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2016 DIGILAW 520 (ALL)

State of U. P. v. Krishna Kumar Srivastava

2016-02-12

D.Y.CHANDRACHUD, YASHWANT VARMA

body2016
JUDGMENT The respondent was working as an Accountant in the District Rural Development Agency. A charge sheet was issued to him on 30 April 2008 on a charge of misconduct. A disciplinary inquiry was initiated. During the pendency of the disciplinary inquiry, the respondent attained the age of superannuation on 31 July 2008. The Enquiry Officer submitted his report on 5 August 2008. On 6 April 2015, a disciplinary penalty was imposed on the respondent whereby a recovery of Rs.17.50 lacs was ordered against him on the ground of financial transgressions. Questioning the action, the respondent filed a writ petition under Article 226 of the Constitution which has been allowed by the learned Single Judge. 2. By the judgment impugned dated 8 July 2015, the learned Single Judge held that DRDA being a society registered under the Societies Registration Act, 1860, the employees of the society are not government servants as held in an earlier judgment of a Division Bench of this Court in State of U.P. vs. Pitamber. The learned Single Judge held that in consequence there were no rules or regulations for the continuation of departmental proceedings after the employee has attained the age of superannuation and followed the law laid down by the Supreme Court in Dev Prakash Tiwari vs. U.P. Cooperative Institutional Service Board. 3. In Dev Prakash Tiwari (supra), albeit in the context of a cooperative society, it was held that there was no specific provision for deducting an amount found to have been sustained by way of a loss by the employer consequent upon a misconduct found in a disciplinary inquiry from the retiral dues nor was there any provision for the continuation of the departmental inquiry after superannuation. The learned Single Judge has followed this principle and also held that the Civil Service Regulations were not applicable in view of a Government Order dated 17 March 1994. The action for recovery has been set aside with the consequence that the respondent has been held to be entitled to all his retiral dues and emoluments. 4. The submission which has been urged on behalf of the State by the learned Standing Counsel is that the learned Single Judge has failed to notice the provisions contained in clause 9 of the Government Order dated 17 March 1994. 4. The submission which has been urged on behalf of the State by the learned Standing Counsel is that the learned Single Judge has failed to notice the provisions contained in clause 9 of the Government Order dated 17 March 1994. These provisions, it was submitted, clearly indicate that in respect of matters which are not covered by the Government Order, the general rules applicable to government servants would apply to the employees of DRDA. The issuance of the Government Order was necessitated in view of the fact that employees of the DRDA are not government servants though DRDA has been held to be State within the meaning of Article 12 . Hence, it was urged that once the Civil Service Regulations were incorporated by clause 9 of the Government Order dated 17 March 1994, it was open to the State Government to impose the disciplinary penalty even after the retirement of the respondent in terms of the sanction which was obtained on 20 January 2014 from the Governor under Regulation 351-A of the Civil Service Regulations. This is the submission which falls for consideration. 5. A Division Bench of this Court in State of U.P. vs. Pitamber (supra) has settled the position to the effect that though DRDA, as an agency of the State, may be governed by Article 12 of the Constitution, yet as a society which is registered under the Societies Registration Act, 1860, its employees are not employees of the State or Government servants. This position was followed in a subsequent judgment of a Division Bench of this Court in State of U.P. vs. Ajeet Kumar Shahi decided on 5 October 2015. In this decision, the Division Bench held that the position in law was in the following terms: "In view of the law which has been laid down by the Division Bench in its judgment dated 19 August 2010 in Pitamber (supra), it is now a settled principle of law that the employees of DRDA are not holding civil posts in the services of the State. They continue to be the employees of DRDA which is a society registered under the Societies Registration Act, 1860." 6. Consequently, the Division Bench held that the provisions of the U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 were not attracted. They continue to be the employees of DRDA which is a society registered under the Societies Registration Act, 1860." 6. Consequently, the Division Bench held that the provisions of the U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 were not attracted. The basic issue which however falls for determination is whether the services of the respondent were continued after his retirement or whether there was a specific provision under which the disciplinary proceedings could be continued even after his date of superannuation. The Government Order upon which reliance has been placed on behalf of the State dated 17 March 1994 does in fact postulate that since the DRDA is a society registered under the Societies Registration Act, 1860, the staff of the society is not governed by Article 309 of the Constitution. In this background, the State Government laid down the broad principles which apply to the conditions of service of the employees of DRDA in the Government Order. Clause 9 of the Government Order makes a residuary provision in the following terms: "9- vU; fo"k;ksa dk fofu;eu & mu fo"k;ksa ds lEcU/k esa tks fofufnZ"V : i ls bl ekxZ&funsZ'k ;k fo'ks"k vkns'kksa ds vUrxZr u vkrs gksa] ftyk xzkE; fodkl vfHkdj.kksa esa fu;qDr O;fDr ,sls fu;eksa] fofu;eksa vkSj vkns'kksa }kjk fu;af=r gksaxs tks jkT; ds dk;Z dyki ds lEcu esa lsokjr ljdkjh lsodksa ij lkekU;r;k ykxw gksrs gSaA" 7. What clause 9 postulates is that matters which are not governed by the specific provisions contained in the Government Order would be governed by the general rules applicable to the employees of the State. For the purpose of these proceedings, we will proceed on the basis of the submission which has been urged on behalf of the State that by clause 9, the provisions of the Civil Service Regulations must be treated as being incorporated in their application to the employees of the DRDA. However, it is not necessary for the Court to express a conclusive opinion on that aspect since even on the assumption that the learned counsel is correct in that hypothesis, we nonetheless hold that this would not carry the case of the Government any further. The admitted position is that the respondent retired from service on 31 July 2008. However, it is not necessary for the Court to express a conclusive opinion on that aspect since even on the assumption that the learned counsel is correct in that hypothesis, we nonetheless hold that this would not carry the case of the Government any further. The admitted position is that the respondent retired from service on 31 July 2008. There is no provision under which the services of the respondent were continued after the date of his retirement for the purpose of concluding the disciplinary proceedings nor was there any order to that effect. What happened in this case is that almost six and a half years after the retirement of the respondent, sanction of the Governor was taken on 20 January 2014 under Regulation 351-A of the Civil Service Regulations. Proviso (a)(i) to Regulation 351-A stipulates that if departmental proceedings have not been instituted while the officer was on duty either before retirement or during reemployment, they shall not be instituted save with the sanction of the Governor. In the present case, the proceedings had already been instituted before the respondent retired and strictly speaking there was no occasion to apply the provisions of Regulation 351-A more particularly proviso a(i) thereof. Once that be the position, there was no Government Order applicable to the employees of DRDA nor any service rule, as a result of which, the disciplinary proceeding which was instituted when the respondent was in service could be continued even thereafter nor was there a deeming provision under which the service of the respondent would continue for the purpose of concluding the disciplinary proceedings. Hence, in any event, the Government Order dated 20 January 2014 would not re-establish the relationship of master and servant which stood severed on the superannuation of the respondent on 31 July 2008. 8. For these reasons, which we have indicated, we affirm the ultimate conclusion which has been arrived at by the learned Single Judge. The special appeal is accordingly dismissed. However, we extend time for payment of the retiral dues of the respondent by a further period of three months from the receipt of a certified copy of this order. There shall be no order as to costs. Civil Misc. Delay Condonation Application No.40019 of 2016 Dr. Dhananjaya Yeshwant Chandrachud; CJ., Yashwant Varma, J. In re : State of U.P. And 3 Ors. There shall be no order as to costs. Civil Misc. Delay Condonation Application No.40019 of 2016 Dr. Dhananjaya Yeshwant Chandrachud; CJ., Yashwant Varma, J. In re : State of U.P. And 3 Ors. Vs Krishna Kumar Srivastava Special Appeal Defective No. - 138 of 2016 12.2.2016 For the Petitioner : Ashok Kumar Goyal. For the Respondent : Awadh Behari Singh. This application seeks condonation of delay of 180 days in filing the special appeal. Since the delay has satisfactorily been explained in the affidavit filed in support of the delay condonation application, the delay in filing the appeal is condoned. The application is, accordingly, disposed of. There shall be no order as to costs.