J. P. Agarwal v. State of U. P — 1991 DIGILAW 1097 (ALL)

ORDER R.B. Mehrotra, J. - In the present petition, the petitioner has died during the pendency of the writ petition and he is being represented through his legal heirs. 2. The main grievance raised in the writ petition by the deceased petitioner is that he is not being given his pension, Fatuity etc. and other retirement benefits to which the petitioner was entitled according to the service rules. The petitioner has filed the present writ petition for quashing the show cause notice given to the petitioner asking him to show cause as to why petitioner's pension should not be reduced at the rate of Rs. 200/- per month for his not satisfactory performance in service. It has been further prayed in the writ petition that a writ of mandamus be issued commanding the respondents to decide the matter relating to petitioner's pension, gratuity, pay for the suspended period and pay from 1st Nov. to 16 Nov., 1974 and pay for three months in lieu of notice for compulsory retirement. 3. Brief facts for deciding the writ petition are that the petitioner was compulsorily retired by an order, dated 30.10.1974. At the time when the said order was passed, the petitioner was under suspension. The petitioner did not get his pension, gratuity, provident fund and balance of pay after his retirement. He made a representation on 7.6.1976 to respondent 2 and another representation to respondent No. 1 requesting them to make the payment to the petitioner to which the petitioner was entitled. Despite the aforesaid representation, the petitioner did not get his pension, gratuity etc. Compelled thereby the petitioner made another representation on 16.8.1976 to respondent Nos. 1 and 2. 4. The Deputy Secretary of the State Government of Uttar Pradesh by his letter, dated 28.8.1976 wrote to the Accountant General U.P., Allahabad, respondent No. 2, for taking necessary action relating to payment of petitioner's suspension allowance, gratuity, pension etc. No action was taken despite the said letter also. A similar letter again was sent by the Deputy Secretary but nothing happened. On 24.11.1976 the Accountant General U.P., Allahabad wrote to the Transport Commissioner, U.P. that since the papers relating to the petitioner's pension have not been submitted to the Accountant General, for this reason necessary orders regarding payment of petitioner's pension could not be passed. A similar letter again was sent by the Deputy Secretary but nothing happened. On 24.11.1976 the Accountant General U.P., Allahabad wrote to the Transport Commissioner, U.P. that since the papers relating to the petitioner's pension have not been submitted to the Accountant General, for this reason necessary orders regarding payment of petitioner's pension could not be passed. On knowing of the contents of the aforesaid letter, the petitioner filled up all the forms as was directed by the Accountant General and again by a letter, dated 1.2.1977 requested to respondent No. 2 to expedite the payment of pension, gratuity etc. to the petitioner. There was some further correspondence between the Deputy Secretary of the Government of Uttar Pradesh and the Transport Commissioner desiring that the petitioners' gratuity, pension etc. should be paid but nothing happened. No heed was paid on the petitioner's representation for getting the retirement benefits. However, by a letter, dated 22.5.1979, the Additional Transport Commissioner asked the petitioner to show cause as to why the pension of the petitioner should not be reduced by Rs. 200/- per month. This letter has been filed as Annexure 15 to the writ petition. The petitioner submitted his reply to the aforesaid letter, dated April, 1979 on 5.7.1979. The petitioner also sent a letter, dated 20.12.1980 pointing out that since the matter is more than four years old, no action can be taken against the petitioner for reducing his pension as indicated in the show case notice, dated 22.5.1970. Ultimately the petitioner was driven to file the present writ petition for the reliefs set out earlier. 5. In the counter-affidavit filed on behalf of respondent No. 1 it has been stated in paragraph 11 that a decision was taken by respondent No. 1 namely the State of Uttar Pradesh to reduce the pension of the petitioner by Rs. 200/- per month under Civil Service Regulation 470 on the recommendation of the Vigilance Department. In paragraph 17 of the aforesaid counter- affidavit, it has been stated that the matter regarding payment of pension, gratuity etc. is under consideration before respondent No. 1. Delay in finalising the pension is due to non-receipt of the final reply to the show cause notice given to the petitioner. It may be mentioned that the stand taken in the two paragraphs, referred to above, is per se contradictory. is under consideration before respondent No. 1. Delay in finalising the pension is due to non-receipt of the final reply to the show cause notice given to the petitioner. It may be mentioned that the stand taken in the two paragraphs, referred to above, is per se contradictory. In paragraph 11 of the counter-affidavit on one hand it has been stated that a final decision has been taken by reducing the pension of the petitioner by Rs. 200/- per month under Civil Service Regulation 470 but contrary to this in paragraph 17 thereof it has been stated that no final decision could be taken as no final reply has been received from the petitioner to the aforesaid show cause notice. Both the aforesaid paragraphs of the counter-affidavit have been sworn on record. Apparently it is clear that both these statements cannot be correct. However, in paragraph 11 of the rejoinder affidavit the petitioner has stated in reply to paragraph 11 of the counter-affidavit that the petitioner has not received any decision regarding reduction of his pension by Rs. 200/- per month. No such order was filed along with the counter-affidavit. The submission of the petitioner's counsel is that no such decision has been taken as is clear from the statement of paragraph 17 of the counter-affidavit itself. 6. At the time of hearing of the case, the learned Standing Counsel was not present. Submissions have been made on behalf of the State Government or respondent No. 2 i.e. the Accountant General U.P., Allahabad. 7. The submission of the petitioner's counsel is that in view of Article 351A of the Civil Service Regulations (hereinafter referred to as CSR) no action against the petitioner can be taken for reducing the pension in respect of an event which took place more than four years before the institution of such proceedings. In the present case, the proceedings were initiated by a letter issued in April, 1979. The petitioner retired from service on 30.10.1974. The incident referred to in the said letter was apparently of the period beyond four years. However, in the counter-affidavit it has been contended that the action has been taken under Article 470(b) of the CSR and not under Article 351A. 8. The petitioner retired from service on 30.10.1974. The incident referred to in the said letter was apparently of the period beyond four years. However, in the counter-affidavit it has been contended that the action has been taken under Article 470(b) of the CSR and not under Article 351A. 8. Articles 351A and 470(b) of the CSR are 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 a specified period and the right of ordering the recovery from the 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 : (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) of Clause (a) and (c) the Public Service Commission, U.P. shall be consulted before final orders are passed. (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. "Award of Full Pension 470 (a) ................................. (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." 9. Under Article 470(b), the reduction in the pension amount can be made on the ground that the services of the employee have not been satisfactory. Under Article 351A, the Governor has been given the power for withholding or withdrawing any pension or any part of it whether permanently or for a specified period but that power is subject to the conditions prescribed in Article 351A, namely, that when the petitioner is found guilty of any grave misconduct in departmental or judicial proceedings or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-emploment after retirement. This power is further subject to the restriction that if such departmental proceedings have not been instituted before the retirement of the officer concerned or during his re- employment, the same shall not be instituted without the sanction of the Governor and unless the event of causing pecuniary loss to the Government took place within a period of four years from the date of initiation of such proceedings. The notice given to the petitioner in April, 1979 asking the petitioner to show cause as to why petitioner's pension should not be reduced by Rs. 200/- per month is in the following terms :- "You are hereby informed that when you were posted as Regional Transport Officer, Kanpur following facts have been brought to the light : (1) In your tenure as Regional Transport Officer, the corruption was increased in the office and the Executive Committee of the Motor Transport Association, Kanpur in its meeting levelled charges of corruption against you and passed resolution condemning you. (2) You harassed Shri Har Bansh Singh, Motor Operator, resident of Bindaki, District Fatehpur by not giving him fitness certificate of his vehicle USM 5940 sheerly out of malice and got false case instituted against the aforesaid Har Bansh Singh on the basis of complaint got registered through Jai Parkash Jain, resident of Ashok Nagar, Kanpur. (3) From your Kanpur Office, the State Carriage Register disappeared from the Regional Transport Office for the period 24.2.1970 to 11.1.1971 on the basis of which it is doubted that by misusing your powers you have issued many permits and before that while you were posted at Allahabad and Agra, you have issued many permits to your brother-in-law Ramesh Chandra, resident of Aligarh and you concealed this fact that Ramesh Chandra is your brother-in-law from higher officers. (4) In the year 1970-71, you violated the departmental instructions by issuing oral instructions that the challan of 83 Motor Vehicles may not be sent to the Transport Magistrate, Kanpur unless the tax due on those vehicles is realised. Due to this action of yours the motor operators were harassed and put to financial loss. Within a month you are required to give an explanation to show cause why a sum of Rs. 200/- per month may not be reduced from your pension since your services were not satisfactory." 10. In reply to the aforesaid show cause notice, the petitioner submitted that many charges had been levelled against the petitioner without any basis. No material has been furnished on the basis of which these charges have been levelled as such the petitioner is not in a position to give a detailed reply of the aforesaid charges. In reply to the aforesaid show cause notice, the petitioner submitted that many charges had been levelled against the petitioner without any basis. No material has been furnished on the basis of which these charges have been levelled as such the petitioner is not in a position to give a detailed reply of the aforesaid charges. The petitioner requested that all the materials on the basis of which the aforesaid charges have been framed should have been furnished to the petitioner. The petitioner also denied all the allegations in his reply. Two questions arise for consideration in the present matter. Shri H.S. Nigam, learned counsel for the petitioner has submitted that in the present case, the proceedings against the petitioner were squarely covered by the provisions of Article 351-A of the Civil Service Regulations as the petitioner was asked to explain the definite charges for causing loss to the Government, as such these proceedings could have been initiated after the lapse of a period of four years of the date of their occurrence. Secondly, Sri Nigam has contended that powers under Article 470(b) of the Civil Services Regulations can be exercised subject to the Restrictions placed by Article 351-A. The submission precisely is that petitioner's pension cannot be reduced except within the permissible limits of Article 351-A of the Civil Service Regulations. 11. In the present case, I am satisfied that the charges levelled against the petitioner are of serious nature and on the basis of these charges, action against the petitioner could have been taken only in accordance with the provisions of Article 351A. It is not the case where petitioners services were not found to be satisfactory as contemplated by Article 470B of the Civil Service Regulations. For attracting Article 470(b) the action can be taken against the erring officer only on the basis of existing records. If the service records of erring officer show non-satisfactory performance then action can be taken under Article 470(b) on the basis of fresh show cause notice, but on the basis of fresh charges which are not taken out from the service record of the petitioner action under Section 470(b) cannot be initiated. In the present case from the show cause notice, it is clear that this is not an action on the basis of existing service record of the petitioner. In the present case from the show cause notice, it is clear that this is not an action on the basis of existing service record of the petitioner. Fresh charges were revealed against the petitioner for the first time by the aforesaid notice. Such an action is beyond the purview of Article 470(b). 12. As discussed above, no action could have been initiated against the petitioner under Article 351-A of the Civil Service Regulations as the alleged events were beyond the period of four years from the date of initiation of proceedings. In this view of the matter, the proceedings for initiating the action against the petitioner for reducing the petitioner's pension by Rs. 200/- per month are wholly without authority of law. Since no order has been placed on record reducing the petitioner's pension, I quash the letter dated April, 1979, filed as Annexure 15 to the writ petition asking the petitioner to show cause as to why petitioner's pension should not be reduced by Rs. 200/- per month. 13. Before parting with the judgment, I am constrained to observe that it is very shocking that the deceased petitioner retired as far back as in the year 1974. He had filed the present writ petition after a lapse of 8 years i.e. 1982 for getting the retirement benefits but the State Government in stead of making the payment chose to contest the writ petition in a casual manner. As has been indicated in this judgment, the counter-affidavit filed by the State Government was per se contradictory. Even in case the petitioner's pension was sought to be reduced by Rs. 200/- per month at least the rest of the benefits should have been given to the petitioner as claimed for. There is absolutely no justification for the respondents in withholding the other retirement benefits of the petitioner as claimed by him. In the counter-affidavit there is not even a whisper justifying the withholding of other retirement benefits of the petitioner as claimed in the writ petition. The facts of the present case also show that the petitioner had been throughout making representation after representation for getting the retirement benefits but the State Government and respondent No. 2 were not responding to the petitioner's claim. The facts of the present case also show that the petitioner had been throughout making representation after representation for getting the retirement benefits but the State Government and respondent No. 2 were not responding to the petitioner's claim. The petitioner in his reply to the show cause notice dated April, 1979 had submitted that these false allegations have been made against the petitioner only to deprive him of his rightful claim and allegations are of such vague nature that the enquiry on these allegations will take so much of time that the petitioner will not get his retirement benefits in his lifetime. The petitioner's apprehension came true, and ultimately the petitioner died before getting the retirement benefits. This is very unfortunate state of affairs. Most of the time the pension sanctioning authorities behave in a very stale manner, in the matter of granting retirement benefits, whereas the situation demanded that the retirement benefits should be given at the earliest. The present case is only an illustration of many of the unfortunate cases where the Government employees do not get their pension and other retirement benefits within a reasonable time. These observations have been made to draw the attention of the respondents to be more vigilant in the matter of sanctioning retirement benefits to the Government servants. I accordingly direct the respondent to grant all the retirement benefits, namely, payment of petitioner's pension in full, gratuity, suspension allowance of the petitioner for the period the petitioner remained suspended if the said amount was not paid to him, pay from 1st November to 16th November, 1974 and three months pay in lieu of notice, within six months from the date a certified copy of this order along with a statement of claim is filed by the legal representatives of the petitioner before respondent No. 1. Respondent No. 1 on receiving the certified copy of this judgment and the statement of claim by the legal representatives of the petitioner will forward the said claim to respondent No. 2 within two months and respondent No. 2 within remaining four months will positively see that petitioner's legal heirs get the retirement benefits detailed above to which the deceased petitioner was entitled. The writ petition is accordingly allowed.