YASHWANT SINGH SACHAN Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner was a Medical Officer in the Primary Health Centre. A charge sheet dated 18.7.95 was served upon him in which there was an allegation that the petitioner had joined on the basis of a promotion order in the name of another Medical Officer and had taken the salary on the promotion post of Medical Officer, Senior Scale by playing fraud. THE petitioner gave a reply to the charge sheet denying the charge. An enquiry was held and the the Enquiry Officer submitted a report finding the charge proved. THE disciplinary authority agreed with the report of the enquiry officer and awarded the petitioner by an order dated 24.5.05 a punishment of adverse entry and also directed recovery of the excess amount paid to the petitioner. This order of the disciplinary authority dated 24.5.05 has been challenged in the present petition. We have heard Sri Yogesh Agarwal counsel for the petitioner and the learned Standing Counsel. It was submitted by Sri Yogesh Agarwal that during the pendency of the disciplinary proceedings, the petitioner retired on 30.11.04. THE first contention advanced by counsel for the petitioner is that after the retirement of the petitioner the disciplinary proceedings had come to an end automatically. He relies upon a decision of the apex court in High Court of Punjab and Haryana Vs. Amrik Singh 1995 SCC ( L and S), 471 and upon a decision of the apex court in Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and others, 1999 SC 1841. In the decision of the apex court in Amrik Singh's case (supra) what was set aside was an order of dismissal from service which had been passed after the employee had retired. It was observed by the apex court that proper course for the disciplinary authority was to resort to Rule 2(2) (b) of the Punjab and Haryana Rules Vol.2 or Rule 9 of the CCS (Pension) Rules, 1972. In the decision in Bhagirathi's Jena's case (supra) the supreme court in para 6 upon which learned counsel relied, observed that in the absence of any specific provisions relating to the continuance of proceedings for recovery of any amount it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. THE principle upon which this proposition is founded is that on the retirement of an employee the relationship of master and servant ceases and the master loses disciplinary control over the erstwhile employee and in such a situation unless there are statutory rules providing otherwise the disciplinary proceedings come to an end. THE provision for continuance of the disciplinary proceedings in case of a government servant is contained in Regulations 351A of the Civil Services Regulations. Under Regulation 351A the Governor reserves the right of ordering the recovery from pension of the whole or part of a pecuniary loss to the 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. In this case the enquiry officer as well as the disciplinary authority have recorded a finding that that the petitioner had fraudulently taken the pay on the basis of promotion order which was meant for another Doctor in that the promotion order was addressed to Dr. Jaswant Singh having seniority no. 469 whereas the name of the petitioner is Yashwant Singh and his seniority no. is 471. Counsel for the petitioner then relied upon the proviso to Regulation 351A and submitted that the disciplinary proceedings could be instituted after the retirement of the petitioner only with the sanction of the Governor and only in respect of an event which took place not more than 4 years before the institution of such proceedings and that even in such case the enquiry is to be conducted by such an authority and in such place or places as the Governor may direct. It is clear from the proviso that the three eventualities contemplated in clauses (i), (ii) and (iii) of clause (a) of the Proviso to Regulation 351A would be applicable only if the proceedings are not instituted while the officer was on duty. In this case the charge sheet was issued to the petitioner in the year 1995 when undisputedly he was in service and therefore the clauses would not apply. It was also submitted that the charge sheet was vague and there was no evidence against the petitioner. We have perused the charge sheet. It clearly sets out the charge that the promotion order was addressed to Jaswant Singh who was having a different seniority number than that of the petitioner and the petitioner had fraudulently joined and taken the benefit of the promotion post. This charge in our opinion is quite specific. Sri Yogesh Agarwal also submitted that there was no misrepresentation or fraud on the part of the petitioner that the benefit of the promotion pay scale was given to him on the basis of an order which was meant for another officer. THE enquiry officer has considered the factual aspect of the matter and has found the charge to be proved. It is well settled that a writ court would not interfere with the decision of the disciplinary authority unless there is an error in the decision making process. In this case the facts are quite clear that the petitioner had joined on the basis of promotion order which undisputedly was addressed in the name of Jaswant Singh whereas the name of the petitioner is Yashwant Singh and that Jashwant Singh was having seniority number 469 whereas the petitioner Yashwant Singh was having seniority number 471. From these facts it is quite clear that the finding that the petitioner had taken the benefit of the promotion order by fraud does not suffer from any error. We do not find any merit in this petition. THE petition is accordingly dismissed.