# Managing Director U.P. Jal Nigam (Rural) Lko. & Anr v. Babban Singh & Anr

- **Citation:** (2023) 9 ILRA 214
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-30
- **Case number:** Special Appeal Defective No. 620 of 2023
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/managing-director-u-p-jal-nigam-rural-lko-anr-v-babban-singh-anr-50784
- **Pages:** 7

## Headnote

A. Service Law - UP Government Servant
(Discipline and Appeal) Rules, 1999 - Civil
Service Regulations - Reg. 351-A - UP
Retirement Benefits Rules, 1961 - Rule
9(1) - Recovery from pension - Nonpayment of retiral benefit - Initiation of
disciplinary proceeding after retirement -
Permissibility - No sanction of Board of
Director was taken - No charge-sheet was
drawn up - Effect - Held, the proceedings
for recovery from pension, wholly or in
part, or any amount from retiral dues,
cannot be initiated save with the sanction
of Board of Directors - Impugned order
seeking to recover the pecuniary loss from
the
retiral
dues
payable
to
the
respondent-employee without there being
any sanction of the Board of Directors, is
wholly without jurisdiction. (Para 13, 17
and 20)

Appeal dismissed. (E-1)

List of Cases cited:

## Text

214 INDIAN LAW REPORTS ALLAHABAD SERIES
grant-in-aid was provided to their institutions
after promulgation of the New Pension Scheme
(NPS), are entitled for Old Pension Scheme
(OPS) is not tenable in the eyes of law and is
contrary to the very spirit of New Pension
Scheme (NPS).

(51) For the reasons stated above, all the
Special Appeals, except Special Appeal Defective
No. 74 of 2022 are allowed and the impugned
judgment and order dated 16.06.2021, as
corrected vide order dated 07.07.2021 in the
bunch of writ petitions, leading Writ Petition No.
3458 (SS) of 2009, U.P. Senior Basic Shiksha
Sangh v. State of U.P. and others, passed by the
learned Single Judge is set aside, so far as it relates
to the educational institutions coming under grantin-aid after 01.04.2005.

(52) Since Special Appeal Defective No.
74 of 2022 pertains to Dying-in-Harness matter,
list it before the appropriate Court in the
next cause list.

C.M. Application No. IA/6/2023

In re:

Case :- SPECIAL APPEAL No. - 29 of
2022

Appellant :- State Of U.P. Thru. Prin.
Secy. Basic Edu. Dept. And 2 Others

Respondent :- Uttar Pradesh Senior Basic
Shikshak Sangh Thru. Its Secretary Sri
Awadhesh Kumar Singh

Counsel for Appellant :- Mohit Jauhari

Counsel for Respondent :- Girish
Chandra Verma

(Delivered by Hon'ble Attau Rahman
Masoodi, J.
&
Hon'ble Om Prakash Shukla, J.)

1. The special appeal was listed today
before this Court for delivery of the judgment.

2. Before the judgement could be
delivered, the correction application came to
be presented before us on mention being made
by learned counsel for the applicant.

3. The application seeks correction in the
memo of amended copy of the writ petition as
well as the special appeal insofar as the
description of respondent 'Sangh' is concerned.

4. Learned counsel for the applicant has
stated that the name of the Secretary of the
respondent in Special Appeal No. 29 of
2022(petitioner in writ petition no. 3458 of
2009) is wrongly mentioned as 'Awadhesh
Kumar Singh' in place of 'Awadhesh Kumar
Mishra'.

5. The application in the absence of any
objection is allowed. Let necessary correction
be made in the memo of the writ petition as
well as the special appeal.
----------
(2023) 9 ILRA 214
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.08.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal Defective No. 620 of 2023

Managing Director U.P. Jal Nigam (Rural)
Lko. & Anr. ...Appellants
Versus
Babban Singh & Anr. ...Respondents

Counsel for the Appellants:
9 All. Managing Director U.P. Jal Nigam (Rural) Lko. & Anr. Vs. Babban Singh & Anr.
215
Vijay Vikram Singh

Counsel for the Respondents:
Savita Jain, Rishabh Kapoor

A. Service Law - UP Government Servant
(Discipline and Appeal) Rules, 1999 - Civil
Service Regulations - Reg. 351-A - UP
Retirement Benefits Rules, 1961 - Rule
9(1) - Recovery from pension - Nonpayment of retiral benefit - Initiation of
disciplinary proceeding after retirement -
Permissibility - No sanction of Board of
Director was taken - No charge-sheet was
drawn up - Effect - Held, the proceedings
for recovery from pension, wholly or in
part, or any amount from retiral dues,
cannot be initiated save with the sanction
of Board of Directors - Impugned order
seeking to recover the pecuniary loss from
the
retiral
dues
payable
to
the
respondent-employee without there being
any sanction of the Board of Directors, is
wholly without jurisdiction. (Para 13, 17
and 20)

Appeal dismissed. (E-1)

List of Cases cited:

1. U.P. St. Sugar Corp. Ltd. Vs Kamal Swaroop
Tondon; (2008) AIR SCW 1241

2.
W.P.
No.
2555
of
2008;
Ratnakar
Bhagwanrao Mahajan Vs District & Sessions
Judge, Jalna & anr. decided on 24.09.2008

(Delivered by Hon'ble Attau Rahman
Masoodi, J.
&
Hon'ble Om Prakash Shukla, J.)

(1) This Special Appeal has arisen out
of the judgment/order rendered by the Writ
Court in Writ-A No.5341 of 2012 on
01.03.2023. By means of the impugned
judgment, the Writ Court has allowed the
writ petition with a further direction to pay
retiral dues along with interest @ 7% per
annum up to the actual payment made.
Four months period was granted for
making compliance of the
judgment
passed. The appellants, namely, U.P. Jal
Nigam have come up against the aforesaid
judgment in the present intra-court appeal
filed under Chapter VIII Rule 5 of the High
Court Rules.

(2) Learned counsel for the appellants
has submitted that the respondent-petitioner
had retired from service from the post of
Junior Engineer on 30.04.2010. This fact
was not disputed by the appellants before
the Writ Court as well. It appears that a
show
cause
notice
was
issued
on
16.03.2011
against
the
respondentemployee
alleging
therein
some
irregularities on the strength of certain
communications which were made from
2009 to 2010 while he was in service.

(3) In these circumstances, the case
at hand is a case of initiation of
proceedings after an employee,who had
already retired from service. Learned
counsel for the appellants has submitted
that by virtue of an office memorandum
dated 03.02.2003 the Board of Directors,
erstwhile U.P. Jal Nigam had passed a
resolution whereby the applicability of
Civil Service Regulations as well as U.P.
Government Servant (Discipline and
Appeal)
Rules,
1999
(here-in-after
referred to as 'the Rules, 1999') was
extended by reference to the employee of
erstwhile
U.P.
Jal
Nigam
with
a
modification in Regulation 351-A. The
modification in Regulation 351-A was to
the extent that the word "Governor" shall
be read as the Board of Directors.
Therefore, the aforesaid rules became
applicable to the retired employees of
U.P. Jal Nigam for all purposes.
216 INDIAN LAW REPORTS ALLAHABAD SERIES

(4) Learned counsel for the appellants
has argued that once the aforesaid rules are
applicable to the retired employees of
erstwhile U.P. Jal Nigam, leaned Single
Judge fell in error while observing that no
departmental proceedings were initiated or
the ingredients of Regulation 351-A were
not available; and the observations so
recorded being perverse would vitiate the
judgment impugned herein.

(5) According to the learned counsel,
the issuance of show cause notice for the
purposes
of
recovery
did
constitute
initiation of departmental proceedings as
per law and action taken for recovery from
retiral dues and pension was after following
the procedure of show cause notice calling
for a reply duly complied with before
passing the recovery order, thus, it was not
open to the Writ Court to strike down the
recovery order on such a ground. Learned
counsel for the appellants has further
argued that it is not a case where
respondent-petitioner was deprived of the
retiral
dues
without
following
due
procedure under law and the case at hand
was
erroneously
construed
to
be
deprivation of property contrary to the
mandate of law as provided under Article
300-A of the Constitution of India. Learned
counsel for the appellants has also argued
that the order of recovery passed after
issuance of a show cause notice did not
require any other except what was
followed.
The
respondent-employee
submitted his reply in response to the show
cause notice and the same was considered
by the competent authority while passing
the order dated 18.08.2012 as well as the
order dated 17.10.2011 giving rise to the
writ petition.

(6) The sum and substance of the
arguments made by the appellants' counsel
is that the action taken against the
respondent-petitioner being in consonance
with the law and having afforded adequate
opportunity, did not suffer from any
jurisdictional error or procedural error.
Therefore, allowing the writ petition in
such circumstances along with 7% interest
on the payment due is certainly an order
contrary to law and deserves to be set aside.

(7) Ms. Savita Jain, learned counsel
appearing for the respondent-petitioner not
disputing the fact that a resolution was
passed by the Board of Directors on
03.02.2003,
whereby,
Civil
Service
Regulations as well as the Rules, 1999
were made applicable to the employees of
erstwhile U.P. Jal Nigam, has submitted
that it is a case of retired employee, who
could not be visited with punishment of
recovery except by following rigors of
Regulation 351-A in its strict language and
the scope thereof. Learned counsel for the
respondent-petitioner inviting our attention
to the resolution passed by the Board of
Directors on 09.06.2011 has pointed out
that even the resolution of the Board placed
before this Court is a resolution passed
much later than the issuance of show cause
notice dated 16.03.2011 to which the
respondent-petitioner helplessly submitted
his reply on 13.04.2011 and thereafter the
recovery order was passed on 18.08.2012.
It is, thus, submitted that even if there
existed a power with the Board to initiate
the proceedings by resolution against the
retired employee in terms of Regulation
351-A of the Civil Service Regulations, yet,
the same was not available as on the date of
issuance of show cause notice and the same
lacked the sanctity of law. Mere reply
submitted against the show cause notice
which was without jurisdiction would not
legitimise the same and the defence
remains open.
9 All. Managing Director U.P. Jal Nigam (Rural) Lko. & Anr. Vs. Babban Singh & Anr.
217

(8) Having regard to the submissions
put forthwith by the learned counsel
representing the respondent-petitioner, it
would be necessary to refer to the
Regulation 351-A of the Civil Service
Regulations and relevant extract of the
Regulations is reproduced herein:

Note: The Governor to be read as "the
Board of Directors".

"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.

[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
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

(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 a 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."

(9) The structural analysis of
Regulation 351-A is a prudent way for our
purpose leads us to deduce the following
principles which are not exhaustive:
218 INDIAN LAW REPORTS ALLAHABAD SERIES

(I.) Regulation 351-A by virtue of
its opening sentence applies to pension or
any part thereof and nothing more.

(II.) Regulation 351-A requires
sanction of Governor, if departmental
proceedings are not instituted while the
officer was on duty before retirement or
during re-employment.

(10) The necessary concomitants of
Regulation 351-A for the purposes of
continuity or initiation of proceedings is the
pecuniary loss caused to the employer
while in service or if the proceedings are
initiated after retirement, such loss is bound
to be shown to have occurred out of an
event four years before the date of initiation
of proceedings and for which the procedure
to be followed would be of the proceedings
on which an order of dismissal from service
may be made, meaning thereby, that
witholding of pension or any part thereof,
is a major penalty.

(11) In the present case, it is not the
case of appellants that any proceeding
whatever
was
initiated
against
the
respondent-employee
within
the
meaning of disciplinary action before
retirement. Even if, it may be assumed
that the disciplinary proceedings in the
matter for recovery of pecuniary loss are
initiated with the issuance of show cause
notice, yet the same in the present case
was issued after the date of retirement,
therefore, the case at hand is a case of
initiation
of
proceedings
after
retirement.

(12) The impugned notice was issued
under Regulation 351-A of Civil Service
Regulations read with Rule 9(1) of U.P.
Retirement Benefits Rules, 1961. Rule 9(1)
of the U.P. Retirement Benefits Rules, 1961
is also extracted hereunder:

"9.
Miscellaneous.-(1)
Government will have the right to effect
recoveries from a gratuity or family
pension sanctioned under Parts II and III
in the same circumstances as recoveries
can be effected from an ordinary pension
under Article 351-A of the Civil Service
Regulations."

(13) A conjoint reading of Regulation
351-A and Rule 9(1) extracted above leads
to a simple inference that the proceedings
for recovery from pension, wholly or in
part, or any amount from retiral dues,
cannot be initiated save with the sanction of
Board of Directors.

(14) In the present case, the notice on
16.3.2011 necessarily ought to have been
issued after the sanction by the Board of
Directors but there is no such sanction of
the Board of Directors for any such notice,
therefore,
the
same
was
without
jurisdiction. The resolution placed on
record passed by the Board of Directors on
9.6.2011 was clearly not in existence on the
basis of which the notice dated 16.3.2011
could be issued. The resolution dated
9.6.2011 under agenda item no. 155.12(ba)
had resolved as under:

en
la[;k
,ts.Ms
dk
fooj.k
funs'kd e.My }kjk
fy;k x;k fu.kZ;
155.12
(c)
Jh cCcu flag]
tw0bZ0
(lsokfuo`Rr) ds
fo:/k
lh0,l0vkj0 ds
fu;e&351&,
ds
vUrxZr
izkjEHk dh x;h
foHkkxh;
tkWp
dk;Zokgh
dk
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funs'kd e.My }kjk
vuqeksnu iznku fd;k
x;kA
9 All. Managing Director U.P. Jal Nigam (Rural) Lko. & Anr. Vs. Babban Singh & Anr.
219
djus ds lEcU/k
esaA

(15) A close reading of the minutes
of the resolution aforesaid clearly shows
that
sanction
for
proceedings
under
Regulation 351-A alone was approved and
there is no reference to Rule 9(1) of U.P.
Retirement Benefit Rules, 1961 for the
purposes of any recovery from gratuity or
family pension.

(16) Needless to reiterate that
Regulation 351-A merely provides for the
recovery of loss caused to the employer by
the employee from pension payable to him,
wholly or in part whereas Rule 9(1)
postulates recovery from the amount of
gratuity or family pension admissible to an
employee.
In
both
eventualities
the
procedure applicable to the proceedings is
the same on which an order of dismissal
from service may be made, meaning
thereby that the competent authority after
obtaining sanction from the Board of
Directors is bound to hold a regular enquiry
against the charged pensioner and draw the
proceedings accordingly.

(17) When the requirement of law is
applied to the case at hand, it becomes clear
that the competent authority had merely
issued a show cause notice to the
respondent-employee without drawing up
any charge sheet reducing the facts in the
form of definite charges as provided under
Rule 7 of U.P. Government Servants
(Discipline and Appeal) Rules 1999.

(18) There is no explanation either
before the writ court or in appeal arising
out of the writ court order, as to why such a
procedure was not followed before passing
the impugned order.

(19) In nutshell the impugned order
was passed in utter violation of the
requirements
of
Regulation
351-A,
therefore, the justification pleaded on the
basis of the resolution passed by the Board
of Directors on 09.06.2021 if assumed
valid, yet the procedure adopted does not
satisfy the mandate of law.

(20) This Court would note that
recovery from the retiral dues permitted to
be made from a pensioner under Rule 9(1)
of the U.P. Retirement Benefit Rules, 1991
are sanctified in no other manner than
conditions provided under Regulation 351A of Civil Service Regulations, therefore,
any such action would also require a
specific resolution to be passed by the
Board of Directors for that purpose which
in the instant case does not seem to have
been done at all. The impugned order
seeking to recover the pecuniary loss from
the retiral dues payable to the respondentemployee without there being any sanction
of the Board of Directors, in the facts and
circumstances of the case is wholly without
jurisdiction. This view is supported by a
judgment rendered by the Apex Court in
the case of U.P. State Sugar Corporation
Ltd.
vs.
Kamal
Swaroop
Tondon,
reported in (2008) AIR SCW 1241 and a
Division Bench judgment of the Bombay
High Court at Aurangabad in the case of
Ratnakar Bhagwanrao Mahajan vs.
District and Sessions Judge, Jalna and
another, decided on 24.09.2008 (W.P.
No.2555 of 2008).

(21) The impugned action resorted to
in the instant case is bad in the eye of law
for more reasons than one when analysed
empirically but for the present, if the
proceedings fall on the touchstone of want
of sanctity by the Board of Directors as per
law and the essential procedure which the
220 INDIAN LAW REPORTS ALLAHABAD SERIES
competent authority ought to have followed
but has failed, therefore, we are unable to
differ with the observation of the learned
Writ
Court
that
the
ingredients
of
Regulation 351-A were not followed.

(22) For the reasons spelt out in the
impugned judgment as well as what has
been
recorded
above,
the
impugned
judgment on the grounds urged before us in
this appeal do not lead us to a different
view calling for interference and the
Special Appeal arising out of the judgment
impugned
is
hereby
dismissed.
The
direction for payment of arrears along with
interest @ 7% is however set aside in the
peculiar facts of the case.

(23) Before parting, we may observe
that the case at hand clearly shows that the
competent authority as well the Board of
Directors at the relevant point of time acted
dehors the rules which, in fact, has
occasioned the loss to the Nigam simply on
account of their non-obedience to the rules
well known.

(24) It is a deliberate failure of the
competent authority and the Board to
follow the procedure prescribed under law
that the imputations of pecuniary loss
levelled
against
the
employee
were
rendered incapable of being converted into
an
actionable
claim.
The
competent
authority in place at the time of issuing the
notice as well as the Board responsible at
the relevant point of time deserve to be
proceeded against both for civil action for
recovery as well as criminal action
permissible under law.
----------
(2023) 9 ILRA 220
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2023
BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Writ A No. 10418 of 2023

Shahrukh Saleem ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Virendra Jaiswal

Counsel for the Respondents:
C.S.C.

Civil Law - Motor Vehicles Act, 1988 -
Section 51(5) - Registration Certificate
- Financier took possession of the
vehicle
due
to
default
in
loan
repayment - Petitioner's claim that R.C.
was not refused to be handed over is
immaterial - Requirement of 'refusal to
deliver R.C.' or 'absconding' not a sine
qua non - Where loan default and
repossession are proved, Registering
Authority has power to issue fresh R.C.
in favour of financier - Proper notice
issued to petitioner - No illegality in
impugned order.

Held - Once it is established that the
vehicle was purchased on finance and
possession taken due to default in
repayment, the Registering Authority is
empowered under Section 51(5) to
issue a fresh R.C. to the financier - The
refusal or absconding by the registered
owner
is
not
mandatory
but
only
illustrative - Issuance of fresh R.C. in
such circumstances does not cause
prejudice.

Petition dismissed.

(Delivered by Hon'ble Manoj Kumar
Gupta, J.
&
Hon'ble Manish Kumar Nigam, J.)