State of U.P. vs Ramesh Chandra Sharma

Devendra Kumar Arora, J.—By means of W. P. No. 340 (SB) of 2000 (State of U.P. and Ors. v. R.C. Sharma) the Petitioner (State) has challenged the judgment & order of the learned Tribunal dated 12.8.1999 by which claim petition No. 420 of 1994, R.C. Sharma v. State of U.P. and Ors. was allowed and the decision of the State Government to initiate the disciplinary proceedings and to issue charge sheet against the Respondent dated 17.9.1993 and 10.9.1994 along with charge sheet were quashed with further directions that the decision of the State Government for initiation of the disciplinary proceedings and to issue charge sheet against the Petitioner (herein Respondent) will not adversely affect in any manner of his service matters whatsoever and he shall be entitled for the consequential service benefits as per rules as he has already retired on 30.4.1999; and by means of Writ Petition No. 222 (SB) of 2002 (State of U.P. and Ors. v. Ramesh Chandra Sharma and Anr.) the State Petitioner has challenged the judgment & order of the learned Tribunal dated 07.8.2001, passed in Claim Petition No. 226 of 2000, R.C. Sharma v. State of U.P. and Ors. by which claim petition was allowed and the opposite parties were directed to make payment of withheld retiral benefits of the Petitioner (herein Respondent) along with 18% per annum interest upon the arrears of retiral benefits from the due date up to the actual payment. It was also held that the Petitioner (herein Respondent ) would also be entitled for interest @ 18% per annaum on the amounts which have been paid to him much after his retirement from the date of actual payment up to the date of its disbursement. The said judgment & order was directed to be complied with by the opposite parties within three months from the date of receipt of certified copy of the judgment & order.

Since common facts are involved in both the writ petitions and are against the same Respondent, both are being considered and decided together.

Facts of the case, in nutshell, are that initially the Respondent was appointed as Assistant Engineer and he was promoted to the post of Executive Engineer on 01.9.1988. During the year 1993-94 when the Respondent was posted as Executive Engineer in Hardoi Sharda Nahar Khand, departmental proceedings were initiated against him vide letter dated 17.9.1993 and 10.9.1994 regarding the irregularities committed in the work of cleaning of various drains during the year 1991-92 and charge sheet was issued against him. Being aggrieved, the Respondent approached State Public Services Tribunal, Lucknow (hereinafter referred to as ''Tribunal'') by way of filing claim petition No. 420 of 1994 with the prayer for quashing the decision taken by the State Government for initiating the disciplinary proceedings as well as of charge sheet. The learned Tribunal allowed the claim petition vide order dated 12.8..1999 and quashed the decision of State Government regarding initiation of disciplinary proceedings as well as charge sheet and further directed that the decision of the State Government for initiating the disciplinary proceedings and to issue charge sheet will not affect adversely the Respondent and he will be entitled for all consequential benefits as per rules, since he had retired on 30.4.1999. Being aggrieved, the Petitioners (State) preferred Writ Petition No. 340 (SB) of 2000 before this Court challenging the judgment & order passed by the learned Tribunal. This Court vide order dated 07.3.2000 stayed the operation of impugned judgment & order dated 12.8.1999 till filing of counter affidavit.

The opposite party No. 1, after his retirement, was paid only Earned Leave Encashment amount with Group Insurance but he was not paid regular pension, commutation of pension, final gratuity etc. as disciplinary proceedings and charge sheet became operative due to stay of operation of judgment & order dated 12.8.1999, passed in claim petition No. 420 of 1994. However, opposite party No. 1 was paid provisional pension.

Being aggrieved, the opposite party No. 1 again preferred claim petition No. 226 of 2000 for payment of his gratuity, regular pension, commutation of pension and payment of G.I. S. etc. which was also allowed vide judgment & order dated 07.8.2001. The learned Tribunal directed the Petitioners to make payment of withheld retiral benefits of the opposite party No. 1alongwith 18% p.a. interest accrued upon the arrears of retiral benefits from the due date up to actual payment within three months from the date of receipt of copy of order and further directed that the opposite party No. 1 will be entitled to get interest @ 18% p.a. on the amounts which have been paid to him much after his retirement from the date of actual payment up to the date of its disbursement. The said judgment & order was directed to be complied with by the opposite parties within three months from the date of receipt of certified copy of the judgment & order. The Petitioners preferred another Writ Petition No. 222 (SB) of 2002 challenging the said judgment & order dated 07.8.2001, passed in claim petition No. 226 of 2000.

We have heard learned Counsel for parties and perused the record.

Submission of learned Counsel for the Petitioner-State is that since judgment & order dated 12.8.1999, passed in claim petition No. 420 of 1994 was stayed by this Court, as such, the decision of the State Government/ Petitioner to initiate disciplinary proceedings as well as charge sheet became operative against the Respondent and due to pendency of the same, he was not entitled for his full service benefits. It is further submitted by learned Counsel for the Petitioner-State that the disciplinary proceedings were initiated prior to retirement of the opposite party No. 1. As such, the same is deemed to be continued after the retirement of the opposite party No. 1 in pursuance of the provisions of Article 351-A of Civil Service Regulations. It is also submitted that the Petitioner himself was responsible for non-clearance of his post retiral benefits as being Executive Engineer he himself was Head of the Office and it was his personal duty to prepare the documents of his retirement within 24 months prior to his retirement and submit the same prior to six months of his retirement as per Government Order dated 27.1.1979.

Learned Counsel for the Petitioner in support of his submissions relied upon the judgment of the Hon''ble Supreme Court reported in State of U.P. and Others Vs. R.C. Misra, in which it has been held that if the departmental proceedings were instituted when the employee was in service, the sanction of the Governor is not required for continuance of the proceedings.

Learned Counsel for the opposite party No. 1, while opposing both the writ petitions, submitted that the interim order dated 07.3.2000 against the judgment & order dated 12.8.1999 was conditional one as the operation of the same was stayed till filing of the counter affidavit and counter affidavit was filed by the opposite party No. 1 on 27.4.2000. Thereafter no steps were taken by the Petitioner-State for extension or modification of the same.

It is further submitted by learned Counsel for the opposite party No. 1 that this Court never passed any order for continuance of earlier proceedings. However, there is no illegality or infirmity in the order of learned Tribunal and the Writ Petition No. 340 (S/B) of 2000 deserves to be dismissed. It is further submitted by learned Counsel for the opposite party No. 1 that so far as judgment & order dated 07.8.2001 passed in Claim Petition No. 226 of 2000 is concerned, the same also does not warrant any interference of this Court, as learned Tribunal rightly came to the conclusion that since no order for continuing the earlier enquiry have been passed by this Court while staying the operation of the impugned judgment and order dated 12.08.1999 passed in Claim Petition No. 420 of 1994, therefore, it will be presumed that no enquiry or disciplinary proceedings were pending against the opposite party No. 1 on the date of his retirement and the learned Tribunal rightly directed for payment of withheld retiral dues along with 18% interest upon the arrears of retiral benefits and further directed for payment of 18% interest on the amount which have been paid to the opposite party No. 1 much after his retirement from the actual date of payment up to the date of its disbursement. It is also contended that this Court by means of order dated 07.4.2004 only stayed the operation of the order dated 07.8.2001 which awards interest at the rate of 18% over the pending dues and also the dues which have already been paid after retirement and directed that the withheld pensionary benefits shall be released and paid to the Respondent within a period of maximum one month. On the aforesaid amount, which may be released in favour of the Respondent, he shall also be paid interest at the rate of 9% per annum from the date they became due till the date of actual payment, subject to further orders of the Court. Subject to the aforesaid condition being fulfilled by the State, the contempt proceedings were directed to remain stayed in the meantime. In pursuance of the said order, the Petitioner-State vide order dated 02.1.2004 issued directions to the Engineer-in-Chief, Irrigation Department, U.P., Lucknow for payment of dues of the opposite party No. 1after withholding the amount of Rs. 4,640/-from the Gratuity of opposite party No. 1 with 9% interest. As such, there is no occasion for interference in both the decisions of the learned Tribunal. We have considered the arguments of learned Counsel for parties and gone through the record.

Admittedly, the departmental proceedings were initiated against the opposite party No. 1 during the year 1993-94 when he was posted as Executive Engineer in Hardoi Division, Sharda Canal, Hardoi and charge sheet was issued. The decision of the State Government as well as charge sheet was challenged by the opposite party No. 1 before the learned Tribunal by way of filing Claim Petition No. 420 of 1994. The said claim petition was allowed by means of judgment & order dated 12.8.1999 and the decision of the State Government dated 17.09.1993 and 10.9.1994 along with charge sheet were quashed with further direction that the decision of the State Government for initiation of the disciplinary proceedings and to issue charge sheet against the Petitioner (herein Respondent) will not adversely affect in any manner of his service matters whatsoever and he shall be entitled for the consequential service benefits as per rules as he has already retired on 30.4.1999. The said judgment & order of learned Tribunal was challenged before this Court by filing Writ Petition No. 340 (SB) of 2000 and while entertaining the writ petition, this Court by means of order dated 07.3.2000 stayed the operation of the judgment & order dated 12.8.1999 till filing of the counter affidavit. The Counter Affidavit was filed on 27th April, 2000 but the record shows that after filing of counter affidavit matter was not prosecuted by the Petitioner-State either for further interim relief or for extension or modification of the interim order. Since the Petitioners-State withhold the post retiral benefits of opposite party No. 1 on account of pendency of the disciplinary proceedings, the opposite party No. 1, being aggrieved against the withholding of his retiral benefits once again approached the learned tribunal by filing Claim Petition No. 226 of 2000 and the same was allowed with the direction to make payment of his withhold retiral benefits along with interest @ 18% per annum upon the arrears of the retiral benefits from the due date up to the actual payment, and also held that the Petitioner (herein opposite party No. 1 ) would also be entitled for interest @ 18% per annum on the amounts which have been paid to him much after his retirement from the date of actual payment up to the date of its disbursement. The said judgment & order was directed to be complied with by the opposite parties within three months from the date of receipt of certified copy of the judgment & order.

It appears that when the order of the learned tribunal was not complied with, the opposite party No. 1 initiated contempt proceedings and the Petitioner-State moved an application for stay of contempt proceedings, which was initially rejected on 22.8.2003, but subsequently on the application of interim relief this Court passed the following order on 7.4.2004:

After hearing the learned Counsel for the State Sri Manjeev Shukla and Sri D.S. Chaube, learned Counsel for the Respondent, we, prima facie, find that the award of interest, that too at the rate of 18% per annum is highly excessive, particularly when admittedly enquiries were pending against the Respondent and Vigilance enquiry was also instituted and the order passed by the Tribunal on 12.8.1999 was stayed by the High Court. We, therefore, stay the operation of the order dated 7.8.2001 which awards interest at the rate of 18% over the pending dues and also the dues which have already been paid after retirement, but direct that the withheld pensionary benefits shall be released and paid to the Respondent within a period of maximum one month. On the aforesaid amount, which may be released in favour of the Respondent, he shall also be paid interest at the rate of 9% per annum from the date they became due till the date of actual payment, subject to further orders of the Court. Subject to the aforesaid condition being fulfilled by the State, the contempt proceedings shall remain stayed in the meantime.

The compliance of the said order was reported by the Petitioner by means of supplementary affidavit dated 2nd March, 2005 and it appears that all the retiral dues of opposite party No. 1 must have been paid in the year 2004 itself.

The perusal of the record of the writ petition reveals that after the stay granted by this Court in Writ Petition No. 340 (S/B) of 2000 on 07.04.2000 against the judgment and order dated 12.08.1999 passed in Claim Petition No. 420 of 1994, the Chief Engineer, the Enquiry Officer submitted his enquiry report on 24.03.2000 and the State Government after examining the enquiry report decided to award the punishment by making recovery of Rs. 81,574/-from the gratuity of the opposite party No. 1 on account of irregularities and loss caused to the State Government and accordingly an explanation was called from the opposite party No. 1 vide letter dated 08.05.2000 while supplying the copy of the enquiry report.

The opposite party No. 1 submitted his reply vide letter dated 31.07.2000 thereafter the matter was referred to the U.P. Public Service Commission for its approval on the proposed punishment vide letter dated 17.11.2000. The U.P. Public Service Commission gave its approval vide letter dated 02.07.2001 and thereafter by means of order dated 31.07.2001 the directions were issued for making recovery of Rs. 81,574/-from the gratuity of the opposite party No. 1. The opposite party No. 1 himself filed affidavit/ reply to the third application for interim relief of the Petitioners-State on 27.11.2002 stating therein that after passing of the punishment order dated 31.07.2001 the disciplinary proceedings has thus come to an end and, as such, he is entitled to get his retiral benefits which are not being paid to him arbitrarily and illegally and causing financial hardship as well as mental agony to him.

It appears that this Court while considering the application for disposal of application for interim relief initially rejected the said application, filed in Writ Petition No. 222 (S/B) of 2002, vide order dated 22.08.2003. But subsequently on the second application for disposal of application for interim relief, vide order dated 07.04.2004 stayed the operation of the order dated 07.08.2001 passed in Claim Petition No. 226 of 2000 with a direction to release the withheld pensionary benefits and the same be paid to the opposite party No. 1 within a maximum period of one month along with 9% interest per annum from the date the same became due till the date of actual payment, subject to further orders of the Court.

The Petitioners-State complied with the order of this Court dated 07.04.2004 and filed compliance report by means of supplementary affidavit dated 02.03.2005. Neither the Petitioners-State nor the opposite party No. 1 informed this Court about any action taken against the punishment order dated 31.07.2001, by which the directions for making recovery of Rs. 81,574/-from the gratuity of opposite party No. 1 has been issued.

The learned Counsel for the opposite party No. 1 in his reply has not submitted anything to the submission of learned Counsel for the Petitioners-State that the disciplinary proceedings were initiated against the opposite party No. 1 prior to his retirement and, therefore, in pursuance to Article 351A of the Civil Service Regulations the proceedings deemed to be continued after the retirement of the opposite party No. 1.

This Court taking into consideration the fact that the proceedings were already completed and the punishment order was issued against the opposite party No. 1 on 31.07.2001 and the opposite party No. 1 has not challenged the said punishment order before this Court, therefore, after completion of the disciplinary proceedings and passing of the punishment order, this Court do not find any good reason to examine the validity of the judgment and order dated 12.08.1999, passed in Claim Petition No. 420 of 1994 which is challenged in W.P. No. 340 (SB) of 2000.

As far as Writ Petition No. 222 (S/B) of 2002 is concerned, there nothing remains to be adjudicated in the said writ petition. The post retiral dues of the opposite party No. 1 appears to have been paid in compliance of order of this Court dated 07.04.2004 along with 9% interest per annum on the withheld pensionary benefits from the date the same became due till the date of actual payment. This Court, on due consideration, modifies the judgment and order of the learned Tribunal dated 07.08.2001 passed in Claim Petition No. 226 of 2000 to that extent and further clarifies that in the judgment and order dated 07.08.2001 the rate of interest 18% per annum be read as 9% per annum.

With the aforesaid observations and directions, both the writ petitions are disposed of finally.