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2015 DIGILAW 1286 (ALL)

R. K. SHUKLA v. STATE OF U. P.

2015-05-19

MAHESH CHANDRA TRIPATHI

body2015
JUDGMENT Hon’ble Mahesh Chandra Tripathi, J.—Heard Shri Rajeev Misra, learned counsel for the petitioner and Shri Manas Bhargava, learned Standing Counsel for the respondents. 2. By means of present writ petition, the petitioner has prayed for quashing the impugned order dated 29.7.2006 passed by the Chief Engineer, Public Works Department, Bundelkhand Region, Jhansi. He has also prayed for direction in the nature of mandamus commanding the respondents to pay his retiral benefits to the tune of Rs. 4,49,870.79 withheld by the respondents from the amount of gratuity, leave encashment etc. and to re-fix his pension and pay 18% interest on the total amount. 3. Brief facts giving rise to the present writ petition are that the petitioner was appointed as Overseer (re-designated as Junior Engineer) in Public Works Department of the State on 20.11.1964. In the year 1989, he was transferred to District Mahoba and worked there upto July, 1996 and thereafter, he was again transferred to District Banda. In August, 1993 the Executive Engineer-respondent No. 4 directed the petitioner to hand over the charge to Shri T.P. Upadhyay and Shri Kameshwar Prasad, Junior Engineers and pursuant to the directions, the petitioner handed over the charge on 23.11.1993. The Superintending Engineer, Banda-respondent No. 5 constituted a Committee on 22.6.1994 for enquiring the charges of financial and other irregularities levelled against the petitioner. On 5.7.1994 a show-cause notice was issued to the petitioner directing him to submit his reply within 15 days. A reminder letter was also issued to him on 1.9.1994. The petitioner submitted his reply to the show-cause notice on 4.9.1994. The Work Superintendent passed an order on 30.9.1994 appointing Shri V.P. Pradhan and Shri Vipin Pachauria, Engineers to enquire into the matter in the light of the order dated 3.6.1994 after making an enquiry on the site and the records and to submit its report. The enquiry committee submitted its report on 21.11.1995. However, the same was not supplied to the petitioner. The petitioner retired from service on attaining the age of superannuation on 31.3.2001 from the office of Public Works Department (Provincial Division), Banda. Thereafter, the enquiry committee submitted its report on 20.7.2001. The said report was also not supplied to the petitioner. The Superintending Engineer passed an order on 13.9.2001 stating that due to negligence of the petitioner, the department had incurred a loss of Rs. Thereafter, the enquiry committee submitted its report on 20.7.2001. The said report was also not supplied to the petitioner. The Superintending Engineer passed an order on 13.9.2001 stating that due to negligence of the petitioner, the department had incurred a loss of Rs. 6,42,000/- which was required to be recovered from the retiral benefits of the petitioner. The petitioner filed a representation on 23.9.2001 against the order dated 13.9.2001. On the representation of the petitioner, the Superintending Engineer directed the Executive Engineer on 16.10.2001 to re-examine the matter of petitioner and submit a report. In compliance of the order dated 16.10.2001, no decision had been taken by the authority concerned on account of which the petitioner has not been paid his pensionary benefits i.e. full pension, gratuity, leave encashment etc. At present, the petitioner is only getting 90% pension. Feeling aggrieved by the order dated 13.9.2001, the petitioner submitted a fresh representation to the Chief Engineer-respondent No. 2 on 24.12.2004. When the respondents did not decide the grievance raised by the petitioner through representation dated 24.12.2004, the petitioner preferred a Writ Petition No. 75080 of 2005, which was disposed of on 9.12.2005 directing the respondent No. 2 to decide petitioner’s representation dated 24.12.2004. By the impugned order dated 29.7.2006 the respondent No. 2 rejected the petitioner’s representation and directed the respondent No. 3 to initiate recovery proceedings of Rs. 4,49,870.79 against the petitioner. 4. Shri Rajeev Misra, learned counsel for the petitioner submits that the enquiry committee did not issue any notice to the petitioner for conducting the enquiry, as such no enquiry was held by the respondent authorities till retirement of the petitioner on 31.3.2001. In the order dated 13.9.2001, some report dated 20.7.2001 is mentioned but copy of the same had not ever been supplied to the petitioner and on the basis of the aforesaid report, the financial liability had been fixed upon the petitioner. In compliance of the order dated 16.10.2001, no decision has been taken by the authorities and the petitioner has not been paid his pensionary benefits i.e. full pension, gratuity, leave encashment etc. 5. In compliance of the order dated 16.10.2001, no decision has been taken by the authorities and the petitioner has not been paid his pensionary benefits i.e. full pension, gratuity, leave encashment etc. 5. Shri Rajeev Mishra further submits that while deciding the Writ Petition No. 75080 of 2005 this Court directed the respondent No. 2 to decide the representation strictly in accordance with law and further it was the specific case of the petitioner that no enquiry whatsoever had been held before passing the order dated 13.9.2001 nor any information regarding any enquiry has been given to him. The petitioner has not participated in any enquiry and right from 1994 till his retirement no correspondence regarding any enquiry has been done and the order dated 13.9.2001 regarding recovery of Rs. 6,42,000/- has been passed after five and half months from the date of his retirement. Neither any departmental nor judicial proceedings have been held and only on the basis of show-cause notice issued in the year 1994, straightaway the order dated 13.9.2001 was passed after the retirement of the petitioner, which is in contravention of Regulation 351-A of Civil Services Regulation. Rule 7 of U.P. Government Servants (Discipline and Appeal) Rules, 1998 provides detailed procedures for imposing major penalties in contemplation of charge-sheet, reply, date and place of hearing, cross-examination of witnesses but the same has not been followed in the case of petitioner. 6. Shri Rajeev Misra submits that while deciding the representation dated 24.12.2004 the respondent No. 2 relied upon the reports dated 10.3.2006; 20.3.2006 and 21.7.2006 submitted by respondent No. 4 without holding any enquiry and without affording any opportunity of hearing to him, which is in violation of principles of natural justice. He submits that holding of any kind of enquiry against a retired Government servant in absence of any prior consent of His Excellency Governor is bad in law. While passing the impugned order dated 29.7.2006 the respondent No. 2 did not consider the fact as to whether any enquiry whatsoever was held or not and also the respondent No. 2 did not record any finding with regard to the aforesaid fact. On the basis of ex parte report the financial liability has been fixed upon the petitioner. The respondent No. 2 did not consider the reply of the petitioner dated 4.9.1994 in pursuance of show-cause notice dated 5.7.1994. 7. On the basis of ex parte report the financial liability has been fixed upon the petitioner. The respondent No. 2 did not consider the reply of the petitioner dated 4.9.1994 in pursuance of show-cause notice dated 5.7.1994. 7. Shri Rajeev Misra submits that the recovery cannot be made from the gratuity as per law laid down by Hon’ble Apex Court and as such, the petitioner is entitled for simple interest. He has relied upon M.V. Bijlani v. Union of India and others, (2006) 5 SCC 88 , in which Hon’ble Supreme Court held in paragraph-25, as follows : “25. It is true that the jurisdiction of the Court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” 8. Shri Rajeev Misra has also placed reliance of a judgment of Hon’ble Supreme Court in Mathura Prasad v. Union of India and others, (2007) 1 SCC 437 . The relevant paragraphs No. 18 and 19 are reproduced herein below : “18. Even if the Inquiry Officer had, in his first report, proceeded on surmises and conjectures as was observed by the High Court, the disciplinary authority could disagree with the said finding but it was, therefor, required to record its reasons. No reason was recorded. Sub-Rules (2) and (3) of Rule 10 aim at achieving the same purpose. If sufficient materials are not available on record, a direction for holding a further inquiry may be issued in terms of sub-Rule (2) of Rule 10 so as to enable the department to lead further evidence before him. No reason was recorded. Sub-Rules (2) and (3) of Rule 10 aim at achieving the same purpose. If sufficient materials are not available on record, a direction for holding a further inquiry may be issued in terms of sub-Rule (2) of Rule 10 so as to enable the department to lead further evidence before him. For the said purpose also, reasons are required to be recorded by the disciplinary authority. An opportunity of hearing to the delinquent officer is required to be given. However, in the event, the disciplinary authority comes to the conclusion that the conclusion arrived at by the Inquiry Officer on the basis of materials placed by the parties are incorrect, he may disagree with the said findings but even, therefor, he is required to record reasons in support thereof. The requirement of sub-Rule (2) or sub-Rule (3) having not been complied with, the Inquiry Officer could not have arrived at a different finding. The High Court unfortunately did not consider this aspect of the matter. 19. When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedures laid down under sub-Rules are required to be strictly followed. It is now well-settled that a judicial review would lie even if there is an error of law apparent on the face of the record. If statutory authority uses its power in a manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact for sufficient reasons may attract the principles of judicial review.” 9. Shri Rajeev Misra has also relied upon a judgment of this Court in R.N. Chaturvedi v. State of U.P., 2007(4) ESC 497. Paragraph Nos. 8 and 9 are reproduced herein below : “8. In this connection a reference can be made to a Division Bench decision of this Court rendered. In Gopal Chandra Sinha v. State of U.P. and others, 2005(4) ESC 2899, wherein while interpreting the provisions of Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 and Civil Services (Classification, Control and Appeal) Rules 1930 pertaining to the procedure for disciplinary inquiry for imposing major penalties has been given in para 16, 17, 18, 18-A and 19 of the decision as under: 16. From a joint reading of the aforesaid Clauses of Rule 7 of new Rules 1999 it is dear that if the charges levelled in the charge-sheet are not admitted by the delinquent employee the Inquiry Officer is required to hold inquiry for proving the charges levelled in the charge-sheet. For that purpose the Inquiry Officer is required to call the witness proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall he given opportunity to cross-examine such witnesses after recording aforesaid evidence the Inquiry Officer shall call and record the oral evidence which the delinquent Government servant desires in his written statement to be produced in his defence. In other words, the aforesaid provisions make it clear that where the charges levelled in the charge-sheet is either not admitted or denied by the delinquent employee it is boundened duty of the Inquiry Officer to hold the inquiry for proving the aforesaid charges by documentary and oral evidence in presence of the delinquent employee and by asking him to cross-examine the witnesses if he so desires and adduce his own oral and documentary evidence in his defence. Thus from the reading of the new and old rule both referred to above it leaves no room for doubt to hold that where a delinquent employee either does not admit or denied the charges levelled in the charge-sheet, the enquiry officer is required to hold the inquiry for proving the charges in the manner indicated herein above and he cannot straightaway without holding such enquiry submit any inquiry report holding the delinquent employee guilty of the charges levelled in the charge-sheet. It is only in case where the delinquent employee appears before the Inquiry Officer and admits the charges levelled against him in that situation alone Inquiry Officer need not to hold inquiry and can submit inquiry report directly and straight-way on the basis of such admission holding the delinquent Government servant guilty of such charges levelled against him and in no other situation. 17. From a plain reading of Clause (iv) of Rule 7 of 1999 Rules it is clear that the charged Government servant shall be required to put in a written statement of his defence in person within a period specified in the charge-sheet which shall be not less than 15 days from the date of issue of charge-sheet. 17. From a plain reading of Clause (iv) of Rule 7 of 1999 Rules it is clear that the charged Government servant shall be required to put in a written statement of his defence in person within a period specified in the charge-sheet which shall be not less than 15 days from the date of issue of charge-sheet. In such a written statement or reply of charge-sheet the delinquent employee has to state as to whether he desires to cross-examine any witness mentioned in the charge-sheet and as to whether he desires to produce evidence in his defence. The delinquent employee shall also be informed that in case he does not appear or file written statement/reply on the specified date it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte. Clause (x) of the aforesaid Rules provides that where a charged Government servant failed to appear on the date fixed in the enquiry or at any stage of proceeding inspite of service of notice on him or having knowledge of the date the Inquiry Officer shall proceed with the enquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in the absence of Government servant. 18. Thus from the aforesaid provisions it is clear that Inquiry Officer can hold the enquiry ex parte in two situations. Firstly inspite of service of charge-sheet the delinquent employee does not reply the charge-sheet within time stipulated in the charge-sheet which shall not be less than 15 days from the date of issue of charge-sheet and in such situation it shall be presumed that delinquent employee has nothing to say in respect of the charges levelled against him and Inquiry Officer shall proceed to complete the enquiry ex parte and secondly where the charged Government servant does not appear on the date fixed in the enquiry or at any stage of proceeding inspite of service of notice on him or having knowledge of the date the Inquiry Officer shall proceed with the enquiry ex parte. In such situation the Inquiry Officer shall record the statements of witnesses mentioned in the charge-sheet in the absence of charged Government servant The aforesaid provisions clearly indicate that even if the charge-sheet has not been replied by the delinquent employee or the delinquent employee does not appear in the inquiry proceedings despite notice of the date fixed for such inquiry, the Inquiry Officer can proceed to hold only ex parte enquiry even in the absence of delinquent employee on the basis of documentary and oral evidence mentioned in the charge-sheet but he cannot escape from holding such ex parte enquiry even in the absence of delinquent employee and straight-way submit an inquiry report holding the delinquent employee guilty of the charges without holding such ex parte inquiry meaning thereby the Inquiry Officer cannot submit inquiry report straight-way holding the charged employee guilty of the charges levelled in the charge-sheet either without holding formal full fledged inquiry or without holding ex parte inquiry in the manner indicated herein before. 18-A. Thus refusal to reply the charge-sheet by the charged Government servant despite service of charge-sheet upon him/her no doubt permits the inquiry officer to presume that the delinquent employee has nothing to say about it but it does not permit to presume that the delinquent employee has admitted the charges levelled in the charge-sheet. Similarly failure or refusal to participate in inquiry despite notice or knowledge of date fixed for such inquiry also does not permit the inquiry officer to raise any presumption of admission of guilt by delinquent employee rather the inquiry officer is required to hold ex parte inquiry from the aforesaid stage because of the simple reason that in both the situations relevant rules do not admit any ambiguity and clearly indicates the necessary consequence flowing there from for holding ex parte inquiry. It is only in a situation contemplated under Clause (vi) of Rule 7 of the Rules alone the inquiry officer can straight-way submit a report to Disciplinary Authority without holding any formal inquiry, where the charges are admitted by charged Government servant and in no other situation. The ex parte inquiry should not be confused and equated with no formal inquiry accordingly would not permit the Inquiry Officer to submit inquiry report finding the charged employee guilty of the charges levelled against him without holding any such formal disciplinary inquiry. The ex parte inquiry should not be confused and equated with no formal inquiry accordingly would not permit the Inquiry Officer to submit inquiry report finding the charged employee guilty of the charges levelled against him without holding any such formal disciplinary inquiry. Therefore a distinction has to be always borne in mind in the aforesaid two categories of cases, i.e. (i) based on admission and (ii) situations warranting an ex parte inquiry. The aforesaid principle shall also apply with necessary modifications where the inquiry is held by Disciplinary Authority. 19. Under the Old Rules of 1930, also similar provisions were made without heavily wording the same, wherein Inquiry Officer was liable to hold formal inquiry in respect of the charges not admitted by the delinquent Government servant of the charges levelled in the charge-sheet. The requirement of the applicability of Rules 55(i) of the rules was excluded in cases of an order based on facts which has led to the conviction of delinquent employee in a criminal Court or by Court martial, and to the extent indicated in Clause (4) of Rule 55 of 1930 Rules only in the situations visualized there under in the manner indicated therein and no other situation therefore under old rule also the ex parte inquiry could be held in the situations warranting for holding such ex parte inquiry. In this connection a reference can be made to Imperial Tobacco Co. Ltd. v. Its Workmen, AIR 1962 SC 1349, wherein the Hon’ble Apex Court has held even if an employee refuses to participate in the inquiry the employer cannot straightway dismiss him but he must hold an ex parte enquiry where the evidence must be led to prove charges levelled against him. 9. Again a Division Bench in Shiv Shanker Saxena v. State of U.P. and others, 2006(3) ADJ 572 (DB), has reiterated the same principles enunciated in Gopal Chandra Sinha’s case. Earlier to it, in Radhey Kant Khare v. U.P. Co-operative Sugar Factories Federation Ltd., 2003(1) ESC 427 (All)(DB), after referring various decisions of Hon’ble Apex Court in para 20 to 24 of the decision a Division Bench of this Court has held as under: 20. It is alleged in paragraph 17 of the writ petition that on 12.6.1985 the enquiry officer called the petitioner for personal hearing without examining the administrative officer who had lodged the F.I.R. And other witnesses. It is alleged in paragraph 17 of the writ petition that on 12.6.1985 the enquiry officer called the petitioner for personal hearing without examining the administrative officer who had lodged the F.I.R. And other witnesses. It appears that the statement of Hanuman Saran, driver was recorded behind the back of the petitioner and this statement was not shown to the petitioner and the petitioner was not allowed to inspect the written report dated 30.1.1985 of Sri Najib Ahmad. 21. In paragraph 19 of the writ petition, it is stated that the petitioner submitted his reply to the show-cause notice in which he specifically contended that no enquiry was held to establish the charges by examining the witnesses and affording opportunity of hearing to the petitioner to cross-examine and the petitioner was not allowed to see any paper which he could use in his defence and this there was utter violation of the principles of natural justice. In paragraph 25 of the writ petition it is alleged that no oral evidence was recorded at all by the enquiry officer and the petitioner was not afforded any opportunity of cross-examination. In paragraph 27 of the writ petition it is alleged that the petitioner was not supplied copy of the report of Najib Ahmad dated 30.1.1985. In paragraph 29 it is alleged that no copy of the enquiry was given to the petitioner alongwith the show-cause notice to enable him to know the reasons and grounds given by the enquiry officer. In paragraph 30 it is alleged that the petitioner was not given opportunity to cross-examine Hanuman Saran, driver. In paragraph 31 it is alleged that besides the enquiry report the punishing authority considered other documents behind the back of the petitioner. 22. A counter-affidavit has been filed to the writ petition and we have carefully examined the same. In paragraph 19 of the counter-affidavit it is alleged that on 12.6.1985 the petitioner was given an opportunity of personal hearing by the enquiry officer. However, the allegation that the petitioner was not given opportunity to cross-examine Hanuman Saran, driver and other witnesses are not denied in the counter-affidavit. As regards the complaint that the petitioner was not allowed to inspect the report of Najib Ahmad dated 30.1.1985 it is alleged that the petitioner never made any complaint in this regard. However, the allegation that the petitioner was not given opportunity to cross-examine Hanuman Saran, driver and other witnesses are not denied in the counter-affidavit. As regards the complaint that the petitioner was not allowed to inspect the report of Najib Ahmad dated 30.1.1985 it is alleged that the petitioner never made any complaint in this regard. In paragraph 26 it is alleged that the petitioner was afforded opportunity of personal hearing. In paragraph 32 it is stated that the petitioner never made any request to examine Hanuman Saran as his defence witness during the course of the enquiry. 23. From the above facts it appears to us that an illegal procedure was followed by the enquiry officer inasmuch as on 12.6.1985 he called the petitioner for giving his statement without first examining the witnesses against the petitioner in his presence. As mentioned in the decisions already referred to above, ordinarily the witnesses against the charge-sheeted employee must be examined first in his presence and it is illegal to straightway ask the employee to lead his evidence first. This procedure itself is violative of the principles of natural justice. Moreover, it appears from the above facts that no witness against the petitioner was examined in his presence nor was he given opportunity of cross-examining them. All that was done that the petitioner was called on 12.10.1985 to give his statement. It is also evident that the report of Najib Ahmad dated 30.1.1985 was not supplied to the petitioner, which also violates the principles of natural justice. 24. In our opinion, there was total violation of the principles of natural justice in the alleged enquiry held on 12.6.1985 and hence it was not a valid enquiry at all in view of the decisions of the Supreme Court and this Court referred to above. Since a major punishment was being imposed on the petitioner there should have been a proper oral enquiry before taking the action against the petitioner, but this was evidently not done.” 10. Shri Manas Bhargava, learned Standing Counsel, on the other hand submits, that there is no record in the office of respondents regarding handing over the charge to Shri T.P. Upadhyay and Shri Kameshwar Prasad, Junior Engineers in the year 1993. Shri Manas Bhargava, learned Standing Counsel, on the other hand submits, that there is no record in the office of respondents regarding handing over the charge to Shri T.P. Upadhyay and Shri Kameshwar Prasad, Junior Engineers in the year 1993. The petitioner was given the charge memo dated 2.6.1994 as well as show-cause notice dated 5.7.1994 to submit his reply within 15 days and thereafter a reminder letter was also issued on 1.9.1994. The physical verification was conducted by Shri V.P. Chauhan and Shri Vipin Pachauria. The petitioner did not submit any reply in the office of respondents as the same has not been received by the respondents. Shri V.P. Chauhan and Shri Vipin Pachauria were appointed to enquire into the matter and to submit the enquiry report after physical verification. The petitioner was informed vide letter dated 30.9.2004 that he should remain present in the enquiry. All the relevant papers regarding the enquiry report were supplied to the petitioner. After thorough verification by the Chief Engineer, Jhansi Region, it was found that the petitioner is responsible for the loss of Rs. 4,49,870.79 in place of Rs. 6,42,000/- and the Superintending Engineer, Public Works Department, Banda was directed to initiate recovery proceeding against the petitioner. In compliance of the order of this Court dated 9.12.2006 the matter was examined and scrutinized and ultimately after adducing and perusing the entire record, it was found that the petitioner was entitled for the loss of Rs. 4,49,870.79. The enquiry was conducted by the respondent No. 2 on different dates i.e. on 6.1.2006, 15/16.2.2006, 20.2.2006, 27.2.2006, 9.3.2006 and 13.3.2006 and the petitioner himself was present in the proceedings but he did not submit any documents in his defence nor he asked for any other documents and ultimately the petitioner’s representation was decided by a detailed order dated 29.7.2006. Ample opportunity was given to the petitioner before passing the order dated 13.9.2001 and before passing the impugned order dated 13.9.2001, the procedure for providing major penalty was strictly complied with. The enquiry was conducted and after the enquiry, the show-cause notice was issued to the petitioner and ultimately the order of recovery dated 13.9.2001 has been passed against the petitioner. There is no illegality or infirmity in the order and the same is liable to be confirmed. 11. The enquiry was conducted and after the enquiry, the show-cause notice was issued to the petitioner and ultimately the order of recovery dated 13.9.2001 has been passed against the petitioner. There is no illegality or infirmity in the order and the same is liable to be confirmed. 11. In order to appreciate the respective arguments Regulation 351-A of the Civil Services Regulation is being 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. Provided that-such departmental proceedings, if not instituted while the officer was on duty. 1. (i) shall not be instituted save with the sanction of the 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. 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)(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)(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 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 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.” 12. The petitioner was served with the show-cause notice dated 5.7.1994 to which he submitted his reply on 4.9.1994. The Work Superintendent directed Shri V.P. Pradhan and Shri Vipin Pachauria on 30.9.1994 to enquire into the matter and submit its report. The petitioner was served with the show-cause notice dated 5.7.1994 to which he submitted his reply on 4.9.1994. The Work Superintendent directed Shri V.P. Pradhan and Shri Vipin Pachauria on 30.9.1994 to enquire into the matter and submit its report. The enquiry committee submitted its report on 21.11.1995, which was not supplied to the petitioner. The petitioner has attained the age of superannuation on 31.3.2001 and after his retirement the department has started paying 90% pension. Thereafter, the enquiry committee submitted another report on 20.7.2001, which was also not supplied to the petitioner. On 13.9.2001 the respondent No. 3 directed Rs. 6,42,000/- to be recovered from the petitioner. On the representation of the petitioner, the respondent No. 3 directed the Executive Engineer on 16.10.2001 to re-examine the matter and furnish his fresh note and in compliance with the order of this Court dated 9.12.2005, the respondent No. 2 rejected the petitioner’s representation and directed Rs. 4,49,870.79 to be recovered from the petitioner’s retiral benefits. 13. The department has also not made any averments in the counter-affidavit whether any permission was granted by Hon’ble Governor before passing the impugned order. 14. On the parameter of the aforementioned regulations, here accepted position is that the show-cause notice dated 5.7.1994 was served upon the petitioner. He has attained the age of superannuation on 31.3.2001 and the impugned order had been passed on 29.7.2006, which clearly shows that in the present matter in most mechanical manner the proceedings had been sought to be undertaken by the authority concerned. Explanation added to Regulation 351-A of Civil Service Regulations clearly provides that the 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 the earlier date, on such date. Further it is relevant to observe that nowhere in the counter-affidavit it had been brought by the department that the sanction of Hon’ble Governor, which is required as per Regulation 351-A, had been taken by the department. Once such statutory provision has not been complied with, which is a mandatory provision, then any departmental action without sanction of Hon’ble Governor cannot be approved. 15. A Division Bench of this Court has considered the present controversy in great length in Z.U. Ansari v. State of U.P. and others, 2014(3) ADJ 671 (DB). The relevant paragraph Nos. Once such statutory provision has not been complied with, which is a mandatory provision, then any departmental action without sanction of Hon’ble Governor cannot be approved. 15. A Division Bench of this Court has considered the present controversy in great length in Z.U. Ansari v. State of U.P. and others, 2014(3) ADJ 671 (DB). The relevant paragraph Nos. 10, 13, 15, 16 and 17 are reproduced herein below : “10. It is admitted on record that there is no order of the Governor sanctioning the departmental proceedings. The stand taken by the State before us is that since the minister of the department had granted approval to the initiation of the departmental proceedings vide order dated 7.1.2011, this order of the minister read with Chapter 7 of U.P. Secretariat Instructions, 1972 framed under the Rules of Business, 1975 has to be deemed to be the sanction of the Governor. In support of this contention the State has placed reliance upon paragraph 12 of the judgment in the case of State of Orissa v. Kanhu Charan Majhi (supra). Paragraph 12 reads as follows : “We have considered the provisions of Rule 31 of the Rules, whereby power has been given to the Governor to review the order dated 16.10.1995. Now the question is whether the order was passed by the Governor. It is true that when any statute empowers the Governor to pass an order, the Governor himself need not sign and need not pass the order. The rules of business of any particular State deal with the procedure as to how an order is to be passed by the Governor or in the name of the Governor. In the instant case, the order dated 4.9.2000 was passed by the Under-Secretary, Food Supplies and Consumer Welfare Department of the Government of Orissa. According to Rules 11 and 12 of the Orissa Government Rules of Business, an Under-Secretary is empowered to sign in the name of the Governor. Thus, in view of said legal position, the order dated 4.9.2000 can be said to have been passed by the Governor, exercising power under Rule 31 of the Rules. 13. We are of the considered opinion that the provisions of Article 309 of the Constitution of India operate in a separate field vis-a-vis the conduct of Government business under Article 166 of the Constitution of India. They are not overlapping. 13. We are of the considered opinion that the provisions of Article 309 of the Constitution of India operate in a separate field vis-a-vis the conduct of Government business under Article 166 of the Constitution of India. They are not overlapping. Therefore, if under the service rules framed under Article 309 of the Constitution of India namely the Civil Services Regulations, 1975, it has been provided that sanction of the Governor would be necessary before initiation of the departmental proceedings with the service of the charge-sheet upon the retired employee then such sanction has to be that of the Governor and not of the minister with reference to the U.P. Secretariat Instructions 1982 framed under the Rules of Business, 1975. We may also record that the U.P. Secretariat Instructions 1982, Chapter VII only provide that all business allocated to a department under the Rules of Business, 1975 is to be disposed of by or under the General or special directions of the minister in charge (Reference Business Regulations 3). It is, therefore, clear that only such business as allocated to the department under the Rules of Business, 1975 can be disposed of under the general or special directions of the minister in charge.. 15. We have, therefore, no hesitation to hold that the sanction of the minister referable to the Business Regulations in the facts of the case will not amount to the sanction of the Governor as contemplated by Regulation 351-A of the Civil Services Regulations, 1975. 16. So far as the judgment relied upon by the counsel for the respondent in the case of State of Orissa (Supra), we may record that the same is clearly distinguishable in the facts of the case specifically with reference to the Rules of Business, 1975 of the State of U.P. referred to by us. 17. In absence of sanction of the Governor, no departmental proceedings can be initiated against a Government servant after his retirement, the impugned charge-sheet cannot be legally sustained. Accordingly, the charge-sheet dated 27.6.2011 is hereby quashed as also the departmental proceedings initiated thereto against the petitioner. The petitioner shall be entitled to all the consequential benefits with the result of the quashing of the charge-sheet and the departmental proceedings. Accordingly, the charge-sheet dated 27.6.2011 is hereby quashed as also the departmental proceedings initiated thereto against the petitioner. The petitioner shall be entitled to all the consequential benefits with the result of the quashing of the charge-sheet and the departmental proceedings. The State is directed to take appropriate action in that regard within two months from the date a certified copy of the order is served upon the State Government.” 16. In Civil Misc. Writ Petition No. 11601 of 2010 (Ambika Prasad Singh v. State of U.P. and others) decided on 16.2.2011 this Court held as follows : “On the parameter of the aforementioned regulations, here accepted position is that petitioner has attained the age of superannuation on 31.8.2009. This is also accepted position that after attaining the age of superannuation, he has been placed under suspension on 4.11.2009, which clearly shows that in mechanical manner proceedings have been sought to be undertaken by the authority concern and coupled with this charge-sheet has been served upon the petitioner on 4.2.2010. Said charge-sheet is dated 9.7.2009 and most surprisingly in the said charge-sheet, in hand writing the word “Seva Nibriti” has been mentioned which clearly reflects that charge-sheet in question had never been served upon the petitioner, and after attaining the age of superannuation, maintaining on the same date “Seva Nibriti” has been inserted and same has been sought be served upon the petitioner on 4.2.2010. Explanation added to Regulation 351-A of Civil Service Regulation clearly proceeds to mention that departmental proceeding 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 and earlier date, on such date. Here in the present case by no stretch of imagination departmental proceeding can be deemed to have been instituted as charges framed had never been issued to the petitioner, and accepted position is that suspension order is subsequent to the date of superannuation and charge-sheet in question has been served on 4.2.2010. In view of this by no stretch of imagination on the relevant date i.e. 31.8.2009, it can be said that any departmental proceeding had been instituted against the petitioner. In view of this by no stretch of imagination on the relevant date i.e. 31.8.2009, it can be said that any departmental proceeding had been instituted against the petitioner. Once departmental proceedings were to be undertaken after attaining the age of superannuation, then in all eventuality sanction of Governor was mandatory, as per Regulation 351-A. Once said statutory provision has not been complied with which is a mandatory provision, then any departmental action without sanction of Governor cannot be approved of. In view of this, entire action pursuant to the aforementioned charge-sheet in question dated 9.7.2009 is hereby quashed and set aside. However, in the event of there being sanction of Governor, proceeding can be undertaken in accordance with law.” 17. The Court has also perused the original records pertaining to the proceedings in which the penalty was imposed on the petitioner and finds that neither the first enquiry report had been supplied to the petitioner nor the subsequent report was supplied to him. It is apparent from the record that in the present matter the principle of natural justice has been greatly violated. No opportunity was given to the petitioner before fastening the financial liability on the petitioner. 18. In A.K. Kraipak and others v. Union of India and others, (1970) 1 SCR 457 , Hon’ble Supreme Court held that the concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (i) no one shall be a Judge in his own cause (nemo dabet esse judex propria causa) and (ii) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice.” (P. 468-69). 19. The object underlying the rules of natural justice “is to prevent miscarriage of justice” and secure “fair play in action.” As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. 19. The object underlying the rules of natural justice “is to prevent miscarriage of justice” and secure “fair play in action.” As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, I am of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. No doubt, the extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. 20. In view of the above, the impugned order dated 29.7.2006 cannot be sustained and is accordingly set aside. 21. The writ petition is allowed. The respondents are directed to pay Rs. 4,49,870.79, which has been deducted from the retiral benefits, i.e. Gratuity, GPF etc, and the entire pensionary benefits, to the petitioner with simple interest at 6% per annum within six weeks’ time from the date of production of a certified copy of this order. 22. Let the original records be returned back to Shri Manas Bhargava, learned Standing Counsel.