# Gaya Prasad Yadav v. State of U.P. & Anr

- **Citation:** (2022) 9 ILRA 1370
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022
- **Case number:** Special Appeal No. 408 of 2021
- **Bench:** Devendra Kumar Upadhyaya, Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaya-prasad-yadav-v-state-of-u-p-anr-49001
- **Pages:** 10

## Headnote

A. Civil Law - Service Law - Disciplinary
Action Post Employee's Retirement - U.P.
Police Officers of Subordinate Ranks
(Punishment and Appeal) Rules, 1991 - R.
14 - Civil Service Regulations, Article 351A - if departmental proceedings are
instituted against the government servant
prior to the government servant attains
the age of superannuation and retires,
then in that eventuality the departmental
proceedings can continue & no sanction of
the Governor is required for continuance
of
the
departmental
proceedings
-
however, departmental enquiry initiated
against
the
employee,
before
his
retirement, could be continued only for a
limited purpose for determining whether
or not he is entitled for pensionary
benefits and gratuity - if the employee is
found to be guilty of grave misconduct or
is found to have caused pecuniary loss to
the Government, in such a situation, it is
only
the
Governor
(i.e.
the
State
Government in accordance with the Rules
of Business) who can take certain action
permissible under Article 351-A of the CSR
9 All. Gaya Prasad Yadav Vs. State of U.P. & Anr.
1371
- the only action permissible against a
retired government servant on conclusion
of

the
departmental
enquiry
is
withholding or withdrawing the pension
or any part of it for permanently or for a
specified period and ordering for recovery
from the pension of the whole or part of it
-
however
none
of
the
substantive
penalties, which include dismissal of
service, can be imposed on an employee
after his retirement unless there exists a
specific rule in that behalf - Neither in U.P.
Police Officers of Subordinate Ranks
(Punishment and Appeal) Rules, 1991 nor
in Civil Service Regulations contain any
rule or provision which permit passing of
order of dismissal or any other penalty in
case the employee has retired (Para 21,
27, 34, 35)

B. Civil Law - Service Law - Civil Service
Regulations, Article 351-A - Phrase - 'The
Governor reserves to himself the right' -
use of this phrase would mean that no one
else has a right including Disciplinary
Authority
or
Appointing
Authority
to
withdraw
or
withhold
pension
and
ordering recovery from pension in respect
of government servant who has retired on
attaining the age of superannuation (Para
21)

Proceedings were instituted prior to retirement
of the appellant-petitioner - prior to passing of
the dismissal order on 01.11.2018, he retired
on
31.05.2015
-
after
31.05.2015
the
employee-employer relationship got severed -
in terms of the provisions contained in Article
351-A of the Civil Service Regulations it is the
Governor who had the authority to take action
which could be confined only to curtailment or
withholding the pension or recovery therefrom
- appellant-petitioner could not have been
inflicted with the punishment of dismissal from
service with retrospective date - Dismissal
order set aside.

Allowed. (E-5)

List of Cases cited:

## Text

1370 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Testing the third argument as
raised in between the parties with regard to
the judgment of the Supreme Court, learned
counsel for the petitioner argues that, the
contract, even if for the sake of arguments
is considered to be correct, would stand
superseded by the subsequent judgment of
the Supreme Court whereas Shri Bhasin
argues that the contract would not get
affected by the said judgment inasmuch as
the directions contained were based upon
an affidavit filed by Directorate General of
Health Services (DGHS) for counseling for
50% All India Quota seats.

19. Be that as it may, once I have held
that even by virtue of Section 74 of the
Indian Contract Act, the respondents -
authorities are not entitled to impose a
penalty over and above what they can
establish as a loss caused to them, thus, the
said argument becomes redundant and
cannot be considered.

20. Thus, holding that the petitioner is
entitled in terms of the Government Order
dated 7.10.2021 for refund of the entire
security deposit and the respondents are not
entitled to resort to penal clause as
contained in the guidelines for recovering
damages over and above what they can
establish, the present petition deserves to
be allowed and is ordered accordingly.

21. Respondent No.2 i.e. Director
General (Medical Education & Training),
Chairman, Counseling Board, U.P. NEET
PG - 21, Lucknow, U.P. is directed to
refund
the
amount
of
Rs.2,00,000/-
deposited by the petitioner as security
deposit to her within a period of four weeks
from today. 22. In the event the amount is
not refunded within a period of four weeks
from today, the same shall carry interest at
the rate of 6% per annum from the date of
application
for
refund
till
payment
/realisation.
----------
(2022) 9 ILRA 1370
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.092022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SHREE PRAKASH SINGH, J.

Special Appeal No. 408 of 2021

Gaya Prasad Yadav ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Mohd. Shujauddin Waris

Counsel for the Respondent:
C.S.C.

A. Civil Law - Service Law - Disciplinary
Action Post Employee's Retirement - U.P.
Police Officers of Subordinate Ranks
(Punishment and Appeal) Rules, 1991 - R.
14 - Civil Service Regulations, Article 351A - if departmental proceedings are
instituted against the government servant
prior to the government servant attains
the age of superannuation and retires,
then in that eventuality the departmental
proceedings can continue & no sanction of
the Governor is required for continuance
of
the
departmental
proceedings
-
however, departmental enquiry initiated
against
the
employee,
before
his
retirement, could be continued only for a
limited purpose for determining whether
or not he is entitled for pensionary
benefits and gratuity - if the employee is
found to be guilty of grave misconduct or
is found to have caused pecuniary loss to
the Government, in such a situation, it is
only
the
Governor
(i.e.
the
State
Government in accordance with the Rules
of Business) who can take certain action
permissible under Article 351-A of the CSR
9 All. Gaya Prasad Yadav Vs. State of U.P. & Anr.
1371
- the only action permissible against a
retired government servant on conclusion
of

the
departmental
enquiry
is
withholding or withdrawing the pension
or any part of it for permanently or for a
specified period and ordering for recovery
from the pension of the whole or part of it
-
however
none
of
the
substantive
penalties, which include dismissal of
service, can be imposed on an employee
after his retirement unless there exists a
specific rule in that behalf - Neither in U.P.
Police Officers of Subordinate Ranks
(Punishment and Appeal) Rules, 1991 nor
in Civil Service Regulations contain any
rule or provision which permit passing of
order of dismissal or any other penalty in
case the employee has retired (Para 21,
27, 34, 35)

B. Civil Law - Service Law - Civil Service
Regulations, Article 351-A - Phrase - 'The
Governor reserves to himself the right' -
use of this phrase would mean that no one
else has a right including Disciplinary
Authority
or
Appointing
Authority
to
withdraw
or
withhold
pension
and
ordering recovery from pension in respect
of government servant who has retired on
attaining the age of superannuation (Para
21)

Proceedings were instituted prior to retirement
of the appellant-petitioner - prior to passing of
the dismissal order on 01.11.2018, he retired
on
31.05.2015
-
after
31.05.2015
the
employee-employer relationship got severed -
in terms of the provisions contained in Article
351-A of the Civil Service Regulations it is the
Governor who had the authority to take action
which could be confined only to curtailment or
withholding the pension or recovery therefrom
- appellant-petitioner could not have been
inflicted with the punishment of dismissal from
service with retrospective date - Dismissal
order set aside.

Allowed. (E-5)

List of Cases cited:

1. State of U.P. & ors. Vs Harihar Bholenath,
(2006) 13 Supreme Court Cases 460
2. Chairman-Cum-Managing Director, Mahanadi
Coalfields Ltd. Vs Rabindranath Choubey, AIR
2020 Supreme Court 2978

3. UCO Bank & ors. Vs Prabhakar Sadashiv
Karvade (2018) 14 Supreme Court Cases 98

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. Heard Sri Amit Bose, learned
Senior Advocate, assisted by Sri Mohd.
Shujauddin
Waris
for
the
appellantpetitioner and the learned State Counsel
representing the State-respondents.

2. We have also perused the record
available before us on this Special Appeal.

3. By means of this Special Appeal
instituted under Chapter VIII Rule 5 of the
Rules of the Court, challenge has been
made by the appellant-petitioner to a
judgment and order dated 11.08.2021,
passed by the learned Single Judge in Writ
Petition No.7483(SS) of 2019 whereby the
writ petition has been dismissed and the
order dated 01.11.2018 reiterating the order
of dismissal of the appellant-petitioner has
been affirmed.

4. The appellant-petitioner was
recruited as Constable of Armed Police in
the establishment of the Uttar Pradesh
Police. On certain charges relating to
obtaining employment on the basis of
certain
allegedly
forged
education
certificates, he was dismissed from service
by means of an order dated 20.06.2009,
passed by the Superintendent of Police,
Sultanpur. The said order of dismissal was
challenged by the appellant-petitioner by
filing Writ Petition No.5847(SS) of 2009,
which was allowed by this Court by means
of order dated 11.09.2013 whereby the
order
of
dismissal
passed
by
the
1372 INDIAN LAW REPORTS ALLAHABAD SERIES
Superintendent of Police, Sultanpur dated
20.06.2009 was set aside with the direction
that
the
appellant-petitioner
will
be
reinstated in service. While allowing the
Writ Petition No.5847(SS) of 2009, this
Court further observed that it will be open
to the Superintendent of Police, Ambedkar
Nagar to take action in accordance with
law.

5. In compliance of the aforesaid
order dated 11.09.2013, passed by this
Court,
the
appellant-petitioner
was
reinstated by means of order dated
31.01.2014, passed by the Superintendent
of Police, Ambedkar Nagar, however, the
departmental proceedings were further
carried against the appellant-petitioner and
he was again dismissed from service by
means of order dated 04.07.2014, passed by
the Superintendent of Police, Ambedkar
Nagar. By means of another order passed
on the same day i.e. 04.07.2014, the
representation of the appellant-petitioner
regarding payment of back wages was also
rejected.

6. Both the aforesaid two orders dated
04.07.2014 whereby the appellant-petitioner
was dismissed from service and his claim for
payment of back wages was rejected became
the subject matter of the Writ Petition
No.5703(SS) of 2014 which was decided by
the learned Single Judge of this Court by
means of an order dated 13.03.2018. By the
said order, the order of dismissal dated
04.07.2014 was set aside with the further
stipulation therein that the Superintendent of
Police, Ambedkar Nagar shall pass a fresh
order in accordance with law. The reason
indicated in the order dated 13.03.2018,
passed by this Court while quashing the order
of punishment of dismissal was that the order
of punishment of dismissal which was
challenged did not refer to the show cause
notice and the reply submitted by the
appellant-petitioner to the said show cause
notice and accordingly it was held that the
appellant-petitioner was denied opportunity
of hearing.

7. The appellant-petitioner, in the
meantime, attained the age of superannuation
on 31.05.2015. In compliance of the order
dated 13.03.2018, passed by this Court in
Writ Petition No. 5703(SS) of 2014, a show
cause notice was given to the appellantpetitioner on 22.05.2018 to which he
submitted his reply by means of his letter
dated 23.07.2018. The Superintendent of
Police, Ambedkar Nagar thereafter passed the
order dated 01.11.2018 who reiterated the
earlier order of dismissal and further stated
that it will not be lawful to reinstate the
appellant-petitioner in service. It is this order
dated 01.11.2018 which was challenged by
the appellant-petitioner by instituting the
proceedings of Writ Petition No.7483(SS) of
2019, which has been dismissed by means of
judgment and order dated 11.08.2021, which
is under challenge herein.

8. Learned Senior Advocate, Sri Bose
impeaching the judgment and order passed
by the learned Single Judge has vehemently
argued that since the appellant-petitioner had
attained the age of superannuation on
31.05.2015, as such in terms of the provisions
contained in Article 351-A of the Civil
Service Regulations (herein after referred to
as "CSR"), it is the Governor who had the
authority to take action which could be
confined only to the nature of action
permissible and given in the said provision,
that is to say, curtailment or withholding the
pension or recovery therefrom.

9. It has further been argued on behalf
of the appellant-petitioner that once the
appellant-petitioner attained the age of
9 All. Gaya Prasad Yadav Vs. State of U.P. & Anr.
1373
superannuation and retired on 31.05.2015,
for all purposes, relationship between the
appellant-petitioner
and
the
State
authorities so far as the employment is
concerned, got severed and hence, having
regard to the provision contained in Article
351-A of the CSR, the appellant-petitioner
could not have been inflicted with the
punishment of dismissal from service with
retrospective date.

10. Sri Bose, learned Senior Advocate
has, thus, argued that the issue raised in the
writ petition has not been addressed by the
learned Single Judge while passing the
judgment and order dated 11.08.2021,
inasmuch as that the learned Single Judge
went to examine the issue as to whether
after the appellant-petitioner attained the
age of superannuation, any sanction to
continue
with
the
departmental
proceedings, from the Governor as per the
requirement of Article 351-A of the CSR
was required or not. It has thus been argued
that this issue neither arose nor was argued
before
the
learned
Single
Judge.
Submission further is that, as a matter of
fact, in view of law laid down by Hon'ble
Supreme Court in the case of State of U.P.
and others Vs. Harihar Bholenath,
reported in (2006) 13 Supreme Court
Cases 460, the said issue is well settled
according
to
which
in
case
the
departmental proceedings are instituted
against the government servant prior to the
government servant attains the age of
superannuation and retires then in that
eventuality, no sanction of the Governor is
required
for
continuance
of
the
departmental proceedings in terms of
Article 351-A of the CSR.

11. Sri Bose has further argued that
the issue raised before the learned Single
Judge was that once the government
servant
retires
and
departmental
proceedings were already instituted against
him prior to his retirement, it is not that any
sanction for continuance of the disciplinary
proceedings is required; rather in such a
situation, it is only the Governor who can
take certain action permissible under
Article 351-A of the CSR. According to
him, the only action permissible against a
retired government servant on conclusion
of the departmental enquiry is withholding
or withdrawing the pension or any part of it
for permanently or for a specified period
and ordering for recovery from the pension
of the whole or part of it.

12. It has, thus, been argued on behalf
of the appellant-petitioner that in the instant
case, the punishment of order of dismissal
has been passed by the Superintendent of
Police and not by the Governor (i.e. the
State Government in accordance with the
Rules
of
Business),
that
too,
retrospectively, as such the order of
dismissal is not sustainable, however,
learned Single Judge has, thus, erred in law
in upholding the dismissal of the appellantpetitioner.

13. On the other hand, learned State
Counsel defending the judgment and order
under appeal passed by the learned Single
Judge, has submitted that in view of the law
laid down by the Hon'ble Supreme Court in
the case of Chairman-Cum-Managing
Director, Mahanadi Coalfields Limited
Vs. Rabindranath Choubey, reported in
AIR 2020 Supreme Court 2978, it is
permissible for the Disciplinary Authority
to impose punishment of dismissal after
conclusion of disciplinary proceedings, in a
situation
where
such
disciplinary
proceedings were initiated against the
employee concerned before he had attained
the age of superannuation and retired. In
1374 INDIAN LAW REPORTS ALLAHABAD SERIES
this view, submission of learned State
Counsel is that the judgment and order
under appeal herein passed by the learned
Single
Judge
does
not
require
any
interference in this Special Appeal, which
is liable to be dismissed.

14. We have taken into consideration
the rival submissions made by the learned
counsel representing the respective parties
and have also gone through the records
available before us.

15. The issue which emerges for our
consideration and reflection in this case is
as to whether in view of the provisions
contained in Article 351-A of the CSR, it
was open to the State-respondents to have
inflicted punishment of dismissal from
service upon the appellant-petitioner once
he had retired which is other than the action
permissible under Article 351-A of the
CSR. In other words, the issue is as to
whether the order of dismissal could have
been passed by the Superintendent of
Police,
Ambedkar
Nagar
after
the
appellant-petitioner had retired on attaining
the age of superannuation. The other issue
which needs our consideration is as to
whether the order of dismissal of appellantpetitioner could have been passed with
retrospective
date
considering
the
provisions of Article 351-A of the CSR and
the provisions contained in U.P. Police
Officers of Subordinate Ranks (Punishment
and Appeal) Rules, 1991.

16. Article 351-A of the CSR is
extracted herein under :

"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 misconduct, or
to
have
caused pecuniary
loss
to
Government
by
misconduct
or
Negligence, during his service, including
service rendered on re-employment after
retirement;

Provided that--

(a) such departmental proceedings,
if not instituted while the officer was on
duty either before retirement or during
re-employment--

(i) shall not be instituted save with
the sanction of the Governor,

(ii) shall be in respect of an event
which took place not more than four
years before the institution of such
proceeding, 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 when
the charges framed against the pensioner
are issued to him or, if the officer has
been placed under suspension from and
earlier date, on such date; and
9 All. Gaya Prasad Yadav Vs. State of U.P. & Anr.
1375

(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".

17. A bare perusal of the afore-quoted
provision of Article 351-A of the CSR
shows that once the government servant
retires, it is the Governor who has the right
of withholding or withdrawing the pension
or any part of it, permanently or for a
specified period. The Governor under the
said provision has also the right of recovery
from the pension of the whole or part of
any
pecuniary
loss
caused
to
the
Government, if the employee is found in
departmental or judicial proceedings to
have caused pecuniary loss to Government
by misconduct or negligence during his
service or he has been found guilty of gross
misconduct.

18. It is, thus, clear that after
retirement, withholding or withdrawing a
pension and ordering the recovery from
pension is permissible to be caused only by
the Governor i.e. the State Government in
terms of the Rules of Business, not only in
case such employee is found causing
pecuniary loss to the Government by his
misconduct or negligence but also in a
cases when the employee concerned is
found guilty of grave misconduct.

19. The provision of first proviso
appended to Article 351-A of the CSR
clearly prohibits institution of departmental
proceedings except with the sanction of
Governor if such proceedings were not
instituted while the employee was on duty
either before retirement or during reemployment. Thus, Article 351-A of CSR
puts
a
prohibition
of
initiating
the
departmental proceedings in a case of
retired government servant, however, such
proceedings are permissible to be instituted
with the sanction of Governor, that too, in
respect of an event which took place not
more than four years before institution of
such proceedings. The provision further
provides that departmental enquiry in such
an event shall be conducted by such
authority and at such place as the Governor
may direct and in accordance with the
procedure applicable.

20. Accordingly, we are of the considered
opinion that in the instant case, since the
departmental proceedings were already
instituted against the appellant-petitioner
prior to his retirement on attaining the age
of superannuation, no sanction under
Article 351-A of the CSR was required to
be taken from the Governor. This view is
fully supported by the judgment of Hon'ble
Supreme Court in the case of Harihar
Bholenath (supra). To this extent we do
not find any error in the judgment of
learned Single Judge which is under appeal
herein.

21. In terms of the provisions
contained in Article 351-A of the CSR, it is
the Governor who reserves to himself the
right of withholding or withdrawing a
pension or any part of it and right of
ordering the recovery from a pension.
Opening words of Article 351-A, namely,
''The Governor reserves to himself the
right' are very important to be noticed. The
use of this phrase would mean that no one
else has a right including Disciplinary
Authority or Appointing Authority to
withdraw or withhold pension and ordering
1376 INDIAN LAW REPORTS ALLAHABAD SERIES
recovery from pension in respect of
government servant who has retired on
attaining the age of superannuation. In this
view, the action, if any, against a
government servant, who has retired, is
permissible to be taken only by the
Governor and no one else.

22. Having observed as above, what
we further need to reflect upon is the issue
as to whether the order of punishment of
dismissal from service can be passed in
case of the appellant-petitioner who had
already retired much prior to the date on
which the order under challenge before the
learned Single Judge i.e. order dated
01.11.2018 was passed.

23. Learned State Counsel has laid
great emphasis on the law laid down by
Hon'ble Supreme Court in the case of
Rabindranath Choubey (supra). The
judgment in the case of Rabindranath
Choubey (supra) has been rendered by a
Bench of three Hon'ble Judges of Hon'ble
Supreme Court. The majority view in the
said judgment was expressed by Hon'ble
Mr. Justice M.R. Shah with Hon'ble Mr.
Justice Arun Mishra. The majority view
expressed in the said case based on
consideration
of
the
relevant
rules
applicable for conducting the disciplinary
proceedings
in
respect
of
employee
concerned. The employee in the said case
was employed with Mahanadi Coalfields
Limited which had framed Conduct,
Discipline and Appeal Rules,1978. Rule 27
of the said Rules mentions the authority
where employer has the power to impose
punishment
including
punishment
of
dismissal. Rule 34.2 of the said Rules
provides that disciplinary proceedings, if
instituted while the employee was in
service before his retirement, shall be
deemed to be proceeding even after the
final retirement of the employee and shall
be continued and concluded as if the
employee had continued in service.

24. Rule 34.2 of the Conduct,
Discipline and Appeal Rules in the case of
Rabindranath
Choubey
(supra)
as
extracted by the Hon'ble Supreme Court in
the said judgment, is as follows :

"34.2. Disciplinary proceeding, if
instituted while the employee was in
service whether before his retirement or
during his reemployment shall, after the
final retirement of the employee, be
deemed to be proceeding and shall be
continued
and
concluded
by
the
authority by which it was commenced in
the same manner as if the employee had
continued in service."

25. From a perusal of Rule 34.2 of
Conduct, Discipline and Appeal Rules as
discussed in the case of Rabindranath
Choubey (supra), it is clear that the said
rule creates a legal fiction to the effect that
if disciplinary proceedings are instituted
prior to retirement of the employee
concerned, such disciplinary proceedings
shall not only be deemed to be proceedings
even after retirement, but also that such
proceedings shall be continued in the same
manner, if the employee had continued in
service. Thus, considering the wording of
Rule 34.2 of Conduct, Discipline and
Appeal Rules in the case of Rabindranath
Choubey (supra) it is seen that in the
organization
concerned
where
the
employee
was
working,
even
after
retirement the employee is deemed to be in
continued in service even if he retires.

26. The majority view in the case of
Rabindranath Choubey (supra), thus,
having regard to the provision contained in
9 All. Gaya Prasad Yadav Vs. State of U.P. & Anr.
1377
Rule 34.2 of the Conduct, Discipline and
Appeal Rules applicable to the employee in
the said case, has given a finding that on
conclusion of such disciplinary proceedings
any of the penalties provided under the
Rule can be imposed by the authority
concerned including the order of dismissal.

27. Hon'ble Supreme Court in the case
of Rabindranath Choubey (supra) has
taken into consideration the law laid down by
the Division Bench of Hon'ble Supreme
Court in the case of UCO Bank and others,
Vs.
Prabhakar
Sadashiv
Karvade,
reported in (2018) 14 Supreme Court
Cases 98, wherein it has clearly been held
that even though a departmental enquiry
instituted against an officer/employee before
his retirement can continue even after his
retirement, none of the substantive penalties,
which include dismissal from service, can be
imposed on the officer/employee after his
retirement
on
attaining
the
age
of
superannuation. Hon'ble Supreme Court in
the said case has observed that master and
servant relationship between the employee
and the Bank comes to an end for all practical
purposes on the date the employee concerned
is
superannuated
and
further
that
departmental enquiry initiated against the
employee before his retirement could be
continued only for a limited purpose for
determining whether or not he is entitled for
pensionary benefits and gratuity. Hon'ble
Supreme Court in the said case has clearly
observed that an order of dismissal or
removal from service can be passed only
when an employee is in service and further
that if the person is not in employment, the
question of terminating his services ordinarily
would not arise unless there exists a specific
rule in that behalf.

28. However, so far as the case of
Rabindranath
Choubey
(supra)
is
concerned, it is relevant to note that the
Conduct, Discipline and Appeal Rules
applicable to the employee in the said case
created a legal fiction by specifically
providing that in case the departmental
proceedings
were
instituted
prior
to
retirement of an employee concerned, such
proceedings shall be deemed to be
continued and shall be concluded by the
authority by which such proceedings were
commenced in the same manner as if the
employee had continued in service.

29. While deducing the ratio in the
case of Rabindranath Choubey (supra),
we cannot loose sight of the provisions of
the Rules, specifically Rule 34.2 of the
Conduct, Discipline and Appeal Rules
applicable in the said case. Thus, if we read
the case of Rabindranath Choubey
(supra) and the case of Prabhakar
Sadashiv Karvade(supra) together, the
principle of law, in our considered opinion,
which emerges, is that once the employee
retires
on
attaining
the
age
of
superannuation, punishment of dismissal or
removal from service cannot be inflicted
for the reason that if the person is not in
employment, the question of terminating
his services would not arise, unless there
exists a specific rule in that behalf.

30. What we notice in the judgment in
the case of Rabindranath Choubey
(supra), which has heavily been relied
upon by the learned State Counsel,
opposing the instant special appeal, is that a
specific rule under the Conduct, Discipline
and Appeal Rules provided in the said case
that the employee will be deemed to
continue in service even after retirement. In
fact, the language of Rule 34.2 of the
Conduct, Discipline and Appeal Rules in
the case of Rabindranath Choubey
(supra) is very relevant to cull the ratio
1378 INDIAN LAW REPORTS ALLAHABAD SERIES
laid down therein. According to Rule 34.2
of the Conduct, Discipline and Appeal
Rules as discussed in the case of
Rabindranath Choubey (supra), in a
situation
where
the
disciplinary
proceedings were instituted while the
employee was in service, such disciplinary
proceedings shall be deemed to be
proceeding and shall be continued and
concluded by the authority which had
commenced such proceedings in the same
manner as if the employee had continued in
service. It is in the light of the said Rule
that Hon'ble Supreme Court in the case of
Rabindranth
Choubey
(subra)
has
observed that on conclusion of the
disciplinary proceedings, the penalty of
dismissal could be imposed under the
Conduct, Discipline and Appeal Rules
applicable to the said case.

31. The question, therefore, in this
case to be considered as to whether any
such rule, as discussed in the case of
Rabindranath Choubey(supra) by the
Hon'ble Supreme Court exists in the
Conduct, Discipline and Appeal Rules
governing the appellant-petitioner.

32. The State Government in exercise
of its powers vested in it under the Police
Act, 1861 has framed "The U.P. Police
Officers
of
the
Subordinate
Ranks(Punishment and Appeal) Rules,
1991". The Rules are statutory in nature.
Two types of punishment are provided in
Rule 4, according to which major penalties
include (i) dismissal from service, (ii)
removal from service and, (iii) reduction in
rank including reduction to a lower-scale or
to a lower stage in a time scale whereas
minor penalties include (i) withholding of
promotion, (ii) fine not exceeding one
month's pay, (iii) withholding of increment,
including stoppage at an efficiency bar and,
(iv) Censure. The procedure for award of
punishment is provided in Rule 14.

33. Rule 14(1) provides for the
procedure for major penalty, according to
which the proceedings are to be conducted
in accordance with the procedure laid down
in appendix-I appended to the Rules. Rule
14(2) states that minor penalty may be
imposed after informing the Police Officer
in writing of the action to be proposed to be
taken against him and what imputation of
the act or omission on which action is
proposed to be taken after giving him
reasonable
opportunity
of
making
representation.

34. In U.P. Police Officers of
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991 there is no provision
akin to the provision of 34.2 of the
Discipline and Appeal Rules, as discussed
in the case of Rabindranath Choubey
(supra).
Even
the
Civil
Service
Regulations does not contain any such rule
or provision which may permit passing of
order of dismissal or for that matter any
other penalty in case the employee has
retired. Learned State Counsel has also not
been able to place any such rule before us.

35. In absence of any rule, which
permits
imposition
of
punishment
of
dismissal after retirement or which deems the
employee-employer
relationship
to
be
continued even after retirement for the
purposes of disciplinary proceedings, in our
opinion, the judgment of Hon'ble Supreme
Court in the case of Rabindranath Choubey
(supra) does not have any application in this
case. Accordingly the reliance placed by the
learned State Counsel on the said judgment is
misplaced. As already observed above,
Hon'ble Supreme Court in the case of
Prabhakar Sadashiv Karvade (supra) has
9 All. Arsiya Bano Vs. State of U.P. & Ors.
1379
clearly held that penalty of dismissal cannot
be imposed on an officer/employee after his
retirement
after
attaining
the
age
of
superannuation unless there exists a specific
rule in that behalf. If the disciplinary enquiry
is instituted prior to retirement of the
employee concerned, the same will continue
by operation of Article 351A of Civil Service
Regulations as held by Hon'ble Supreme
Court in the case of Harihar Bholenath
(supra). However, in such a case if the
employee is found to be guilty of grave
misconduct of or is found to have caused
pecuniary loss to the Government, it is the
Governor who can take action as provided in
Article
351-A
of
the
Civil
Service
Regulations.

36. Admittedly, in the instant case the
proceedings
were
instituted
prior
to
retirement
of
the
appellant-petitioner,
however, prior to passing of the order dated
01.11.2018 reiterating the order of dismissal,
he had already retired on 31.05.2015 on his
attaining the age of superannuation and
accordingly after 31.05.2015 the employeeemployer relationship had already got
severed and thus only action permissible
against him is in terms of the provisions
contained in Article 351A of Civil Service
Regulations.

37. Learned Single Judge while passing
the judgment and order under appeal has not
addressed the aforesaid issues, though these
issues were contended not only in the writ
petition but even in the reply submitted by the
appellant-petitioner to the show cause notice
dated 22.05.2018. Learned Single Judge
while passing the judgment and order under
appeal appears to have lost sight of the
aforesaid
aspects
of
the
matter
and
accordingly, in our opinion, the judgment
rendered by the learned Single Judge is not
tenable.

38. Resultantly, the special appeal is
allowed. The judgment and order dated
11.08.2021 passed by the learned Single
Judge in Writ Petition No.7483 (S/S) of
2019 is hereby set aside. The order dated
01.11.2018 passed by the Superintendent of
Police, Ambedkar Nagar is also set aside.

39. However, it will be open to the
respondents to take action in terms of the
provisions contained in Article 351-A of
Civil Service Regulations and in case
decision to take such action is taken, the
process thereof shall be completed within
three months from today.
----------
(2022) 9 ILRA 1379
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ-A No. 481 of 2021
connected with
Writ-A Nos. 482 of 2021, 484 of 2021, 486 of
2021, 487 of 2021 and 491 of 2021

Arsiya Bano ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anand Prakash Pandey, Sri Prabhakar
Awasthi

Counsel for the Respondents:
C.S.C., Ms. Archana Singh

A. Civil Law - Constitution of India,1950 -
Art. 226 - Writ petition - maintainability -
re-evaluation of the answer-key - Judicial
Review of the expert opinion - Under
Article 226, High Court can judicially
review the expert opinion, given by the
persons specialized in the field, only if it is