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Uttarakhand High Court · body

2006 DIGILAW 721 (UTT)

Sarju Prasad Tyagi v. State of U. P.

2006-12-18

M.M.GHILDIYAL

body2006
Judgment Heard Sri Sri Jagdish Singh Bisht holding brief of Sri Sharad Sharma, learned counsel for the petitioner, Sri Subhash Upadhyay, learned Standing Counsel for the State of Ut.taranchal and Mrs. Beena Pandey, learned Standing Counsel for the State of U.P. 2. By means of this writ petition, the petitioner has prayed for the following reliefs : a- Issue a writ, order or direction in the nature of certiorari quashing the order dated 27-011998 passed by the District Magistrate, Haridwar as contained in (Annexure 8) to this writ petition. b- Issue a writ, order or direction in the nature of mandamus commanding the District Magistrate, Haridwar to release the gratuity and pension which is remained un-paid on account of this order 25% gratuity has been ordered to be deducted, c- Issue any other writ, order or direction, as this Hon'ble Court may deem fit and proper under the circumstances of the case d- Award the cost. 3. Vide order dated 27-01-1998 passed by the District Magistrate, Haridwar 25% gratuity and pension of the petitioner was recommended to be deducted. 4. The facts, in brief as narrated in the writ petition, are that the petitioner was initially appointed as Naib Nazir in district Saharanpur on 07-07-1958. On 28-12-1988 a new district Haridwar was constituted after carving out the boundaries of district Muzaffarnagar and Saharanpur and the same was notified in the Gazette on 01-02-1989. Options were invited from the employees of district Saharanpur and the petitioner opted for district Haridwar. The petitioner, after completing the successful tenure was going to be retired on 31-07-1996, however before his retirement, the respondents served charge sheet dated 12-07-1996 and 1807-1996 levelling certain charges against the petitioner. Three charges were levelled against the petitioner and the first of them relates to the incident dated 30-04-1996 by which the petitioner was charged that he has not handed over the files of public auction of the movable and immovable properties of the village Sabbirpur Tehsil Deoband, district Saharanpur. The second charge was in respect of the illegal recommendation for purchase of Almirahs amounting to Rs. The second charge was in respect of the illegal recommendation for purchase of Almirahs amounting to Rs. 75,000/- whereas; the amount which was sanctioned for purchase of Almirahs had already been spent by the Nazarat Department by purchasing Almirahs and the third charge was for violating the official secrecy by publishing a news/press note in daily news paper 'Badri Vishal' and 'Amar Ujala' dated 13-06-1996 & 14-06-1996 about the irregularities and corruption in the Collection Department of Collectorate, Haridwar. 5. A departmental inquiry was ordered to be initiated and accordingly the Inquiry Officer after conducting inquiry submitted a report to the District Magistrate on 17th January 1997 holding petitioner guilty of all the three charges levelled against him. Since, no final order was passed by the District Magistrate, the petitioner prefarred writ petition no. 25967 of 1997 before the Allahabad High Court and the Allahabad High Court disposed of the .writ petition directing the authorities concerned to consider the question of payment of gratuity of the petitioner in accordance with law without being influenced by any observations made in the order, after having passed appropriate order in the disciplinary proceedings, if it is not completed and to complete and pass order, if not already passed. The Allahabad High Court further observed that the question of payment of gratuity shall be subject to the result of the order that might be passed in the disciplinary proceedings. It would be open to the respondents to take into account the letter dated 31-01-1997 and 10-04-1997 issued by the District Magistrate to the Board of Revenue and the letter of Board of Revenue respectively. 6. Vide letter dated 31 sl January 199'7, the District Magistrate, Haridwar forwarded the pension papers alongwith all relevant documents regarding the petitioner to the Board of Revenue, Pension Cell. The letter dated 10-04-1997 is the letter by which the pension was sanctioned to the petitioner. Thereafter, the District Magistrate on 27th January 1998 passed final order on the disciplinary proceedings initiated against the petitioner with holding 25% amount of gratuity and pension of the petitioner for the misconduct of the petitioner. The District Magistrate also sought approval of Board of Revenue and ultimately, the Govt. of U.P. vide order dated 30th January 1999 permitted the respondents to deduct 25% amount of the pension. The District Magistrate also sought approval of Board of Revenue and ultimately, the Govt. of U.P. vide order dated 30th January 1999 permitted the respondents to deduct 25% amount of the pension. The petitioner has challenged this order by way of amendment application and the amendment appl ication was allowed by the order dated 23-04-1999 passed by the Allahabad High Court, and the same was incorporated vide order dated 04-12-2006 passed by this Court. 7. Vide order dated 31st January 1999, the respondent has passed an order directing deduction of 25% amount of the pension of the petitioner under 351-A of Civil Services Regulations. As already held by Hon'ble the Apex Court in catena of decisions the pension is a right, not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the Government but is governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right but at the same time under Rules, the pension is subject to future good conduct. Regulation 351 of Civil Service Regulation provides as under: Regulation 351 :- Future good conduct is an implied condition of every grant of a pension. The State Government reserves to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner be convicted of serious crime or be guilty of grave misconduct. The decision of the State Govt. on any question of withholding or withdrawing the whole or any part of pension under this Regulation shall be final and conclusive. Regulation 351-A is relevant for the purpose of deciding this petition which is reproduced hereunder : "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 a pension of the whole or part of any pecuniary loss caused to Government, if the petitioner is found in departmental or judicial proceedings to have been guilty or grave misconduct, or to have caused pecuniary loss to Government by mis-conduct or negligence, during his service, including service rendered on re-employment after retirement: Provided that (a) such department 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. (N) shall be in respect of an event which took place not more than four years before the institution of such proceedings, and (ii) 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 ie-employment shall have been instituted in accordance with sub clause (ii) of clause (a) and (c) the Public Service Commission, UP., shall be consulted before final orders are passed. Explanation - for the purpose 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 chargesheet 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." 8. From perusal of the chargesheet it is evident that all the three charges levelled against the petitioner do not relate to pecuniary loss caused to the Govt. Learned Standing Counsel has submitted that the pension of the petitioner can be withheld, if he is found guilty of grave misconduct and in the present case, the pensioner is found guilty of the misconduct, as such, the respondents have rightly withheld 25% amount of the pension of the petitioner. 9. It is true that three charges were levelled against the petitioner; one of them relates to illegal recommendation for purchase of Almirahs without the fund, which was already been utilized by the Nazarat by purchasing the Almirahs. In any case, there was no financial loss to the Govt. mere making a note for purchase of Almirahs without availability of fund, does not indicate bad intention of petitioner to purchase Almirahs. In any case, there was no financial loss to the Govt. mere making a note for purchase of Almirahs without availability of fund, does not indicate bad intention of petitioner to purchase Almirahs. Nowhere in the chargesheet or in the findings of the Inquiry Officer or even in the impugned order passed by the District Magistrate and that of the State of UP., it is mentioned that on account of the misconduct of the petitioner the Govt. suffered pecuniary loss and, as such, deduction on the amount of pension is necessary. Further, after holding inquiry, the Inquiry Officer has submitted its report, however the District Magistrate while passing order for forfeiting 25% of the pension and gratuity amount, did not offer opportunity of hearing to the petitioner, therefore I am of the view that it is done in utter violation of the Principals of natural justice. 10. It is admitted fact that no notice was served upon the petitioner by the respondents prior to passing of the impugned order, holding that 25% amount of the pension and gratuity would be withheld as a measure of punishment. 11 . For the reasons recorded above, the writ petition is allowed. The order dated 27-01-1998 passed by the District Magistrate, Haridwar as well as the order dated 31st January 1999 passed by the respondents are hereby quashed. No order as to costs.