State of U. P. v. Sri Aditya Narain Misra — 1972 DIGILAW 466 (ALL)

JUDGMENT N.D. Ojha, J. - This special appeal is directed against the judgment of a learned Single Judge allowing the writ petition filed by Aditya Narain Misra respondent No. 1. The said respondent was employed as Soil Survey Officer in the senior scale of U. P. Agricultural Service Class I. On November 16, 1968 he was served with a charge sheet containing various charges of corruption and flagrant violation of the U. P. Government Servants Conduct Rules, 1956. The charges were referred to the Administrative Tribunal for enquiry under the U. P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947. The Tribunal afforded requisite opportunity of hearing to the respondent No. 1 on the various charges and submitted its report on August 2, 1969 to the State Government wherein it made various recommendations. A day before the report was submitted namely on August 1, 1969 the respondent No. 1 had retired on attaining the age of superannuation. Accepting the findings recorded by the Administrative Tribunal which were inter alia, to the effect that the respondent No. 1 had signed false certificates of a sum amounting to Rs. 8,470/-, that he was guilty of not following the instructions of the Government and that he had misappropriated certain goods as a result of which the Government was put to a loss of Rs. 6,810.30 the State Government passed an order on March 31 1970 whereby it awarded adverse entry in the character roll of respondent No. 1 directing the recovery of a sum of Rs. 3,405/- from the respondent No. 1 and for reduction of his pension by Rs. 20/- per month, This order of the State Government was challenged by the respondent No. 1 in a writ petition which was allowed mainly on three grounds: (1) that since the petitioner had retired having attained the age of super annulation before the impugned order had been passed the State Government had no authority to inflict any punishment upon him; (2) that the respondent No. 1 was not given any opportunity to show cause against the punishment with regard to the recovery of Rs. 3,405/- and reduction of his pension by Rs. 20/- per month; and (3) that the order in regard to the recovery of Rs. 3,405/- and reduction of his pension by Rs. 20/- per month; and (3) that the order in regard to the recovery of Rs. 3,405/- and reduction of Pension could not be supported on the authority of paragraphs 351-A and 470 of the Civil Service Regulations as they were sought to be supported by the Standing Counsel. It is this order of the learned Single Judge which has been challenged in the present appeal. 2. Learned Standing Counsel has urged that the principle that no punishment could be awarded to a Government servant after he had retired was applicable only to such punishments which could be imposed only till the said Government servant continued to be a member of the service and as were enumerated in paragraph 49 of the Civil Services (Classification, Control and Appeal) Rules and that the order in regard to the recovery of Rs. 3,405/- from the respondent No. 1 and reduction of his pension by Rs. 20/- per month was not any such punishment but was an order which could be passed under paragraph 351-A of Civil Service Regulations even after the Government servant had retired. He further urged that since the aforesaid order was passed on the basis of the report submitted by the Administrative Tribunal which had given the respondent No. 1 full opportunity of hearing it was not necessary for the State Government to give any further opportunity of hearing. 3. Even on the arguments advanced by the learned Standing Counsel the order of the State Government in so far as it awarded adverse entry in the character roll of the respondent No. 1 which amounts to censure could be had because it is one of the punishments mentioned in paragraph 49 of the Civil Services (Classification, Control and Appeal) Rules and this punishment could not be awarded after the respondent No. 1 had retired. Indeed the learned Standing Counsel very fairly conceded to this legal position and, therefore, the impugned order of the State Government in this behalf was liable to be quashed and has rightly been so quashed. 4. We are, however, inclined to accept the submission of the learned Standing Counsel that the order in regard to the recovery of Rs. 3,405/- from respondent No. 1 and reduction of his pension by Rs. 4. We are, however, inclined to accept the submission of the learned Standing Counsel that the order in regard to the recovery of Rs. 3,405/- from respondent No. 1 and reduction of his pension by Rs. 20/- per month could have been passed in the exercise of the power conferred by paragraph 351-A of the U. P. Civil Service Regulations even after the, respondent No. 1 had retired and that it was not necessary to give him any further opportunity to show cause before passing the aforesaid order. The relevant portion of paragraph 351-A of the U. P. Civil Service Regulations reads thus: "351-A. The Governor reserves to himself the right of withholding or with drawing 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; Provided that- * * * *" The proviso to the aforesaid rule deals with those cases where no departmental or judicial proceedings had been instituted while the officer was on duty either before retirement or during re-employment and permits departmental proceedings being taken under certain conditions and we are not concerned with the same in the instant case. The first part of the rule reserves the right of withholding or withdrawing a pension or any part of it whether permanently or for a specified period and the subsequent part reserves the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government. Both these rights are to be exercised 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. Both these rights are to be exercised 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. It would be noticed that the opening words of Rule 49 of the Civil Services (Classification, Control and Appeal) Rules are: "The following penalties may for good and sufficient reason and as hereinafter provided be imposed upon members of the services comprised in....." The words used in this rule are members of the services; whereas paragraph 351-A of Civil Service Regulations used the word "pensioner". The punishments provided for under paragraph 49 afore-said can be passed upon a member of the services that is, till the Government servant is in service and has not retired; whereas the order contemplated by paragraph 351-A aforesaid, can be passed in respect of a pensioner. The use of the word 'pensioner' itself makes it clear that the order contemplated by this paragraph could be passed and in fact is to be passed after the Government servant has ceased to be in service and has become a pensioner. Learned Standing Counsel has urged as was urged even before the learned Single Judge that the recovery of Rs. 3,405/- was to be made by deduction from the pension payable to the respondent No. 1. Recovery of an amount from the pension or reduction of pension is not one of the punishments contemplated by Rule 49 of the Civil Services (Classification, Control and Appeal) Rules and cannot therefore be treated to be a punishment under the said rule. The continuance of the respondent No. 1 as a member of the service as contemplated by Rule 49 was not therefore a necessary ingredient for passing an order of recovery of a sum from pension or of reduction in his pension. These orders could therefore be passed notwithstanding the fact that the respondent No. 1 had retired before the said order was passed. The order of recovery of Rs. 3,405/- from respondent No. 1 is clearly covered by the second part of paragraph 351-A of the Civil Service Regulations and the order directing reduction of his pension by Rs. 20/- per month is likewise covered by the first part of the said paragraph. 5. The order of recovery of Rs. 3,405/- from respondent No. 1 is clearly covered by the second part of paragraph 351-A of the Civil Service Regulations and the order directing reduction of his pension by Rs. 20/- per month is likewise covered by the first part of the said paragraph. 5. In regard to no opportunity being given to the respondent No. 1 before passing the aforesaid order it may be pointed out that it is only by virtue of Article 311 of the Constitution and Rule 55-A of the Civil Services (Classification Control and Appeal) Rules that a second show cause notice is required to be given in those cases where the penalty proposed as a result of departmental enquiry was dismissal, removal or reduction in rank. The impugned order does not fall under either of the aforesaid category. No rule has been brought to our notice which requires a second show cause notice being given before an order in the nature which was passed against respondent No. 1 could be passed. Even the rules of natural justice make no such requirement. It has not been disputed that the petitioner was given full opportunity to show cause against the charges which were framed against him in the departmental proceedings. That was sufficient compliance of the requirements of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules as well as the principle of natural justice and in our opinion the impugned order was not bad on the ground that no second notice was given to the respondent No. 1 to show cause against the proposed action. 6. We now proceed to consider the submissions made by the learned counsel for the respondent No. 1. He has made three submissions and they are the same which found favour with the learned Single Judge as pointed out above. One of the submissions was that the order in regard to recovery of Rupees 3,405/- and reduction of pension could not be started on the authority of paragraphs 351-A and 470 of the Civil Service Regulations. On an interpretation of paragraph 351-A we have already held that the order was covered by the said paragraph. We, however agree with the learned counsel for the respondent No. 1 that the impugned order cannot be justified under paragraph 470 of the Civil Service Regulations. On an interpretation of paragraph 351-A we have already held that the order was covered by the said paragraph. We, however agree with the learned counsel for the respondent No. 1 that the impugned order cannot be justified under paragraph 470 of the Civil Service Regulations. The relevant portion of the said paragraph reads: "470 (a) The full pension admissible under the rules is not to be given as a matter of course or unless the service rendered has been really approved (see Appendix 9). (b) If the service has not been thoroughly satisfactory the authority sanctioning the pension should make such reduction in the amount as it thinks proper. Provided that in cases where the authority sanctioning pension is other than the appointing authority, no order regarding reduction in the amount of pension shall be made without the approval of the appointing authority." The impugned order has apparently not been passed on the ground that the service of the respondent No. 1 had not been thoroughly satisfactory and the provisions of the said paragraph are, therefore not attracted. 7. The other two submissions were that the impugned order could not be passed after the respondent No. 1 had retired and that it was bad also on the ground that no opportunity was given to respondent No. 1 to show cause before the said order was passed. In support of these two submissions he has placed reliance on a number of decisions which are now being dealt with in chronological order. 8. The first case on which reliance was placed is Subba Rao v. State of Mysore, AIR 1964 Mys 221. In that case an order of reduction in pension was passed after the Government servant had retired. It was held relying on Rules 2 (d) and 8 of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1967 that disciplinary proceedings could not be commenced or continued against a Government servant who had retired from service as he could not be considered to be a Government servant as defined by R. 2 (d), R. 2 (d) defined a Government servant and Rule 8 enumerated the nature of penalties which could be imposed on Government servants, The order was sought to be justified under Rule 8 as also under Article 302 of the Mysore Services Regulations. In regard to the State's reliance on Rule 8 it was held that the order could not be justified on the basis of that rule for two reasons (1) an order under the said rule could be passed only on a person till he was a Government servant as defined in Rule 2 (d) and (2) that reduction of pension was not one of the punishments contemplated by Rule 8. Article 302 of the Mysore Services Regulations are in pari materia with paragraph 470 of the U. P. Civil Service Regulations and with respect to the learned Judges deciding the aforesaid case, we agree that the order of reduction in pension could not be passed under the said Article. Reliance in the aforesaid case was not placed upon any rule which may have been analogous to paragraph 351-A of the Uttar Pradesh Civil Service Regulations. 9. Our attention was then invited to State of Assam v. Padma Ram AIR 1965 SC 473 . In this case Padma Ram was due to retire from service on January 1, 1961. On December 22, 1960 an order of suspension was passed pending the departmental enquiry started against him. On January 6, 1961 another order was passed by which the term of his service was extended for a period of three months with effect from January 1, 1961 or till the disposal of the departmental proceedings whichever was earlier. The departmental proceedings had not been disposed of by May 9, 1961 when the services of Padma Ram were again extended for a period of three months with effect from April 1, 1961. The aforesaid two orders dated January 6, 1961 and May 9, 1961 extending the term of service of Padma Ram were challenged by him in a writ petition which was allowed to this extent that a direction was issued to the State of Assam not to give effect to the order dated May 9, 1961. Upholding the aforesaid order the Supreme Court observed that since the services of Padma Ram came to an end automatically on March 31, 1961 in view of the order dated January 6, 1961 and no order of extension was passed till May 9, 1961 the order of retention in service passed on May 9, 1961, that is more than a month after March 31, 1961 was a mere nullity and could not be sustained. It was held that the State Government could not by unilateral action create a fresh contract of service to take effect from April 1, 1961 and if the State Government wished to continue the service of the respondent for a further period it should have issued a notification before March 31, 1961. In our opinion the aforesaid case does not in any way advance the submission made by the learned counsel. 10. Reliance was next placed upon K.R., Erry v. State of Punjab. AIR 1967 Punj 279 (FB).- K. R. Erry the petitioner retired in November, 1958. From Paragraph 10 of the Report it appears that full pension was sanctioned by the Governor and the same was conveyed to the petitioner. Subsequently on July 29, 1963 the Government decided to impose a 20 per cent cut in his pension and the cut of Rs. 2,000/- in his death-cum-retirement gratuity. The order was challenged, inter alia, on the ground that the petitioner had not been given opportunity of showing cause against the proposed cut. On the date when the petitioner of that case retired no departmental proceeding was pending against him nor does the impugned order appear to have been passed as a consequence of any finding recorded in a departmental proceeding. Under these circumstances it was held that the impugned order could not be passed without giving the petitioner an opportunity of showing cause. Since the petitioner was not given any opportunity of having his say in the matter at any stage the order was obviously vitiated being in violation of the principles of natural justice. In the instant case, however the respondent No. 1 had full opportunity of having his say in the departmental proceedings and the facts of K.R. Erry's case, AIR 1967 Punj 279 (FB) are, therefore, clearly distinguishable. 11. Reference was then made to the case of K.S. Rajasekhariah v. State AIR 1968 Mys 206 ; (1968 Lab IC 956). The petitioner of that case retired on January 9, 1965, disciplinary proceedings had been commenced against him when he was still in service and an order in the nature of reduction of pension was imposed on him after his retirement. The said order was sought to be justified by the State on the basis of Rules 212 and 289 of the Mysore Civil Services Rules. The said order was sought to be justified by the State on the basis of Rules 212 and 289 of the Mysore Civil Services Rules. From the purport of those rules as contained in paragraph 8 of the Report it appears that Rule 212 authorised the Government to reduce the pension of a Government servant whose service had not been thoroughly satisfactory and Rule 289 (b) laid down that if the service had not been thoroughly satisfactory the authority sanctioning the pension could reduce it to the extent it thought proper. It was held that a reduction of pension under those rules was possible only if the Government had recorded a finding that the service of the Government servant had not been "thoroughly satisfactory" and since no such finding has been recorded in the impugned order the said order was bad. The aforesaid two rules are in pari materia to paragraph 470 of U. P. Civil Service Regulations and the order impugned in that case could obviously not be justified under Rules 212 and 289 (b) referred to above. Reliance was placed in that case on no rule analogous to para-graph 351-A of U. P. Civil Service Regulations. 12. We were then referred to Gopalkrishna v. State of M.P., AIR 1968 SC 240 ; (1968 Lab IC 216). In that case the appellant Gopalkrishna was suspended on. December 17, 1947. Departmental proceedings were initiated and ultimately on December 5, 1960 the Government held that the charges had not been proved beyond reasonable doubt. It was also held that the suspension and the departmental enquiry "were not wholly unjustified". The order then directed that the appellant should be reinstated in service with effect from the date of the order and retired from that date he having already attained superannuation age on September 5, 1952 and that entire period of absence from duty should be treated as period spent on duty under Fundamental Rule 54 (5) for purposes of pension only, but that he should not be allowed any pay beyond what he actually received or what was allowed to him by way of subsistence allowance during the period of his suspension. 13. The order was attacked on the ground that the appellant had not been given any opportunity to show cause against the proposed order. 13. The order was attacked on the ground that the appellant had not been given any opportunity to show cause against the proposed order. Interpreting Rule 54 it was held: "Consideration under this rule depending as it does not on facts and circumstances in their entirety passing an order on the basis of factual findings arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the Government servant must be held to be an objective rather than a subjective function. The very nature of the function implies the duty to act judicially. In such a case if an opportunity to show cause against the action, proposed is not afforded as admittedly it was not done in the present case the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice." 14. The facts which are to be found for passing an order under Fundamental Rule 54 need not necessarily be gone into in determining whether particular charges framed against the delinquent officer in departmental proceedings were proved. Before passing an order under Fundamental Rule 54 fresh findings on objective considerations have to be given to make out a case for passing an order under the said rule. Moreover, the order under Rule 54 is not always consequential upon a departmental enquiry and in these circumstances it would obviously be necessary to give the Government servant concerned an opportunity of showing cause against the order proposed to be passed under Fundamental Rule 54. In the instant case however, the impugned order is consequential upon the finding of the departmental enquiry in which the respondent No. 1 was given full hearing. 15. Learned counsel then relied upon State of Gujarat v. R.G. Teredesai, AIR 1969 SC 1294 ; (1969 Lab IC 1547). In that case in departmental proceedings the enquiry officer apart from giving his report also made certain recommendations in respect of the punishment to be imposed upon the respondent. On the receipt of the report a notice was served on the respondent R. G. Teredesai calling upon him to show cause why punishment of removal should not be imposed on him. On the receipt of the report a notice was served on the respondent R. G. Teredesai calling upon him to show cause why punishment of removal should not be imposed on him. Along with show cause notice the report of the enquiry officer containing his finding was sent to him but no copy of the recommendations made by the enquiry officer regarding the punishment which in his opinion should have been inflicted on the respondent was served. Ultimately the respondent was removed from service in September, 1960. The order of removal was challenged by the respondent inter alia on the ground that he had not been given reasonable opportunity to show cause inasmuch as no copy of the recommendations made by the enquiry officer was furnished to him. It was held: "In other words since such recommendations form part of the record and constitute appropriate material for consideration of the Government it would he essential that that material should not be withheld from him so that he could while showing cause against the proposed punishment make a proper representation," In our opinion the said case affords no assistance to respondent No. 1. 16. Lastly reliance was placed upon State of Punjab v. Khemi Ram, AIR 1970 SC 214 ; (1970 Lab IC 271). In that case Khemi Ram respondent was suspended by an order dated Jul): 31, 1958 with effect from August 2, 1958. This order was communicated to him by a telegram on that very day, that is on July 31, 1958. The State of Punjab also sent to him the charge sheet. Khemi Ram made a representation on August 25, 1958 and on May 28, 1960 an order was passed dismissing him from service. It may be pointed out that in the mean time on August 4, 1958 Khemi Ram had retired on reaching the age of superannuation. Rule 3.26 (d) of the Punjab Civil Services Rules as it then stood provided that a Government servant under suspension on a charge of misconduct shall not be permitted to retire on his reaching the date of compulsory retirement but should be retained in service until the enquiry into the charge was completed and a final order was passed thereon. Rule 3.26 (d) of the Punjab Civil Services Rules as it then stood provided that a Government servant under suspension on a charge of misconduct shall not be permitted to retire on his reaching the date of compulsory retirement but should be retained in service until the enquiry into the charge was completed and a final order was passed thereon. One of the arguments raised on behalf of Khemi Ram was that since he had retired on August 4, 1958 the departmental enquiry and the order of dismissal were in breach of the aforesaid rule and were illegal. While considering the effect of the said rule it was observed that there could be no doubt that if disciplinary action was sought to be taken against a Government servant it must be done before he retired as provided by the said rule and if a disciplinary enquiry could not be concluded before the date of such retirement the course open to the Government was to pass an order of suspension and refuse to permit him to retire and retain him in service till such enquiry was completed and a final order was passed thereon. No rule similar to Rule 3.26 (d) of the Punjab Civil Services Rules was brought to our notice which may have been applicable to the case of respondent No. 1, Moreover that was a case in which the ultimate order which was passed was one of dismissal from service which could be passed only till Khemi Ram was a member of the service. That case too therefore is clearly distinguishable, 17. In view of the aforesaid discussion the appeal is allowed in part and the judgment of the learned Single Judge in so far as it relates to the recovery of Rs. 3,405/- from the respondent No. 1 and reduction in his pension by Rs 20/- per month, is set aside and the writ petition is dismissed for that relief. The Judgment of the learned Single Judge allowing the writ petition by quashing the impugned order in so far as it awarded adverse entry in the character roll of the said respondent is upheld. In view of the partial success the parties will bear their own costs.