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Allahabad High Court · body

2018 DIGILAW 1586 (ALL)

Udit Narain Singh v. State Of U. P.

2018-07-19

AJAY BHANOT

body2018
JUDGMENT : 1. The petitioner was appointed as a Block Organizer in the Home Guards Department in 1963. He was promoted to the post of Platoon Commander in the Home Guards Department in March, 1977. The petitioner superannuated from service on 31.5.1995. The pensionary and other terminal benefits were disbursed to the petitioner on his retirement. The petitioner has been drawing his pension regularly as and when it became due. 2. By order dated 27.3.2006, almost 11 years after his retirement, a recovery of Rs.51216/- was ordered to be made from the pension of the petitioner. 3. The petitioner is aggrieved by order dated 27.3.2006. The petitioner has assailed the order dated 27.3.2006 in the instant writ petition. 4. The order dated 27.3.2006 has been passed on the foot of an alleged deficiency in the mobilization stock. The deficiency figure and the loss caused to the State exchequer was put at Rs. 51,216/-. This amount is sought to be recovered from the pension of the petitioner by order dated 27.03.2006. 5. Sri Siddharth Khare, learned counsel for the petitioner submits that the order of recovery dated 27.3.2006 is arbitrary and illegal. The order is beyond jurisdiction and has been passed in the teeth of the provisions of Article 351 (A) of the Civil Service Regulations (as applicable to the State of U.P.). He further contends that the order was passed in violation of principles of natural justice. No departmental enquiry was conducted against the petitioner prior to the order of recovery. There was no loss to the State Government by any act of the petitioner. Moreover, the claim of the respondent authorities is highly delayed and has been raised almost 11 years after the alleged discrepancy occurred. The petitioner has been made a scape goat. 6. The learned standing counsel in opposition to the writ petition has submitted that any employee is liable to make good the loss caused to the State Government. 7. Heard learned counsel for the parties. 8. Certain facts relevant to the controversy are established beyond the pale of dispute. The petitioner superannuated from service on 31.5.1995. The order of recovery was passed on 27 March 2006. The event which triggered the order of recovery, was an alleged deficiency in stock, related to the year 1995. 7. Heard learned counsel for the parties. 8. Certain facts relevant to the controversy are established beyond the pale of dispute. The petitioner superannuated from service on 31.5.1995. The order of recovery was passed on 27 March 2006. The event which triggered the order of recovery, was an alleged deficiency in stock, related to the year 1995. No regular departmental enquiry was conducted in accordance with law against petitioner, to calculate the loss allegedly caused to the State Government and to fix responsibility for the same. No sanction was obtained from the Governor to institute a departmental enquiry against the petitioner. 9. Article 351 (A) of the Civil Service Regulations governs and regulates the power of the State Government to recover any amount from the pension of a superannuated employee. Such amount can be recovered from the pension of an employee only if the employee during his service caused a loss to the State Government of a like amount by his act of misconduct or negligence. Article 351 (A) is extracted hereunder for ease of reference: “351-A .- 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 pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, 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 reemployment. (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) of clause (a); and (c) the Public Service Commission, U.P., shall be consulted before final orders are passed. (Provided further that if the order passed by the Governor relates to a case dealt with under the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, it shall not be necessary to consult Public Service Commission.) Explanation-- For the purposes 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.” 10. The Article 351 (A) of the Civil Service Regulations serves an important purpose. It ensures the accountability of public servants to public property and the public exchequer. However the legislature was equally conscious of the fact that an employee, having retired from service, is in the evening of his life and cannot be pursued to his grave. An employee of the Government cannot be foisted with distraint proceedings long after he has retired from service. Evidence is lost to time and memory. 11. The employee does not have the resources and cannot summon the resourcefulness to prepare an effective defence of his case. 12. Such an employee has slender financial assets and little physical stamina to contest adversarial departmental proceedings. The employee is vulnerable and would be unable to enter into the full defence of his case. The prejudice caused by delay in such cases is beyond recall. In such circumstances, delay in instituting the enquiry would defeat the search for truth and occasion a miscarriage of justice. The retired employee in these cases would be more of a scapegoat than a defendant in the enquiry. 13. Further after superannuation of an employee, the employer employee relationship between the state government and the retired employee cases. In such circumstances, delay in instituting the enquiry would defeat the search for truth and occasion a miscarriage of justice. The retired employee in these cases would be more of a scapegoat than a defendant in the enquiry. 13. Further after superannuation of an employee, the employer employee relationship between the state government and the retired employee cases. State government cannot lightly assume jurisdiction over a superannuated employee as a matter of course, and order recovery proceedings against him. Such an act would engage the fundamental rights of the employee and the legality of the action of the State government would be called in question. 14. However, superannuation is not an escape from justice. Superannuation is not a fail safe defence to a charge of causing loss to the state exchequer, by misconduct or negligence. 15. Efficiency in public administration is ensured by accountability in administrative conduct. Accountability of officials is possible by holding a transparent departmental enquiry and bringing the charged officials to justice. 16. Article 351-A balances the competing claims of individual rights and institutional requirements. 17. The provisions of Article 351-A ensures accountability of government officials by vesting lawful authority in the state government to institute departmental enquiry proceedings against an employee who has superannuated from service. The provisions of Article 351 A prevents miscarriage of justice by creating safeguards which are both procedural and substantive in nature. 18. The provisions in Article 351 A of the Civil Service Regulations providing for limitation for the departmental action and the permission for initiation of departmental enquiry from the Governor are jurisdictional prerequisites. The manner of conduct of the departmental enquiry is a procedural imperative. 19. The words employed by the legislature are the most reliable guide to legislative intent. Article 351 A vests the power to withhold or withdraw the pension of a superannuated employee exclusively in the Governor. The exercise of the power is caveated by certain conditions precedent contained in the proviso to the Article 351-A. The conditions precedent to exercise of power of withholding or making recovery from the pension, contemplate that a departmental enquiry has to be instituted against the retired official. The enquiry has to be in respect of an incident which took place not more than 4 years before the institution of such proceedings. The enquiry can only be instituted with the sanction of the Governor. 20. The enquiry has to be in respect of an incident which took place not more than 4 years before the institution of such proceedings. The enquiry can only be instituted with the sanction of the Governor. 20. The failure to implement the statutory mandate can be determined once the nature of the statutory mandate is understood. Understanding the nature of the statutory mandate is essentially an exercise in interpretation of the statute. 21. The words of a statute are the best guide to legislative intent. The settled canons of interpretation of statutes are the best tools to ascertain the scope of the statutory duties. 22. The function of a proviso in an enactment was considered by the Hon’ble Supreme Court in the case of Harayana State Cooperative Land Development Bank Ltd. Vs. Harayana State Cooperative Land Developments Bank Employees Unions and others reported at 2004 (1) SCC 574 . The Hon’ble Supreme Court after considering the past authority in point defined the function of a proviso in the following manner :- “9. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Survey [1880 (5) QBD 170, (referred to in Shah Bhoiraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta; when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. “If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these provisions by implication from a proviso.” Said Lord Watson in West Derby Union v. Metropolitan Life Assurance Co. (1897 AC 647) (HL). Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. (See A.N. Sehgal and Ors vs. Raje Ram Sheoram and Ors. Tribhovandas HaribhaiTamboli V. Gujarat Revenue Tribunal and Ors. and Kerala State Housing Board and Ors. v. Ramapriya Hotels (P) Ltd. and Ors.” 23. The second issue which merits consideration is whether the provision is mandatory or directory. In this regard, the word “shall” employed by the legislature in Article 351-A of the Civil Service Regulations gives a decisive clue to the intent of the legislature. The Hon’ble Supreme Court in the case of Govind Lal Chaggan Lal Patel Vs. the Agricultural Produce Market Committee and Others reported at AIR 1976 SC 263 considered the import of the word “shall” in a statute and reiterated the well settled tenets of the statutory interpretation by holding thus :- “12. Plainly, “shall” must normally be construed to mean “shall” and not “may”, for the distinction between the two is fundamental. Granting the application of mind, there is little or no chance that one who intends to leave a lee-way will use the language of command in the performance of an act. But since, even lesser directions are occasionally clothed in words of authority, it becomes necessary to delve deeper and ascertain the true meaning lying behind mere words. 13. Crawford on ‘Statutory Construction’ (Ed. 1940, Art. 261, p. 516) sets out the following passage from an American case approvingly: “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. 13. Crawford on ‘Statutory Construction’ (Ed. 1940, Art. 261, p. 516) sets out the following passage from an American case approvingly: “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other.” Thus, the governing factor is the meaning and intent of the legislature, which should be gathered not merely from the words used by the legislature but from a variety of other circumstances and considerations. In other words, the use of the word ‘shall’ or ‘may’ is not conclusive on the question whether the particular requirement of law is mandatory or directory. But the circumstance that the legislature has used a language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissible, the statute ought to be construed as pre-emptory. One of the fundamental rules of interpretation is that if the words of a statute are themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature(1). Section 6(1) of the Act provides in terms, plain and precise that a notification issued under the section “shall also” be published in Gujarati in a newspaper. The word ‘also’ provides an important clue to the intention of the legislature because having provided that the notification shall be published in the Official Gazette, section 6(1) goes on to say that the notification shall also be published in Gujarati in a newspaper. The additional mode of publication prescribed by law must, in the absence of anything to the contrary appearing from the context of the provision or its object, be assumed to have a meaning and a purpose. The additional mode of publication prescribed by law must, in the absence of anything to the contrary appearing from the context of the provision or its object, be assumed to have a meaning and a purpose. In Khub Chand V. State of Rajasthan, it was observed that “the term ‘shall’ in its ordinary significance is mandatory and the court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the Legislature, to be collected from other parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations”. The same principle was expressed thus in Haridwar Singh v. Begum Sumbrui “Several tests have been propounded in decided cases for determining the question whether a provision in a statute, or a rule is mandatory or directory. No universal rule can be laid down on this matter. In each case one must look to the subject-matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured.” Recently in the Presidential Election Case (3), the learned Chief Justice speaking on behalf of a seven Judge Bench observed: “In determining the question whether a provision is mandatory or directory, the subject-matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It is the duty of the courts to get at the real intention of the legislature by carefully attending to the whole scope of the provision to be construed. ‘The Key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole’.” 24. Similarly the Hon’ble Supreme Court considered the scope of the word “shall” while interpreting the intent of the legislature. The Hon’ble Supreme Court in the case of Mohan Singh and Others Vs. Similarly the Hon’ble Supreme Court considered the scope of the word “shall” while interpreting the intent of the legislature. The Hon’ble Supreme Court in the case of Mohan Singh and Others Vs. International Airport Authority of India and Others reported at 1997 (9) SCC 132 laid down the law in following terms:- “26. Thus, this Court, keeping in view the objects of the Act, had considered whether the language in a particular section, clause or sentence is directory or mandatory. The word “shall”, though prima facie gives impression of being mandatory character, it requires to be considered in the light of the intention of the legislature by carefully attending to the scope of the statute, its nature ad design and the consequences that would flow from the construction thereof one way or the other. In that behalf, the Court is required to keep in view the impact on the profession, necessity of its compliance; whether the statute, if it is avoided, provided for any contingency for non-compliance; if the word “shall” is construed as having mandatory character, the mischief that would ensue by such construction; whether the public convenience would be subserved or public inconvenience or the general inconvenience that may ensue if it is held mandatory and all other relevant circumstances are required to be taken into consideration in construing whether the provision would be mandatory or directly. If an object to the enactment is defeated by holding the same directory, it should be construed as mandatory whereas if by holding it mandatory serious general inconvenience will be created to innocent persons of general public without much furthering the object of enactment, the same should be construed as directory but all the same, it would not mean that the language used would be ignored altogether. Effect must be given to all the provisions harmoniously to suppress public mischief and to promote public justice.” 25. A Full Bench of this Court defined the line of enquiry to determine whether a provision is directory or mandatory in the case of Vikas Trivedi Vs. State of U.P. and others, reported at (2013) 2 UPLBEC 1193 held as under: “15. A Full Bench of this Court defined the line of enquiry to determine whether a provision is directory or mandatory in the case of Vikas Trivedi Vs. State of U.P. and others, reported at (2013) 2 UPLBEC 1193 held as under: “15. Maxwell On the Interpretation of Statutes (Twelfth Edition) in Chapter 13, while discussing “Imperative And Directory Enactments” said following: ‘The first such question is: when a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, is the requirement to be regarded as imperative (or mandatory) or merely as directory (or permissive)? In some cases the conditions or forms prescribed by the Statute have been regarded as essential to the act or thing regulated by it, and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the neglect of them involving nothing more than liability to a penalty, if any were imposed, for breach of the enactment. An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.’ It is impossible to lay down any general rule for determining whether a provision is imperative or directory. ‘No universal rule’, said Lord Campbell, L.C., ‘can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.’ And Lord Penzance said: ‘I believe as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter; consider the importance of the provisions that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.” “76. At this juncture a note of caution is required to be given. All provisions of the statute are required to be complied with. At this juncture a note of caution is required to be given. All provisions of the statute are required to be complied with. It is useful to quote paragraph 5-052 of De-Smith Judicial Review 6th Edition in which while dealing with mandatory and directory statutes, following was observed:- “5-052. A second reason for the tangle in this area is the use of the terms “mandatory” and “directory”; the latter term is especially misleading. All statutory requirements are prima facie mandatory. However, in some situations the violation of a provision will, in the context of the statute as a whole and the circumstances of the particular decision, not violate the objects and purpose of the statute. Condoning such a breach does not, however, render the statutory provision directory or discretionary. The breach of the particular provision is treated in the circumstances as not involving a breach of the statute taken as a whole. Furthermore, logically, a provision cannot be mandatory if a court has discretion not to enforce it.” 26. The scheme of the relevant provisions of Article 351-A of the Civil Service Regulations as discussed in the preceding paragraphs helps to decipher the legislative intent with certainty. The consequences of action taken under the Article 351-A of the Civil Service Regulations are penal in nature. The scheme of the provision in general and usage of the word “shall” in particular shows that the provision is clearly imperative in character. 27. The violation or breach of the mandatory provisions of a statute, vitiate the action and render it null and void. This well entrenched position of law will now be enforced with good authority. 28. In the case of Karnal Improvement Trust, Karnal Vs. Smt. Parkash Wanti (Dead) and another, reported at (1995) 5 SCC 159 , the Hon’ble Apex Court laid down the law in the following terms: “11. There is distinction between ministerial acts and statutory or quasi-judicial functions under the statute. When the statute requires that something should be done or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, the question often arise: What intention is to be attributed by inference to the legislature? It has been repeatedly said that no particular rule can be laid down in determining whether the command is to be considered as a mere direction or mandatory involving invalidating consequences in its disregard. It has been repeatedly said that no particular rule can be laid down in determining whether the command is to be considered as a mere direction or mandatory involving invalidating consequences in its disregard. It is fundamental that it depends on the scope and object of the enactment. Nullification is the natural and usual consequence of disobedience, if the intention is of an imperative character. The question in the main is governed by considerations of the object and purpose of the Act; convenience and justice and the result that would ensure. General inconvenience or injustice to innocent persons or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment would be kept at the back of the mind. The scope and purpose of the statute under consideration must be regarded as an integral scheme. The general rule is that an absolute enactment must be obeyed or fulfilled exactly but it is sufficient if a directory enactment be obeyed or fulfilled substantially. When a public duty, as held before, is imposed and statute requires that is shall be performed in a certain manner or within a certain time or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements are not essential and imperative.” 29. It thus has been established that Article 351 A of Civil Service Regulations is mandatory in nature. The consequences of violation of a mandatory provision vitiate the action and rendess it void. 30. While construing Article 351-A of the Civil Service Regulations, the Hon’ble Supreme Court in the case of State of U.P. Vs. Dhirendra Pal Singh reported at (2017) 1 SCC 47 held thus:- “Admittedly, no departmental enquiry was initiated in the present case against the respondent for the misconduct, if any, nor any proceedings drawn as provided in Article 351-A of UP Civil Service Regulations. Learned single Judge of the High Court has observed that the document which is the basis of enquiry and relied upon by the State authorities, copy of which was Annexure C.A.1 to counter affidavit filed in the writ petition, itself reflected that the document showing discrepancy in the stock was dated 26.12.2009, i.e. after about more than five months of retirement of the respondent. In the circumstances, keeping in view Article 351-A of UP Civil Service Regulations, we agree with the High Court that the orders dated 23.07.2015 and 06.08.2015 were liable to be quashed and, to that extent, we decline to interfere with the impugned order.” 31. The legal narrative in the preceding paragraphs shall rule the fate of this case. 32. In the instant case, the cause of the recovery was an alleged deficiency in the mobilization stock. The date of the occurrence of deficiency, the manner of its discovery and the reasons for attributing it to the petitioner are not stated in the impugned order. At the time of superannuation a meticulous procedure is run before a no objection and no dues certificate is issued to the retiring employee. It is on the foot of these certificates that retiral dues of the employee are released. In the case of the petitioner, the aforesaid no objection and no dues certificates were issued at the time of retirement. His pensionary dues were released accordingly. 33. No deficiency in stock were attributed to the petitioner, at the time of the issuance of the said no dues and no objection certificates. 34. The sanction from the governor for holding such enquiry was not granted. Admittedly a departmental enquiry was not held to quantify the loss or fix the responsibility. In absence of a departmental enquiry, no blame for any alleged loss can be apportioned to the petitioner. The provisions of Article 351 A of the Civil Service Regulations have been violated. The order dated has been passed in violation of principles of natural justice. 35. The petitioner superannuated on 31.5.1995. The event on which the recovery was caused to be made happened in 1995. The recovery proceedings were initiated in the year 2006. The recovery proceedings are barred by limitation prescribed by Article 351 (A) of the Civil Service Regulations. No recovery proceedings can be initiated after the period of limitation provided under Article 351 A of the Civil Service Regulations has expired. 36. The respondents have passed the order dated 27.3.2006 and taken out recovery proceedings against the petitioner in contravention of Article 351 A of the Civil Service Regulations. 37. Relaxation in the stringent requirements of Article 351(A) would frustrate the intention of the legislature. 38. 36. The respondents have passed the order dated 27.3.2006 and taken out recovery proceedings against the petitioner in contravention of Article 351 A of the Civil Service Regulations. 37. Relaxation in the stringent requirements of Article 351(A) would frustrate the intention of the legislature. 38. In this view of the matter the order dated 27.3.2006 passed by the Block Organizer Home Guards Department, Lucknow is arbitrary, illegal and beyond jurisdiction. The order cannot stand. 39. The order dated 23.3.2006 passed by Block Organizer is quashed. 40. The petitioner has superannuated from service way back in the year 1995. He is a senior citizen, who has been drawn into frivolous litigation by arbitrary exercise of power. Considering these facts, he is entitled to costs from the state government, which is quantified at Rs. 25,000/-. The costs shall be paid by the Deputy Commandant General, Home Guards, Head Quarter, U.P. Lucknow on behalf of the state government. The Deputy Commandant General, Home Guards, Head Quarter, U.P. Lucknow shall ensure that the costs are paid to the petitioner by demand draft within a period of two months from the date of production of a certified copy of this order. 41. The writ petition is allowed.