# Ram Prasad Kushwaha v. Vice Chancelor, Bundelkhand University and others

- **Citation:** (2007) 1 ILRA 294
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-11-16
- **Case number:** Civil Misc. Writ Petition No. 13886 of 2003
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-prasad-kushwaha-v-vice-chancelor-bundelkhand-university-and-others-40872
- **Pages:** 6

## Headnote

S.C.

Civil
Services
Regulations-Regulation
470 (b) and 351-A-Reduction of Family
pension 40%-petitioner found guilty of
grave
misconduct-causing
loss
to
government-proceeding initiated after
retirement
without
permission
of
governor-the
punishing
authority-
nowhere-mentioned
regarding
unsatisfactory
service-held-impugned
order
unsustainable-impugned
order
quashed with all consequential benefit.

Held: Para 12

A perusal of the entire order impugned in
the
writ
petition
shows
that
the
appointing
authority
nowhere
has
mentioned
its
satisfaction
that
the
service
of
the
petitioner
was
not
thoroughly satisfactory. Therefore, it is
evident
from
the
entire
facts,
circumstances and perusal of the record
that though the appointing authority has
mentioned and referred to Article 470(b)
of CSR in order to pass the impugned
order but in fact has sought to exercise
powers under Article 351-A without
conforming to the conditions of those
provisions. The orders impugned in the
writ
petition
are
thus
ex-facie
unsustainable
either
under
Article
470(b) or 351-A of CSR.
Case law discussed:
1976 L & C 1 cases-1734
1993 (1) UPLBEC-251

## Text

294 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
disclose that B.A. Program was a course
which was not recognised, however,
cannot be accepted, as firstly, the Parishad
has not been impleaded as a party and
secondly, it is not the case of the
petitioner that the Parishad had made any
such representation which misled the
petitioner. The plea is thus rejected.

13. For the aforesaid reasons, though
I hold that the petitioner is not entitled to
any relief as claimed, and dismiss the writ
petition, but direct that the petitioner shall
be paid a total sum of Rs.10,000/- only
within a maximum period of one month
from the date of receipt of a certified copy
of this order by the University. As
requested by the learned counsel for the
parties, the said amount be sent at the
address of the petitioner by means of a
Demand Draft or Banker's cheque under
Registered cover.

Subject to the above direction, the
petition is dismissed. Costs easy.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2006

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 13886 of 2003

Pooran Chandra Jain

...Petitioner
Versus
The State of U. P. & others ...Respondents

Counsel for the Petitioner:
Sri K.K. Dubey

Counsel for the Respondents:
S.C.

Civil
Services
Regulations-Regulation
470 (b) and 351-A-Reduction of Family
pension 40%-petitioner found guilty of
grave
misconduct-causing
loss
to
government-proceeding initiated after
retirement
without
permission
of
governor-the
punishing
authority-
nowhere-mentioned
regarding
unsatisfactory
service-held-impugned
order
unsustainable-impugned
order
quashed with all consequential benefit.

Held: Para 12

A perusal of the entire order impugned in
the
writ
petition
shows
that
the
appointing
authority
nowhere
has
mentioned
its
satisfaction
that
the
service
of
the
petitioner
was
not
thoroughly satisfactory. Therefore, it is
evident
from
the
entire
facts,
circumstances and perusal of the record
that though the appointing authority has
mentioned and referred to Article 470(b)
of CSR in order to pass the impugned
order but in fact has sought to exercise
powers under Article 351-A without
conforming to the conditions of those
provisions. The orders impugned in the
writ
petition
are
thus
ex-facie
unsustainable
either
under
Article
470(b) or 351-A of CSR.
Case law discussed:
1976 L & C 1 cases-1734
1993 (1) UPLBEC-251

(Delivered by Hon'ble Sudhir Agarwal. J.)

1. Heard Sri K.K. Dubey, learned
counsel for the petitioner and learned
Standing Counsel for the respondents.

2. This writ petition is directed
against the orders dated 10.10.2002
passed by the District Magistrate, Lalitpur
holding
petitioner
guilty
of
grave
misconduct
causing
loss
to
the
Government and therefore reducing his
family pension to 40%, and, dated
22.11.2002 whereby the order dated
10.10.2002 has been partly modified by
1 All] Ram Prasad Kushwaha V. Vice Chancelor, Bundelkhand University and others
295
substituting the word "family pension" to
"pension".

3. The brief undisputed facts giving
rise to this petition are that the petitioner
was appointed as Amin on 19.10.1970
and was posted in the office of Special
Land
Acquisition
Officer,
Jhansi
wherefrom he was transferred to Lalitpur
on 22.4.1984. On 19.10.1987 he was
placed under suspension, a charge sheet
was issued and after holding inquiry he
was reinstated with the punishment of
reduction of 10% of salary during the
period of suspension. Thereafter vide
order
dated
19.6.1991
his
annual
increment for the year 1991 was withheld
with
cumulative
effect
and
his
representation
against
the
aforesaid
punishment was rejected on 31.3.1998.
Thereafter he was allowed to cross
efficiency bar by order dated 24.4.1999
w.e.f. 1.1.1992. The petitioner attained
the age of superannuation on 29.2.2000
and retired on the said date. After
retirement a charge sheet was issued on
11.5.2000 under Article 470 (b) of Civil
Service Regulations (hereinafter referred
to as "CSR") containing charges of
causing loss to the Government Revenue,
doubtful integrity and misappropriation.
The petitioner submitted reply to the
charge sheet on 5.6.2000 whereafter
Additional District Magistrate (Finance &
Revenue), Lalitpur was appointed as
Inquiry Officer who conducted an oral
inquiry and submitted his report dated
28.8.2002 holding charges proved against
him. The appointing authority i.e. the
Collector,
Lalitpur
thereafter
passed
punishment
order
dated
10.10.2002
reducing family pension of the petitioner
by 40% which order was modified by
subsequent order dated 22.11.2002 and
instead of "family pension" it was made
"pension".

4. The learned counsel for the
petitioner vehemently contended that after
retirement, inquiry proceedings could not
have been held except in accordance with
the procedure prescribed under Article
351-A of CSR and since the charges
relates to four years prior to the date of
retirement and no sanction was obtained
from the Hon'ble Governor, hence, the
entire
proceedings
as
well
as
the
impugned orders are vitiated of law.

5. The learned Standing Counsel
however,
disputing
the
contention
submitted that Article 351-A of CSR has
no
application
in
this
case
since
proceedings were initiated under Article
470(b) of CSR which requires only
approval of the appointing authority and
no approval of Governor is needed
thereunder,
therefore
the
entire
proceedings are in accordance with law
and the writ petition deserve to be
dismissed.

6. In the light of the rival
submissions the only question required to
be answered in this case is whether the
proceedings in question were rightly
initiated under Article 470(b} of CSR and
whether Article 351-A of CSR has any
application or not.

7. The inter-relationship of Article
351-A and 470(b} of CSR came up for
consideration before a Full Bench in
Murli Sharan Sahai Sinha Vs. The
State of Uttar Pradesh and others, 1976
Labour & Industrial Cases, 1734 and it
was held that Article 351-A and 470(b)
are not actually exclusive but are
overlapping to some extent. Where a civil
296 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
servant is found to have caused pecuniary
loss to Government or guilty of grave
misconduct or negligence, the authority
empowered under Article 470(b) of CSR
can resort to exercise such power under
that Article. Similarly on the same set of
facts if the departmental inquiry would
have been initiated and an order of
reduction of pension could not have been
passed under Article 351-A, there is no
reason to deduce that such an order may
not be passed by resorting to Article
470(b) of CSR. Para 13 of the judgment
which for the purpose of present case in
my view is relevant may be reproduced as
under:-

"If
on
a
set
of
facts
and
circumstances a departmental enquiry or
judicial proceedings could have been
taken for establishing grave misconduct
or misconduct or negligence on the part of
a civil servant resulting in pecuniary loss
to
the
Government,
there
is
no
compulsion on the Governor to resort to
that course. There is no reason why on
those very facts and circumstances the
authority sanctioning pension or the
appointing authority should not issue a
show cause notice to the concerned civil
servant, and consider his explanation or
representation. If such authority, on
considering
such
explanation
or
representation, is satisfied that his service
was not thoroughly satisfactory, there is
no reason why it should not, under Article
470(b) reduce his pension. Neither in
Article 351-A nor in Article 470(b) is
there any express or implied prohibition
against such course of action being taken
by such authority merely because on the
same set of facts and circumstances a
departmental
enquiry
or
judicial
proceedings could have been taken to
establish that he was guilty of grave
misconduct or misconduct or negligence
resulting
in
pecuniary
loss
to
the
government which would warrant action
under Article 351-A."

8. The aforesaid judgment therefore
leave no doubt where an inquiry and order
of reduction of pension can be passed
under Article 351-A, the same could have
been passed under Article 470(b) of CSR.
The problem however arise where the
proceedings are barred under Article 351A
for
example
if
the
charges,
whereagainst it intends to conduct inquiry
are anterior to four years from the date of
retirement and no proceedings can be held
under Article 351-A, whether even in
such case Article 470(b) would be
attracted. It would be appropriate at this
stage to reproduce Article 351-A and 470
of CSR:-

"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 petitioner is found in
departmental or judicial proceedings to
have been guilty of grave 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-
1 All] Pooran Chandra Jain V. The State of U.P. and others
297
(i) shall not be instituted save with the
sanction of the Governor,

(ii) shall be in respect of an event which
tool place not more than four years
before
the
institution
of
such
proceedings, 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.

"470. (a) The full pension admissible
under the rules is not to be given as a
matter of course, or unless the service
rendered has been really approved (see
Appendix 9),

(b) If the service has not been
thoroughly satisfactory, the authority
sanctioning the pension should make such
reduction in the amount as it thinks
proper.

Provided that in cases where the
authority sanctioning pension is other
than the appointing authority, no order
reading reduction in the amount of
pension shall be made without the
approval of the appointing authority."

9. A bare reading of Article 351-A
shows that the Governor has reserved to
himself all the right of withholding and
withdrawing a pension or any part of it,
whether permanently or for a specified
period and also the right of ordering
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
guilty of grave misconduct or to have
caused pecuniary loss by misconduct or
negligence during hii service. However,
Article 470(b) empowers the appointing
authority to pass an order for reduction of
pension if the service of the Government
servant
has
not
been
thoroughly
satisfactory. In the case of Article 351-A
the order can be passed by the Governor
while under Article 470(b) the order can
be passed by the appointing authority. It is
thus clear that in order to attract Article
470(b) of CSR, appointing authority have
to record its conclusion that the service of
the retired employee was not thoroughly
satisfactory. It is true that to some extent
both the Articles are overlapping and may
run parallel but still the issues require to
be considered under the two provisions
are slightly of different magnitude. Where
on account of any individual or particular
act
or
omission
constituting
grave
misconduct or negligence causing loss of
the Government servant, the appointing
authority intend to exercise power under
Article 470 (b), it has to record a finding
that the service has not been thoroughly
satisfactory. It is not open to the
appointing authority to byepass the
provision and where the proceedings are
otherwise barred under Article 351-A to
circumvent the same or to resurrect the
closed issue, it may resort to Article 470
(b) without recording any finding that the
service
has
not
been
thoroughly
298 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
satisfactory. It is a settled legal exposition
where something is required to be done in
a particular manner and in specified
contingencies, the action has to be taken
strictly in accordance therewith and any
deviation
thereto
shall
vitiate
the
proceedings. In other words it can be said
that where a single act or more than that
may constitute a grave misconduct or
negligence or having caused loss to the
Government justifying order under Article
351-A of CSR, the same would not justify
an order under Article 470 (b) of CSR
unless and until the competent authority
formed a conclusion that such act or
omission
constituting
misconduct
or
negligence or loss results in making the
entire service thoroughly unsatisfactory.

10. A perusal of the entire order
would
show
that
the
appointing
authorities have nowhere mentioned that
the service of the petitioner is thoroughly
unsatisfactory. The Full Bench in Murli
Sharan Sahai Sinha (Supra) approved
the proposition that for the same set of
misconduct, order can be passed in either
of the provisions but made it clear that
such an order can be passed subject to
fulfillment of other conditions under that
Article. The answer to question no. 3 by
the Full Bench in Murli·Sharan Sahai
Sinha (Supra) as contained in para 15(3)
is reproduced as under:-

"15(3) Both Article 351-A and
Article 470(b) will apply to a case where
misconduct of a civil servant has resulted
in pecuniary loss to the Government. If
such misconduct is established in a
departmental enquiry against him or
judicial proceedings, action can be taken
under Article 351-A subject to fulfillment
of other conditions under that Article. In
respect of same misconduct, action can
also be taken under Article 470(b) subject
to fulfillment of other conditions under
that Article.

11. In Vishwanath Prasad Vs.
Uttar Pradesh Public Services Tribunal
and others, 1993(1) UPLBEC, 251 a
Single
Judge
of
this
Court
while
considering
Article
470(b)
of
CSR
observed that discretion conferred on the
authority under Article 470(b) though
wide
cannot
be
exercised
without
assuming thorough satisfaction about the
petitioner's service. In para 14 of the
judgment, the court held:-

"In Article 470(b), the discretion of
reduction of pension-can be exercised
only if it is proved that the service of the
pensioner
has
not
been
thoroughly
satisfactory during his tenure as employee
under the State. The finding with regard
to
question
of
service
not
being
satisfactory of any employee is not left to
the whim of the authority......"

Further in para 16, the Court observed:-

"For invoking Article 470(b) by any
authority for the purpose of ordering
reduction of pension, two considerations
are inherent in the said Article. Firstly, the
authority has to satisfy itself on the basis
of material, that the services of a person
who claims pension, were not thoroughly
satisfactory. Secondly, while arriving at a
conclusion
that
the
service
of
an
employee was not thoroughly satisfactory,
the authority has to furnish material,
evidence or any report on which he has
formed his opinion, to the person
concerned who is likely to be affected by
his order under Article 470(b) of C.S.R. If
these considerations are not expressly
incorporated in the said Article, that
1 All] Pooran Chandra Jain V. The State of U.P. and others
299
would not mean that the authority,
empowered to operate the said Article,
has to omit to consider the aforesaid
considerations, before he issues an order
of reduction of pension in respect of an
employee. These two considerations are
inherent in the said Article and without
taking these two considerations implicit in
the Article, the Article itself would
become arbitrary and violative of Article
14 of the Constitution. In order to make
this
Article 470(b)
workable it is
necessary
that
unfettered
discretion
conferred by this Article or an authority is
exercised within the limits of law and
satisfaction about the service of an
employee
not
being
satisfactory
thoroughly is assumed on the basis of
evidence and before that evidence is acted
upon, employee, likely to be affected by
the order in that section is given
opportunity of being heard. These are the
rudimentary requirements which are to be
followed before the discretion under
Section 470(b) is exercised by any
authority."

12. A perusal of the entire order
impugned in the writ petition shows that
the appointing authority nowhere has
mentioned its satisfaction that the service
of the petitioner was not thoroughly
satisfactory. Therefore, it is evident from
the entire facts, circumstances and perusal
of the record that though the appointing
authority has mentioned and referred to
Article 470(b) of CSR in order to pass the
impugned order but in fact has sought to
exercise powers under Article 351-A
without conforming to the conditions of
those provisions. The orders impugned in
the writ petition are thus ex-facie
unsustainable either under Article 470(b)
or 351-A of CSR.

13. In the result, the writ petition
succeeds and is allowed. The impugned
orders are quashed and it is declared that
the petitioner shall be entitled for all
consequential benefit. There shall be no
order as to costs.

Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2006

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 49253 of 2006

Ishwar Chand

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

Counsel for the Petitioner:
Sri H.P. Singh
Sri Amarendra Pratap Singh

Counsel for the Respondents:
Sri R.P. Dubey
Sri Ravi Ranjan
Sri P.S. Baghel
Sri Kailash Nath Singh
S.C.

U.P.
Secondary
Education
Service
Selection
Board-Section-18-Ad-hoc
appointment till the regular selections
made-whether the joining of regular
selected candidate can be resisted by
such adhoc-appointee? Held-'No'-such
adhoc appointee has to give way to the
regular selected candidate.

Held: Para 21

From the aforesaid, it is apparent that
petitioner has a prima facie case in his
favour, an ad hoc appointee (who has
been appointed by an Authority having
no
jurisdiction
to
offer
such