Hon''ble Sunil Hali, J.@mdashDuring the course of his employment, the petitioner was posted in the office of the District Horticulture Officer, Moradabad as Assistant Horticulture Inspector. A departmental enquiry was initiated against him for which a charge-sheet was served upon him. He was placed under suspension on 20.8.1986. Consequently, an Enquiry Officer was appointed to probe the charges. While the enquiry was under process, the petitioner was reinstated vide order dated 19.1.1987. The disciplinary proceeding are stated to have continued for petty long time. During the pendency of the departmental proceedings the petitioner was superannuated on 30.9.1999. The petitioner was served a copy of the show-cause notice by the Enquiry Officer on 16.9.2001. He was required to file his objection to the same. After receipt of the objections, the impugned order dated 6.3.2003 was passed holding the petitioner guilty of the charges levelled against him. As a consequence of which 5% pensionary benefits were required to be deducted from his pension and his period of suspension was treated as on duty. This order is subject-matter of challenge before this Court.
2. Learned counsel for the petitioner contended that no opportunity of being heard was given to the petitioner as there was no evidence to support the allegations levelled against the petitioner. He further contends that after retirement, departmental proceedings could not have continued against him as there is no provision which provides continuance of the departmental proceedings after the retirement of the employee. Lastly, it is contended that there is no provision under the U.P. Government Servant (Disciplinary and Appeal) Rules, 1999 (in short as the ''Rules'') to impose a penalty for recovery to be made from the post retirement emoluments of a retired employee.
3. The stand of the respondent is that the recovery against the petitioner can be effected by invoking Regulation 351 of the Civil Service Regulations (in short as the ''Regulations''), which provides for withholding or withdrawing a pension or any part of it from the post retirement benefits of the retired employee with the prior approval of the Governor.
4. I have heard the learned counsel for the parties.
5. The services of the petitioner are governed by U.P. Government Servant (Disciplinary and Appeal) Rules, 1999. The rules contemplate that an enquiry can be conducted against a person appointed to public services and posts in connection with the affairs of the State of Uttar Pradesh. The power to impose penalty is contained under the Rules of 1999 which provides penalties which can be imposed against the Government servants. There is no provision under the Rules allowing the enquiry to be conducted against the person who has retired from service. In absence of any such rule, the enquiry cannot be continued against a Government servant who has retired. However, there is an exception provided under Regulation 351, which provides that the State Government has a right of withholding or withdrawing a pension or any part of it if the pensioner is convicted of serious crime or guilty of grave misconduct. Regulation 351-A provides that the Government has a right to withhold or withdraw a pension or any part of it whether permanently or for a specific period and also has a right to order for the recovery from a pension of the whole or part of any pecuniary loss caused 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 the Government by misconduct or negligence, during his service.
6. However, this rule has certain exceptions which are germane for determination of the controversy in hand. It contemplates that no such enquiry can be conducted if not instituted while the officer was on duty either before the retirement or during re-employment :
(a) Such enquiry cannot be instituted without the sanction of the Governor.
(b) shall be in respect of an event which took place not more than four years before the institution of such proceedings;
7. The import of the aforesaid provision clearly contemplates that with the prior approval of the Governor the recovery can be effected from the pension or from any part of it on account of loss caused to the Government which has been determined in the departmental proceedings or in the Judicial proceedings. However, this rule can be invoked where conditions contemplated by the Rules are satisfied. The conditions are already stated here-in-supra.
8. Applying the aforesaid principle in the present case, it appears that the conditions for the purpose of invoking Regulation 351-A have not been satisfied. There is no approval of Governor and the matter regarding the alleged misconduct is stated to have been committed way back in the year 1986 which is beyond the period of four years as contemplated under the Rules. On the plain reading of the Regulations, it clearly emerges that the same cannot be invoked in the present case. As already stated here-in-above, there is no provision for holding departmental proceedings against the person who has retired.
9. Reliance has been placed by the learned counsel for the petitioner on a decision of the Apex Court in the Case of
In view of the absence of such provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provisions stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.6.95, there was no authority vested in the Corporation or continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.
Similar view has been reiterated by the Division Bench of this Court in the Case of
After age of superannuation, disciplinary proceeding cannot go on, in absence of any specific provisions; (iii) respondent entitled to post-retiral benefits, as well as arrears of salary (minus subsistence allowance paid to him)- However, he was not entitled to any interest on amount payable to him. (Civil Services Regulations-Regulation 351-A.).
10. There is second aspect of the matter that the penalty in the shape of recovery from the post retirement benefits cannot be imposed in terms of Rule-3 of the Rules of 1999. While scanning through the Rules, there is no provision for recovery of the amount from the pension of an employee. In view of the aforesaid discussions, the writ petition is allowed and the impugned orders dated 6.3.2003, 19.4.2003, 11.7.2005 and 23.3.2006 passed by respondent Nos. 1, 2 and 5 are quashed. The respondents are directed that if any deduction has been made from the pension of the petitioner the same shall be refunded to him within a period of three months from the date a certified copy of this order is produced before them.
