# Karmaita v. Shiv Bahadur, under section

- **Citation:** (2013) 1 ILRA 342
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-03-20
- **Bench:** Devendra Kumar Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/karmaita-v-shiv-bahadur-under-section-42508
- **Pages:** 6

## Text

342 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

Constitution of India, Art.-226- Mutation
proceeding
pending
before
Tehsildar
since 2006-direction to decide within 3
month-issued.

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

1. Notice on behalf of opposite party
no.1 has been accepted by the office of
learned Chief Standing Counsel.

2. Considering the proposed order,
requirement of issuance of notice to
opposite party no.2 is hereby dispensed
with.

3. Heard Sri Ashwani Ojha, learned
counsel for the petitioner, who confines
his prayer only for issuing a direction to
the Tehsildar, District Amethi to decide
the Mutation Case No.198 of 2006; Smt.
Karmaita vs. Shiv Bahadur, under section
34 of U.P. Land Revenue Act in respect
of Gata No.311 having an area of 0.468
hectare, situate in village-Semra, Pargana
and Tehsil-Amethi expeditiously.

4. The prayer made by learned
counsel for the petitioner being innocuous
in nature is, hereby granted.

5. Accordingly, the Tehsildar,
Amethi is directed to decide the aforesaid
Mutation Case expeditiously, say within a
period of three months from the date a
certified copy of this order is produced
before him.

6. With the aforesaid direction, the
writ petition is disposed of finally.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.03.2013
BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ZAKI ULLAH KHAN, J.

Writ Petition No. 2199 (S/S) Of 1997

Raj Kishore

...Petitioner
Versus
State of U.P. and others ...Respondents

Civil
Services
Regulations-Regulation
351-A-
Disciplinary
proceeding-when
treated as pending?-petitioner retired
from
post
of
Junior
engineer
on
31.01.1986-show cause notice issued on
06.07.1986-without seeking permission
from
His
Excellency,
the
Governorproceeding deemed pending only after
service of chargesheet and not by show
cause notice-for illegal harassment of
petitioner Rs. 25000/ awarded as costrecovery order quashed.

Held: Para-8
The Hon'ble Apex Court has clearly laid
down
service
law
relating
to
the
departmental enquiries and services. It
is very clear from the ratio of the Hon'ble
Apex Court in above mentioned citations
that the enquiry should have commenced
during service by issue charge-sheet and
not mere by show cause notice. The
departmental enquiry proceedings are
not initiated merely by issuance of show
cause notice, it is initiated only when
charge-sheet has been issued (Union of
India Vs. K.V. Jankiraman). The Apex
Court itself ruled in 'Coal India Ltd. Vs.
Saroj Kumar Mishra' that the date of
application of mind on the allegations
leveled
against
an
officer
by
the
competent authority as a result whereof
the charge-sheet is issued would be the
date
on
which
the
disciplinary
proceedings
is
said
to
have
been
initiated and not prior thereto, therefore,
it is crystal clear that in the instant
petition the facts are attracted to the
ratio given by the Hon'ble Apex Court in
case
Jankiraman
(Supra),
therefore,
there
remains
no
doubt
that
the
respondents have violated the legal
1 All] Raj Kishore Vs. The State of U.P. and others
343
norms and unnecessarily harassed the
petitioner. Therefore, since last more
than twenty five years he is being
harassed and tortured by the act of
respondents, therefore special cost is
being imposed on the respondents as of
Rs. 25,000/- (Twenty Five Thousand) to
meet the ends of justice.

Case Law discussed:
2011 (29) LCD 1348; (2007) 6 SCC 694

(Delivered by Hob'ble Zaki Ullah Khan, J)

1. This writ petition under Article
226 of the Constitution of India has been
filed by the petitioner inter alia praying
that the Court may issue a direction for
quashing the impugned order dated
28.10.1996 (Annexure No. 18) passed by
State Public Services Tribunal and
simultaneously he has also prayed that the
order dated 19.03.1988 passed by the
opposite party no. 3, Superintending
Engineer, Tubewell Circle, Lucknow
(Annexure No. 11) for the recovery of Rs.
2,67,667.84 paise from the petitioner be
quashed. The petitioner has also prayed
that a writ, order or direction in the nature
of mandamus commanding the respondent
nos. 1 to 5 to pay full pensionary benefits
as admissible under Rules be issued..

2. The brief facts in the petition are
that the petitioner was posted on the post
of Junior Engineer in the year 1960 and
superannuated
from
service
on
31.01.1986. The dispute is regarding the
post retiral dues; a show cause notice was
given to the petitioner on 06.07.1997 and
he was explain as to why the amount be
not recovered from him because shortage
of material. It is contended that the
provisions of Rule 351-A of Civil
Services Regulation have not been
followed.
The
petitioner
repeatedly
submitted that he could not peruse the
documents by which the recovery is being
directed as he retired from service on the
prior date. The order of the recovery dated
19.03.1988, therefore is per se illegal. The
basis of the petitioner's contention is that
there is specific provision under Rule
351-A of Civil Services Regulation that
no proceedings can be initiated after the
superannuation without seeking prior
permission
of
His
Excellency
The
Governor and that to regarding the
incident which happened four years
earlier the retirement. In the instant
matter, the recovery relates to period
which is beyond the four years. Therefore,
in any circumstances the recovery is
altogether baseless void and illegal. The
payment
of
pension
/
gratuity
of
Government servant cannot be withheld
merely on account of any enquiry pending
against him. The Government has issued
execution direction in the matter of grant
of pension and gratuity to the retired
Government servant contained in G.O.
No. G-3-1555/X-909-79 dated 30.09.1982
which provide no departmental / judicial
proceedings
or
any
enquiry
or
Administrative
Tribunal
has
been
instituted against the Government servant,
he shall be paid full pension gratuity
admissible
under
Rules.
Till
his
retirement no enquiry was instituted
against him. Despite making several
representations
dated
02.09.1986
and
05.04.1988 his pension was not released.
The action of the opposite parties are
arbitrary without rules. The opposite party
no. 3 issued show cause notice only on
06.07.1987 requiring him to furnish his
explanation towards shortage of stock and T
& P detected against him. The petitioner
submitted that through reply that these items
has never been received by him. The
petitioner was not shown relevant papers
and the opposite party no. 3 did not go
344 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
through his proper replies and passed an
arbitrary order for recovery of Rs.
2,67,667.84/- and withheld his post retiral
dues. The petitioner preferred a claim
petition before the U.P. State Public
Services Tribunal but the Tribunal was of
the opinion that the petitioner retired on
31.01.1986 and show cause notice was
issued to him on 06.07.1986. It is submitted
by the opposite parties that the shortage of
stock and T & P came into the light in the
year 1981 and immediately thereafter the
show cause was given to explain the
shortages. The Tribunal was not satisfied
with the explanation given by the petitioner
that the enquiry was instituted after the
retirement and related the matter with effect
from 1981. The Tribunal opined that the
matter was pending since 1981 and there
was continuous probe going on since then.
The Tribunal was of the opinion that if the
services
of
the
employees
are
not
satisfactory his pension can be reduced but
since ten years have passed the Tribunal
granted relief in part and directed that the
pension should be paid to the petitioner but
dismissed the petition. Being aggrieved by
the aforesaid order the instant petition has
been filed.

3. The opposite parties submitted the
counter affidavit and reiterated that the
petitioner was asked to explain on
23.07.1981 regarding lost of items and he
could not furnish any defence and could
not explain as to why there was shortage
of articles. The allegation of the petitioner
that no enquiry is pending is baseless. He
was probed regarding lost of items since
1981 much before his retirement. Since
the proceeding were pending, benefits
except reduced pension were withheld
due pending recovery of the value of the
Government stock and T & P detected
against the petitioner. The petitioner
contention to the contrary are false, the
petitioner could not justify as to any item
regarding which show cause notice was
given to him. Hence, there was no need to
permission under section 351-A of Civil
Services Regulation since the enquiry
initiated as back as 1981.

4. The petitioner rebutted the
allegations made in the counter affidavit
and
alleged
that
the
shortage
are
fabricated 50% of the shortage has been
reconciled. The matter of reconciliation
rest
with
the
Executive
Engineer
concerned. The contention is false and
misconceived
that
the
deponent
is
responsible for any shortage of the
Government material as alleged no
proceedings were initiated against him
while deponent was in service. Only His
Excellency Governor can direct that after
retirement under the provisions of Rule
351-A of Civil Services Regulation. The
recovery can be instituted as far as the
petitioner is concerned. He was neither
placed under suspension nor any enquiry
was pending against him and he was
never held guilty of any misconduct.

5. We have heard learned counsel
for the petitioner as well as learned
counsel for the respondents and learned
Standing Counsel for the State.

6. The petitioner was appointed on
13.01.1951 as a Mechanic and was
promoted to the post of Junior Engineer in
the month of November, 1966 and was
retired from service on 31.01.1986. The
show cause notice was issued on
06.07.1987
by
the
Superintending
Engineer after retirement. The petitioner
replied the notice that no enquiry was
pending against him. No permission was
taken by the department in view of
provision under Rule 351-A of Civil
1 All] Raj Kishore Vs. The State of U.P. and others
345
Services Regulation. No charge sheet has
ever been issued to him. No disciplinary
enquiry proceeding against him till date
under section 4(6) of Payment of Gratuity
Act, 1972, gratuity can be stopped only
when the disciplinary proceedings are
completed and the petitioner's service are
terminated.
Even
the
Tribunal
has
directed to pay the pension but directed
that his gratuity be withheld till the
recovery
proceedings
are
pending.
Learned
counsel
for
the
petitioner
vehemently argued that the petitioner is
an old man of 86 years of age and retired
twenty years back and he has not been
paid his retiral dues despite no legal
matter is pending against him. Merely on
fictitious ground his retirement dues
cannot be withheld. The Division Bench
of this Court has held 2011 (29) LCD
1348,
U.P.
State
Warehousing
Corporation, Lucknow Vs. Bris Bhan
Singh and another that the disciplinary
proceedings
not
permissible
unless
provided under the rules in another case
Division Bench of this Court in Writ
Petition No. 328 (SB) of 2007 (Paras Nath
Sharma
Vs.
State
Public
Services
Tribunal, Lucknow and others held that
no punishment / recovery after retirement
can be made without prior sanction of
Hon'ble Governor and also the Division
Bench of this Court held that in Writ
Petition No. 3754 (SB) of 1993 (Vivek
Kumar Mittal Vs. State of U.P. and
others), no punishment / recovery after
retirement can be made without prior
sanction of Hon'ble Governor. The Apex
Court has also held in (2007) 6 SCC 694
that
the
enquiry
commenced
after
issuance of charge sheet no punishment
can be awarded on the basis of show
cause notice and the Civil Services
Regulation 351-A is reproduced as
below:-

"351-A. The Provincial Government
reserve to themselves the right to order
the recovery from the pension of an
officer who entered service on or after 7th
August, 1940 of any amount on account of
losses found in judicial or departmental
proceeding to have been caused to
Government by the negligence or fraud of
such officer during his service. Provided
that:

(1). Such departmental proceedings,
if not instituted while the officer was on
duty.

(I) shall not be instituted save with
the sanction of the specified period and
the right of ordering the recovery from a
pension of the whole or part of any
pecuniary loss caused to Government, it
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 proceedings,
and
346 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

(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 made

(b) judicial proceedings, if not
instituted while the officer was on duty
either before the retirement or during reemployment, shall have been instituted in
accordance with sub-clause (ii) (a) and

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

7. We, have gone through the
relevant case law and Civil Service
Regulations, this is admitted fact that no
punishment as ever been provided to the
petitioner. The petitioner was not facing
any enquiry just a notice was issued to
him after the date of retirement and no
permission has ever been sought from His
Excellency The Governor, for initiating
the enquiry and it is interesting to note
that the matter relates to more than four
years prior to retirement which is the
period mentioned for initiating enquiry
i.e. enquiry can be initiated only four
years prior to the retirement of the
petitioner. The petitioner was retired in
the year 1986 and the matter relates to the
year 1981. It is beyond the prescribed
period of four years and there are three
repeated pronounced judgment of the
Division Bench of this Court that after
retirement no enquiry can be initiated
without prior sanction of His Excellency
The Governor. The Hon'ble Apex Court
has also held in the similar matter. The
Apex Court is of the view that:-

"A.
Service
Law-Departmental
Enquiry-Continuation after retirementHeld, is permissible only in those cases
where departmental enquiry has been
commenced during service, by issue of a
charge-sheet and not by issue of mere
show cause notice -UCO Bank Officer
Employees Service Regulations, 1979
Regn.
20(3)(iii)-Banks-Banking
Companies (Acquisition and Transfer of
Undertakings) Act, 1970.

C.
Service
Law-Retirement
/
Superannuation-Retiral benefits-Payment,
when
departmental
enquiry
illegally
initiated against an employee after his
retirement-Enquiry
held
invalid
and
appellant Bank directed to release all
retiral
benefits
expeditiously-Fresh
proceedings against retired employee
barred keeping in view that he stood
retired long back in 1996-Civil Procedure
Code, 1908 Or. 41 R. 33-Constitution of
India, Art. 142.

---21.
The
aforementioned
Regulation, however, could be invoked
only then the disciplinary proceedings had
clearly been initiated prior to the
respondent's ceasing to be in service. The
terminologies used therein are of seminal
importance. Only when a disciplinary
proceeding has been initiated against an
officer of the back despite his attaining
the age of superannuation, can the
disciplinary proceeding be allowed on the
basis
of
the
legal
fiction
created
thereunder i.e. continue "as if he was in
service". Thus, only when a valid
departmental proceeding is initiated by
reason of the legal fiction raised in terms
of the said provisions, the delinquent
officer would be deemed to be in service
although he has reached his age of
superannuation.
The
departmental
1 All] Meesam Ammar Rizvi and another Vs. District Asst. Registrar, Co-operative socities &ors. 347
proceeding, it is trite law, is not initiated
merely by issuance of a show cause
notice. It is initiated only when a charge
sheet is issued (Union of India Vs. K.V.
Jankiraman). This aspect of the matter has
also been considered by this Court
recently in Coal India Ltd. Vs. Saroj
Kumar Mishra, wherein it was held that
date of application of mind on the
allegations leveled against an officer by
the competent authority as a result
whereof a charge sheet is issued would be
the date on which the disciplinary
proceedings are said to have been initiated
and not prior thereto. Pendency of a
preliminary enquiry, therefore, by itself
cannot be a ground for invoking Clause
20 of the Regulations."

8. The Hon'ble Apex Court has
clearly laid down service law relating
to the departmental enquiries and
services. It is very clear from the ratio
of the Hon'ble Apex Court in above
mentioned citations that the enquiry
should
have
commenced
during
service by issue charge-sheet and not
mere by show cause notice. The
departmental enquiry proceedings are
not initiated merely by issuance of
show cause notice, it is initiated only
when charge-sheet has been issued
(Union of India Vs. K.V. Jankiraman).
The Apex Court itself ruled in 'Coal
India Ltd. Vs. Saroj Kumar Mishra'
that the date of application of mind on
the allegations leveled against an
officer by the competent authority as a
result whereof the charge-sheet is
issued would be the date on which the
disciplinary proceedings is said to
have been initiated and not prior
thereto, therefore, it is crystal clear
that in the instant petition the facts are
attracted to the ratio given by the
Hon'ble
Apex
Court
in
case
Jankiraman (Supra), therefore, there
remains no doubt that the respondents
have violated the legal norms and
unnecessarily harassed the petitioner.
Therefore, since last more than twenty
five years he is being harassed and
tortured by the act of respondents,
therefore special cost is being imposed
on the respondents as of Rs. 25,000/-
(Twenty Five Thousand) to meet the ends
of justice.

9. We accordingly allow the petition
and quash the impugned 28.10.1996
(Annexure No. 18) passed by State Public
Services Tribunal and also quash the
order dated 19.03.1988 passed by the
opposite party no. 3, Superintending
Engineer, Tubewell Circle, Lucknow
(Annexure No. 11) for the recovery of Rs.
2,67,667.84 paise and mandamus has
issued against the respondent nos. 1 to 5
to pay full pensionary benefits as prayed.

10. Accordingly, the writ petition is
allowed with cost. Rs. 25,000/- Half of
the cost be paid to the petitioner and rest
will be credited in the account of
Mediation and Conciliation Centre of this
Court. The cost be paid within a period of
three months from the date of order and in
default of payment of cost, the District
Magistrate shall realize as land revenue in
accordance with order of the Court.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.03.2013

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE SAEED-UZ-ZAMAN SIDDIQI, J.