AKHILESH KUMAR SINHA Vs. STATE OF U P

JUDGEMENT

(1.) WE have heard learned counsel for parties and perused the pleadings of writ petition.

(2.) THIS writ petition has been filed with prayers for: (i) Issuance of a writ, order or direction in the nature of certiorari for quashing of the order dated 31.12.2012 contained in Annexure No.1 by which the petitioner has been informed that disciplinary proceedings have been instituted against him; (ii) issuance of a writ, order or direction in the nature of certiorari for quashing the charge sheet dated 23.01.2013 as contained in Annexure No.3; (iii) issuance of a writ, order or direction in the nature of certiorari for quashing of the order dated 14.2.2013 contained in Annexure No.4 by which the petitioner was informed that disciplinary proceedings have been initiated under Article 351 -A of the Civil Services Regulation; (iv) issuance of a writ, order or direction in the nature of certiorari for quashing of all proceedings initiated against the petitioner on the basis of charge sheet dated 23.1.2013 issued by Principal Secretary, Commercial Tax and Entertainment Tax, Government of U.P. which is contained in Annexure No.3; (v) issuance of a writ, order or direction in the nature of Mandamus for the payment of pension and all post retiral benefits to the petitioner without any deductions, and (vi) grant any other relief which this Hon'ble High Court may deem just and proper in the circumstances of the case.

(3.) THE instant writ petition impugns the orders passed by the State Government, whereby disciplinary proceedings are sought to be instituted against the petitioner, a retired government servant, who superannuated on 31.12.2012 as a Member of the Commercial Tax Tribunal, U.P. The departmental proceedings are said to have commenced on the basis of more than four years old charges which were not maintainable under Article 351 -A of the Regulations and are without jurisdiction. The proceedings are also said to be illegal because the charges, besides being well within the knowledge of the respondents for the past many years, are in regard to passing of certain assessment orders which pertained to Assessment year 2002 -03 and 2003 -04 and that had been passed by the petitioner in the years 2005 and 2006 under U.P. Trade Tax Act in discharge of his quasi -judicial functions as Deputy Commissioner, Trade Tax. The acts of government servant done in exercise of quasi -judicial powers, if done in good faith, should not be made a ground for institution of disciplinary proceedings against an officer. Further challenge to the proceedings is also on the ground that the same were sought to be instituted only on the date of his superannuation on 31.12.2012. However, no charge sheet was served upon him on that date. Thus, after his retirement no proceedings could have been drawn without there being an order under Article 351 -A of the Regulations. Thereafter, in order to justify illegal issuance of the charge sheet to the petitioner, a retired government servant, without there being any order under Article 351 -A; on the representation of petitioner raising the aforesaid questions, the respondents have tried to justify the illegal initiation of disciplinary proceedings by passing the impugned order dated 14.2.2013 under Article 351 -A. It is submitted on behalf of the petitioner that he was an outstanding officer of the Commercial Tax Department with excellent service record. There were no adverse entries against him and from time to time he was also promoted to the higher posts. The petitioner retired on 31.12.2012 from the post of Member, Commercial Tax Tribunal, Noida. After attaining superannuation on 31.12.2012 and handing over of charge to his successor, at about 17.45 hours at his residence, on the same day he was handed over a facsimile copy of Office Memo dated 31.12.2012 issued by the Principal Secretary, Department of Commercial and Entertainment Tax, Government of U.P. Since the office memo dated 31.12.2012 was not accompanied by any charge sheet, as it is evident from the office memo itself, the disciplinary proceedings could not start against the petitioner on 31.1.2012 i.e. on or before his retirement. The settled position in law according to pleadings of writ petition is that disciplinary proceedings are said to have been initiated only with the issuance of the charge sheet and since no charge sheet had been issued to the petitioner prior to the date of his superannuation, it is not legally permissible to withhold his pension and other post retiral benefits. The petitioner, therefore, preferred a representation dated 11.1.2013 to the State Government with a copy to the Principal Secretary, Department of Commercial and Entertainment Tax, Government of U.P. and to the Commissioner, Commercial Tax explaining his case and requesting for withdrawal/quashing of the Office Memo dated 31.12.2012 which held no legal sanctity. It was also requested that if any disciplinary proceedings were to be initiated against the petitioner, then it would have to be in accordance with the provisions of Article 351 -A of the Civil Service Regulations because the petitioner had already retired. It appears that after receiving the representation of petitioner dated 11.01.2013, the respondents realized that the disciplinary proceedings which were sought to have been initiated against the petitioner on 31.10.2012 were non -est. Therefore, on 7.2.2013, the petitioner was handed over a charge sheet dated 23.1.2013.