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2015 DIGILAW 480 (ALL)

RAM GOPAL SHARMA v. STATE OF U. P.

2015-03-13

MAHESH CHANDRA TRIPATHI

body2015
JUDGMENT Hon’ble Mahesh Chandra Tripathi, J.—Heard Shri Ranjit Saxena, learned counsel for the petitioner and Shri Nripendra Mishra, learned counsel for the respondent Nos. 2 to 6. Shri Pankaj Rai, learned Additional Chief Standing Counsel appears for respondent No. 1. 2. By means of present writ petition, the petitioner has prayed for quashing the impugned order No. 196 dated 10.1.2012 issued by the Executive Engineer, Electricity Urban Distribution Division, 1st, Town Hall, Muzaffarnagar; the order No. 1678 dated 28.5.2012 passed by the Superintending Engineer, Urban Distribution Circle, Muzaffarnagar and the order No. 7150 dated 10.9.2012 passed by Chief Zonal Engineer, Paschimanchal Vidyut Vitran Nigam Ltd, Anupam Vihar Delhi Road, Saharanpur. 3. Brief facts giving rise to the present writ petition are that the petitioner was serving as Sub Station Operator at 66 K.V. Sub Station, Meerut Road, Muzaffarnagar. He retired on 30.6.2009 after attaining the age of superannuation. After the retirement, the petitioner has been paid all the retiral benefits and he started getting pension. Thereafter, he was served with a charge-sheet on 29.9.2010. He demanded some relevant documents on 16.10.2010 from the Enquiry Officer. On 7.10.2011 the Enquiry Officer sent a letter to the petitioner informing that the papers demanded by him are not relevant for the enquiry. The petitioner again sent a letter to the Enquiry Officer on 11.10.2011 for supplying the papers demanded by him. On 14.10.2011 the Executive Engineer, Electricity Urban Distribution Division-1st, Town Hal, Muzaffarnagar sent a letter to the petitioner alleging, that in the independent feeder, there is tempering of the energy meters and the charge-sheet was given to him. The petitioner informed the Executive Engineer on 22.10.2011 with regard to his retirement. On 28.11.2011 the Enquiry Officer again gave one week’s time to the petitioner to give reply to the charge-sheet to which he submitted his reply on 7.12.2011, denying all the charges levelled against him. Thereafter the Executive Engineer, Electricity Urban Distribution Division-1st, Muzaffarnagar passed the impugned order dated 10.1.2012 on the ground that the petitioner had worked against the interest of the Corporation and 10% pension of the petitioner has been directed to be deducted from January, 2012 onwards continuously. Thereafter the Executive Engineer, Electricity Urban Distribution Division-1st, Muzaffarnagar passed the impugned order dated 10.1.2012 on the ground that the petitioner had worked against the interest of the Corporation and 10% pension of the petitioner has been directed to be deducted from January, 2012 onwards continuously. The petitioner filed an appeal on 10.3.2012 against the impugned punishment order dated 10.1.2012 before the Superintending Engineer, Electricity Urban Distribution Division Circle, Paschimanchal Vidyut Vitran Nigam Ltd, Muzaffarnagar on the ground that the impugned order was passed in violation of Regulation 351-A of the Civil Services Regulation. The Superintending Engineer rejected the appeal on 28.5.2012. Thereafter the petitioner filed an appeal before the Chief Zonal Engineer, Distribution, Paschimanchal Vidyut Vitran Nigam Limited, Saharanpur against the orders dated 10.1.2012 and 28.5.2012. The Chief Zonal Engineer rejected the appeal on 10.9.2012. 4. Shri Ranjeet Saxena, learned counsel for the petitioner submits that the petitioner has already retired as Technician Grade-2 (Electric/Sub Station Operator) on 30.6.2009 and therefore, the charge-sheet given to him after retirement on 29.9.2010 without the permission of Hon’ble Governor is in violation of Regulation 351-A of Civil Service Regulation. He submits that as per duty charge also, no liability with regard to tempering of the meter can be fixed on the petitioner. Neither the petitioner was given a copy of the enquiry report nor he was given any opportunity of hearing before passing the impugned order dated 10.1.2012, therefore, the order impugned cannot be sustained. 5. Shri Ranjeet Saxena further submits that the pension is fundamental right of the petitioner and before passing any order for deducting the pension the opportunity of hearing has to be given to him and in the present case, no opportunity of hearing was given to the petitioner. The enquiry officer refused to provide the relevant papers to the petitioner and thus the entire enquiry was held behind back of the petitioner. There is no complaint against the petitioner during his entire service period. 6. Shri Ranjeet Saxena has relied upon a judgment of Supreme Court in State of U.P. v. Bramhdutt Sharma, 1987 (2) SCC 179 , in which it was held that grant of pension is important right of the petitioner. There is no complaint against the petitioner during his entire service period. 6. Shri Ranjeet Saxena has relied upon a judgment of Supreme Court in State of U.P. v. Bramhdutt Sharma, 1987 (2) SCC 179 , in which it was held that grant of pension is important right of the petitioner. In State of Punjab v. K.R. Erry and State of Punjab v. Iqbal Singh, 1976 (3) SCR 360 , the Supreme Court held that the order of imposing deduction in pension cannot be passed without giving any opportunity hearing and thus the order passed against the petitioner without giving any opportunity hearing is also illegal. He has also placed his reliance on the judgment of this Court in Keshav Dev Pandey v. Chairman and Managing Director, U.P. Power Corporation Limited, 2012 (11) ADJ 625 in support of his submission. 7. Learned counsel for the petitioner has vehemently submitted that the report of the enquiry officer is totally vague and incorrect and there was no finding recorded by the Enquiry Officer against the petitioner. More so the report was submitted by the Enquiry Officer on 31.12.2011. 8. Shri Nripendra Mishra, learned counsel for the respondents, on the other hand, submits that the petitioner retired on 30.6.2009 from the post of Technician Grade-II (Electric) and the charge-sheet was issued to him on 29.9.2010. In fact, the petitioner was working before retirement at 66 K.V. Sub Station, which came under Electricity Urban Distribution Division-I, Town Hall, Muzaffar Nagar. The electric theft was going on from the said Sub Station and the same was found by the Competent Authority of the UP Power Corporation. The enquiry was held in which it was found that the petitioner was involved in the electric theft by illegal manner. Therefore, the charge-sheet was issued by the Enquiry Officer to the petitioner on 29.9.2010. The petitioner was always making loss and damages to the Corporation. After considering the facts and circumstances of the case the Competent Authority passed the order dated 10.1.2012, by which 10% amount has been deducted from the pension of the petitioner from February, 2012. According to the charge-sheet dated 29.9.2010, the petitioner was involved in the electric theft. 9. The petitioner was always making loss and damages to the Corporation. After considering the facts and circumstances of the case the Competent Authority passed the order dated 10.1.2012, by which 10% amount has been deducted from the pension of the petitioner from February, 2012. According to the charge-sheet dated 29.9.2010, the petitioner was involved in the electric theft. 9. Shri Nripendra Misra further submits that the charge-sheet was issued against the petitioner for the period since 7.2.2000 to 30.6.2009 when the petitioner was continuously working at the Sub Station 66, K.V. Sub Station, Meerut Road, Muzaffar Nagar. He was found guilty against the provision of Rules 3 and 28 of U.P. Rajya Karamchari Niyamawali, 1956. The impugned order has been passed after giving full opportunity of hearing to the petitioner. The authority concerned examined the matter and considered the reply of the petitioner and passed the impugned order. The writ petition is liable to be dismissed with cost. 10. Heard rival submissions and perused the records. 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- (1) such departmental proceedings, if not instituted while the officer was on duty. (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. 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. 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. It is not disputed that the petitioner has attained the age of superannuation on 30.6.2009 and after his retirement the department has started paying the pension and other benefits to him. Thereafter, he was served with the charge-sheet on 29.9.2010 (admittedly after his retirement). The Executive Engineer vide impugned order dated 10.1.2012 had directed for 10% deduction in petitioner’s pension on the ground that the petitioner helped the consumer in electricity theft. Aggrieved with the impugned order dated 10.1.2012 the petitioner had preferred an appeal before the Superintending Engineer, Electricity Urban Distribution Circle, Muzaffarnagar specially on the ground that the department has proceeded in the matter without permission of Hon’ble Governor. Therefore, the order impugned cannot be sustained but the Appellate Authority, in most cursory manner without touching the core issue in the matter, had rejected the appeal filed by the petitioner. 13. Learned counsel for the petitioner has vehemently submitted that even by filing the counter-affidavit no reply has been given by the department in this regard whether any leave was granted by Hon’ble Governor or not. For ready reference para-16 of the writ petition is reproduced herein below : “16. 13. Learned counsel for the petitioner has vehemently submitted that even by filing the counter-affidavit no reply has been given by the department in this regard whether any leave was granted by Hon’ble Governor or not. For ready reference para-16 of the writ petition is reproduced herein below : “16. That the main ground of the appeal mainly shows that there is in violation of the Regulation 351-A of the Civil Services Regulation but the Superintending Engineer, Electricity Urban Distribution Circle, Muzaffarnagar refused to grant any relief to the petitioner and passed an order dated 28.5.2012. The copy of the order dated 28.5.2012 passed by the Superintending Engineer, Electricity Urban Distribution Circle, Muzaffarnagar is being filed herewith and marked as Annexure 13 of the writ petition.” 14. The rebuttal has been made in the rejoinder-affidavit in para-16. The same is also reproduced herein below : “16. That the contents of paragraph No. 16 of the counter-affidavit is misleading and incorrect. Charge-sheet was given on 29.9.2010 while the petitioner retired on 30.6.2009 and thus the charge-sheet could not have been given after the retirement and there is a violation of Regulation 351-A of the Civil Service Regulations and under the judgment of Supreme Court in Coal India Ltd. v. Saroj Kumar Mishra, 2007 (9) SCC 625 , the departmental inquiry only begins after the charge-sheet is given and thus it is quite clear that the charge-sheet has been given beyond the period of retirement and there was no duty of the petitioner as mentioned in the charge-sheet and the impugned orders of the authorities were totally mechanical.” 15. The Court has also perused the counter-affidavit as well as supplementary counter-affidavit. The department has not made any averments in the matter whether any permission was granted by Hon’ble Governor prior to initiating the enquiry in the matter. 16. On the parameter of the aforementioned regulations, here accepted position is that the petitioner has attained the age of superannuation on 30.6.2009. The charge-sheet had been served upon him on 29.9.2010 and the impugned order had been passed on 10.1.2012, which clearly shows that in the present matter in most mechanical manner the proceedings had been sought to be undertaken by the authority concerned and coupled with the charge-sheet, which had been served upon the petitioner on 29.9.2010 (admittedly after the age of superannuation). 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. Here in the present case no stretch of imagination may be visualised that the departmental proceeding had been initiated prior to retirement of the petitioner. Admittedly the petitioner had been served upon the charge-sheet after his retirement and further it is relevant to observe that nowhere in the counter-affidavit or in the supplementary 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. 17. 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. 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. 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. 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. 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.” 18. 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. 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.” 19. In view of the above, the order impugned cannot be sustained and is accordingly set aside. 20. The writ petition is allowed. The respondents are directed to pay the entire amount, which has been deducted from the pension, to the petitioner with simple interest at 6% per annum within two months’ time from the date of production of a certified copy of this order. ——————