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2016 DIGILAW 33 (ALL)

State of U. P. v. Kumail Ashraf Khan

2016-01-05

RAM SURAT RAM (MAURYA), SATYENDRA SINGH CHAUHAN

body2016
JUDGMENT Heard learned Standing Counsel for the petitioner and Sri Vivek Saxena, learned counsel for respondent-1. 2. The writ petition has been filed for issuing a writ of certiorari setting aside the judgment and order dated 10.12.2013 passed by the State Public Services Tribunal, Lucknow(hereinafter referred to as 'the Tribunal'). 3. By means of the aforesaid order, the Tribunal has quashed the Office Memorandum dated 15.7.2013 by which permission for holding departmental proceeding was granted by the Governor as contemplated under Article 351-A of Civil Service Regulation. The Tribunal after exchange of affidavits between the parties, came to the conclusion that the charges made against respondent-1 did not come within the term 'grave misconduct', therefore, allowed the claim petition filed by respondent-1. The Tribunal while allowing the claim petition relied upon the two decisions of this Court reported in 2007(3) LBESR 663 (All), Bhagwati Prasad Verma v. State of U.P. and others. (Paragraph 26 of the report) and 2011 (1) LBESR 880 (All), Shardindu v. State of U.P. And others, where also the same proposition of law has been laid down. 4. The case of respondent-1 was not found to be covered within the term 'grave misconduct' inasmuch as out of four charges levelled against respondent-1 charge no.4 was not proved, charge nos. 1 and 3 were partially proved and only charge no.2 was proved, which was pertaining to non supply of required information and documents by respondent-1, which he had supplied during the course of enquiry though with some delay. The Tribunal has found that the charges levelled against the respondent-1 did not come within the purview of the term 'grave misconduct' though it was contended before the Tribunal that by not furnishing required information and documents to the Chief Technical Examiner for conducting enquiry respondent-1 had committed grave misconduct. 5. The Tribunal while considering the aforesaid case recorded the following finding. "It is not disputed that the petitioner superannuated on 28.2.2013 and the impugned Office memorandum was passed after superannuation of the petitioner on 15.7.2013. The office memorandum is passed under Regulation 351-A of Civil Service Regulations. The contention of the learned counsel for the petitioner is that in order to attract the provisions of CSR 351-A the employee must be found to have been guilty of grave misconduct or to have caused pecuniary loss to Government by misconduct or negligence. The office memorandum is passed under Regulation 351-A of Civil Service Regulations. The contention of the learned counsel for the petitioner is that in order to attract the provisions of CSR 351-A the employee must be found to have been guilty of grave misconduct or to have caused pecuniary loss to Government by misconduct or negligence. His contention is that in the case before us none of the two ingredients are present. He has invited our attention to the charges contained in the charge sheet (Annexure no.2). Charge no.1 is in respect of furnishing information and documents so as to facilitate enquiry by the Chief Technical Examiner. The allegation against the petitioner is that he did not furnish the desired information and documents. Charges no.2 and 3 are interrelated. We are not referring to charge no.4 because it has not been proved and no punishment was awarded on the basis of charge no.4. The question for consideration is whether charges no.1, 2 and 3 can be termed as 'grave misconduct' though charges no.1 and 3 are only partially proved. Charge no.2 is proved against the petitioner. The petitioner's learned counsel has submitted that withholding or forfeiting of pension permanently can only be for grave misconduct. In support he has cited the judgment of the Hon'ble High Court of Allahabad reported in 2007 (3) LBESR 663 (All), Bhagwati Prasad Verma v. State of U.P. & others where it has been laid down that action can be taken only if the omission or failure is not ordinary but something more. Mere neglect or default may not be covered by it. In service jurisprudence grave has its own connotation. It is not a mistake or mere irregularity. We may quote para 26 of the report hereunder: - "26. We would now examine whether the order withholding 5% pension can be upheld. We have already extracted Regulation 351-A. It provides for withholding or withdrawing pension permanently or for specific period if the pensioner is found guilty of grave misconduct in departmental disciplinary proceedings or to have caused pecuniary loss to Government by misconduct or negligence during his service. The use of two expression grave misconduct for withholding pension and misconduct or negligence for pecuniary loss brings out full the scope and purpose of the Regulations. Misconduct literally means wrong or improper conduct. The use of two expression grave misconduct for withholding pension and misconduct or negligence for pecuniary loss brings out full the scope and purpose of the Regulations. Misconduct literally means wrong or improper conduct. It may be failure to do what is required by law to be done. In other words, omission to follow a rule without any intention may amount to misconduct. Therefore, where there is pecuniary loss of the Government by failure or omission to follow any rule or law deliberately or otherwise, it may amount to misconduct or negligence and it can be recovered from the pension. But withholding or forfeiting pension permanently or for a specified period can only be for grave misconduct. The use of the word grave misconduct makes it abundantly clear that it is not every omission or failure which can attract this provision. According to the Black's Law Dictionary the word 'misconduct' is of wide import. But once it has been qualified with the word grave, its ambit is curtailed. It intends to convey that the action can be taken only if the omission or failure is not ordinary but some thing more. Mere neglect or default may not be covered by it. In service jurisprudence grave has its own connotation. It is not a mistake or mere irregularity. Pension is a right of an employee it cannot be withheld or curtailed for technical omission." 6. In another judgment of the Hon'ble High Court of Allahabad reported in 2011(1) LBESR 880 (All), Shardindu v. State of U.P. & Ors. The Hon'ble High Court of Allahabad has held that Article 351-A of the Civil Services Regulation reserves right of the Governor to withhold or withdraw the pension either permanently or for specified period, if the petitioner is found in departmental or judicial proceedings to be guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence during his service. Explaining the term 'grave misconduct' the Hon'ble High Court has held that expression 'grave misconduct' is something more that a misconduct defined under Section 3 of the U.P. Government Servants Conduct Rules, 1956. We may quote para 31 of the judgment as hereunder: "31. Explaining the term 'grave misconduct' the Hon'ble High Court has held that expression 'grave misconduct' is something more that a misconduct defined under Section 3 of the U.P. Government Servants Conduct Rules, 1956. We may quote para 31 of the judgment as hereunder: "31. Article 351-A of the Civil Services Regulation reserves right of the Governor to withhold or withdraw the pension either permanently or for specified period, if the petitioner is found in departmental or judicial proceedings to be guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligent during his service. The expression 'grave misconduct' is something more than a misconduct defined under Section 3 of the U.P. Government Servants Conduct Rules, 1956. A retired employee can be punished for being found guilty of grave misconduct and not a misconduct simpliciter. He may also be punished, if he had caused pecuniary loss to the Government resulting out of such misconduct or negligence during his service. The finding of the pecuniary loss is thus essential, if there is a charge to that effect and which has been found established." In none of the findings of the enquiry officer reproduced in the impugned office memorandum (Annexure No.1) there is mention of pecuniary loss to the Government by misconduct of the petitioner. Similarly there is not a single word which describes the action/omission of the petitioner as grave misconduct." 7. We have gone through the aforesaid findings and we find that the case of respondent-1 is not covered by the term 'grave misconduct' as such we are not inclined to interfere in the matter. The writ petition is devoid of any merit. It is dismissed.