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2018 DIGILAW 2355 (ALL)

RAJ NATH RAI v. STATE OF U. P.

2018-11-19

MANOJ KUMAR GUPTA

body2018
JUDGMENT Hon’ble Manoj Kumar Gupta, J.—Heard Sri Samarth Singh holding brief of Sri V.K. Singh for the petitioners and learned standing counsel for the State respondents. 2. The petitioners have called into question the legality of orders passed by Deputy Inspector General of Police, PAC, Varanasi Region, Varanasi, whereby punishment of reversion (notional) has been inflicted upon the petitioners in purported exercise of power under Rule 4 of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules 1991 (for short ‘the Rules’). 3. The petitioners were recruited as Constables in P.A.C. and after sometime they were promoted as Head Constables. They were subjected to disciplinary proceedings by issuing a charge-sheet. In these proceedings, the Disciplinary Authority passed an order of dismissal from service against the petitioners in the year 2002 and aggrieved whereby, the petitioners filed appeal, which was dismissed. Thereafter, they filed revision, which also met the same fate. The petitioners filed claim petition before the State Public Service Tribunal, which was allowed by award dated 31.8.2007. The Tribunal directed for reinstatement of the petitioners in service, but held that the petitioners would not be entitled to salary from the date of dismissal to the date of reinstatement, though the said period would be counted for continuity in service. The Tribunal granted liberty to the respondents to hold a fresh enquiry to the extent of re-evaluating the evidence on record and drawing conclusions thereon. Against the order of the Tribunal, the respondents filed Writ Petition No. 847 (S/B) of 2008 before the Lucknow Bench, which was allowed by a judgment dated 17.3.2009. The order of the Tribunal in so far as it directed for reinstatement of the petitioners in service was upheld, but the other part was modified and the respondents were permitted to pass a fresh and reasoned order on basis of existing material on record. 4. While the enquiry permitted by the Writ Court was in progress, petitioner No. 1 retired from service on 30.6.2009 and petitioner No. 2 on 17.10. 2007, after attaining the age of superannuation. The respondents, in pursuance of liberty granted by the Writ Court, once again passed orders on 26.9.2009 dismissing the petitioners from service. 5. 4. While the enquiry permitted by the Writ Court was in progress, petitioner No. 1 retired from service on 30.6.2009 and petitioner No. 2 on 17.10. 2007, after attaining the age of superannuation. The respondents, in pursuance of liberty granted by the Writ Court, once again passed orders on 26.9.2009 dismissing the petitioners from service. 5. The petitioners challenged the orders by filing Writ-A No. 54597 of 2009, which was allowed by judgment dated 15.1.2013 with the following observations : “Having heard the learned counsel for the petitioners, the Court is of the opinion that the order of the dismissal of service cannot be sustained for the simple reason that an order of dismissal of the service can only be passed during the tenure of the service of the petitioners and that no order of dismissal can be passed after the employee has retired. Other penalties contemplated under Rule 1991 could have been passed other than an order of dismissal or removal from service. In the light of the aforesaid, the impugned order cannot be sustained and is quashed. The writ petition is allowed. It would be open to the respondents to pass a fresh order of punishment, if any, in accordance with law within six weeks from the date of production of a certified copy of the order, failing which, the respondents would release the post retirement dues alongwith interest.” 6. The respondents, in pursuance of the said order, have passed impugned orders dated 30.4.2013 reverting the petitioners, on notional basis, to their original post of Constable. Aggrieved thereby, the petitioners filed appeals, which have also been dismissed and hence the instant writ petition. 7. The sole submission of learned counsel for the petitioners is that after retirement of the petitioners, upon attaining age of superannuation, the respondents could not have inflicted punishment of reversion. It is submitted that upon retirement, the relationship of employer and employee ceases to exist, consequently, the punishments of reversion could not be awarded. It is submitted that under the Rules, there is no provision which empowers the respondents to inflict punishment of reversion, after an employee has retired. In support of his contention, he has placed reliance on the following judgements : (1) Dev Prakash Tewari v. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and others, (2014) 7 SCC 260 . It is submitted that under the Rules, there is no provision which empowers the respondents to inflict punishment of reversion, after an employee has retired. In support of his contention, he has placed reliance on the following judgements : (1) Dev Prakash Tewari v. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and others, (2014) 7 SCC 260 . (2) Shiv Ram Verma v. U.P. Cooperative Union Ltd. and others, (2013) 3 UPLBEC 2296 . (3) V.K. Jaiswal v. U.P.S.R.T.C. and others, 2017(2) ESC 734 (All). 8. On the other hand, learned standing counsel submitted that the order of High Court dated 15.1.2013 in Writ-A No. 54597 of 2009 itself permits the respondents to impose other penalties contemplated under the Rules, apart from the punishment of dismissal or removal. It is urged that in view of the said liberty, the penalty of reversion has been inflicted upon the petitioners and thus, the respondents were justified in passing the impugned orders. Alternatively, he submitted that even if the punishments contemplated under the Rules could not be imposed, the respondents are empowered to direct recovery of pecuniary loss and deduction from the pension as per provisions of Regulation 351-A of the Civil Service Regulations. 9. I have considered the rival submissions and perused the material on record. 10. In Dev Prakash Tewari (supra) the appellant before the Supreme Court was an employee of Cooperative Society and his services were governed by U.P. Cooperative Societies Employees Service Regulations, 1975. An order of dismissal was passed against him on 27.4.1988. The appellant challenged the said order in a writ petition and the same was allowed on 10.1.2006 and the appellant was directed to be reinstated in service but with liberty to the Disciplinary Authority to conduct a fresh disciplinary enquiry. Pursuant to the said order, the appellant joined the duty on 26.4.2006 and fresh enquiry was initiated against him. While the enquiry was in progress, he attained the age of superannuation and retired on 31.3.2009. The appellant challenged the continuance of disciplinary proceedings after his retirement by filing a writ petition, but the Lucknow Bench of this Court declined to interfere with the disciplinary proceedings. The matter went up to the Supreme Court seeking relief of quashing of disciplinary proceedings. The appellant challenged the continuance of disciplinary proceedings after his retirement by filing a writ petition, but the Lucknow Bench of this Court declined to interfere with the disciplinary proceedings. The matter went up to the Supreme Court seeking relief of quashing of disciplinary proceedings. The Supreme Court, after considering the provisions of the Uttar Pradesh Cooperative Societies Employees Service Regulations, 1975, concluded that in absence of any specific provision under the Service Regulations permitting the authorities to continue disciplinary proceedings after retirement or inflict punishment or direct deduction from the retiral benefits, none of those steps could be taken and accordingly, quashed the disciplinary proceedings. 11. In Shiv Ram Verma (supra) which is also a case relating to an employee of Cooperative Society, the same view was taken following the judgment of Supreme Court in Bhagirathi Jena v. Board of Directors, O.S.F.C. and others, (1999) 3 SCC 666 . 12. In V.K. Jaiswal (supra), which was a case of an employee of U.P. State Road Transport Corporation, again a similar view was taken after placing reliance on the judgement of Bhagirathi Jena (supra). The relevant observations made by the Court in the said judgement regarding status of an employee after his retirement are worth reproducing : “The retirement of an employee brings the curtain down upon the relationship of employer and employee. Once this event occurs, no further jurisdiction or authority vests in the employer to inflict any punishment upon the employee thereafter. The only exception to this position is where a statutory rule enables the employer to continue the employee in service for the purposes of concluding an enquiry already initiated and inflicting punishment even after retirement or a special provision to make good the loss suffered by the employer even after the superannuation of the employee. The position in law on this aspect is no longer res integra and stands authoritatively answered in favour of the petitioner by the Supreme Court in Bhagirathi Jena. The principles elucidated in the said judgment have been reiterated in Dev Prakash Tewari. This Court, therefore, must record that the Corporation had no authority to continue with the disciplinary proceedings post the superannuation of the petitioner on 31 January 1998.” 13. It is not disputed before this Court that under the Rules, there is no provision enabling award of punishment of reversion on notional basis after retirement of an employee. This Court, therefore, must record that the Corporation had no authority to continue with the disciplinary proceedings post the superannuation of the petitioner on 31 January 1998.” 13. It is not disputed before this Court that under the Rules, there is no provision enabling award of punishment of reversion on notional basis after retirement of an employee. Rule 4 enumerates the punishment which could be imposed upon a Police Officer. “Police Officer” means as per Rule 3(g) Police Officer of the subordinate ranks, below the rank of Deputy Superintendent of Police. The petitioners, after retirement, ceased to be Police Officers, as defined under Rule 3(g). The employer-employee relationship ceased to exist. Consequently, the respondents were not empowered to take recourse of the provisions of Section 4, after retirement of a Police Officer. However, at the same time, the petitioners being Government employees, provisions of Civil Service Regulations are applicable to them. Regulation 351-A permits the Governor to recover pecuniary loss, if any, found to have been caused to the Government in departmental proceedings or order deductions/recovery from pension. 14. Regulation 351-A reads thus : “351-A The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for 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 the 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 order are passed. 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. 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. 15. Counsel for the petitioners also does not dispute that the petitioners being Government servant, the Government has power to direct recovery of pecuniary losses found in departmental proceedings to have been caused to it by negligence or fraud of an employee during his service tenure or can direct deduction from pension. However, he tried to urge that since the charge relates to an event which had taken place four years before their retirement, therefore, according to him, as per Proviso to Regulation 351-A, even such deduction could not be made. 16. Sub-clause (2) of Clause (a) of second proviso to Regulation 351-A precludes the Government from instituting departmental proceedings after retirement of an employee in respect of an event which took place more than four years before institution of such proceedings. However, in the instant case, since the departmental proceedings were in progress on the date of retirement, therefore, the ban contained under the said provision would not be an impediment to invoke power under the main provision. If Government comes to the conclusion that any loss had been caused to it by negligence or fraud of the petitioners, it would be empowered to recover the pecuniary losses or direct for deduction from pension. 17. If Government comes to the conclusion that any loss had been caused to it by negligence or fraud of the petitioners, it would be empowered to recover the pecuniary losses or direct for deduction from pension. 17. One more aspect which requires consideration is whether in view of the observations made by this Court while deciding Writ-A No. 54597 of 2009, the Government was empowered to inflict penalties enumerated under Rule 4, other than dismissal or removal. As already observed above, the Service Rules only permit imposition of penalties enumerated under Rule 4 upon a Police Officer. After retirement, the petitioners ceased to be Police Officers. Thereafter, disciplinary proceedings could only be continued for purpose of taking measures envisaged under Regulation 351-A, but it would not empower the Government to take recourse to provision of Rule 4. The observation made by this Court while deciding earlier writ petition was in the context of the petitioners being awarded punishment of dismissal from service. All that the Court meant, while making such observation was that the punishment of dismissal could not be awarded after the petitioners had retired from service. The liberty granted to the respondent to take decision for award of other penalties, except dismissal or removal from service, has to be understood accordingly. The observations would not amount to conferring any power upon the Government, which it otherwise does not possess. Therefore, this Court does not find any force in the submission made in this regard by learned standing counsel. 18. In consequence and as a result of discussion made above, the impugned orders are quashed. The matter is remitted back to the Disciplinary Authority for proceeding in the light of observations made above. 19. The writ petition succeeds and is allowed to the extent indicated above.