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Wahid Husain Khan v. State Of U.P. & Others - WRIT - A No. 28685 of 1992 [2004] RD-AH 892 (23 September 2004)


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Civil Misc. Writ Petition No.28685 of 1992

Wahid Husain Khan Vs. State of U.P. and others.


Hon'ble V.C. Misra, J.

Heard Sri S.A. Azmi, learned counsel for the petitioner, Sri K.R. Sirohi learned counsel for the respondents 2 to 4 and the learned standing counsel on behalf of respondent no.1.

1. This writ petition has been filed challenging the departmental enquiry initiated after suspension order dated 25.5.1992 and the charge sheet dated 1.3.1997. The relief sought for is to issue a writ, order or direction in the nature of prohibition restraining the respondents 2 & 3 from proceeding further with the disciplinary proceedings, on the ground that undue delay is not attributable to the petitioner or other suspended employees which has been kept pending by the respondents 2 & 3 since 1992 and no final decision has yet been taken inspite of the fact that the petitioner having attained the age of superannuation on 5.4.1988 stood retired on 30.4.1988.

2. The case of the petitioner in brief is that while he was working as Record Keeper in the Judgeship of District Judge, Rampur, he was charge sheeted of manipulation and interpolation in the record of the files of the cases pertaining to the year 1954-55 though he had taken over the charge of the post of Record Keeper on 1.2.1989. His name was not mentioned in the First Information Report lodged on 1.4.1992 in the police station. He was subsequently suspended along with 4 other persons. After the preliminary enquiry, another First Information Report dated 1.4.1993 was lodged against one Kalyan Rai a private typist. However, the departmental proceedings continued against the 5 persons including the petitioner. The petitioner was compulsorily retired on 1.1.1993 by the respondents, which was challenged before this Court in Civil Misc. Writ Petition No.2349 of 1993 and the writ petition was finally allowed vide Judgment and Order dated 16.3.1988. The petitioner was reinstated but continued under suspension during the entire enquiry, and during pendency of the enquiry, the petitioner retired. Though the evidence was concluded on 15.10.1997 and final arguments were heard on 17.7.1999 and 5.8.2000 but the departmental proceedings did not conclude inspite of written request made by the petitioner on 29.5.1999.

3. The learned counsel for the petitioner has placed reliance on Rule 17 of The U.P. Pension Cases (Submission, Disposal and Avoidance of Delay) Rules, 1995, which provides that if an enquiry against an employee was continuing since before the date of the retirement, such enquiry should be concluded within 6 months from the date of retirement of the employees. No satisfactory reason or explanation had been given by the respondents 2 & 3 in their counter affidavit for not completing the enquiry proceedings pending for the last 6 years except that as submitted in para-13 of counter affidavit dated 24.9.2003 filed on behalf of respondents 2 to 4, sworn by one Sri Ajay Krishna Vishvesha, Civil Judge (Senior Division), Rampur, in reply to the amendment application dated 25.4.2001 that the enquiry officer being the Presiding Officer of the Court of Additional District Judge and thereafter Special Judge, NDPS Act being busy in judicial work and other administrative work, could not spare ample time for enquiry and hence, the enquiry could not be completed expeditiously, and also due to the change of the officer, and non availability of the witnesses etc.

4. Learned counsel for the petitioner has relied upon the Judgment passed by the Division Bench of this Court in the case of Mahabir Prasad Shrama Vs. State of U.P. and others reported in (2001) 3 UPLBEC page 2060, and the Judgment dated 8.5.2002 passed by the Division Bench of this Court in Civil Misc. Writ Petition No.12267 of 2002 Iftekhar Ahmad Siddiqui Vs. State of U.P. and another, wherein it has been held that if an enquiry has been pending for a sufficient time and not completed within 6 months from the date of the retirement of the employee, pendency of such enquiry was wholly arbitrary and violative of Article 14 of the Constitution of India, and also Judgment dated 13.12.1997 passed by the Division Bench of this Court in Civil Misc. Writ Petition No.8059 (S/B) of 1991 Ram Kumar Gupta Vs. State of U.P. and others, in this decision, it has been held that since a disciplinary proceedings initiated by order dated 29.9.1991 had not concluded and culminated in any punishment order and the petitioner having retired in October 1996, the respondent could not proceed after his retirement on the basis of earlier disciplinary proceedings.

5. The case of the respondents is that the enquiry officer has submitted his report on 16.7.2003 that further enquiry and further evidence is required and the material before the enquiry officer goes to show that all the record were fabricated in respect with the government land with a view to cause financial loss to the government which is an offence of grievous in nature. It has been admitted in para-15 of the counter affidavit that the enquiry could only be concluded on 16.7.2003. In para-19 of the counter affidavit it has been stated that all payment except pension due to the petitioner had been made to him on 26.3.1999 and 4.12.2000.

6. Learned counsel for the respondents has relied upon the following decisions :

-Takhatray Shivadattray Mankad Vs. State of Gujrat reported in AIR 1989 SC page-1843, and

-State of Maharashtra Vs. M.H. Mazumdar reported in AIR 1988 SC        pge-842.

The learned counsel for the respondents has also relied upon the provisions of 351-A of the Civil Services Regulation, which provides the power to the Government to reserve to themselves the right to order the recovery from the pension of the government officer on account of any pecuniary loss found in judicial or departmental proceedings to have been caused to the government by negligence, fraud and or misconduct provided that it shall be in respect of an event which took place not more than 4 years before the institution of such proceedings.

7. I have gone through the record of the case and find that the case of the petitioner is squarely covered by the decisions cited by him mentioned hereinbefore. The Regulations 351-A of the Civil Service Regulations relied upon by the respondents and the 2 Judgments referred by him, do not apply to the facts of the case. These are applicable only after the disciplinary proceedings have concluded and it has been found that the employee is guilty of embezzlement and misconduct etc. causing pecuniary loss to the government, then only, the recovery proceedings could be made from the pension of the retired employee. In the present case, the proceedings have yet not concluded inspite of inordinate delay. I find that the continuance of the enquiry proceedings initiated 12 years ago against the petitioner who retired 6 years back, is wholly arbitrary and violative of Article 14 of the Constitution of India and is fully covered by the provisions of Rule 17 of The U.P. Pension Cases (Submission, Disposal and Avoidance of Delay) Rules, 1995. Following the said decisions delivered by the Division Bench of this Court in the cases of Mahabir Prasad Shrama and Iftekhar Ahmad Siddiqui (supra), this writ petition deserves to be allowed.

8. In view of the above said facts and circumstances of the case, settled law and observations made hereinabove, the continuance of the enquiry is wholly arbitrary and violative of Article 14 of the Constitution of India, the charge sheet served upon the petitioner on 1.3.1997, is quashed. The pending disciplinary enquiry initiated against the petitioner shall be dropped. The respondents are directed to pay full pension and gratuity etc. to the petitioner including all consequential retiral benefits with all arrears and interest thereupon from the date it fell due at the rate of 12% per annum, calculated till the date of payment, in accordance with law, preferably within a period of 2 months from the date of production of a certified copy of this order.

The writ petition is allowed with no costs.

September 23, 2004



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