BACHCHAN PRASAD GUPTA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THE petitioner who had retired as the Principal of the Government Inter College, Chandauli, Varanasi on 30th June, 1996 has sought the quashing of the order dated 21st April, 2001 passed by the Special Secretary, Government of Uttar Pradesh whereby the Governor had approved that an amount of Rs.82,647/- may be deducted from the gratuity amount payable to the petitioner. On retirement, the petitioner was paid Government Provident Fund and Group Insurance amount but the Joint Director of Education by the order dated 2nd July, 1997 directed that the gratuity amount may not be paid to the petitioner and only interim pension be paid to him till the enquiry against the petitioner in respect of some financial irregularities committed in the year 1996 regarding withdrawal of amount from the National Savings Account of the College while the petitioner was functioning as the Principal of the Government Inter College, Chandauli. However, no disciplinary action was taken against the petitioner and he was permitted to retire on 30th June, 1996. It needs to be mentioned that in respect of the contemplated disciplinary enquiry against the petitioner and non-payment of pension the matter was examined at the level of the State Government and the Special Secretary, Government of U.P. by the communication dated 28th July, 2000 informed the Director of Education (Madhyamik), Uttar Pradesh, Lucknow that though it was correct that the petitioner was responsible for withdrawal of an amount of Rs.27,000/- from the National Savings Account on 2nd March, 1996 and 29th March, 1996, but as the petitioner had retired on 30th June, 1996 and a period of more than four years has lapsed, it was not possible to initiate disciplinary enquiry against him in view of the provisions of Regulation 351-A of the Civil Service Regulations. THE Special Secretary, however, made it clear that the aforesaid amount could be recovered through appropriate civil liabilities. It also transpires that as the gratuity and full pension was not being paid to the petitioner, he filed Writ Petition No.19265 of 1999 which was disposed of with the following observations:- "THE grievance of the petitioner is that gratuity and pension amount have not been paid to the petitioner. THE learned Standing Counsel submits that enquiry is pending against the petitioner. I have considered the arguments of the learned counsel for the parties. THE petitioner has attained the age of superannuation on 30.6.1996. Now more than 4 years have elapsed. In view of the aforesaid facts the writ petition is finally disposed of with a direction to the opposite parties to conclude the enquiry within three months from the date the certified copy of this order is produced and if nothing is found against the petitioner they may release the gratuity amount and pension forthwith." Subsequently as the directions issued by this Court were not complied with, the petitioner filed Contempt Petition No.299 of 2001 in which after the notices were issued the petitioner was paid an amount of Rs.1,08,341/- towards gratuity after deducting the amount of Rs.82,647/- and in this regard the order dated 21st April, 2001 which has been impugned in the present petition was placed on record. THE said order mentions that an enquiry had been conducted against the petitioner and it was found that the petitioner had withdrawn an amount of Rs.27,000/- from the National Savings Account of the College while he was working as Principal of the Government Inter College and on 4th November, 2000 the said report was placed before the Government which found that the petitioner was responsible for loss of the aforesaid amount and damages to the extent of Rs.55,647/-. It has also been mentioned in the said order that the Governor had approved that an amount of Rs.82,647/- be deducted from the gratuity amount payable to the petitioner. It is this order that has been impugned in the present petition. Learned counsel for the petitioner submitted that in view of provisions of Regulation 351-A of the Civil Service Regulations it was not possible for the Government to hold any departmental enquiry since the event was of March, 1996 and more than four years had lapsed after retirement. He also submitted that in fact by the order dated 28th July, 2000, the Government had clearly intimated the Director of Education that it was not possible to hold any departmental enquiry under Regulation 351-A of the Civil Service Regulations and the said amount could be recovered only through appropriate civil proceedings. He, therefore, submitted that the order dated 21st April, 2001 deserves to be quashed. Learned Standing Counsel appearing for the respondents, on the other hand, submitted that the enquiry was held pursuant to the directions issued by this Court in the judgment and order dated 11th September, 2000 in Writ Petition No.19265 of 1999 that had been filed by the petitioner and the Governor had also approved the recovery of the said amount in terms of Rule 351-A of the Civil Service Regulations. It is his submission that the Governor can grant sanction after retirement of an officer even in respect of an incident which has taken place more than four years before the institution of such departmental proceedings. THE facts, as they emerge from the pleadings of the parties, clearly demonstrate that the events are of 2nd March, 1996 and 29th March, 1996 when it is said that the petitioner had withdrawn the amount of Rs.27,000/- as loan from the National Savings Account of the College for the purposes of meeting certain other expenditure of the College, while he was functioning as Principal of the Government Inter College, Chandauli. Some informal enquiry was conducted to find out whether the petitioner was involved but regular departmental proceedings had not been initiated. Only interim pension was paid to the petitioner and gratuity amount was also withheld. When the matter was brought to the notice of the Government, the Special Secretary, Government of U.P. by the letter dated 28th July, 2000 clearly intimated the Director of Education (Madhyamik), Uttar Pradesh, Lucknow that it was not possible to initiate any departmental proceedings against the petitioner in view of the specific provisions contained in Regulation 351-A of the Civil Service Regulations and only proceedings could be initiated for recovering the same amount through civil process. It is the contention of the learned Standing Counsel, on the basis of the averments made in the counter affidavit, that departmental proceedings had been initiated against the petitioner because of the directions issued by this Court on 11th September, 2000 in the writ petition that had been filed by the petitioner for payment of pension and gratuity and on the basis of such proceedings initiated an order was passed for deduction of amount from the gratuity after taking approval from the Governor of the State. This contention of the learned Standing Counsel cannot be accepted in view of Regulation 351-A of the Civil Service Regulations which are quoted 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 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 proceeding, 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. ........................" In view of the specific provisions contained in the aforesaid Regulation 351-A, it is clear that the departmental proceedings could not have been initiated since the petitioner had retired and the event had happened more than four years back. Mere observation by this Court in the judgment and order dated 11th September, 2000 that the opposite parties should conclude the enquiry within three months and if nothing is found against the petitioner, they may release the gratuity amount and pension will not enlarge the time provided for under Regulation 351-A of the Civil Service Regulations and the respondents cannot take shelter of such a direction to overcome the period of limitation provided in the said Regulation for initiation of departmental proceedings in cases where the Government servant had retired. In fact the State Government was conscious of the correct position when it passed the order dated 28th July, 2000 which order could not have been modified subsequently merely on the basis of the observations made by this Court. THE contention of the learned Standing Counsel that disciplinary proceedings can be initiated after retirement even if more than four years had lapsed cannot be accepted as it is against the provisions of Regulation 351-A of the Civil Service Regulations. THE order dated 21st April, 2001, therefore, cannot be sustained. It is, accordingly, set aside. THE petitioner shall be paid the gratuity amount which had been deducted within a period of two months from the date a certified copy of this order is placed before the Director of Education (Secondary), Uttar Pradesh along with interest at the rate of 6% from the date the amount was due to the date the amount is paid. THE writ petition is allowed to the extent indicated above.