# Chandra Prakash v. U.O.I. & Ors. 638 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 3 ILRA 637
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-16
- **Case number:** Writ A No. 40290 of 2012
- **Bench:** Mrs. Sunita Agarwal, Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-prakash-v-u-o-i-ors-638-indian-law-reports-allahabad-series-48222
- **Pages:** 15

## Headnote

Law
-
Railway
Servants
(Pension)
Rules,
1993
-
Rule
9
-
Withholding of the Pension - Inquiry
about
the
genuineness
of
caste
certificated was concluded much earlier in
favour
of
petitioner
-
No
judicial
proceeding had been instituted or pending
against
the
petitioner
prior
to
his
superannuation or thereafter - Authority's
power to withhold the pension challenged
- Held, the question of withholding
pensionary benefits could arise only after
initiation of the departmental inquiry
within the meaning of Rule 9(5) with the
issuance of the charge-sheet by the
disciplinary authority - The respondents,
therefore, have no authority of law to
withhold
pension
and
other
retiral
benefits of the petitioner in absence of
any judicial proceeding or departmental
proceeding pending against him. (Para 31,
37 and 46)
Writ petition allowed. (E-1)
List of Cases cited:-

## Text

_Characters 0–39,807 of 48,629. This is a partial read: ask again with offset=39807 for what follows._

3 All. Chandra Prakash Vs. U.O.I. & Ors.
637
dismissal from service of the Respondent was
pursuant to a departmental inquiry held
against her. The Inquiry Officer examined the
evidence and concluded that the charge of
demand and acceptance of illegal gratification
by the Respondent was proved. The learned
Single Judge and the Division Bench of the
High
Court
committed
an
error
in
reappreciating the evidence and coming to a
conclusion that the evidence on record was
not sufficient to point to the guilt of the
Respondent.

6.1 It is settled law that interference
with the orders passed pursuant to a
departmental inquiry can be only in case of
''no evidence'. Sufficiency of evidence is not
within the realm of judicial review. The
standard of proof as required in a criminal
trial is not the same in a departmental inquiry.
Strict rules of evidence are to be followed by
the criminal Court where the guilt of the
accused has to be proved beyond reasonable
doubt. On the other hand, preponderance of
probabilities is the test adopted in finding the
delinquent guilty of the charge.

6.2 The High Court ought not to
have interfered with the order of dismissal of
the Respondent by re-examining the evidence
and taking a view different from that of the
disciplinary authority which was based on the
findings of the Inquiry Officer."

39. In the light of the aforesaid
discussion, I do not find that the disciplinary
authority, appellate authority or the reviewing
committee had committed any error while
awarding the punishment of removal from
service to the petitioner. This Court holds that
the disciplinary inquiry was conducted strictly
in accordance with law and there was no
requirement to prove the documents, which
were admitted by the petitioner, by examining
the witnesses. Further, when the petitioner has
himself denied to cross-examine the witnesses,
there was no further requirement to lead the
evidence by the presenting officer.

40. This Court does not find that there
has been any procedural infarction or violation
of the principles of natural justice in
conducting the disciplinary inquiry against the
petitioner. Banking business is of faith and
trust of the general public. The bank officials
and employees discharge very important
function in dealing with the public money.
They have fiduciary duty towards the
customers. The bank officials/employees are
required to perform duties with utmost
devotion, diligence, integrity and honesty. If
an official discharges his function with
dishonesty, acting in a manner of unbecoming
a bank officer, this Court should not interfere
in the punishment of dismissal from service of
such an official.

41. Considering the facts of this case,
this Court finds that the act of misconduct are
serious enough to justify the punishment of
removal from service of the petitioner.

42. In view thereof, this Court does not
find any substance in the present writ petition,
which is hereby dismissed. Interim order, if
any, stands vacated.
----------
(2022)03ILR A637
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE KRISHAN PAHAL, J.

Writ A No. 40290 of 2012

Chandra Prakash ...Petitioner
Versus
U.O.I. & Ors. ...Respondents
638 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Chandra Prakash (In Person), Ms.
Subash Rathi (A.C.)

Counsel for the Respondents:
C.S.C., Sri Praveen Kumar Srivastava, Sri
Vivek Singh, Sri Arun Kumar Gupta.

A.
Service
Law
-
Railway
Servants
(Pension)
Rules,
1993
-
Rule
9
-
Withholding of the Pension - Inquiry
about
the
genuineness
of
caste
certificated was concluded much earlier in
favour
of
petitioner
-
No
judicial
proceeding had been instituted or pending
against
the
petitioner
prior
to
his
superannuation or thereafter - Authority's
power to withhold the pension challenged
- Held, the question of withholding
pensionary benefits could arise only after
initiation of the departmental inquiry
within the meaning of Rule 9(5) with the
issuance of the charge-sheet by the
disciplinary authority - The respondents,
therefore, have no authority of law to
withhold
pension
and
other
retiral
benefits of the petitioner in absence of
any judicial proceeding or departmental
proceeding pending against him. (Para 31,
37 and 46)
Writ petition allowed. (E-1)
List of Cases cited:-
1. St. of A.P. & ors. Vs Nagam Chandrasekhara
Lingam; AIR 1988 SCC 1309
2. G. Sundarsan Vs U.O.I. & anr. (1995) 4 SCC
644
3. B.S. Gaur Vs U.O.I. & ors.; (2001) 9 SCC 706

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.
&
Hon'ble Krishan Pahal, J.)

1. Heard Sri Chandra Prakash,
Petitioner (in person) along with Ms.
Subhash Rathi, learned Amicus Curiae who
assisted the Court on behalf of the
petitioner
and
Sri
Praveen
Kumar
Srivastava and Sri Arun Kumar Gupta,
learned counsels for the respondents.

2. Ms. Subhash Rathi, learned
Amicus Curiae has filed the written
submissions on behalf of the petitioner.

3. By means of the present writ
petition, the petitioner has prayed for the
following reliefs:-

"I. To issue a writ or order or a
writ in the nature of Certiorari quashing
the impugned order dated 1.3.2012 of
Central
Administrative
Tribunal,
Allahabad Bench passed in O.A. No.1235
of 2011 (Chandra Prakash Vs. U.O.I. &
Others),

II. To issue a writ or order or a
writ in the nature of Certiorari quashing
the impugned order No. b@50@fjt@lalnh;
lfefr@V@ikVZ&11
dated
26/02/2010
passed by respondent No. 4.

III. To issue a writ or order or a
writ in the nature of Certiorari quashing
the part of impugned order No. Nil dated
03/03/2010 passed by respondent No.4, as
far as it relates to withholding of
"petitioner's
all
Retirement
dues
&
benefits",

IV. To issue a writ or an order or
direction in the nature of mandamus
directing
the
respondents
Railway
Administration to retire the petitioner with
immediate effect (as the petitioner is
waiting for ''order of his retirement' since
01.03.2010 as mentioned in para-93 & 94
of writ petition) & serve to the petitioner
"Retirement Order cum Service Certificate"
& pay the salary {last pay drawn} of the
3 All. Chandra Prakash Vs. U.O.I. & Ors.
639
petitioner from 01.03.2010 to till date of
receipt of retirement order by the petitioner
along with interest at the bank rate (i.e.
@18%) upon its arrears.

V. To issue a writ or an order or
direction in the nature of mandamus directing
the respondents Railway Administration to
release & pay all retirement dues & benefits of
the petitioner i.e.:-

i. Pension Payment Order (PPO)
from the date of retirement

ii. Gratuity

iii. Leave in Cashment

iv. Pension Commutation from
the date of retirement

v. Remaining part of P.F. of
period
September/October,
1973
to
December, 1994.

vi. Composite Transfer Grant etc.
along with interest at the bank rate (i.e.
@18%) upon aforesaid amounts from the
date of retirement.

VI. To issue a writ or an order or
direction in the nature of mandamus directing
the respondents Railway Administration to
release & serve petitioner's:-

i. Service Medal,

ii.
Medical
Card
for
post
retirement medical facilities,

iii.
Other
Post
Retirement
facilities.

VII. To issue a writ or an order
or direction in the nature of mandamus
directing
the
respondents
Railway
Administration to pay compensation of
Rs.20 lacs for the irreparable losses &
damages caused due to non-payment of
petitioner's all retirement dues & benefits
as mentioned in para-100 & XLVI of writ
petition."

Factual Matrix:-

4. Facts in brief giving rise to the
present writ petition are that in the year
1969, the Railway Service Commission,
Allahabad vide its Employment Notice
No.3/69-70
advertised
24
posts
of
Apprentice Assistant Telecommunication
Inspector. The petitioner applied for the
said post mentioning his caste as "Bhuiya"
which is recognised as Scheduled Caste in
the State of U.P. The petitioner along with
23 other candidates were selected for the
said post and in the final selection panel,
the petitioner found his place at S.No.23 in
the merit list. Thereupon, the petitioner
joined
as
Apprentice
Assistant
Telecommunication Inspector in NorthEast Railway, Gorakhpur on 31.07.1970.
After completion of 12 years of service in
Railway, an inquiry was initiated by the
General Manager (Personal), North-East
Railway, Gorakhpur, U.P. (Respondent
No.4) with regard to the validity of the
caste certificate submitted by the petitioner.
The
District
Magistrate,
Gorakhpur
submitted a report vide Letter No.354 /जाणत
प्रमाि पत्र/वाद णलणपक dated 09.02.1983, the
relevant part of the said report reads as
under:-

".... श्री चन्द्र प्रकाश पुत्र लालता
प्रसाद, िाम- गजपुर, तहसील- बॉसगाुंव जाणत
के भूज है, जो णपछडी जाणत के अन्तगटत आते है।
उनके द्वारा अनुसूणचत जाणत का प्रमाि पत्र यणद
कोई णदया गया है तो यह गलत है।"
640 INDIAN LAW REPORTS ALLAHABAD SERIES

5. On the basis of the said report of
the District Magistrate, Gorakhpur, a
criminal case was registered against the
petitioner, his real elder brother Om
Prakash Bhuiya and his parents wherein
charge-sheet was submitted against them.
The Criminal Case No.601 of 1984, u/S
409 and 420 IPC had been decided in
favour of the petitioner by the Additional
Chief Judicial Magistrate, Gorakhpur vide
order dated 14.05.1984. It was held that the
petitioner
and
his
family
members
belonged to the Scheduled Caste "Bhuiya"
and the privileges accorded to them as per
the said caste certificate were proper. The
operative part of the judgement and order
dated 14.05.1984 reads as under:-

"(7) उपरोक्त प्रेक्षिो के आिार पर
यह स्पि है णक अणभयुक्त ओम प्रकाश भुइया व
उसके माता श्रीमती रामयारी देवी भुइया व
उसके णपता लालता प्रसाद व उसके दोनो भाई
चन्द्र प्रकाश व कृष्ण कुमार, भुइया जाणत के ही
है जो णक अनुसूणचत जाणत के अन्तगटत आता है
और सक्षम णजलाणिकारी द्वारा प्रमाि पत्र प्राप्
करने के बाद अनुसूणचत जाणत को णमलने वाली
छात्रवृत्ती व अन्य सुणविाए प्राप् णकया है, जो णक
सवटथा उणचत है।"

6. It is submitted that thereafter the
petitioner and his family members had
moved
application
in
the
Court
of
Additional
Chief
Judicial
Magistrate,
Gorakhpur for issuing the caste certificates
in their favour in order to avoid further
illegal harassment. The learned Additional
Chief Judicial Magistrate, Gorakhpur after
inviting
objections
from
the
District
Magistrate,
Gorakhpur
issued
caste
certificates in favour of the petitioner and
his family members on 12.06.1984. The
State of U.P. being aggrieved by the
aforesaid judgement and order dated
14.05.1984 filed a revision being Original
Revision No.158 of 1984 in the Court of
District and Sessions Judge, Gorakhpur
which was dismissed vide order dated
11.12.1984 affirming the findings reformed
in
the
judgement
and
order
dated
14.05.1984. The said order has not been
challenged in any judicial proceedings and
as such has attained finality. Meanwhile in
the year 1983, a disciplinary enquiry under
Rule 9 of Railway Servants (Discipline and
Appeal) Rules, 1968 was initiated against
the petitioner and a charge-sheet vide
Memorandum dated 26.03.1984 had been
served. The disciplinary Authority framed
charge against him, which read as under:-

"Where as Sri Chandra Prakash
TCI/MW/GKP has committed misconduct
in as much as that he got his appointment
in Railway Service in an irregular manner
by misdeclaring his caste as BHUIYA,
which is recognised as Scheduled Caste,
although he belongs to BHARBHUJ Caste,
which comes under category of backward
class. On the basis of this misdeclaration of
caste, he has also taken the irregular
benefit in promotion grade of Rs.550-750.

The above act of Sri Chandra
Prakash shows lack of absolute integrity,
failure to maintain devotion to duty and an
act unbecoming of a Railway Servant,
which tentamounts to misconduct and
thereby he has contravened Rules 3(I)(I),
(II) and (III) of Railway Services Conduct
Rule, 1966."

7. A Special Leave Petition (Civil)
No.14633 of 1986 was filed by the
petitioner before the Supreme Court
challenging the decision of the Disciplinary
authority to initiate enquiry, wherein the
petitioner was directed to cooperate in the
enquiry. The following order was passed on
29.04.1987:-
3 All. Chandra Prakash Vs. U.O.I. & Ors.
641

"After hearing counsel on both
sides we do not consider that it is a fit for
the grant of special leave petition, however
we consider that in the interest of justice a
direction should be issued from this Court
to
the
respondent
to
complete
the
Disciplinary Proceedings initiated against
the petitioner and pass final orders within
three months from today. The petitioner
will fully cooperate in the enquiry for the
time
scheduled.
With
the
above
observations and directions, the Special
Leave Petition will stand dismissed."

8. It is argued on behalf of the
petitioner that pursuant to the order of the
Supreme Court, the Enquiry Officer had
concluded the enquiry and submitted its
report on 24.07.1987 to Disciplinary
Authority holding the charges levelled
against the petitioner to be false and
baseless. The findings of the Enquiry
Officer are as under:-

"I. Shri Chandra Prakash can
not be classed as a member of a
Scheduled
Caste
Community
i.e.
''Bhuiya' in absence of any valid
certificate
issued
by
any
of
the
authorities competent to grant such
certificate. I feel that if the various
certificates including the certified photostat copies of the judgements are
accepted in Shri Chandra Prakash's
case, the generations of this family will
not need a caste certificate from the
competent authority.

II. The mis-declaration of the
caste with a malafide intention of getting
irregular appointment is not established
beyond doubts.

III.
The
aspect
of
getting
promotion is not proved."

9. It is further argued on behalf of the
petitioner that the Disciplinary Authority
on 11.08.1987 accepted the enquiry report
and dropped the charges levelled against
the petitioner by passing the following
order:-

"The consideration of the Enquiry
Report of E.O./HQ shows that the charges
levelled against you have not been proved
and therefore, the charges are dropped."

10. The Enquiry Report dated
24.07.1987
and
the
order
of
the
Disciplinary Authority dated 11.08.1987
had not been challenged in any Court and,
thus, the same had attained finality.

11. It is further contended that when
the petitioner was not provided the preselection coaching for ASTE Group-B
selection from 14.02.2000 to 11.03.2000
along with other SC/ST candidates and was
directed to appear as a General candidate,
he filed objections on 03.04.2000 and
18.08.2000 which were replied by the
General Manager (Personal), North-East
Railway, Gorakhpur, U.P. vide his letter
No. का/254/6-सणसदूई(1) dated 31.08.2000
and the same is reproduced hereunder:-

"आप के जाणत प्रमाि पत्र के सम्बुंि
मे णजलाणिकारी, गोरखपुर द्वारा सत्यापन कराया
गया है और यह पाया णक आप भडभूज/भूज
जाणत के है जो णक णपछडी जाणत के अन्तगटत
आते है। इससे स्पि है णक आप अनु० जा०/
अनु०ज०जाणत को णदये जाने वाले लाभ के णलए
पात्र नही हैं।"

12. It is contended by the petitioner
that the aforesaid report has also been
fetched behind his back and he had no
knowledge whatsoever of any enquiry
being
conducted
after
the
aforesaid
642 INDIAN LAW REPORTS ALLAHABAD SERIES
disciplinary and judicial enquiry having
attained finality.

13. The order dated 31.8.2000 passed
by the General Manager (Personnel), North
Eastern Railway, Gorakhpur U.P. was
challenged in the Original application
no.1140 of 2001 before the Central
Administrative Tribunal, Allahabad.

14. The argument of the petitioner
that the full fledged inquiry had been
conducted on the basis of report of the
District Magistrate, Gorakhpur and since
the applicant had been exonerated in the
said departmental proceeding, no fresh
inquiry regarding the genuineness of the
caste certificate could be conducted, had
been rejected. However, on the question of
opportunity of hearing, it was noted that the
petitioner
had
not
been
given
any
opportunity to show that the certificate
filed by him was genuine before passing
the
impugned
order.
Taking
into
consideration of the decision of the Apex
Court in the State of Andhra Pradesh 7 ors
v.Nagam
Chandrasekhara
Lingam;
reported in AIR 1988 Supreme Court
1309, it was observed that the inquiry into
the validity of social status certificate
should be entrusted to Commissioner
Social Welfare.

With the above reasons, while
allowing the original application, quashing
the order dated 31.08.2000, following
directions had been issued in the judgment
and order dated 19.11.2001 by the tribunal:

"The respondent no.5 General
Manager (P), N.E. Railway, Gorakhpur and
District Magistrate Gorakhpur Respondent
no.7 are directed to place the matter before
the commissioner, social welfare of the State
Government of Uttar Pradesh to hold an
enquiry regarding the validity of the caste
certificate issued in favour of the applicant.
The applicant shall be allowed participation
in such an inquiry and opportunity to file
evidence in support of his claim. The District
Magistrate shall also be entitled to place
evidence which was found by him against the
applicant. The enquiry shall be completed
within a period of four month from the date it
is entrusted to Commissioner Social Welfare
of the State. The status of the applicant in
service shall be determined in accordance
with the order passed by the Commissioner
Social Welfare. There will be no order as to
costs."

15.

The
aforesaid
order
dated
19.11.2001 of the Central Administrative
Tribunal was challenged by the petitioner in
Civil Misc. Writ Petition No.10784 of 2002
wherein interim order dated 13.03.2002 was
passed by this Court to the following effect:-

"Until further order operation of
the order dated 19.11.2001 as for as it directs
holding enquiry regarding validity of the
caste certificate issued in favour of the
petitioner shall remain stayed."

The said writ petition had been
dismissed on 07.04.2016 by this Court.

16. Ms. Subhash Rathi, learned
Amicus Curie appearing for the petitioner
has
stated
that
the
petitioner,
thus,
continued to be treated as ''Scheduled
Caste' candidate as he was on the date of
his initial appointment. The petitioner was
promoted to the higher post as "ASTE" on
12.05.2008 and worked on the said post till
his superannuation i.e. on 28.02.2010.

17. Prior to the date of superannuation
of the petitioner, a communication dated
22.2.2010 was sent from the office of the
3 All. Chandra Prakash Vs. U.O.I. & Ors.
643
General
Manager
(Personnel)
N.E.
Railways, Gorakhpur to the effect that the
retiral benefits and other dues of the
petitioner had been withheld in view of the
interim order dated 13.03.2002 passed by
this Court in Writ petition no.10784 of
2002 (Shri Chandra Prakash vs Union of
India) and the decision of the Railway
board communicated vide letter dated
28.06.1996.

18. This order was further challenged
before the Central Administrative Tribunal
in Original application no.1235 of 2011.
The tribunal had dismissed the Original
application vide judgment and order dated
01.03.2012 noticing that :

"11. In the background of the
fact and circumstance of the case it may
relevant to quote from the judgment of the
Apex Court in the case of G. Sundarsan v.
Union of India & another; (1995) 4
Supreme Court Cases 644, wherein it has
held that continuance of onus of, on the
person
appointed
in
the
quota
of
Scheduled Castes does not cease merely
because of continuing in service for a long
period on the basis of a caste certificate
granted
by
the
competent
authority
earlier, where it is subsequently, found on
evidence that the appointee did not belong
to a Scheduled Caste and that he had
procured appointment in reserved quota
by
submitting
a
false
certificate,
imposition of punishment of forfeiture of
his pension, is held to be proper. In
another case reported in (2001) 9
Supreme Court Cases 706 B.S. Gaur v.
Union of India & others the Apex court
held
that
after
revocation
of
SC
Certificate, employee's status as SC had
come under cloud. Merely because the
applicant has obtained stay order does not
conclude the dispute.

12. Having regard to the above
position, the ratio of law in regard to such
cases is clear. In case, Caste certificate of
an employee comes under cloud, the
Department is within its rights to withhold
the terminal benefits of the concerned
employee. The payment or forfeiture of
these benefits will necessarily be contingent
upon the final determination of the status of
the applicant regarding whether he belongs
to schedule caste or not. Since this issue is
pending consideration of the Hon'ble
Allahabad High Court, any further action
in this matter can be taken only after the
Hon'ble High Court decide the controversy.

19. At this stage, it may be necessary
to note that on 20.12.2021, when this writ
petition came up for consideration, the
Court had noted that even provisional
pension had not been paid to the petitioner.
Taking serious view of the matter,
explanation
was
called
from
the
respondents and the General Manager
(Personnel),
North
Eastern
Railways,
Gorakhpur was directed to remain present
on 22.12.2021. The affidavit of compliance
dated 22.12.2021 has been filed on behalf
of the respondent wherein it is stated that
the pensionary benefits could not be
released in favour of the petitioner for two
reasons; firstly for the fact that the
petitioner had challenged the order dated
01.03.2012 passed by the Tribunal in the
present petition wherein the order dated
26.04.2017 has been passed noticing that
the special leave petition has been filed
challenging the order dated 07.04.2016
dismissing Writ A no.10784 of 2002 and
simultaneously review application has also
been filed by the petitioner in the said writ
petition. The Court, therefore, observed
that the present petition be heard after
disposal of the review application and the
special leave petition filed by the petitioner
644 INDIAN LAW REPORTS ALLAHABAD SERIES
against the order dated 07.04.2016 as final
outcome of those matters would be relevant
for deciding the present petition.

20. The contention is that the Special
Leave Petition no.3516 of 2019 challenging
the order dated 07.04.2016 has been
dismissed vide order dated 15.11.2021 and
the review application is still pending
consideration.

21. The second contention is that the
release of pensionary benefits and retiral
dues to the petitioner is dependent upon the
inquiry conducted by the Director Social
Welfare as directed by the Tribunal and the
High Court. The retiral benefits of the
petitioner has not been released by the
department due to pendency of the present
petition and the order dated 26.04.2017
passed in this writ petition as also due to
pendency of the inquiry.

22. It is submitted by the learned
Amicus appearing for the petitioner that as
on date neither any departmental inquiry
nor any judicial proceeding is pending
against the petitioner. No such inquiry has
been initiated by the department after
retirement of the petitioner.

23. In the said scenario, pensionary
benefits cannot be withheld as against the
Rule 9 of the Railway Services (Pension)
Rules, 1993.

24. Per contra, Sri Praveen Kumar
Srivastava learned counsel appearing for
the respondents vehemently argued that the
initial appointment of the petitioner in the
railway taking benefit of the Scheduled
Caste category is under cloud. Initially in
the year, 1999, the inquiry was conducted
by
the
District
Magistrate
into
the
genuineness of the caste certificate and the
report was submitted that the petitioner
actually belong to the caste BHARBHUJ
which is backward class category and nor
BHUIYA (scheduled caste) as indicated in
the caste certificate. At every stage, when
the challenge has been raised by the
petitioner regarding competence of the
authority to initiate inquiry into the validity
of the caste certificate, he was turned down
by the Court and was directed to participate
in the inquiry. The petitioner instead of
participating in inquiry in compliance of
the order passed by the Tribunal on
19.11.2001 had initiated fresh litigation and
got an interim order from this Court. The
inquiry into the correctness of the caste of
the petitioner could not be initiated on
account of the interim order granted by this
Court. After dismissal of the writ petition
on 07.04.2016, on vacation of the interim
order by this Court, Special Leave Petition
was filed which has been decided vide
order dated 15.11.2021. As the petitioner
did not cooperate in the inquiry, the
department cannot be held responsible for
non release of the pensionary benefits. The
order
of
withholding
the
pensionary
benefits is strictly in accordance with the
Railway Services (Pension) Rules, 1993.
The respondents had no option but to wait
the final outcome of the writ petition filed
by the petitioner including the present
petition.

25.

Having
considered
the
submissions of the learned counsel for the
parties and perused the record, before
entering into the factual inquiry, it would
be appropriate to take note of the relevant
rule which confers power on the competent
authority to withhold pension of the
superannuated railway employee. Relevant
Rule 9 of the Railway Services (Pension)
Rules 1993 framed by the President of
India in exercise of power conferred by the
3 All. Chandra Prakash Vs. U.O.I. & Ors.
645
proviso to Article 309 of the Constitution is
to be quoted:

"9. Right of the President to
withhold or withdraw pension.

The President reserves to himself
the right of with holding or withdrawing a
pension or gratuity, or both, either in full or
in part, whether permanently or for a
specified period, and of ordering recovery
from a pension or gratuity of the whole or
part of any pecuniary loss caused to the
Railway, if, in any departmental or judicial
proceedings, the pensioner is found guilty of
grave misconduct or negligence during the
period of his service, including service
rendered
upon
re-employment
after
retirement;

Provided that the Union Public
Service Commission shall be consulted
before any final orders are passed.

Provided further that where a part
of pension is withheld or withdrawn, the
amount of such pension shall not be reduced
below the amount of rupees three hundred
seventy five per mensem.

2. The departmental proceedings
referred to in sub-rule (1)

a. if instituted while the railway
servant was in service whether before his
retirement or during his re-employment, shall
after the final retirement of the railway
servant, be deemed to be proceeding under
this rule and shall be continued and
concluded by the authority by which they
were commenced in the same manner as if
the railway servant had continued in service.

Provided
that
where
the
departmental proceedings are instituted by
an authority subordinate to the President,
that authority shall submit a report
recording its findings to the President;

b. if not instituted while the
railway servant was in service, whether
before his retirement or during his reemployment

i. shall not be instituted save with
the sanction of the President;

ii. shall not be in respect of any
event which took place more than four
years before such institution; and

iii. shall be conducted by such
authority and in such place as the
President may direct and in accordance
with
the
procedure
applicable
to
departmental proceedings in which an
order of dismissal from service could be
made in relation to the railway servant
during his service.

3. In the case of a railway servant
who has retired on attaining the age of
superannuation or otherwise and against
whom
any
departmental
or
judicial
proceedings
are
instituted
or
where
departmental proceedings are continued
under sub-rule (2), a provisional pension
as provided in Rule 10 Rule 96 shall be
sanctioned.

Amended vide Railway Board's
letter
No.
F(E)
III/99/PN
1/38
(Modification) dated 23.05.2000 (RBE
100/2000).

4. Where the President decides
not to withhold or withdraw pension but
orders recovery of pecuniary loss from
pension, the recovery shall not ordinarily
be made at a rate exceeding one third of
646 INDIAN LAW REPORTS ALLAHABAD SERIES
the pension admissible on the date of
retirement of a railway servant.

5. For the purpose of this rule

a. departmental proceedings shall
be deemed to be instituted on the date on
which the statement of charges is issued to
the railway servant or pensioner, or if the
railway servant has been placed under
suspension from an earlier date, on such
date; and

b. judicial proceedings shall be
deemed to be instituted

i. in the case of criminal
proceedings, on the date on which the
complaint or report of a Police Officer, of
which the Magistrate takes cognisance, is
made; and

ii.
in
the
case
of
civil
proceedings, on the date the plaint is
presented in the Court."

26. A perusal of the said rule indicates
that the pension or gratuity or both, either
in full or in part, whether permanently or
for a specific period, can be withheld or
withdrawn and also an order of recovery
from pension or gratuity of the whole or
part can be made, in case of any pecuniary
loss caused to the railway, in the event that
the pensioner is found guilty of grave
misconduct or negligence during the period
of his service, including service rendered
upon re-employment after retirement, in
any departmental or judicial proceedings.

27. The requirement of the Rule is
that a pensioner shall have to be found
guilty of grave misconduct or negligence in
a departmental or judicial proceedings, for
a decision to be taken for withholding or
withdrawal of pension or gratuity or both,
either in full or in part, permanently or for a
specified period.

28. Sub-rule 2(a) of the Rule further
provides that the departmental proceeding,
if instituted while the railway servant was
in service shall be continued after his
retirement and shall have to be concluded
by the competent authority in the same
manner as if the railway servant had
continued in service. The proviso further
states that the departmental authority has to
submit a report recording its findings to the
President.

29. Sub-Rule 2(b) of Rule 9 further
contemplates
a
situation
where
departmental proceeding has not been
instituted while the railway servant was in
service. It states that the departmental
inquiry, if not instituted while railway
servant was in service, shall not be
instituted without sanction of the President;
and shall not be in respect of any event
which took place more than four years
before such institution. Sub-rule (3) of Rule
9 further states that where railway servant
who has retired on attaining the age of
superannuation or otherwise and against
whom
any
departmental
or
judicial
proceedings
are
instituted
or
where
departmental proceedings are continued
under sub-rule (2), a provisional pension as
per Rule 10, Rule 96 shall be sanctioned.
Sub-rule (5) further contains a deeming
provision
to
interpret
the
terms
"departmental" and "judicial proceeding"
for the purpose of sub rule (1). It states:

(i). departmental proceeding shall
be deemed to be instituted on the date on
which the statement of charges is issued to
the railway servant or pensioner, or if the
railway servant has been placed under
3 All. Chandra Prakash Vs. U.O.I. & Ors.
647
suspension from an earlier date, on the date
of suspension.

(ii). With regard to judicial
proceedings, it is stated that judicial
proceeding of criminal nature shall be
deemed to be instituted on the date on
which the complaint or report of a police
officer, of which the Magistrate takes
cognizance, is made; in civil proceedings,
on the date of presentation of the plaint in
the Court.

30. Having carefully gone through the
Rule 9, 1993 Rules which empowers the
respondent to withhold or withdraw the
pensionary benefits of a pensioner/railway
servant, it is evident that the pensionary
benefits can be withheld only in two
conditions, which are:-

(i). a departmental or judicial
proceeding against such railway servant
was instituted prior to the date of retirement

(ii). the departmental proceeding
if not instituted prior to the retirement, has
been instituted with the sanction of the
President after his retirement. The relevant
date
for
institution
of
departmental
proceedings is the date of issuance of the
statement of charges by the disciplinary
authority/inquiry officer or the date of
suspension, whichever is earlier. There is
no other situation in which the pensionary
benefits of railway servant can be withheld
under the Rules.

31. In the instant case, admittedly, no
judicial proceeding had been instituted or
pending against the petitioner prior to his
superannuation or thereafter. As regards the
departmental proceeding, it is evident that
the petitioner has not been placed under
suspension prior to his superannuation. The
departmental inquiry initiated against him
had been concluded much earlier in his
favour. No fresh proceeding had been
instituted by the departmental authority. As
on the date of superannuation of the
petitioner, i.e. on 28.2.2010, apart from the
directions issued by the Tribunal vide order
dated 19.11.2001 to conduct an inquiry into
the correctness of the caste of the
petitioner, no other adverse order was
passed against the petitioner. The order
dated 31.08.2000 issued by the department
initiating inquiry against the petitioner had
already been quashed. Even in the order
dated
19.11.2001,
the
Tribunal
had
observed that the matter be placed before
the Commissioner, Social Welfare of the
State of U.P. to hold an inquiry regarding
the validity of the caste certificate issued in
favour of the petitioner and that the
petitioner was allowed participation in such
an inquiry and to be provided due
opportunity to file evidence in support of
his claim during the said inquiry. On the
basis of evidence of rival parties, the
inquiry report was directed to be submitted
by the Commissioner, Social Welfare of the
State within the period of four months from
the date of the said order. The status of the
petitioner in service was required to be
determined in accordance with the order
passed by the Commissioner, Social
Welfare.

32. We are conscious of the fact that
this inquiry could not commence on account
of the interim order dated 13.03.2002 passed
by this Court in Writ petition no.10784 of
2002, challenging the order dated 19.11.2001,
passed by the Tribunal directing the
Commissioner, Social Welfare of the State to
conduct an inquiry.

33. However, it is pertinent to note
that the said writ petition was dismissed on
648 INDIAN LAW REPORTS ALLAHABAD SERIES
07.04.2016 noticing that the judgment of
the
Tribunal
did
not
warrant
any
interference and any finding in the previous
inquiry or the caste certificate allegedly
issued by the Additional Chief Judicial
Magistrate, Gorakhpur has no relevance, in
as much as, no judicial officer has power to
issue such certificate. The position, thus,
remains that an inquiry was required to be
conducted by the Commissioner, Social
Welfare of the State in accordance with the
order dated 19.11.2001 passed by the
Tribunal after dismissal of the writ petition
on 07.04.2016. We may further note that
there was no challenge to the judgment and
order dated 07.04.2016 of dismissal of the
writ petition filed by the petitioner till the
year 2019 when Special Leave Petition (C)
no.3516 of 2019 (Chandra Prakash vs
Union of India) was filed before the Apex
Court. There is nothing on record which
would indicate that the respondents were
restrained from proceeding with the inquiry
regarding
correctness
of
the
caste
certificate through Commissioner, Social
Welfare by any order of a Court of law.

34. From 07.04.2016 till the date of
hearing of this writ petition, i.e 22.12.2021,
no such inquiry had been conducted which
is evident from the affidavit of the
respondents filed on 22.12.2021. The
explanation offered by the respondent in
the said affidavit is that the petitioner did
not comply with the order of the Tribunal
and did not participate for inquiry before
the Director, Social Welfare, U.P. Neither
any record of the said inquiry has been
placed before us nor it is averred that the
competent authority namely the Director
Social Welfare, U.P had issued any notice
to the petitioner to participate in the
inquiry. No such statement even has been
made in the latest affidavit of the officer
filed on behalf of the respondents on
22.12.2021 in compliance of the order of
this Court.

35. The plea that the inquiry into the
correctness of the caste certificate could not
be conducted on account of the order dated
26.4.2017 passed by this Court in the
present petition is of no benefit to the
respondents. The order dated 26.4.2017
was in no way a restraint on the
respondents or the Director Social Welfare
, U.P. to conduct the fact finding inquiry.

36. In any case, the inquiry
contemplated into the correctness of the
caste certificate of the petitioner was not
with regard to the genuineness of the caste
certificate rather it was with respect to the
caste to which actually the petitioner
belong. The cause of the said inquiry was
the report of the District Magistrate,
Gorakhpur wherein it was stated that the
petitioner belong to BHARBHUJ which is
a backward class. To ascertain this, a fact
finding
inquiry
was
required
to
be
conducted by the Commissioner, Social
Welfare Department. The said inquiry
required leading of evidence by both sides.

37. Nevertheless, the said inquiry
could only fall in the category of a factfinding or vigilance inquiry and the same
even if completed could not have been said
to be a 'departmental inquiry' within the
meaning of Rule 9 of the Railway Service
(Pension) Rules, 1993. Even on receipt of
the said inquiry report, a departmental
inquiry was required to be initiated by the
Railways after getting sanction from the
President in accordance with the Rule 9
(2)(b) of the Railway Service (Pension)
Rules 1993. The question of withholding
pensionary benefits could arise only after
initiation of the departmental inquiry within
the meaning of Rule 9(5) with the issuance
3 All. Chandra Prakash Vs. U.O.I. & Ors.
649
of the chargesheet by the disciplinary
authority.

38. In the instant case, since the
petitioner had already been retired on
28.02.2010,
only
option
before
the
respondents after 07.04.2016 was to conclude
the vigilance inquiry or fact finding inquiry
through the Commissioner, Social Welfare
and then approach the President to grant
sanction for initiation of the departmental
proceeding, i.e to serve chargesheet on the
petitioner as to why his initial appointment be
not cancelled on account of the submission of
incorrect or wrong caste certificate.

39. The decision to withhold pension of
the petitioner had been taken in the year 2010
on account of pendency of the writ petition
no.10784 of 2002 and the interim order
passed therein which was vacated on
07.04.2016. It is evident from the record that
there was no restraint order after 07.04.2016
against the respondent stopping them from
concluding the inquiry pursuant to the order
of the tribunal, which itself was a fact finding
inquiry.

40. It may further be noted that the
pendency of the review application of the
petitioner cannot be a ground to say that the
respondents could not proceed with the
inquiry.

41.