# Hari Om Rastogi v. State of U.P. & Ors

- **Citation:** (2022) 7 ILRA 40
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-07
- **Case number:** Writ A No. 61226 of 2012
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-om-rastogi-v-state-of-u-p-ors-48893
- **Pages:** 15

## Headnote

A. Service Law - Pension - Departmental
Inquiry - Civil Service Regulations -
Article 351-A - In the present case there is
no
irregularity
in
the
process
of
departmental
inquiry.
The
inquiry
was
initiated before the petitioner retired and it
continued thereafter also and for that the
sanction of the Governor was not required.
However, when punishment was imposed for
deduction of pension and
gratuity, prior
permission was taken from U.P. Public Service
Commission as well as from the Governor and
punishment order was passed under direction of
the Governor. (Para 12 to 15)

B. Proportionality of punishment and
scope of judicial review under Article 226
of the Constitution - The High Court/Tribunal,
while exercising the power of judicial review,
cannot normally substitute its own conclusion on
penalty and impose some other penalty. If the
punishment
imposed
by
the
disciplinary
authority or the appellate authority shocks the
conscience of the High Court/Tribunal, it would
appropriately mould the relief, either directing
the disciplinary/appellate authority to reconsider
the penalty imposed, or to shorten the litigation,
it may itself, in exceptional and rare cases,
impose appropriate punishment with cogent
reasons in support thereof. (Para 24)

It is settled law that gratuity and
pension
are
not
bounties,
as
an
employee earn these benefits of his
long,
continuous,
faithful
and
unblemished service. (Para 17)

Article 351-A of CSR reserves right of the
Governor to withheld of withdraw pension or
part thereof, whether permanently or for
specified period or to order recovery from
pension of the whole or part for pecuniary loss
caused to the Central or St. Government in
eventualities that pensioner be guilty of grave
misconduct
in
departmental
or
judicial
proceedings or to have caused pecuniary loss to
the government by misconduct or negligence.
The
word
"grave
misconduct"
is
something more than a "misconduct". The
other eventuality is to have caused pecuniary
loss
to
government
by
misconduct
or
negligence. (Para 18)

'Grave misconduct' - The petitioner was
careless in passing orders and failed to follow
requisite procedure to pass
said
orders.
However, neither the Gaon Sabha concerned,
who has apparently suffered pecuniary loss nor
the St. Government had challenged the said
orders and further the pecuniary loss, if caused,
is not determined, even no rough calculation
was made, therefore, conduct of petitioner
would not falls under "grave misconduct".
The punishment awarded (10% permanent
deduction in pension, 50% deduction from
pension as well as from gratuity) to petitioner
appears to be very harsh and it would not
be wrong to say that punishment is
shockingly disproportionate. (Para 25)

Charges are proved against the petitioner are
upheld to the

## Text

_Characters 0–39,596 of 51,199. This is a partial read: ask again with offset=39596 for what follows._

40 INDIAN LAW REPORTS ALLAHABAD SERIES
No. 6860 of 2021 (State of U.P. & others Vs.
Pankaj Kumar) wherein following observations
were made:-

"recruitment process undertaken by
the competent authorities would be meaning
less without a time line and the next recruitment
process will also get effect since determination
of the number of vacancies for the process will
keep fluctuating."

18. With respect to the notification, the
grounds raised by learned counsel for the
petitioner regarding the conditions mentioned in
the notification dated 01.11.2021, it has been
submitted
that
the
clauses
have
been
misinterpreted.

19. A bare reading of the clauses as
specified goes to show that in case of
technicalities, the exams will be held on
03.12.2021 and not due to any individual
difficulty of the candidates. It is also clear that
for any of the problems while appearing in the
examination, it was open to the candidates to
approach the help desk number as provided and
not
for
request
for
rescheduling
the
examination.

20. Lastly, counsel for the state submits
that the examinations of such candidates whose
date
of
examination
clashed
with
the
examinations
of
T.E.T.
was
rescheduled/changed only, that too, on the prior
information given by them to the Board, so that
the service agency could be able to make
necessary arrangement for online written
examination on said changed date. He has also
brought on record the fact that the U.P.S.C. had
also changed the date of provisional education
(Teaching Service Examination) 2021 which
was scheduled on 12.12.2021 taking into
account the examination for the post of
Samiksha Adhikari conducted by Allahabad
High Court and the said examination was
subsequently conducted on 22.12.2021. From
the aforesaid, it is clear that the date of online
examination was never changed on the ground
of illness.

21. In the similar set of facts where
candidate, namely, Arun Kumar could not
appear in the examination pursuant to the same
advertisement due to illness. He approached
before Lucknow Bench of this Court by filing
Writ No. 27264 (SS) of 2021 and the Court
disposed of the writ petition with direction to
the respondents to decide the representation of
the petitioner.

22. This Court is of the opinion that there
is no provision of rescheduling the examination
on the ground of individual difficulty and
certain candidates have been permitted to
appear in the examination on another date as the
date of the present examination clashed with
some other examination, hence, the case of the
petitioner does not stand on the ground of being
discriminated.

23. In view of the aforesaid facts, the
present petition lacks merits and is accordingly,
dismissed.
----------
(2022)07ILR A40
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2022

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ A No. 61226 of 2012

Hari Om Rastogi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri A.C. Pandey, Sri Kshitij Shailendra
7 All. Hari Om Rastogi Vs. State of U.P. & Ors.
41
Counsel for the Respondents:
C.S.C.

A. Service Law - Pension - Departmental
Inquiry - Civil Service Regulations -
Article 351-A - In the present case there is
no
irregularity
in
the
process
of
departmental
inquiry.
The
inquiry
was
initiated before the petitioner retired and it
continued thereafter also and for that the
sanction of the Governor was not required.
However, when punishment was imposed for
deduction of pension and
gratuity, prior
permission was taken from U.P. Public Service
Commission as well as from the Governor and
punishment order was passed under direction of
the Governor. (Para 12 to 15)

B. Proportionality of punishment and
scope of judicial review under Article 226
of the Constitution - The High Court/Tribunal,
while exercising the power of judicial review,
cannot normally substitute its own conclusion on
penalty and impose some other penalty. If the
punishment
imposed
by
the
disciplinary
authority or the appellate authority shocks the
conscience of the High Court/Tribunal, it would
appropriately mould the relief, either directing
the disciplinary/appellate authority to reconsider
the penalty imposed, or to shorten the litigation,
it may itself, in exceptional and rare cases,
impose appropriate punishment with cogent
reasons in support thereof. (Para 24)

It is settled law that gratuity and
pension
are
not
bounties,
as
an
employee earn these benefits of his
long,
continuous,
faithful
and
unblemished service. (Para 17)

Article 351-A of CSR reserves right of the
Governor to withheld of withdraw pension or
part thereof, whether permanently or for
specified period or to order recovery from
pension of the whole or part for pecuniary loss
caused to the Central or St. Government in
eventualities that pensioner be guilty of grave
misconduct
in
departmental
or
judicial
proceedings or to have caused pecuniary loss to
the government by misconduct or negligence.
The
word
"grave
misconduct"
is
something more than a "misconduct". The
other eventuality is to have caused pecuniary
loss
to
government
by
misconduct
or
negligence. (Para 18)

'Grave misconduct' - The petitioner was
careless in passing orders and failed to follow
requisite procedure to pass
said
orders.
However, neither the Gaon Sabha concerned,
who has apparently suffered pecuniary loss nor
the St. Government had challenged the said
orders and further the pecuniary loss, if caused,
is not determined, even no rough calculation
was made, therefore, conduct of petitioner
would not falls under "grave misconduct".
The punishment awarded (10% permanent
deduction in pension, 50% deduction from
pension as well as from gratuity) to petitioner
appears to be very harsh and it would not
be wrong to say that punishment is
shockingly disproportionate. (Para 25)

Charges are proved against the petitioner are
upheld to the extent discussed in the case.
However, the order of punishment dated
03.08.2012 is set aside and matter is remanded
back to respondents to pass a fresh order of
punishment after considering the observations
made in this judgment. (Para 26)

Writ petition partly allowed. (E-4)

Precedent followed:

1. Shivagopal & ors. Vs St. of U.P. & ors., 2019
(5) ADJ 441 (Para 14)

2. D.S. Nakara & ors. Vs U.O.I., (1983) 1 SCC
305 (Para 17)

3. U.O.I. & ors., Ram Karan, (2022) 1 SCC 373
(Para 24)

Precedent cited:

1. St. of U.P. & anr. Vs Rajesh Kumar Singh &
anr., 2019 (11) ADJ 249 (DB) (LB) (Para 6)

2. Govt. of Andhra Pradesh & ors. Vs A. Venkata
Raidu (2007) 1 SCC 338 (Para 8)

3. Subhash Chandra Sharma Vs Managing
Director & anr., (2000) 1 UPLBEC 541 (Para
8)
42 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Subhash Chandra Vs St. of U.P. & ors., 2017
(2) ADJ 630 (Para 8)

5. Lalta Prasad Vs St. of U.P. & ors., 2018 (9)
ADJ 365 (Para 8)

6. St. Jharkhand & ors. Vs Jitendra Kumar
Srivastava & ors., (2013) 12 SCC 210 (Para 9)

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. A charge sheet dated 09.11.2006
was served to petitioner, working as a
Consolidation
Officer,
Agra,
contains
following two charges:

"आरोप संख्या-1

आपने ग्राम मौधा जनपद फर्रुखाबाद के वाद संख्या-
592 (धारा 0अ) में पाररत आदेश ददनांक 28.2.03 द्वारा ग्राम
मौधा के गाटा संख्या 1285/0-60/1420/7-00 से ग्राम का
नाम खाररज करके अनार दसंह पुत्र परशुराम का नाम दजु दकया।
तदोपरान्त दनयत 109 के अन्तगुत वाद संख्या 198 तारीख
फैसला 18.10.03 में पाररत आदेशानुसार उक्त आदेश का
अमलदरामद करा ददया। दजससे ग्राम सभा सम्पदि को अपूर्णीय क्षदत
व श्री अनार दसंह पुत्र परशुराम को अनुदित लाभ पह ुँिा, दजसके
दलये आप दोषी है तथा इस कृत्य से आपकी सत्यदनष्ठा संददग्ध होती
है।

आरोप संख्या-2

ग्राम दबढैल के वाद संख्या-1405 अन्तगुत धारा-9
क ता0फै0 2.4.98 द्वारा ग्राम सभा के गाटा संख्या-374/070,
424/036, 426/0-67 कुल 1,73 एकड़ से नाम खाररज
करके श्री देवेन्र कुमार दमश्रा, िकबन्दी अदधकारी द्वारा श्री फेर्र दसंह
पुत्र जौहरी नाम दजु करने का अदनयदमत आदेश पाररत दकया था।
आपने वाद संख्या 191 अन्तगुत धारा 109 में पाररत आदेश
ददनांक 28.10.03 द्वारा अमलदरामद करा ददया। दजससे ग्राम
सभा को अपूर्णीय क्षदत ह ई तथा व्यदक्त दवशेष को अनुदित लाभ
पह ुँिा। दजसके दलये आप दोषी है। तथा इस कृत्य से आपकी
सत्यदनष्ठा संददग्ध होती है।"

2. The petitioner filed applications
dated
04.12.2006
and
13.02.2007
demanding the documents, contending that
his signatures on the order referred in the
charge sheet were forged and he had not
put his signatures. He also seeks permission
to examine the documents. However,
neither documents were provided nor any
oral evidence was recorded during inquiry.
The Inquiry Officer conducted inquiry and
submitted its report dated 09.08.2007
whereby the above referred both charges
were found proved against petitioner.

3. Sri Kshitij Shailendra, learned
counsel for petitioner submitted that
Inquiry Officer has acted as an appellate
authority and conducted inquiry as he was
sitting in appeal against the orders passed
by petitioner. The original records were not
brought on record before Inquiry Officer
and he erroneously came to conclusion that
petitioner while passing certain orders as
Consolidation
Officer
had
committed
procedure error which led to loss of
revenue
to
Gaon
Sabha
concerned.
Thereafter a copy of inquiry report was
submitted to petitioner and a show cause
notice
dated
09.10.2007 was
issued.
Petitioner submitted reply to the show
cause notice and again contended that
orders were not passed by him and
signatures were forged by a gang which
was operating at the relevant time. It was
also contended that there was no mala fide
intention to pass such orders. The orders
were passed on the basis of earlier orders
and were in nature of execution.

4. Meanwhile, petitioner retired on
30.04.2008
after
attaining
age
of
superannuation. Thereafter a fresh show
cause notice was issued on 09.07.2008 with
proposed punishment of 50% deduction
from pension as well as 50% deduction
from gratuity. Petitioner replied the said
show cause notice on 29.07.2008 again
reiterating earlier stand that the orders
7 All. Hari Om Rastogi Vs. State of U.P. & Ors.
43
passed by petitioner were in the nature of
execution of earlier orders and that relevant
documents were not shown to petitioner as
well as the entire inquiry was vitiated as it
was conducted without complying the
principle
of
nature
justice.
The
Commissioner
(Consolidation)
granted
permission under Article 351-A of Civil
Service Regulations (hereinafter referred to
as "CSR") to continue inquiry after
retirement of petitioner and finally the
Chief Secretary under the orders of
Governor passed impugned order dated
03.08.2012
whereby
petitioner
was
awarded punishment of 10% permanent
deduction in pension and 50% deduction
each from pension as well as gratuity.

5. Sri Kshitij Shailendra, learned
counsel for petitioner, further submitted
that in case any party was aggrieved by the
orders passed by petitioner, it would have
challenged the same before Appellate
Forum, however, none of the party has
approached the Appellate Forum, therefore,
the concerned parties were satisfied with
the orders passed by petitioner. Even, Gaon
Sabha concerned (supposed to suffer loss),
had also not filed any appeal against orders
passed by the petitioner.

6. Learned counsel for petitioner
further argued that mere negligence or
omission in performance of duty or error of
judgment does not amount of misconduct
and for that he placed reliance on a
Division Bench judgment of this Court in
State of U.P. and another vs. Rajesh
Kumar Singh and another, 2019(11) ADJ
249 (DB)(LB), relevant paras 8, 9 and 10,
are reproduced as under:

"8. What flows from Rule 3 of
Conduct Rules is that if a government
servant conducts himself in a manner
which is inconsistent with due and faithful
discharge of his duty in service, the same
will amount to misconduct. However, every
act of omission would not constitute
misconduct for the purposes of drawing
disciplinary proceedings as has been held
by Hon'ble Supreme Court in the case of J.
Ahmad (supra). An act of omission which
runs contrary to the expected conduct of an
employee
would
certainly
constitute
misconduct, however some other act of
omission or negligence in performance of
duty and a lapse in performance of duty or
error
of
judgment
may
amount
to
negligence in discharge of duty but would
not constitute misconduct unless the
consequences
directly
attributable
to
negligence would be such as to be
irreparable or the resultant damage would
be so heavy that the degree of culpability
would be very high.

(emphasis supplied)

9. These observations have been
made in the case of J. Ahmad (supra),
relevant extract of which is mentioned
herein below:-

"A single act of omission or error
of judgment would ordinarily not constitute
misconduct though if such error or
omission results in serious or atrocious
consequences the same may amount to
misconduct as was held by this Court in P.
H. Kalyani v. Air France, Calcutta (5),
wherein it was found that the two mistakes
committed by the employee while checking
the load-sheets and balance charts would
involve possible accident to the aircraft and
possible loss of human life and, therefore,
the negligence in work in the context of
serious consequences was treated as
misconduct. It is, however, difficult to
believe that lack of efficiency or attainment
of highest standards in discharge of duty
attached to public office would ipso facto
constitute misconduct. There may be
44 INDIAN LAW REPORTS ALLAHABAD SERIES
negligence in performance of duty and a
lapse in performance of duty or error of
judgment in evaluating the developing
situation may be negligence in discharge of
duty but would not constitute misconduct
unless
the
consequences
directly
attributable to negligence would be such as
to be irreparable or the resultant damage
would be so heavy that the degree of
culpability would be very high."

10. Thus, for an act of omission
to qualify 'misconduct', what is of primary
importance is as to whether such act of
omission or negligence would result in
irreparable damage or damage caused by
such an act would be so heavy that the
degree of culpability would be very high. It
is also clear that negligence or mistake
may not ipso facto constitute misconduct
when its consequences are serious."

7. Learned counsel also pointed out
that Inquiry Officer has acted like Appellate
Authority. He has scrutinized the orders
passed by petitioner as he was sitting in
appeal and pointed out the errors on law as
well as deficiency in the procedure
followed by petitioner while passing said
orders.

8. Learned counsel also submitted that
the procedure provided under Article 351-A
of CSR whereby the Governor was
empowered to institute or continue inquiry
after retirement, was not followed in its
letter and spirit as the order was passed by
Commissioner (Consolidation) and under
the order of Governor though punishment
order was passed by Chief Secretary under
direction of the Governor. The impugned
punishment order is a non-speaking order
as well as the punishment awarded is
shockingly disproportionate to the charges
levelled against petitioner. Lastly, learned
counsel for petitioner submitted that the
original records were never shown to
petitioner rather it was mentioned in the
inquiry report that original records were not
brought before Inquiry Officer. He further
relied
on
the
judgments
passed
in
Government of Andhra Pradesh and
others vs. A Venkata Raidu (2007) 1 SCC
338; Subhash Chandra Sharma vs.
Managing Director and another, (2000) 1
UPLBEC 541; Subhash Chandra vs.
State of U.P. and others, 2017(2) ADJ
630; and, Lalta Prasad vs. State of U.P.
and others, 2018(9) ADJ 365.

9. Learned counsel for petitioner
placed heavy reliance on a judgment passed
by Supreme Court in State of Jharkhand
and
others
vs.
Jitendra
Kumar
Srivastava and others, (2013)12 SCC 210
and relied on paras 12, 13, 14 and 15 of the
judgment, which are reproduced as under:

"12. There is also a Proviso to
Rule 43(b), which provides that:

A.
Such
departmental
proceedings, if not instituted while the
Government Servant was on duty either
before retirement or during re-employment.

i. Shall not be instituted save with
the sanction of the State Government.

ii Shall be in respect of an event
which took place not more than four years
before the institution of such proceedings.

iii Shall be conducted by such
authority and at such place or places as the
State Government 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 Government Servant
was on duty either before retirement or
during re-employment shall have been
instated in accordance with Sub-clause (ii)
of Clause (a) and
7 All. Hari Om Rastogi Vs. State of U.P. & Ors.
45

C. The Bihar Public Service
Commission, shall be consulted before final
orders are passed.

It is apparent that the proviso
speaks about the institution of proceedings.
For initiating proceedings, Rule 43(b) puts
some
conditions,
i.e.,
Department
proceeding as indicated in Rule 43(b), if
not
instituted
while
the
Government
Servant was on duty, then it shall not be
instituted except:

(a) With the sanction of the
Government,

(b) It shall be in respect of an
event which took place not more than four
years
before
the
institution
of
the
proceedings.

(c) Such proceedings shall be
conducted by the enquiry officer in
accordance with the proceedings by which
dismissal of the services can be made.

Thus, in so far as the proviso is
concerned that deals with condition for
initiation of proceedings and the period of
limitation within which such proceedings
can be initiated.

13. Reading of Rule 43(b) makes
it abundantly clear that even after the
conclusion of the departmental inquiry, it is
permissible for the Government to withhold
pension etc. ONLY when a finding is
recorded either in departmental inquiry or
judicial proceedings that the employee had
committed
grave
misconduct
in
the
discharge of his duty while in his office.
There is no provision in the rules for
withholding of the pension/gratuity when
such departmental proceedings or judicial
proceedings are still pending.

14. Right to receive pension was
recognized as right to property by the
Constitution Bench judgment of this Court
in Deokinandan Prasad v. State of Bihar,
(1971) 2 SCC 330, as is apparent from the
following discussion:

29. The last question to be
considered, is, whether the right to receive
pension by a Government servant is
property, so as to attract Articles 19(1)(f)
and 31(1) of the Constitution. This question
falls to be decided in order to consider
whether the writ petition is maintainable
under Article 32. To this aspect, we have
already adverted to earlier and we now
proceed to consider the same.

30. According to the Petitioner
the right to receive pension is property and
the Respondents by an executive order
dated June 12, 1968 have wrongfully
withheld his pension. That order affects his
fundamental rights under Articles 19(1)(f)
and
31(1) of
the
Constitution. The
Respondents, as we have already indicated,
do not dispute the right of the Petitioner to
get pension, but for the order passed on
August 5, 1966. There is only a bald
averment in the counter-affidavit that no
question of any fundamental right arises
for consideration. Mr. Jha, learned Counsel
for the Respondents, was not prepared to
take up the position that the right to receive
pension cannot be considered to be
property
under
any
circumstances.
According to him, in this case, no order has
been passed by the State granting pension.
We understood the learned Counsel to urge
that if the State had passed an order
granting pension and later on resiles from
that order, the latter order may be
considered to affect the Petitioner's right
regarding property so as to attract Articles
19(1)(f) and 31(1) of the Constitution.

31. We are not inclined to accept
the contention of the learned Counsel for
the Respondents. By a reference to the
material provisions in the Pension Rules,
we have already indicated that the grant of
pension does not depend upon an order
being passed by the authorities to that
effect. It may be that for the purposes of
46 INDIAN LAW REPORTS ALLAHABAD SERIES
quantifying the amount having regard to
the period of service and other allied
matters, it may be necessary for the
authorities to pass an order to that effect,
but the right to receive pension flows to an
officer not because of the said order but by
virtue of the Rules. The Rules, we have
already pointed out, clearly recognise the
right of persons like the Petitioner to
receive pension under the circumstances
mentioned therein.

32. The question whether the
pension granted to a public servant is
property attracting Article 31(1) came up
for consideration before the Punjab High
Court in Bhagwant Singh v. Union of India
A.I.R. 1962 Pun 503. It was held that such
a right constitutes "property" and any
interference will be a breach of Article
31(1) of the Constitution. It was further
held that the State cannot by an executive
order curtail or abolish altogether the right
of the public servant to receive pension.
This decision was given by a learned Single
Judge. This decision was taken up in
Letters Patent Appeal by the Union of
India. The Letters Patent Bench in its
decision in Union of India v. Bhagwant
Singh I.L.R. 1965 Pun 1 approved the
decision of the learned Single Judge. The
Letters Patent Bench held that the pension
granted to a public servant on his
retirement is "property" within the meaning
of Article 31(1) of the Constitution and he
could be deprived of the same only by an
authority of law and that pension does not
cease to be property on the mere denial or
cancellation of it. It was further held that
the character of pension as "property"
cannot possibly undergo such mutation at
the whim of a particular person or
authority.

33. The matter again came up
before a Full Bench of the Punjab and
Haryana High Court in K.R. Erry v. The
State of Punjab I.L.R. 1967 P&H 278. The
High Court had to consider the nature of
the right of an officer to get pension. The
majority
quoted
with
approval
the
principles laid down in the two earlier
decisions of the same High Court, referred
to above, and held that the pension is not to
be treated as a bounty payable on the sweet
will and pleasure of the Government and
that the right to superannuation pension
including its amount is a valuable right
vesting in a Government servant It was
further held by the majority that even
though an opportunity had already been
afforded to the officer on an earlier
occasion for showing cause against the
imposition
of
penalty
for
lapse
or
misconduct on his part and he has been
found guilty, nevertheless, when a cut is
sought to be imposed in the quantum of
pension payable to an officer on the basis
of misconduct already proved against him,
a further opportunity to show cause in that
regard must be given to the officer. This
view regarding the giving of further
opportunity was expressed by the learned
Judges on the basis of the relevant Punjab
Civil Service Rules. But the learned Chief
Justice in his dissenting judgment was not
prepared to agree with the majority that
under
such
circumstances
a
further
opportunity should be given to an officer
when a reduction in the amount of pension
payable is made by the State. It is not
necessary for us in the case on hand, to
consider the question whether before taking
action by way of reducing or denying the
pension on the basis of disciplinary action
already taken, a further notice to show
cause should be given to an officer. That
question does not arise for consideration
before us. Nor are we concerned with the
further question regarding the procedure, if
any, to be adopted by the authorities before
reducing or withholding the pension for the
7 All. Hari Om Rastogi Vs. State of U.P. & Ors.
47
first time after the retirement of an officer.
Hence we express no opinion regarding the
views expressed by the majority and the
minority Judges in the above Punjab High
Court decision, on this aspect. But we
agree with the view of the majority when it
has approved its earlier decision that
pension is not a bounty payable on the
sweet will and pleasure of the Government
and that, on the other hand, the right to
pension is a valuable right vesting in a
government servant.

34. This Court in State of Madhya
Pradesh v. Ranojirao Shinde and Anr. (1968)
3 SCR 489 had to consider the question
whether a "cash grant" is "property" within
the meaning of that expression in Articles
19(1)(f) and 31(1) of the Constitution. This
Court held that it was property, observing "it
is obvious that a right to sum of money is
property".

35. Having due regard to the above
decisions, we are of the opinion that the right
of the Petitioner to receive pension is
property under Article 31(1) and by a mere
executive order the State had no power to
withhold the same. Similarly, the said claim is
also property under Article 19(1)(f) and it is
not saved by Sub-article (5) of Article 19.
Therefore, it follows that the order dated June
12, 1968 denying the Petitioner right to
receive pension affects the fundamental right
of the Petitioner under Articles 19(1)(f) and
31(1) of the Constitution, and as such the writ
petition under Article 32 is maintainable. It
may be that under the Pension Act (Act 23 of
1871) there is a bar against a civil court
entertaining any suit relating to the matters
mentioned therein. That does not stand in the
way of a Writ of Mandamus being issued to
the State to properly consider the claim of the
Petitioner for payment of pension according
to law.

13. In State of West Bengal v.
Haresh C. Banerjee and Ors. (2006) 7 SCC
651, this Court recognized that even when,
after the repeal of Article 19(1)(f) and
Article 31(1) of the Constitution vide
Constitution (Forty-Fourth Amendment)
Act, 1978 w.e.f. 20th June, 1979, the right
to property was no longer remained a
fundamental
right,
it
was
still
a
Constitutional right, as provided in Article
300A of the Constitution. Right to receive
pension was treated as right to property.
Otherwise, challenge in that case was to
the vires of Rule 10(1) of the West Bengal
Services (Death-cum--Retirement Benefit)
Rules, 1971 which conferred the right upon
the Governor to withhold or withdraw a
pension or any part thereof under certain
circumstances and the said challenge was
repelled by this Court."

10. Sri Rajeshwar Tripathi, learned
Standing Counsel appearing for StateRespondents, has opposed the above
submissions and submitted that after the
petitioner
was
retired,
inquiry
was
continued after taking requisite permission
under
Article
351-A
of
CSR
and
punishment
order
was
passed
under
direction of the Governor, therefore, in this
regard there is not irregularity in the
procedure
followed
by
respondents.
Petitioner
has
committed
serious
irregularities while passing orders, whereby
concerned Gaon Sabha has suffered great
loss. The explanation of petitioner that
concerned orders were not signed by him
and it was an act of a gang, are not only
vague but petitioner has not submitted any
documents in support of submission and
also not brought on record any evidence
that his signatures were forged. He further
submits that judgments relied on by learned
counsel for petitioner are distinguishable
that in the present case petitioner has
passed orders whereby loss was caused to
Gaon Sabha concerned and thus he was not
48 INDIAN LAW REPORTS ALLAHABAD SERIES
diligent towards his duties and made a
vague allegation that his signatures were
forged without any proof.

11. I have heard learned counsel for
parties and perused the material available
on record.

12. In the present case there are two
issues. The
first
issue
is,
"whether
departmental inquiry was legally continued
after retirement of petitioner?"

13. Article 351-A of CSR empowers
the Governor to institute or continue
inquiry after retirement. In the present case,
said
permission
was
granted
by
Commissioner (Consolidation) vide order
dated 13.01.2010. Learned counsel for
petitioner
has
contended
that
said
permission cannot be termed to be a valid
permission as required under the provisions
of Article 351-A of CSR. In this regard it is
relevant to note that permission was also
sought
from
the
Public
Service
Commission and an order was passed by
Chief Secretary under the orders of
Government to conclude inquiry continued
under Article 351-A and punishment order,
as referred above, was also passed.

14. In this regard paragraphs no. 40,
41, 42, 43, 44 and 45 of a Full Bench
judgment in Shivagopal and Ors. vs. State
of U.P. and Ors., 2019(5) ADJ 441 are
relevant and reproduced as under:

"40. Article 351-A empowers the
Governor to withhold or withdraw pension
or a part of it permanently or for specified
period and order recovery from pension for
pecuniary loss caused to the Government if
the pensioner in departmental proceedings
or in judicial proceedings, has been found:
(i) guilty of grave misconduct or (ii) to
have caused pecuniary loss to Government
by misconduct or negligence during his
service. The proviso to the Article spells out
the circumstances/conditions in which the
departmental
proceedings/judicial
proceedings is required to be instituted for
the purposes of withholding/withdrawing
pension. Article 351-A reads thus:

"351-A21. 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 reemployment 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 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
7 All. Hari Om Rastogi Vs. State of U.P. & Ors.
49

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

Provided further that of the order
passed by the Governor relates to a cash
dealt with under the Uttar Pradesh
Disciplinary Proceedings, (Administrative
Tribunal) Rules, 1947, it shall not be
necessary
to
consult
Public
Service
Commission.

Explanation-For the purposes of
this article-

(a)
Departmental
proceeding
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
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 Civil court

Note- As soon as proceedings of
the nature referred to in this article are
instituted the authority which institutes
such proceedings shall without delay
intimate the fact to the Audit Officer
concerned."

41. Explanation to Article 351-A
clarifies that departmental proceedings
shall be deemed to have been instituted: (i)
when charges are framed against the
pensioner; or (ii) the officer has been
placed under suspension from such date.
Further, judicial proceedings is deemed to
have been instituted against the pensioner:
(i) in the case of criminal proceedings, on
date on which complaint is made or
charge-sheet is submitted to a criminal
court; (ii) in case of civil proceedings on
the date on which plaint is presented or as
the case may be, an application is made to
Civil Court.

42. Now we will refer to the
proviso to Article 351-A. The proviso
speaks about initiation of disciplinary
proceedings or judicial proceedings against
the government servant after retirement.
For initiating proceedings the conditions
specified therein must be satisfied, that is,
departmental proceedings as indicated in
proviso (a) if not instituted while the officer
was on duty then it shall not be instituted
except:

(i). with the sanction of the
Governor;

(ii). it shall be initiated on an
event which took place not more than 4
years
before
the
institution
of
the
proceedings;

(iii). such proceedings would be
conducted by such authority and in such
place 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.

43. On perusal of Proviso and its
Explanation, referred to above, deals only
with the conditions for initiation for
disciplinary
proceedings/judicial
proceedings and the limitation within
which such initiation of the proceedings
can be done has been made explicit.

44. In State of U.P. vs. Harihar
Bhole Nath (Harihar Bhole Nath case),
one of the issues involved therein was
whether the sanction of the Governor was
required to continue the proceedings after
retirement. The Court held in negative as
follows:

"But the said Rules read with
the Proviso and the Explanation appended
thereto construed in their entirely clearly
postulate that the proceedings initiated
50 INDIAN LAW REPORTS ALLAHABAD SERIES
before the delinquent officer reached his
age
of
superannuation
would
be
valid.........The
question,
however,
is
whether the sanction of the Governor was
required
even
for
the
purpose
of
continuance of the proceedings which had
already been initiated. Answer thereto
must be rendered in the negative." (Refer:
State of U.P. vs. R.C. Misra)

45. The issue before the Court in
State of Orissa and others vs. Kalicharan
Mohapatra and others was as to whether
Rule 6 of All India Service (Death-cumRetirement Benefits) Rules, 1958, could
have been invoked during pendency of a
criminal case against the government
servant, inasmuch as, the charge against
the government servant is not one of
causing pecuniary loss to the State
Government by misconduct or negligence
within the meaning of the Rule. Relevant
portion of Rule 6 for our purposes is
extracted:

"6. Recovery from pension:- 6(1)
The Central Government reserves to itself
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
pension of the whole or part of any
pecuniary loss caused to the Central or a
State Government, if the pensioner is found
in a departmental or judicial proceedings
to have been guilty of grave misconduct or
to have caused pecuniary loss to the
Central
or
a
State
Government
by
misconduct or negligence, during his
service, including service rendered or reemployment after retirement.

Provided that no such order shall
be passed without consulting the Union
Public Service Commission:-- Provided
further that--

(a)
such
departmental
proceeding, if instituted while the pensioner
was
in
service,
whether
before
his
retirement or during his re-employment,
shall, after the final retirement of the
pensioner, be deemed to be a proceeding
under this sub-rule and shall be continued
and concluded by the authority by which it
was commenced in the same manner as if
the pensioner had continued in service;

(b) .........

(c) .........

Explanation.- For the purpose of
this rule:-

(a) a departmental proceeding
shall be deemed to be instituted which the
charges framed against the pensioner are
issued to his or, if he has been placed under
suspension from an earlier date, on such
date and

(b) a judicial proceeding shall be
deemed to be instituted--

(i) in the case of criminal
proceedings, on the date on which a
complaint is made or a charge-sheet is
submitted, to the 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.

(2) Where any departmental or
judicial proceeding is instituted under subrule
(1),
or
where
a
departmental
proceeding is continued under clause (a) of
the proviso thereto against an officer who
has retired on attaining the age of
compulsory retirement or otherwise, he
shall be sanctioned by the Government
which instituted such proceedings, during
the period commencing from the date of his
retirement to the date on which, upon
conclusion of such proceeding final orders
are passed, a provisional pension not
exceeding the maximum pension which
would have been admissible on the basis of
his qualifying service upto the date of
retirement, or if he was under suspension
7 All. Hari Om Rastogi Vs. State of U.P. & Ors.
51
on the date of retirement, upto the date
immediately preceding the date on which
he was placed under suspension; but no
gratuity or death- cum-retirement gratuity
shall be paid to him until the conclusion of
such proceedings and the issue of final
orders thereon.

Provided that where disciplinary
proceeding has been instituted against a
member of the Service before his retirement
service under rule 10 of the All India
Service (Discipline and Appeal) Rules,
1969, for imposing any of the penalties
specified in clause (i), (ii) and (iv) of subrule 1 of rule 6 of the said rules and
continuing such proceeding under sub-rule
(1) of this rule after his retirement from
service, the payment of gratuity or Deathcum- Retirement gratuity shall not be
withheld." (emphasis supplied)

15. As referred above, the inquiry was
initiated before the petitioner retired and it
continued thereafter also and for that the
sanction of the Governor was not required.
However, when punishment was imposed
for deduction of pension and gratuity, prior
permission was taken from U.P. Public
Service Commission as well as from the
Governor and punishment order was passed
under direction of the Governor, therefore,
in the present case there is no irregularity in
the process of departmental inquiry.

16. Now, I proceed to consider the
second issue that, "whether charges were
proved against petitioner and punishment
thereon is proportionate or not?"

17. It is settled law that gratuity and
pension are not bounties, as an employee
earn these benefits of his long, continuous,
faithful and unblemished service. The
Supreme Court in D.S. Nakara and Ors.
vs. Union of India, (1983) 1 SCC 305 held
as under:

"31.