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2019 DIGILAW 2355 (ALL)

SANJAY TEWARI v. STATE OF U. P.

2019-10-17

ATTAU RAHMAN MASOODI

body2019
JUDGMENT : Attau Rahman Masoodi, J. 1. Heard Sri Manish Kumar learned Senior Counsel assisted by Sri Ghufran Hussain learned counsel for the petitioner, Sri N.K. Seth learned counsel assisted by Sri Puneet Chandra learned counsel for the opposite parties. Shri Alok Sharma learned Additional Chief Standing Counsel has put in appearance for the State. 2. At the very outset, a preliminary objection was raised by Sri N.K. Seth learned Senior Counsel appearing for the opposite parties that the present writ petition as against the charge-sheet and show cause notice is not maintainable. The show cause notice dated 14.8.2019 is contained as annexure 1 to this writ petition whereas the charge-sheet dated 27.2.2019 is contained as annexure 2. 3. It is well settled that ordinarily this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India would not entertain a writ petition arising out of the charge-sheet and show-cause notice but if the charge-sheet and show cause notice issued by an authority suffer from lack of jurisdiction, the Court may overrule an objection and proceed on merit. 4. Learned counsel for the opposite parties has placed reliance upon the judgments of the Hon'ble Apex Court in the case of Special Director and another versus Mohd. Ghulam Ghouse and another, (2004) 3 SCC 440 and case of Union of India and another versus Kunisetty Satyanarayana,200612 SCC 28 as well as the order passed by this Court in Writ-A No. 11382 of 2015(Vijay Pal Singh versus State of U.P. and 3 others). The judgments mentioned above propound the same principle as has been appreciated herein-above. 5. The present case however is a case where lack of jurisdiction in the issuance of charge-sheet and consequently show cause notice on the basis of inquiry report submitted is prima facie made out. Thus, the preliminary objection raised by learned Senior counsel for the opposite parties is overruled. The prayer for seeking time to file counter affidavit in a situation where pure question of law is involved would merely prolong the case for no purpose, hence the same is declined. 6. Proceeding to consider the matter on merit, it may be stated that the petitioner while holding the post of Chief Engineer attained the age of superannuation on 28.2.2019. It is on 28.2.2019 that a charge-sheet dated 27.2.2019 came to be served upon him. 6. Proceeding to consider the matter on merit, it may be stated that the petitioner while holding the post of Chief Engineer attained the age of superannuation on 28.2.2019. It is on 28.2.2019 that a charge-sheet dated 27.2.2019 came to be served upon him. Merely for the fact that the charge-sheet is dated 27.2.2019 would not amount to the initiation of the disciplinary proceedings unless a copy thereof was duly served upon the petitioner or at least the same was dispatched to him through the permissible mode of service. 7. On the aspect of dispatch of the charge-sheet, the only mode adopted by the opposite parties as has been explained before this Court is through an email sent on 28.2.2019 at 12.20 p.m. That apart, the charge-sheet was also served upon the petitioner on 28.2.2019 at 5.47 p.m. personally. Both the modes of service as disclosed before this Court by the opposite parties on the basis of instructions are clearly in the afternoon on 28.2.2019. There is no proof of service of charge-sheet through any other mode except what has been stated above. 8. This being the factual position, learned counsel for the petitioner taking aid of Rule 56(a) of the Fundamental Rules has argued that a public servant is deemed to have retired from service in the afternoon of the last working day of his service tenure. Therefore, the issuance of charge-sheet after public servant has retired is impermissible and would serve no purpose of the Discipline and Appeal Rules which postulate minor and major punishments. 9. For ready reference, Rule 56 of the Fundamental Rules is produced hereunder:- "56. (a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years: Provided that a Government servant, whose date of birth is the first day of a month, shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years: Provided further that a Government Servant, who has attained the age of fifty-eight years on or before the first day of the November, 2001 and is on extension in service, shall retire from service on expiry of his extended period of service. (a-1) No Government servant shall be granted extension in service beyond the age of retirement of sixty years: Provided that a Government servant dealing with budget work or working as a full time member of a committee which is to be wound up within a short period of time may be granted, by the Government, extension of service for a period not exceeding three months in public interest. Provided further that a Government servant holding highly specialized technical job whose replacement has not been possible to the arranged before his retirement even after efforts made in this regard, may be granted extension of service up to the age of sixty-two years, if such extension is unavoidable in public interest and the grounds for such extension are recorded in writing: Note- Each case for extension of service under this clause shall be put up for orders to the Chief Minister through the Chief Secretary. (a-2) Notwithstanding any thing to the contrary contained in clause (a) or clause (a-1) of this rule, a Government servant may, if considered necessary, in public interest, so to do, be granted extension of service up to the age of sixty-two years with the prior approval of the Cabinet. Provided that in the cases of extension in service under clauses(a-1) and (a-2) of this rule, Government shall have the right to terminate the extension of service before expiry of such extension by giving a notice in writing of not less than three months in the case of a permanent or, of one month in the case of a temporary Government servant, or pay and allowances in lieu of such notice". 10. There is no dispute on the aspect that the service Rules applicable to the government servants are equally applicable to the present petitioner who is serving in U.P. Rajya Vidyut Vitaran Nigam Limited. There is yet another ground which goes to the root of the impugned disciplinary proceedings initiated under U.P. Government Servant(Discipline and Appeal) Rules, 1999(hereinafter referred to as the Rules, 1999). The reason is that none of the punishments envisaged under the Rules-1999 would at all stand attracted in a situation where a public servant has retired from service. There is yet another ground which goes to the root of the impugned disciplinary proceedings initiated under U.P. Government Servant(Discipline and Appeal) Rules, 1999(hereinafter referred to as the Rules, 1999). The reason is that none of the punishments envisaged under the Rules-1999 would at all stand attracted in a situation where a public servant has retired from service. Looking to the nature of punishments envisaged under the Discipline and Appeal Rules, 1999 the interpretation of Rule 56(a) of the Fundamental Rules has to be made so as to serve the purpose of Discipline and Appeal Rules as well as Regulation 351-A of the Civil Service Regulations. The phrase 'afternoon' in common parlance is referable to a point of time after 12 O' clock in the day. 11. Looking to the factual position in the present case, once it is clear that the charge-sheet was attempted to be communicated to the petitioner after 12 O' clock in the day on 28.2.2019, there is no reason for this Court to understand the service of charge-sheet prior to 12 O' clock on 28.2.2019. The question of jurisdiction would thus arise as to whether a retired public servant can be visited with a charge-sheet in the afternoon of his last working day in office when he is understood to have retired. 12. Learned counsel or the petitioner in order to substantiate the argument has placed reliance upon the judgment of the Hon'ble Apex Court in the case of Union of India and others versus Dinanath Shantaram Karekar and others, (1998) 16 LCD 1274 . The judgment cited by the petitioner lends support to the argument purforth. 13. Sri N.K. Seth, learned Senior counsel in reply to the submission has argued that the charge-sheet having been drawn on 27.2.2019 was in fact served upon the petitioner on 28.2.2019, as such, it is quite possible that the petitioner may have evaded service on the same very day. It is however not disputed that apart from the mode of service through e-mail or personal service, any other mode of service was adopted. It is well known that the service through email is the most expeditious mode of service which too has been invoked on 28.2.2019 at 12.20 pm. It is however not disputed that apart from the mode of service through e-mail or personal service, any other mode of service was adopted. It is well known that the service through email is the most expeditious mode of service which too has been invoked on 28.2.2019 at 12.20 pm. This Court would have appreciated dispatch through any other mode of service provided the e-mail was not sent but in the present case, the e-mail itself was sent in the afternoon. The last day of working in one's service tenure is recognized only up to the noon and this has a definite purpose that the officer soon thereafter becomes functus officio. Any other understanding of the rule would do violence to the very purpose of Fundamental Rule 56(a). The purpose of Discipline and Appeal Rules is not only to initiate the disciplinary proceedings but to achieve the purpose of punishments envisaged therein. 14. Even if it is assumed that the charge-sheet was served on 28.2.2019 yet none of the punishment as envisaged under the Rules, 1999 can be inflicted upon the petitioner. Once all the punishments envisaged under the Rules, 1999 are incapable of being inflicted upon the petitioner, the purpose of initiating disciplinary proceedings under the Rules, 1999 cannot be allowed to travel to invade upon the protection which the Rules provide for a retired public servant. Nothing beyond the scope of Rules was in fact a subject matter of consideration before the competent authority at the time of taking such a decision. 15. Thus, the issuance of charge-sheet in relation to an occurrence having taken place after more than one year of petitioner's transfer would stand vitiated for want of service before 12 O' clock on 28.2.2019 and sending the charge-sheet by e.mail in the afternoon was thus hit by a jurisdictional error. 16. For ready reference, the punishments envisaged under the Rules 1999 are reproduced hereunder :- 3. Penalties. 16. For ready reference, the punishments envisaged under the Rules 1999 are reproduced hereunder :- 3. Penalties. -The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed upon the Government servants : Minor Penalties : (i) Censure; (ii) Withholding of increments for a specified period; (iii) Stoppage at an efficiency bar; (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders; (v) Fine in case of persons holding Group 'D' posts; Provided that the amount of such fine shall in no case exceed twenty-five percent of the month's pay in which fine is imposed. Major Penalties : (i) Withholding of increments with cumulative effect; (ii) Reduction to a lower post or grade or time scale or to a lower stage in a time scale; (iii) Removal from the service which does not disqualify from future employment; (iv) Dismissal from the service which disqualifies from future employment. Explanation. - The following shall not amount to penalty within the meaning of this rule, namely : (i) Withholding of increment of a Government servant for failure to pass a departmental examination or for failure to fulfil any other condition in accordance with the rules or orders governing tire service; (ii) Stoppage at the efficiency bar in the time scale of pay on account of ones not being found fit to cross the efficiency bar; (iii) Reversion of a person appointed on probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation; (iv) Termination of the service of a person appointed on probation during or at the end of the period of probation in accordance with the terms of the service or the rules and orders governing such probation. 17. The only course open to the opposite parties is to proceed against the petitioner treating him to have retired from service in accordance with the rules as may be applicable to a retired public servant. The case at hand is not the one where the opposite parties have taken aid of Discipline and Appeal Rules, 1999 treating the petitioner having retired. The case at hand is not the one where the opposite parties have taken aid of Discipline and Appeal Rules, 1999 treating the petitioner having retired. The period subsequent to the afternoon of last day of service tenure is a privileged period for the public servant to commemorate his contribution and association with his colleagues and subordinate staff. He becomes functus officio in the afternoon. It is for this purpose that a public servant is understood to have retired in the afternoon of last working day otherwise a decision taken prior to retirement would make no difference whether it is issued before or after retirement. The disciplinary proceedings after the date of retirement have to be commenced on a different consideration altogether. It is for this reason that Regulation 351-A of Civil Service Regulations has used a guarded language. Regulation 351-A is reproduced below :- "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 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 proceeding; 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. (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 of the order passed by the Governor relates to a cash 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; (b) judicial proceedings shall be deemed to have been instituted : (i) in the case of criminal proceedings, on the date on which compliant 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". 18. Regulation 351-A maintains continuity of disciplinary proceedings initiated before retirement. It further provides that the disciplinary proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued. The charges in the present case were issued in the afternoon on 28.2.2011 when the petitioner had ceased to be in service and had assumed the status of a pensioner for having retired. Thus, the proceedings cannot be deemed to have been instituted. Therefore, once a public servant has retired, the proceedings can be initiated only by following the procedure under Regulation 351-A of the Civil Service Regulations, provided there is no bar. 19. There is yet another judgment rendered by Hon'ble the Apex Court reported in (State of M.P. versus Onkar Chand Sharma, (2001) 9 SCC 171 ) which the Court may notice in absence of any assistance rendered by learned counsel for the parties. 20. In the abovementioned case, the dispute which fell for consideration before Hon'ble the apex Court was as to when the disciplinary proceedings can be said to have been initiated. 20. In the abovementioned case, the dispute which fell for consideration before Hon'ble the apex Court was as to when the disciplinary proceedings can be said to have been initiated. The Hon'ble Apex Court in the circumstances of the case where an officer was placed under suspension has held that the disciplinary proceedings are to be treated to have been initiated on the date when the charge-sheet was signed. 21. In the present case, the petitioner was not placed under suspension, therefore, the initiation of the disciplinary proceedings is to be understood within the scope of the plain reading of the relevant Rules. Regulation 351-A of the Civil Service Regulations as well as Rule 7(IV) of the U.P. Government Servants Discipline and Appeal Rules, 1999 make it clear that unless the charge-sheet is issued, neither the disciplinary proceedings can be said to have been initiated nor the period of 15 days for reply can be computed from any other date. The issue of charge is thus relevant. It is to be noted that the issuance of charge-sheet in the present case on 28.2.2019 at 12.20 p.m. by e-mail leaves no manner of doubt that the charges framed were issued in the afternoon on 28.2.2019 and at that time, the petitioner had entered into the retiral age by virtue of Rule 56(a) of the fundamental Rules. Once the status of the petitioner was recognized as that of a retired public servant from the afternoon on 28.2.2019 i.e. last working day, this Court is of a clear opinion that the disciplinary proceedings with the issuance of charge-sheet treating him a public servant was erroneous and invades upon the power of Governor. This Court for the reasons aforesaid would thus draw a distinction insofar as the applicability of apex Court judgment mentioned above to the present case is concerned. Moreover, the earlier judgment of the apex Court reported in 1998(16) LCD-1274(supra) does not seem to have been considered in the later judgment. That apart the statutory Rules under consideration also stand at variance. 22. Moreover, the earlier judgment of the apex Court reported in 1998(16) LCD-1274(supra) does not seem to have been considered in the later judgment. That apart the statutory Rules under consideration also stand at variance. 22. This Court would have adhered to the well settled principle of not entertaining this writ petition as against the charge-sheet coupled with consequential proceedings but for the fact that the charge-sheet in respect of an occurrence having taken place after more than one year of petitioner's transfer was not served prior to noon on 28.2.2019, therefore, the impugned action lacks authority of law and could not be legally continued under Regulation 351-A of Civil Service Regulations read in conjunction with Discipline and Appeal Rules, 1999. The ground for interference is made out. In these circumstances, prolonging this case any further for no useful purpose would be unjust. However, liberty is open to the opposite party to proceed against the petitioner in accordance with law. 23. The writ petition is accordingly allowed. The impugned charges-sheet dated 27.2.2019 along with the consequential proceedings are hereby set aside. Consequences to follow. There shall be no order as to cost.