# Dinesh Narayan Mishra v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 776
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-15
- **Case number:** Service Single No. 145 of 2006
- **Bench:** Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-narayan-mishra-v-state-of-u-p-ors-43181
- **Pages:** 6

## Headnote

C.S.C.
U.P. Civil Services Regulations-Regulation
351-A-Recovery from gratuity-based upon
show cause notice-neither charge sheetednor disciplinary action initiated-whether
such recovery can be justified? held-'No'-as
per
regulation
351-A-after
retirement
without permission of Governor-no such
order could be passed-even without charge
sheet-order quashed.
Held: Para-14
Once it is concluded that no disciplinary
proceedings were pending against the
petitioner and the same are incapable of
being
initiated
against
him
after
retirement, passing of the impugned
order merely on the strength of show
cause notice which stood abated is voidabnitio and the impugned order of
recovery cannot be enforced against the
petitioner.

## Text

776
 INDIAN LAW REPORTS ALLAHABAD SERIES
annulled with the order of the learned Single
Judge dated 08.01.2010 in Writ Petition No.
1127 (SS) of 2007. There are allegations of
misfeasance against the appellant; and the
respondents assert that by his acts and
omissions, the appellant caused loss to the
Government that was required to be
recovered. Though, in these proceedings, no
comments are being made finally on the
merits of the claim of the respondents, but in
the totality of circumstances, we are clearly
of the view that an action in the writ
jurisdiction, so as to even prevent filing of a
Civil Suit, was not to be entertained; and the
learned Single Judge cannot be faulted in
finding the writ petition to be entirely
misconceived.
18.
Accordingly and in view of the
above, this Appeal fails and is, therefore,
dismissed. However, in the interest of justice,
we again make it clear that none of the
observations herein would be construed as
final opinion on the merits of the
issues/questions that may be raised in an
action before the Civil Court and such
issues/questions shall be determined by the
Civil Court strictly in accordance with law.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.07.2015
BEFORE
THE HON'BLE ATTAU RAHMAN MASOODI, J.
Service Single No. 145 of 2006
Dinesh Narayan Mishra
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Rakesh Kumar Singh
Counsel for the Respondents:
C.S.C.
U.P. Civil Services Regulations-Regulation
351-A-Recovery from gratuity-based upon
show cause notice-neither charge sheetednor disciplinary action initiated-whether
such recovery can be justified? held-'No'-as
per
regulation
351-A-after
retirement
without permission of Governor-no such
order could be passed-even without charge
sheet-order quashed.
Held: Para-14
Once it is concluded that no disciplinary
proceedings were pending against the
petitioner and the same are incapable of
being
initiated
against
him
after
retirement, passing of the impugned
order merely on the strength of show
cause notice which stood abated is voidabnitio and the impugned order of
recovery cannot be enforced against the
petitioner.
(Delivered by Hon'ble Attau Rahman
Masoodi, J.)
1. Heard learned Counsel for the
petitioner and learned Standing Counsel
for respondents.
2. By means of this writ petition, the
petitioner has assailed the order dated
12.12.2005 whereby a recovery of Rs.
89728.02 has been imposed on him and
proportionate amount of gratuity stands
withheld
from
the
post-retiral
dues
admissible to the petitioner. There is a prayer
for release of the amount coupled with the
prayer for setting aside the impugned order.
3. The impugned order has come to
be passed on the basis of show cause
notice issued to the petitioner on
08.07.2005 in respect of allegations which
relate
from
1993-94
to
1996-97.
Concededly the allegations are stale and
relate to period of time beyond four years
from the date of petitioner's attaining the
age of superannuation on 30.11.2005.
2 All] Dinesh Narayan Mishra Vs. State of U.P. & Ors.
777
4. Learned Counsel for the petitioner
while assailing the impugned order has
made submissions which are two fold,
firstly, that the reply submitted against the
show cause notice on 09.10.2005 has not
been adverted to at all by the punishing
authority and secondly, the impugned
order could not have been passed by the
departmental authority after the date when
the petitioner had already attained the age
of superannuation and that too without
initiation
of
regular
disciplinary
proceeding.
5. On the contrary learned Standing
Counsel has submitted that show cause
notice was issued to the petitioner prior to
his retirement on 08.07.2005 for the
alleged loss, therefore, the punishing
authority was well within his jurisdiction
to pass the impugned order, as such, the
impugned order does not suffer from any
jurisdictional error. On the aspect of the
matter as to why reply submitted by the
petitioner was not considered, learned
Standing Counsel has pointed out that no
such reply was filed by the petitioner,
therefore, the question of consideration of
such a reply did not arise at the time of
passing of the impugned order.
6. In the context of rival submissions
advanced, the question that crops up for
consideration is as to whether the
disciplinary proceedings on the strength
of show cause notice dated 08.07.2005
could at all be treated to be pending on
attaining the age of superannuation
against the petitioner who retired on
30.11.2005 or the show cause notice dated
08.07.2015 which was intended to impose
minor
penalty
after the
petitioner's
retirement
stood
abated
and
fresh
proceedings ought to have been initiated
in accordance with Regulation 351-A of
the Civil Service Regulations applicable
to the petitioner being a pensioner before
imposing the penalty of recovery. For
better appreciation of the issue involved
in the writ petition, it is necessary to
reproduce Rule-3 and Rule-10 of The
Uttar
Pradesh
Government
Servant
(Discipline and Appeal) Rules, 1999,
which envisage the penalties minor and
major :-
"Rule 3. Penalties.-The following
penalties may, for good and sufficient
reasons and as hereinafter provided, be
imposed upon the Government servants:
Minor Penalties:
(i) Censure;
(ii) Withholding of increments for a
specified period;
(iii) Stoppage at an efficiency bar;
(iv) Recovery from pay of the whole
or part of any pecuniary loss caused to
Government by negligence or breach of
orders:
(v) Fine in case of persons holding
Group 'D' posts;
Provided that the amount of such fine
shall in no case exceed twenty-five
percent of the month's pay in which fine is
imposed.
Major Penalties:
(i) Withholding of increments with
cumulative effect;
(ii) Reduction to a lower post or
grade or time scale or to a lower stage in a
time scale;
(iii) Removal from the service which
does
not
disqualify
from
future
employment;
(iv) Dismissal from the service
which
disqualified
from
future
employment;
778
 INDIAN LAW REPORTS ALLAHABAD SERIES
Explanation.-The following shall not
amount to penalty within the meaning of
this rule, namely:
(i) Withholding of increment of a
Government servant for failure to pass a
departmental examination or for failure to
fulfil any other condition in accordance
with the rules or orders governing the
service;
(ii) Stoppage at the efficiency bar in
the time scale of pay on account of ones
not being found fit to cross the efficiency
bar;
(iii) Reversion of a person appointed
on probation to the service during or at
the end of the period of probation in
accordance with the terms of appointment
or the rules and orders governing such
probation;
(iv) Termination of the service of a
person appointed on probation during or at
the end of the period of probation in
accordance with the terms of the service or
the rules and orders governing such
probation.
Rule 10- Procedure for imposing
minor penalties-
(1) Where the Disciplinary Authority
is satisfied that good and sufficient
reasons exist for adopting such a course, it
may, subject to the provisions of sub-rule
(2) impose one or more of the minor
penalties mentioned in Rule 3.
(2) The Government Servant shall be
informed of the substance of the imputations
against him and called upon to submit his
explanation within a reasonable time. The
Disciplinary
Authority
shall,
after
considering the said explanation, if any, and
the relevant records, pass such orders as he
considers proper and where a penalty is
imposed, reason thereof shall be given.
(3) The order shall be communicated
to the concerned Government Servant."
7. It is undisputed that issuance of
notice dated 08.07.2005 in terms of Rule10 was with an intention of imposing
minor penalty, however, no penalty was
imposed till the petitioner attained the age
of superannuation and after his retirement,
the impugned punishment order of
recovery has been passed without holding
any fresh enqiry.
8. Once the punishment of recovery
is imposed by a departmental authority, it
is necessary to look into the scope of an
order of recovery in the context of minor
penalties envisaged under Clause IV of
Rule- 3 which is reproduced as under :-
"Minor Penalties:
(iv) Recovery from pay of the whole
or part of any pecuniary loss caused to
Government by negligence or breach of
orders;"
9. A plain reading of the relevant
rule extracted above makes it clear that a
recovery
order
passed
against
a
delinquent employee has necessarily to be
passed for recovery from pay. In the
instant case, although the order of
recovery has been passed but the said
order is incapable of being enforced
against the petitioner after his retirement
in as much as, the petitioner ceased to be
on the pay roll from the date of his
retirement and recovery from his pay
became impossible.
10. From a plain reading of the
entire set of Minor Penalties prescribed
under the rules, it can be reasonably
deduced that the proceedings in respect of
2 All] Dinesh Narayan Mishra Vs. State of U.P. & Ors.
779
minor penalties have to culminate into
final order before a government servant
attains the age of superannuation. Once
the scope of minor penalty is of a
description
like
this,
the
natural
conclusion
is
that
the
proceedings
initiated in respect of minor penalty
consequent upon the retirement of a
government servant stand abated.
11. Now coming to the question as
to whether the proceedings of recovery
can be initiated against the Government
servant after the date of retirement or not,
reference
to
Regulation
351-A
is
necessary and the same is extract below:-
Regulation 351-A : 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 or grave
mis-conduct, 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 reemployment-
(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 reemployment, shall have been instituted in
accordance with Sub-clause (ii)(a), and
(c) the Public Service Commission,
U.P., shall be consulted before final
orders are passed.
Provincial Government:
(ii) shall be instituted before the
officer's retirement from service or within
a year from the date on which he was last
on duty whichever is later;
(iii) shall be in respect of an event
which took place not more than one year
before the date on which the officer was
last on duty and;
(iv) shall be conducted by such
authority and in such places whether in
India or elsewhere, as the Provincial
Government may direct;
(2) all such departmental proceedings
shall
be
conducted,
if
the
officer
concerned so requests in accordance with
the procedure applicable to departmental
proceedings on which an order of
dismissal from service may be made; and
(3) such judicial proceedings, if not
instituted while the officer was on duty,
shall have been instituted in accordance
with Sub-clauses (ii) and (iii) of Clause
(1).
Note- As soon as proceedings of the
nature referred to in this article are
instituted the authority which institutes
780
 INDIAN LAW REPORTS ALLAHABAD SERIES
such proceedings shall without delay
intimate the fact to the Audit Officer
concerned.
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 a
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."
12. From a perusal of Regulation
351-A, it is seen that there are two
essential requirements as a condition
precedent for the initiation / continuation
of
disciplinary
proceedings
against
government servant after attaining the age
of superannuation; firstly, the disciplinary
proceedings for penalty other than minor
have
to
be
pending
against
the
Government servant on the date of
retirement or he has to be placed under
suspension as on the date of retirement.
The existence of any of the two
eventualities are sufficient for continuing
disciplinary
proceedings
against
the
Government servant after attaining the
age of superannuation. In the instant case,
the petitioner was merely issued a show
cause notice which stood abated as has
been observed herein above, therefore, in
absence of the petitioner being either
placed under suspension or regular charge
sheet issued against him, it can be safely
concluded
that
no
disciplinary
proceedings were pending against the
petitioner as on the date of his retirement.
13. Secondly, the disciplinary
proceedings are permissible to be drawn
against a pensioner with the sanction of
his excellency the Governor, provided the
allegation levelled against the pensioner
pertain to a period of time which does not
relate to a period beyond four years from
the date of his retirement. In the instant
case, neither there is any sanction of His
Excellency
the
Governor
nor
the
allegations in the show cause notice
pertain to a period of time which fall
within the scope of statutory rule being
beyond a period of four years from the
date of petitioner's retirement, therefore,
on this account also there is no scope for
subjecting
the
petitioner
to
the
disciplinary proceedings as is permissible
under Regulation 351-A.
14. Once it is concluded that no
disciplinary proceedings were pending
against the petitioner and the same are
incapable of being initiated against him
after retirement, passing of the impugned
order merely on the strength of show
cause notice which stood abated is voidabnitio and the impugned order of
recovery cannot be enforced against the
petitioner.
15. The submission of learned
Counsel for the petitioner regarding non
consideration of his reply to the show
cause notice as pleaded by him does not
merit consideration once this Court is of
the opinion that the impugned order
passed against the petitioner is wholly
without jurisdiction.
.
2 All] Santosh Kumar Singh Vs. State of U.P. & Ors.
781
16. In the result writ petition
succeed and the impugned order of
recovery is hereby set aside.
17.
Accordingly, the writ petition is
allowed and respondents are directed to
release the balance amount of gratuity of Rs.
89728.02 in favour of the petitioner along
with interest as admissible according to the
Government Orders applicable in this behalf.
Necessary compliance of this order passed
by this Court be made within a period of
three months from the date a certified copy
of this order is filed before the competent
authority.
18. No order as to cost.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Special Appeal Defective No. 215 of 2015
Santosh Kumar Singh
...Appellant
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Appellant:
Sri R.C. Dwivedi
Counsel for the Respondents:
C.S.C.
U.P. Intermediate Education Act 1921Section 16-E-(II)-Rescission of removal of
difficulties order w.e.f. 25.01.99-power of
management-appointment on short term
vacancy-caused to death or leave of
incumbent-held-process
of
selection
initiated
prior
or
on
the
date
of
enforcement-shall
continue-management
can appoint against sort term vacancy for
limited period six month or till end of
academic session-law laid down by in
Subhash Chandra Tripathi-affirmed.
Held: Para-20 (a)(b)(c)(d)
20. We consequently answer the reference
in the following terms:
(a) Despite the rescission of the Removal of
Difficulties Orders by Section 33-E of U P
Act No 13 of 1999 with effect from 25
January 1999, the power of the Committee
of Management to make appointments
against short term vacancies, where the
process of appointment had been initiated
prior to 25 January 1999 by the publication
of an advertisement, would continue to be
preserved;
(b) On the enforcement of the provisions
of
Section
33-E,
the
power
of
a
Committee of Management to make ad
hoc appointments against short term
vacancies would not stand abrogated in
a case where the process of selection
had been initiated prior to 25 January
1999;
(c)
Under
Section
16-E
of
the
Intermediate Education Act, 1921, the
Committee
of
Management
is
empowered to make an appointment
against a temporary vacancy caused by
the grant of leave to an incumbent for a
period not exceeding six months or in
the
case
of
death,
termination
or
otherwise, of an incumbent occurring
during
an
educational
session.
An
appointment made under sub-section
(11) of Section 16-E as provided in the
proviso thereto shall, in any case, not
continue beyond the end of educational
session during which the appointment
was made; and
(d) The judgment of the Division Bench
in Subhash Chandra Tripathi (supra) is
affirmed
as
laying
down
a correct
interpretation of the judgment in A A
Calton (supra).