# Eklavya Kumar v. State of U.P. & Anr

- **Citation:** (2022) 8 ILRA 1058
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-18
- **Case number:** Writ A No. 17257 of 2020
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/eklavya-kumar-v-state-of-u-p-anr-48709
- **Pages:** 5

## Headnote

C.S.C.

Civil
Service
Regulations,
1956
-
Section 351- A - U.P. Government
Servant (Discipline and Appeal) Rules,
1999 - Regulation 351- A empowers
 the State to recover from the pension,
but, it has to be categorically recorded
/ established that the act of the
delinquent
employee
has
caused
pecuniary loss to the State (Para 11)

Petitioner was awarded punishment of
deduction of 5% from his pension for period
of three years - impugned order assailed
on the ground that such punishment does
not find mention in the U.P. Government
Servant (Discipline and Appeal) Rules, 1999
or under Section 351- A of the Civil Service
Regulations - Held - In the present case,
there was no charge against the petitioner
to have caused pecuniary loss to the State -
It was also noticed that no date, time and
place was fixed by the inquiry officer -
deduction made from the pension of the
petitioner
is
liable
to
be
refunded,
alongwith interest at the rate of 6% from
the date of deduction till the amount is
refunded to the petitioner.(Para 12, 16)

Allowed. (E-5)

List of Cases cited:

## Text

1058 INDIAN LAW REPORTS ALLAHABAD SERIES
selection procedure as a ''sister' could
influence.

9. Even otherwise, the recruitment in
question was started in the year 2008 and this
writ petition was filed in the year 2009,
which is pending for a long time and
meanwhile much water has flown, therefore,
now at this stage, no relief, as prayed by
petitioner, could be granted.

10. In view of above discussion, I do
not find any merit in the argument of learned
counsel for petitioner. Therefore, the prayers
of the writ petition are rejected.

11.

However,
considering
the
submission of petitioner that presently the
post of Gram Rojgar Sewak in concerned
Gram Panchayat is vacant, as the selected
candidate has joined some other service, in
such event the respondents are directed to
initiate fresh procedure for recruitment in
accordance with procedure prescribed and
petitioner is at liberty to participate and his
candidature shall also be considered on merit.

12. With the aforesaid observations, this
writ petition is finally disposed of.
----------
(2022) 8 ILRA 1058
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.08.2022

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ A No. 17257 of 2020

Eklavya Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Anwar Asfaq, Rina Pandey
Counsel for the Respondents:
C.S.C.

Civil
Service
Regulations,
1956
-
Section 351- A - U.P. Government
Servant (Discipline and Appeal) Rules,
1999 - Regulation 351- A empowers
 the State to recover from the pension,
but, it has to be categorically recorded
/ established that the act of the
delinquent
employee
has
caused
pecuniary loss to the State (Para 11)

Petitioner was awarded punishment of
deduction of 5% from his pension for period
of three years - impugned order assailed
on the ground that such punishment does
not find mention in the U.P. Government
Servant (Discipline and Appeal) Rules, 1999
or under Section 351- A of the Civil Service
Regulations - Held - In the present case,
there was no charge against the petitioner
to have caused pecuniary loss to the State -
It was also noticed that no date, time and
place was fixed by the inquiry officer -
deduction made from the pension of the
petitioner
is
liable
to
be
refunded,
alongwith interest at the rate of 6% from
the date of deduction till the amount is
refunded to the petitioner.(Para 12, 16)

Allowed. (E-5)

List of Cases cited:

1. Radhey Kant Khare Vs U.P. Co-operative
Sugar Mill, 2003 (1) AWC 704

2. Yog Narain Dubey Vs Managing Director &
ors.; Writ Petition No. 1756 (S/B) of 2006 dt
14.07.2011

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Anwar Ashfaq, learned
counsel for the petitioner as well as learned
Standing Counsel for the respondents.

2. By means of present writ petition
the petitioner has assailed the order of
8 All. Eklavya Kumar Vs. State of U.P. & Anr.
1059
punishment dated 05.06.2020, passed by
the Secretary (PWD), Government of U.P.,
Lucknow, holding the petitioner guilty and
awarded punishment of deduction of 5%
from petitioner's pension for period of three
years.

3. It has been submitted by learned
counsel for the petitioner that the petitioner
was appointed on the post of Assistant
Engineer in the year 1992 and was
promoted to the post of Executive Engineer
on 20.11.2005 and since then he worked on
the said post till his superannuation on
30.09.2018. It is submitted that disciplinary
proceedings were initiated against the
petitioner by means of office memorandum
dated 26.03.2018 and Chief Engineer,
PWD was appointed as inquiry officer. The
charge sheet was given to the petitioner on
26.05.2018, wherein the charge against the
petitioner was that when he was posed at
General Manager, U.P.R.N.N. he gave
charge of work agent to daily wager Sri
Ram Shanker as per requirement of the
work, on the recommendation of the
Assistant Engineer. The second charge was
with regard to appointment of Daily
Wagers Sri Rajesh Kumar and Brijesh Pal
Singh (Mate), who were also given charge
of work agent. According to charge sheet,
said promotions were illegal and de-hors
the rules, consequently the petitioner was
asked to submit response to the said
charges.

4. It is next submitted by learned
counsel for the petitioner prior to aforesaid
promotions, the petitioner had sought
certain documents from the respondents by
means of letter dated 05.05.2018. It is
submitted that none of the documents were
supplied to him and hence in absence of
aforesaid
material/documents,
the
petitioner submitted his reply to the charge
sheet on 17.10.2018. The petitioner in his
reply had denied all the charges and stated
that he had infact not promoted the daily
wagers to the post of work agent but only
said work of the post of "work agent" was
assigned to them. He further stated that
such an action was neither illegal nor
contrary to rules inasmuch as, no rules for
promotion
had
been
framed
and
consequently
orders
passed
by
the
petitioner did not amount to promotion
orders and had further stated that in any
view of the matter in case the orders passed
by the petitioner were illegal, they could
very well have been set aside by the higher
authorities.

5. It is further submitted that
subsequent to submission of reply by the
petitioner inquiry was concluded and report
was submitted to the disciplinary authority.
Show cause notice was given to the
petitioner on 12.07.2019, to submit his
reply to the inquiry report. The petitioner
submitted his reply on 13.08.2019, again
denying the charges. He replied that he had
not passed any order for promotion with
regard to said daily wagers. He had further
stated that said employees are Class IV
employees which is minimum requirement
for being eligible to hold post of work
agent.

6. Considering the response/reply
filed by the petitioner, the impugned order
of punishment has been passed, considering
the fact that the petitioner superannuated
from service on 30.09.2018, and the order
of punishment was passed after three years
of his superannuation.

7. Learned counsel for the petitioner
has assailed the impugned order on the
ground that punishment passed by the
respondents, could not have been passed as
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
the same does not even find mention in the
U.P. Government Servant (Discipline and
Appeal) Rules, 1999 or under Section 351-
A of the Civil Service Regulations, which
is applicable to the employees of the State
Government. He further submits that no
date, time and place was fixed for the said
inquiry which has disabled the petitioner
from defending himself and said inquiry
proceedings in absence of fixing any date,
time and place, the petitioner could not
submit any evidence and even the inquiry
proceedings would stand vitiated inasmuch
as evidence on the basis of which the
punishment has been awarded was not
submitted to the inquiry officer by any of
the presenting officer on behalf of the
department.

8. Learned Standing Counsel on the
other hand has opposed the writ petition.
He submits that inquiry proceedings were
proceeded in accordance with the rules and
the petitioner was afforded adequate
opportunity of hearing in the said inquiry
proceedings. He submits that charge sheet
was given to the petitioner to which he has
submitted
his
reply
and
even
after
conclusion of inquiry proceedings a show
cause notice was given and a copy of the
inquiry report was provided to him and
hence the impugned order has been passed.

9. Heard learned counsel for the
parties and perused the record.

10. It has been submitted by learned
counsel for the petitioner that punishment
under Rule 351- A which empowers the
respondents to pass order to recover from
the pension of the petitioner can be passed
only in cases where it is established that
some financial loss has been caused to the
State. Provision of Regulation 351 - A of
the Regulations is quoted herein below :

"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 of grave mis-conduct, or
to have caused pecuniary loss to the
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 reemployment, shall have been instituted in
accordance with sub-clause (ii) of clause
(a), and

(c)
the
Public
Service
Commission, U.P. shall be consulted before
final orders are passed.

Explanation - For the purposes of
this article -

(a)
departmental
proceedings
shall be deemed to have been instituted
8 All. Eklavya Kumar Vs. State of U.P. & Anr.
1061
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."

11. From bare perusal of Regulation
351-A, it is clear that though the State has
been empowered to recover from the
pension, but, it has to be categorically
recorded that the act of the delinquent
employee has caused pecuniary loss to the
State. It is mandatory that such finding is
recorded, pursuant to which the respondent
could have validly pass the order of
recovery from the pension of the petitioner.

12. In the present case, neither there is
any charge levelled against the petitioner to
have caused pecuniary loss to the State nor
there is any evidence on record of
promoting employees to the post of work
agent, hence order of recovery from the
pension of the petitioner, could not have
been passed.

13. In the light of above, this Court is
of view that punishment order is clearly
vitiated and impugned order is illegal and
arbitrary and the petitioner already stands
retired on 30.09.2018, which is clearly two
years prior to the passing of impugned
order. It is further noticed that no date, time
and place was fixed by the inquiry officer
which evident from the inquiry report. In
this regard Hon'ble Supreme Court in
catena of judgments has held that the
inquiry proceedings is not a casual exercise
but have to be conducted in accordance
with law and appropriate opportunity of
hearing has to be given to the delinquent
employee to place all the material in his
defence. Date, time and place is fixed for
affording opportunity to the delinquent
employee to place material in his defence
before the inquiry officer. By not fixing
date, time and place, the inquiry officer has
committing gross illegality which vitiates
the entire disciplinary proceedings.

14. This Court in the case of Radhey
Kant Khare Vs. U.P. Co-operative Sugar
Mill, 2003 (1) AWC 704, in para 7, has
observed as under :

"7. In a Division Bench of this
Court in Subhash Chandra Sharma V. U.P.
Co-operative Spinning Mills, 1999 (4)
AWC 3227, in which one of us (Hon'ble M.
Katju, J.) was a member, this law has been
laid down. The law is as follows :

"After a charge-sheet is given to
the employee, an oral enquiry is a must,
whether the employee requests for it or not.
Hence, a notice should be issued to him
indicating him the date, time and place of
the enqiury. On that date the oral and
documentary
evidence
against
the
employee should first be led in his
presence. ......"

15. Division Bench of this Court in
Writ Petition No. 1756 (S/B) of 2006 -
Yog
Narain
Dubey
Vs.
Managing
Director
and
Others
(decided
on
14.07.2011), has held as under :-

"Statutory
procedure
is
prescribed for holding the enquiry in
departmental matters. Principle of natural
justice have to be followed even if there are
1062 INDIAN LAW REPORTS ALLAHABAD SERIES
no rules prescribing any such procedure.
The enquiry starts after issuance of charge
sheet in which charges are mentioned
which should be clear and unambiguous. If
the petitioner requires the copies of any
document and makes an application in that
behalf, the Enquiry Officer shall consider
the application of the petitioner for supply
of documents and after being satisfied
about the relevancy of such documents, he
shall supply the copies of such documents
to the petitioner and in case it is not
practically possible for any valid reason to
supply the copy of any such document, he
may allow inspection of such document to
the petitioner by fixing date, time and place
for such inspection. The enquiry officer
shall ensure free access to the petitioner to
such documents which are to be inspected
by the petitioner. After gathering such
information, reply is submitted to the
charge sheet . On receipt of reply of the
charge sheet the Enquiry Officer has to fix
date, time and place for holding enquiry,
for which formally the Department is to
give one opportunity first, to lead evidence
wherein the delinquent is also permitted to
remain present, who is given opportunity to
cross-examine
the
witnesses,
if
any
examined
and
also
to
rebut
the
documentary evidence. Thereafter a date is
to be fixed by the Enquiry Officer to allow
adducing of evidence by the delinquent, if
he so desires, which may be oral as well as
documentary. It is thereafter that the
Enquiry Officer after hearing the parties
records his finding on the basis of the
evidence which is collected during the
enquiry and enquiry report is submitted by
the Enquiry Officer to the Disciplinary
Authority. Disciplinary Authority has to see
whether procedure in holding enquiry has
been followed or not and if not then the
matter need be remitted to the Enquiry
Officer to rectify the mistake but during the
enquiry if he finds that all required
procedure has been followed and enquiry
has been held following the principles of
natural justice, then he would see whether
charge stands proved on the basis of
material collected or brought before the
enquiry officer . If the disciplinary
authority is satisfied with the report of the
enquiry officer, he will pass final orders
after
affording
opportunity
to
the
delinquent."

16. In the light of above, this Court is
of the opinion that impugned order dated
26.05.2018, is illegal and arbitrary and is
accordingly quashed. The amount of
deduction made from the pension of the
petitioner is liable to be refunded within
six weeks from the date of production of
certified copy of this order before the
competent authority, alongwith interest at
the rate of 6% from the date of deduction
till the amount is refunded to the
petitioner.

17. The writ petition is allowed.
----------
(2022) 8 ILRA 1062
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.07.2022

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ A No. 29828 of 2021

Shri Prakash Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Amrendra Nath Tripathi, Ashutosh Shahi

Counsel for the Respondents:
C.S.C., A.S.G., Alok Kumar Tripathi