# Prem Krishna Sriavastava v. State of U.P. and others

- **Citation:** (2006) 2 ILRA 743
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-08-11
- **Case number:** Civil Misc. Writ Petition No. 7138 of 2005
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-krishna-sriavastava-v-state-of-u-p-and-others-40582
- **Pages:** 3

## Headnote

S.C.

U.P.
Civil
Service
RegulationsRegulation-351-A-
Disciplinary
Proceeding-after
retirement-on
the
ground
of
financial
irregularity-after
issuing show cause notice-Disciplinary
proceeding initiated-No prior permission
taken
from
governor-disciplinary
proceeding quashed-direction issued to
release the withheld amount within 3
month failing which 12% interest may
be paid.
744 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Held: Para 8

In view of the aforesaid, I find that the
disciplinary proceedings initiated against
the petitioner after his retirement was
ex-facie, illegal as it did not have the
sanction of the Governor. Consequently,
the petitioner is entitled to be relief as
moulded
during
the
course
of
the
hearing of the writ petition. Since no
previous permission was obtained from
the
Governor,
the
disciplinary
proceedings
initiated
against
the
petitioner
is
quashed.
The
amount
withheld from the gratuity is liable to be
paid to the petitioner. Consequently, a
mandamus
is
issued
directing
the
respondents
to release
the balance
amount of the gratuity within three
months from the date of production of
the certified copy of this order. If the
amount is released within the aforesaid
period, no interest would be payable.
However, if the amount is not paid
within the aforesaid period, interest
would be payable at the rate of 12% per
annum from the date of withholding the
amount till the date of payment. In the
circumstances of the case, parties will
bear their own costs. Writ petition
stands allowed.

## Text

2 All] Prem Krishna Srivastava V. State of U.P. and others
743
High Court under Section 482 of the Code
and Article 226 of Constitution of India is
unlimited whereunder in the interests of
justice the High Court can make such
orders as may be necessary to prevent
abuse of the process of any Court or
otherwise to secure the ends of justice
within the parameters laid down in
Bhajan Lal's case."

6. In the circumstances, I agree with
the argument of the counsel for the
applicants that in case the applicants are
relegated to the trial court to raise
objection on the basis of acquittal at the
stage of framing of the charge, it is
against the dictum of the Apex Court in
the case of State of Orissa Vs. Debendra
Nath Padhi. It is also noteworthy that
since the husband has been acquitted by
the trial court for the reason that all the
witnesses have been declared hostile and
a finding has been recorded that the
deceased died due to prolonged illness
and it was a natural death, it is obvious
that the fate of the trial of the present
applicants will be the same and the
proceedings if allowed to continue, will
amount to harassment of the present
applicants, no good result can come out
even if the applicants are permitted to
stand the trial. Since the Apex Court has
said that the proceedings could be
quashed if the material is produced before
the
High
Court
while
exercising
jurisdiction under Section 482 of the Code
or 226 of the Constitution is of such a
sterling
quality
and
unimpeachable
character then the Court is well within its
right to quash the proceedings.

7. After going through the entire
record, I am of the view that the charge
sheet filed in case Crime No. 145 of 1999
against the present applicants should be
quashed as the Sessions Trial No. 889 of
1999 arising out of the same case crime
number ended into a clear acquittal. The
present charge sheet and proceedings in
Criminal Case No. 13723/9/99 arising out
of case Crime No. 145 of 1999, under
Section 498-A, 304-B, 201 I.P.C. and 3/4
Dowry Prohibition Act, Police Station
Jani, District Meerut, pending in the court
of Chief Judicial Magistrate, Meerut, if
allowed to continue, it is nothing short of
abuse of process of the court and
therefore, in the circumstances, the same
is quashed to meet the ends of justice.

The
application
is
accordingly
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 7138 of 2005

Prem Krishna Sriavastava
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.K. Singh Rajpoot

Counsel for the Respondents:
S.C.

U.P.
Civil
Service
RegulationsRegulation-351-A-
Disciplinary
Proceeding-after
retirement-on
the
ground
of
financial
irregularity-after
issuing show cause notice-Disciplinary
proceeding initiated-No prior permission
taken
from
governor-disciplinary
proceeding quashed-direction issued to
release the withheld amount within 3
month failing which 12% interest may
be paid.
744 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Held: Para 8

In view of the aforesaid, I find that the
disciplinary proceedings initiated against
the petitioner after his retirement was
ex-facie, illegal as it did not have the
sanction of the Governor. Consequently,
the petitioner is entitled to be relief as
moulded
during
the
course
of
the
hearing of the writ petition. Since no
previous permission was obtained from
the
Governor,
the
disciplinary
proceedings
initiated
against
the
petitioner
is
quashed.
The
amount
withheld from the gratuity is liable to be
paid to the petitioner. Consequently, a
mandamus
is
issued
directing
the
respondents
to release
the balance
amount of the gratuity within three
months from the date of production of
the certified copy of this order. If the
amount is released within the aforesaid
period, no interest would be payable.
However, if the amount is not paid
within the aforesaid period, interest
would be payable at the rate of 12% per
annum from the date of withholding the
amount till the date of payment. In the
circumstances of the case, parties will
bear their own costs. Writ petition
stands allowed.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard learned counsel for the
petitioner
and
the
learned
standing
counsel appearing for the respondents.

2. The petitioner retired from service
on 31.12.1998. After his retirement, a
show cause notice dated 27.9.1999 was
issued and on this basis, a charge sheet
dated 8.11.1999 was issued alleging a
financial loss of Rs.36,517/- on the
department. Thereafter, a departmental
inquiry in pursuance of the charge sheet
was initiated against the petitioner. This
enquiry is still pending even after a lapse
of six years.

3. The petitioner has filed the
present writ petition praying that the
amount of Rs.36,517/- had been illegally
withheld from the
gratuity
of the
petitioner and that this amount could not
be withheld after the petitioner had retired
since no previous sanction was obtained
from the Governor under Regulation
351A of the Civil Service Regulations.

4. On the other hand, the learned
standing counsel submitted that on the
basis of certain audit objections, a charge
sheet has been issued and that an enquiry
is pending and, pending completion of the
enquiry, a tentative amount of Rs.36,517/-
has been withheld from the gratuity of the
petitioner and, this amount has been
withheld for the simple reason that, in the
event, the petitioner was found guilty of
the loss, the same would be recovered
from the gratuity.

5. The question which arises for
consideration is, whether this amount
could be legally withheld from the
gratuity that was payable to the petitioner
upon his retirement? It is an admitted
case, that no charge sheet or show cause
notice was served upon the petitioner
prior to his retirement. Regulation 351 A
of
the
Civil
Services
Regulations
contemplates that when a person has
retired and disciplinary proceedings are to
be initiated after his retirement, in that
eventuality, such disciplinary proceedings
could only be initiated after obtaining
previous sanction from the Governor.
Admittedly, from a perusal of the order
dated 7.2.2000 issued by the respondents,
it is clear that no previous sanction was
obtained from the Governor.

6. The learned Standing Counsel
further submits that Regulation 351A
2 All] Prem Jeet Singh Gujral V. Debt Recovery Appellate Tribunal and others
745
contemplates the recovery of the amount
from the pension, whereas, in the present
case, the recovery has been sought from
the gratuity, as such, Regulation 351A
would not be applicable. In my opinion,
the submission of the learned Standing
Counsel is not correct. Regulation 351A
of the Civil Service Regulations reads as
follows:

"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 special
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 or gave mis-conduct, 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 reemployment-

[i] shall not be instituted save with
the sanction of the Governor."

Further, Regulation 41 of the Civil
Service Regulations states as under:

"41. Pension- Except when the term
"Pension is used in contradistinction to
gratuity "Pension" includes Gratuity."

7. From the aforesaid of Regulation
41, it is clear that the usage of the word
'Pension' in Regulation 351A would
include gratuity.

8. In view of the aforesaid, I find
that the disciplinary proceedings initiated
against the petitioner after his retirement
was ex-facie, illegal as it did not have the
sanction of the Governor. Consequently,
the petitioner is entitled to be relief as
moulded during the course of the hearing
of the writ petition. Since no previous
permission
was
obtained
from
the
Governor, the disciplinary proceedings
initiated against the petitioner is quashed.
The amount withheld from the gratuity is
liable to be paid to the petitioner.
Consequently, a mandamus is issued
directing the respondents to release the
balance amount of the gratuity within
three months from the date of production
of the certified copy of this order. If the
amount is released within the aforesaid
period, no interest would be payable.
However, if the amount is not paid within
the aforesaid period, interest would be
payable at the rate of 12% per annum
from the date of withholding the amount
till
the
date
of
payment.
In
the
circumstances of the case, parties will
bear their own costs. Writ petition stands
allowed.

Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.07.2005

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 49339 of 2005

Prem Jeet Singh Gujral
...Petitioner
Versus
Debt Recovery Appellate Tribunal and
others

...Respondents

Counsel for the Petitioner:
Sri Sashi Nandan
Sri Anurag Jauhari