Prabhu Narain Singh vs State of U.P. and Others

V.K. Shukla, J.—Present writ petition in question has been filed by the Petitioner requesting therein that a writ in the nature of mandamus be issued commanding the Respondents to make full payment of pension to the Petitioner.

Record in question reflects that Petitioner was posted as Sub-Inspector and against him a First Information Report being S.T. No. 95 of 1997 under Sections 342, 161, 120-B IPC read with Section 5/2 Prevention of Corruption Act have been initiated. Petitioner attained age of superannuation and as the said judicial proceeding was going on as such in consonance with the Government Order dated 28.10.1980, provisional pension was fixed till aforesaid criminal trial was not concluded. In the said criminal case Petitioner has been convicted by the competent criminal court vide order dated 20.04.2006 and against the same criminal appeal No. 2455 of 2006 has been preferred before this Court and Petitioner has been directed to be released on bail. Now Petitioner has rushed to this Court contending therein that he is entitled for full pension in view of the Government Order dated 28.10.1980.

Provision for deduction of pension is contained under Article 351-A of Civil Services Regulation and same as follows:

351A. 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 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.

(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, UP shall be consulted before final orders are passed. Explanation - For the purpose 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; and

(b) judicial proceedings shall be deemed to have been instituted:

(i) in the case of criminal proceedings, on the date on which complaint 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.

Article 351-A of the Civil Services Regulation reserves right of the Governor to withhold or withdraw the pension either permanently or for specified period, if the Petitioner is found in departmental or judicial proceedings to be guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligent during his service. The expression ''grave misconduct'' is something more than a misconduct. A retired employee can be punished for being found guilty of grave misconduct and not a misconduct simplicitor. He may also be punished, if he had caused pecuniary loss to the Government resulting out of such misconduct or negligence during his service, including the service rendered on re-employment after retirement. The finding of the pecuniary loss is thus essential, if there is a charge to that effect, and which has been found established.

Division Bench of this Court in the case of Shardindu v. the State of U.P. and others, Civil Misc. Writ Petition No. 11863 of 2010 decided on 23.12.2010 while considering the present provision has held as follows:

The pension is a right and cannot be arbitrarily denied. The deduction of pension by way of penalty after disciplinary enquiry can be made only in accordance the statutory rules, which must be strictly followed. The deduction can be made by the Governor only in the cases of grave misconduct or causing pecuniary loss to the Government by such misconduct or negligence during service including the service rendered in re-employment. In Gopi Chand Bishnoi Vs. State of U.P., this Court held:

There is another aspect which is also very important to be noticed herein. Article 351-A of CSR is attracted where a retired government servant is found guilty of grave misconduct or to have caused pecuniary loss to government by misconduct or negligence during his service including service rendered in re-employment after retirement. Enquiry report shows that the Enquiry Officer did not find the Petitioner guilty either of any grave misconduct or of any pecuniary loss caused to the government by his misconduct or negligence. In the punishment order issued by Respondent No. 1, the conduct of the Petitioner has not been found to be of grave misconduct though it is said that the allegation of making irregular appointment is of serious nature. It also nowhere says that the Petitioner has caused any pecuniary loss to the government on account of his misconduct of negligence though it says that appointment has caused unnecessary expenses on the revenue. The charges therefore, levelled against the Petitioner do not satisfy he requirement of Article 351 of CSR. In our view an act on under Article 351A is permissible only when charges against the retired government servant are found provide, which are either in the nature of grave misconduct or have caused pecuniary loss on account of misconduct or negligence of government servant and not otherwise. In these circumstances the impugned order cannot be justified by reference to Article 351A of CSR.

On the parameter of the provision quoted above the Governor reserves to himself the right of withholding or withdrawing a pension or any part of being an incumbent is found in departmental or judicial proceedings to have been guilty of grave misconduct.

Here in the present case interim pension was being paid and now final judgment has been passed by the competent court holding Petitioner guilty and Petitioner has already preferred appeal in question then in this background and factual situation the said Government Order will not at all come to the rescue of the Petitioner and as far as this Court is concerned this Court cannot issue any direction for issuance of full pension to the Petitioner. However competent authority is free to consider the claim of the Petitioner as to whether judgment in appeal is to be awaited or orders are required to be passed in respect of withholding pension or withdrawing pension in question as the case may be. In such a situation and this background writ petition is devoid of merit and same is accordingly dismissed.