his explanation by 11.9.2001 on various points mentioned in the show cause notice. The notice was received by the petitioner and he has submitted his reply. Thereafter, charge sheet dated 5.2.2002 was issued by the enquiry officer to the petitioner levelling six charges against the petitioner. The charges relate to the period 9.6.1969 to 3.4.1998. The petitioner submitted a reply to the charge sheet and the enquiry officer submitted his report on all the six charges on 22.4.2002 to the Managing Director of the Corporation. Thereafter, a show cause notice was issued by the Managing Director on 9.7.2002 to which the petitioner has also replied on 29th July, 202. The Managing Director by order dated 19.8.2002 has found the petitioner guilty of Charges Nos.1 and 2 and with regard to Charge Nos.3 and 4 he was of the opinion that the matter has been referred to the State Government and after receiving instructions from the State Government, orders will be passed. So far as Charge Nos.1 and 2 are concerned he directed that the recovery of the amount be made from the gratuity and balance salary of the petitioner and even anything remains to be recovered the same should be recovered as a civil liability by filing a suit. It is the order dated 19.8.2002 passed by Managing Director of the Corporation which has been challenged before this Court in this petition.
The learned counsel for the petitioner has urged that the gratuity of the petitioner has been forfeited and recovery has been directed to be made from the petitioner with regard to Charges Nos.1 and 2. Though the show cause notice, charge sheet, enquiry report and punishment order all have been passed after the petitioner's retirement from service. He urged that while the petitioner was in service no departmental disciplinary proceedings were initiated against the petitioner and he was voluntarily retired on 31.3.1998. He has further urged that there are no rules under which the respondents could have initiated disciplinary proceedings against the petitioner after his retirement. The entire action of the corporation taken against the petitioner is without jurisdiction.
On the other hand, Sri Ram Niwas Singh, learned counsel appearing for the Corporation urged that drafts service rules of Uttar Pradesh Pashudhan Udyog Nigam Ltd. have been framed and was sent for approval of the State Government but no approval was granted to the draft rules by the State Government, therefore, the draft rules never came into force. Therefore, he urged that the Rules applicable to government employees are applicable to the employees of the Corporation as they have been adopted by the Board and the rules of government servants would be applicable. He has urged that under Regulation 351-A of the Civil Service Regulation, recovery can be made from the petitioner for the loss caused to the Corporation and there is no error in the order passed by the Managing Director directing recovery of the amount from the petitioner.
A short question that arises for consideration of this Court is whether in absence of any statutory rules framed by the U.P.Pashudhan Udyog Nigam Ltd. the rules applicable to government servants would be applicable to the employees of the Corporation, if so, whether the recovery from gratuity and balance salary ordered by the Managing Director of the Corporation could be justified under Regulation 351-A of the Civil Procedure Regulation.
In the supplementary counter affidavit filed by the Corporation it has been admitted in paragraph 10 that no service rules governed the employees of the Corporation and the services of officers/employees of the Corporation are governed by service Rules of U.P. Government which was applicable prior to 15.5.1975, therefore, in view of the statement made in paragraph 10 of the supplementary counter affidavit, we have no hesitation in holding for rules applicable to State Government employees would be applicable to the petitioner.
The next question is whether the Managing Director of the Corporation could direct for recovery of the amount for the loss suffered by the Corporation while the petitioner was in service and initiate departmental proceedings after the petitioner was voluntarily retired on 31.3.1998 and was relieved on 3.4.1998. In paragraph 11 of the counter affidavit it has been stated that under Regulation 351-A of the Civil Service Regulation, enquiry may be ordered even after retirement. It is not disputed that prior to the voluntarily retirement of the petitioner no departmental disciplinary proceedings were ever initiated by the Corporation or was pending against the petitioner. Only after retirement of the petitioner, on 11.9.2001 a show cause notice was issued by the Managing Director to the petitioner to show cause with regard to irregularity committed by the petitioner from 9.6.1969 to 3.4.1998. Thereafter charge sheet was issued on 5.2.2002 to which the petitioner submitted his reply. The enquiry officer without fixing any date, time or place for enquiry, submitted the enquiry report on all the six charges on 22.4.2002 to the Managing Director. The Managing Director issued a show cause notice on 9.7.2002 which was replied and thereafter finding the petitioner guilty of Charges No. 1 and 2 the Managing Director by order dated 19.8.2002 directed that gratuity of the petitioner be forfeited and the amount be recovered from the petitioner from gratuity and balance salary and if anything still remains after that then the same be recovered by filing a civil suit. Sri Ram Niwas Singh, learned counsel appearing for the respondents clearly stated that after the petitioner voluntarily retired, from the facts of the case it is clear that the enquiry proceedings were initiated only after voluntarily retirement of the petitioner. Since the rules of Government were applicable, therefore, the respondents could have adopted the procedure prescribed by Regulation 351-A of the Civil Service Regulation and could have initiated departmental proceedings against the petitioner after obtaining sanction from the Governor, that too with regard to an incident which has taken place not more than four years before the institution of such disciplinary proceedings. The relevant paras of Civil Service Regulation 351-A is extracted 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 departmental proceeding to have been caused to Government by the negligence or fraud of such officer during his service.
(1) such departmental proceedings, if not instituted while the officer was on duty.
(i)shall not be instituted save with the sanction of the Governor.
(ii) 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;
(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.
Provincial Government :
(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 later:
(iii) shall be in respect of an event which took place not more than one year before the date on which the officer was last on duty and:
(iv) 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, if not instituted while the officer was on duty, shall have been instituted in accordance with sub- clauses (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.
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 or 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.?"
The counsel for the petitioner has also placed reliance upon a judgement of this Court in State of U.P. and another v. Shri Krishna Pandey , AIR1996 SC 1656.
It could not be disputed by Sri Ram Niwas Singh, learned counsel for the respondents that no sanction from the Governor has been obtained before initiation of the departmental proceedings or up-till-now. He has urged that with regard to Charges Nos. 3 to 6, the matter has been referred to the State Government. The petitioner voluntarily retired on 31.3.1998. The departmental disciplinary proceedings could have been initiated against the petitioner within a period of four years from the date of incident but not beyond four years. In this case no sanction of the Governor has been obtained within a period of four years which expires on 1st April, 2002. The Managing Director of the Corporation had no authority under law to direct recovery of any amount from the gratuity of the petitioner or from his balance salary. The order passed by the Managing Director in absence of any sanction granted by the Governor within limitation was without jurisdiction as such, order cannot be maintained.
In the result, this petition succeeds and is allowed. The order dated 19.8.2002 passed by the Managing Director, U.P. Pashudhan Udyog Nigam Ltd./respondent No.1 (Annexure 10 to the writ petition) is quashed with all benefits of service to the petitioner. A writ of mandamus is issued to the respondent No.1 to release the entire post retiral benefits of the petitioner including his gratuity with 9% simple interest till the date of full and final payment is made. The entire payment shall be made by the respondent No.1 along with interest within a period of three months from the date a certified copy of this order is produced before the respondent No.1.
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