# Sanjay Tewari v. State Of U.P. & Ors

- **Citation:** (2019) 3 ILRA 208
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-17
- **Case number:** Service Single No.28414 of 2019
- **Bench:** Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-tewari-v-state-of-u-p-ors-44815
- **Pages:** 8

## Headnote

A. Service Law- Disciplinary Proceedings
- Uttar Pradesh Government Servant
(Discipline and Appeal) Rules, 1999 -
Rule 7(IV); U.P Fundamental Rules: Rule
56(a) - Commencement of Departmental
Enquiry. Service or dispatch through
permissible mode of service and not
preparation or signing of the chargesheet would constitute commencement
of the Disciplinary Proceedings.

Whether a retired public servant can be visited
with a charge- sheet in his afternoon of his
last working day in office when he is
understood to have retired? Merely for the fact
that the charge sheet is dated a day prior to
the date of retirement, would not amount to
the initiation of the disciplinary proceedings
unless a copy thereof was duly served upon
the petitioner or at least the same was
dispatched to him through the permissible
mode of service. (Para 6, 18, 21). The
issuance of charge-sheet in relation to an
occurrence having taken place after more than a
year of petitioner's transfer would stand vitiated
for want of service before 12 O'clock on
28.02.2019 (date of retirement) and sending the
charge-sheet by e-mail in the afternoon was thus
hit by a jurisdictional error. (Para 15)

B. Uttar Pradesh Government Servant
(Discipline and Appeal) Rules, 1999:
Rule 7(IV) - None of the punishments
envisaged under Rules 1999 would at all stand
attracted in a situation where a public servant
has retired from service. Therefore, the
purpose of initiating disciplinary proceedings
under the Rules 1999 cannot be allowed to
travel to invade upon the protection which the
Rules provide for a retired public servant.
(Para 10, 14)

C. Civil Service Regulations: Regulation
351-A - Once a public servant has
retired, the proceedings can be initiated
only by following the procedure under
Regulation 351-A of the Civil Service
Regulations, provided there is no bar -

The disciplinary proceedings with the issuance
of charge-sheet treating him a public servant
was erroneous and invades upon the power of
Governor. (Para 21)

Petition allowed (E-4)

Precedent followed: -

## Text

208 INDIAN LAW REPORTS ALLAHABAD SERIES

19. The writ petition is accordingly
allowed.

20. No order as to costs.
----------

(2019)11ILR A208

ORIGINAL JURISDICTION
 CIVIL SIDE
DATED: LUCKNOW 17.10.2019

BEFORE
THE HON'BLE ATTAU RAHMAN MASOODI , J.

Service Single No.28414 of 2019

Sanjay Tewari ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sunil Kumar Mishra, Sri Ghufran
Hussain, Sri Vineet Bihari Patel.

Counsel for the Respondents:
C.S.C., Sri Puneet Chandra.

A. Service Law- Disciplinary Proceedings
- Uttar Pradesh Government Servant
(Discipline and Appeal) Rules, 1999 -
Rule 7(IV); U.P Fundamental Rules: Rule
56(a) - Commencement of Departmental
Enquiry. Service or dispatch through
permissible mode of service and not
preparation or signing of the chargesheet would constitute commencement
of the Disciplinary Proceedings.

Whether a retired public servant can be visited
with a charge- sheet in his afternoon of his
last working day in office when he is
understood to have retired? Merely for the fact
that the charge sheet is dated a day prior to
the date of retirement, would not amount to
the initiation of the disciplinary proceedings
unless a copy thereof was duly served upon
the petitioner or at least the same was
dispatched to him through the permissible
mode of service. (Para 6, 18, 21). The
issuance of charge-sheet in relation to an
occurrence having taken place after more than a
year of petitioner's transfer would stand vitiated
for want of service before 12 O'clock on
28.02.2019 (date of retirement) and sending the
charge-sheet by e-mail in the afternoon was thus
hit by a jurisdictional error. (Para 15)

B. Uttar Pradesh Government Servant
(Discipline and Appeal) Rules, 1999:
Rule 7(IV) - None of the punishments
envisaged under Rules 1999 would at all stand
attracted in a situation where a public servant
has retired from service. Therefore, the
purpose of initiating disciplinary proceedings
under the Rules 1999 cannot be allowed to
travel to invade upon the protection which the
Rules provide for a retired public servant.
(Para 10, 14)

C. Civil Service Regulations: Regulation
351-A - Once a public servant has
retired, the proceedings can be initiated
only by following the procedure under
Regulation 351-A of the Civil Service
Regulations, provided there is no bar -

The disciplinary proceedings with the issuance
of charge-sheet treating him a public servant
was erroneous and invades upon the power of
Governor. (Para 21)

Petition allowed (E-4)

Precedent followed: -
1. Special Director & anr. Vs Mohd. Ghulam
Ghouse & anr. (2004) 3 SCC 440 (Para 4)

2. U.O.I. & anr. Vs Kunisetty Satyanarayana
(2006) 12 SCC 28 (Para 4)

3. Vijay Pal Singh Vs St. of U.P. & 3 ors. Writ-A
No. 11382 of 2015 (Para 4)

4. U.O.I. & ors. Vs Dinanath Shantaram
Karekar & ors. (1998) 16 LCD 1274 (Para 12,
21)
Precedent distinguished: -
1. State of M.P. Vs. Onkar Chand Sharma,
(2001)
9
SCC
171
(Para
19)
3 All. Sanjay Tewari Vs. State of U.P. & Ors.
209
Present
petition
challenges
charge-
sheet dated 27.02.2019 and show-cause
notice dated 14.08.2019.

(Delivered by Hon'ble Attau Rahman
Masoodi, J. )

1. Heard Sri Manish Kumar learned
Senior Counsel assisted by Sri Ghufran
Hussain learned counsel for the petitioner,
Sri N.K. Seth learned counsel assisted by
Sri Puneet Chandra learned counsel for
the opposite parties. Shri Alok Sharma
learned
Additional
Chief
Standing
Counsel has put in appearance for the
State.

2. At the very outset, a preliminary
objection was raised by Sri N.K. Seth
learned Senior Counsel appearing for the
opposite parties that the present writ
petition as against the charge-sheet and
show cause notice is not maintainable.
The show cause notice dated 14.8.2019 is
contained as annexure 1 to this writ
petition whereas the charge-sheet dated
27.2.2019 is contained as annexure 2.

3. It is well settled that ordinarily
this Court in exercise of writ jurisdiction
under Article 226 of the Constitution of
India would not entertain a writ petition
arising out of the charge-sheet and showcause notice but if the charge-sheet and
show cause notice issued by an authority
suffer from lack of jurisdiction, the Court
may overrule an objection and proceed on
merit.

4. Learned counsel for the opposite
parties has placed reliance upon the
judgments of the Hon'ble Apex Court in
the case of Special Director and another
versus Mohd. Ghulam Ghouse and
another reported in (2004)3 SCC 440
and case of Union of India and another
versus
Kunisetty
Satyanarayana
reported in (2006)12 SCC 28 as well as
the order passed by this Court in Writ-A
No. 11382 of 2015(Vijay Pal Singh
versus State of U.P. and 3 others). The
judgments mentioned above propound the
same principle as has been appreciated
herein-above.

5. The present case however is a
case where lack of jurisdiction in the
issuance
of
charge-sheet
and
consequently show cause notice on the
basis of inquiry report submitted is prima
facie made out. Thus, the preliminary
objection
raised
by
learned
Senior
counsel for the opposite parties is
overruled. The prayer for seeking time to
file counter affidavit in a situation where
pure question of law is involved would
merely prolong the case for no purpose,
hence the same is declined.

6. Proceeding to consider the matter
on merit, it may be stated that the
petitioner while holding the post of Chief
Engineer
attained
the
age
of
superannuation on 28.2.2019. It is on
28.2.2019 that a charge-sheet dated
27.2.2019 came to be served upon him.
Merely for the fact that the charge-sheet
is dated 27.2.2019 would not amount to
the
initiation
of
the
disciplinary
proceedings unless a copy thereof was
duly served upon the petitioner or at least
the same was dispatched to him through
the permissible mode of service.

7. On the aspect of dispatch of the
charge-sheet, the only mode adopted by
the opposite parties as has been explained
before this Court is through an email sent
on 28.2.2019 at 12.20 p.m. That apart, the
charge-sheet was also served upon the
210 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner on 28.2.2019 at 5.47 p.m.
personally. Both the modes of service as
disclosed before this Court by the
opposite
parties
on
the
basis
of
instructions are clearly in the afternoon on
28.2.2019. There is no proof of service of
charge-sheet through any other mode
except what has been stated above.

8. This being the factual position,
learned counsel for the petitioner taking
aid of Rule 56(a) of the Fundamental
Rules has argued that a public servant is
deemed to have retired from service in the
afternoon of the last working day of his
service tenure. Therefore, the issuance of
charge-sheet after public servant has
retired is impermissible and would serve
no purpose of the Discipline and Appeal
Rules which postulate minor and major
punishments.

9. For ready reference, Rule 56 of
the Fundamental Rules is produced
hereunder:-

"56. (a) Except as otherwise
provided in this rule, every Government
servant shall retire from service on the
afternoon of the last day of the month in
which he attains the age of sixty years:

Provided that a Government
servant, whose date of birth is the first
day of a month, shall retire from service
on the afternoon of the last day of the
preceding month on attaining the age of
sixty years:

Provided
further
that
a
Government Servant, who has attained
the age of fifty-eight years on or before
the first day of the November, 2001 and is
on extension in service, shall retire from
service on expiry of his extended period
of service.

(a-1) No Government servant
shall be granted extension in service
beyond the age of retirement of sixty
years:

Provided that a Government
servant dealing with budget work or
working as a full time member of a
committee which is to be wound up
within a short period of time may be
granted, by the Government, extension of
service for a period not exceeding three
months in public interest.

Provided
further
that
a
Government
servant
holding
highly
specialized
technical
job
whose
replacement has not been possible to the
arranged before his retirement even after
efforts made in this regard, may be
granted extension of service up to the age
of sixty-two years, if such extension is
unavoidable in public interest and the
grounds for such extension are recorded
in writing:

Note- Each case for extension of
service under this clause shall be put up
for orders to the Chief Minister through
the Chief Secretary.

(a-2) Notwithstanding any thing
to the contrary contained in clause (a) or
clause (a-1) of this rule, a Government
servant may, if considered necessary, in
public interest, so to do, be granted
extension of service up to the age of sixtytwo years with the prior approval of the
Cabinet.

Provided that in the cases of
extension in service under clauses(a-1)
and (a-2) of this rule, Government shall
have the right to terminate the extension
of service before expiry of such extension
by giving a notice in writing of not less
than three months in the case of a
permanent or, of one month in the case of
3 All. Sanjay Tewari Vs. State of U.P. & Ors.
211
a temporary Government servant, or pay
and allowances in lieu of such notice".

10. There is no dispute on the aspect
that the service Rules applicable to the
government servants are equally applicable
to the present petitioner who is serving in
U.P. Rajya Vidyut Vitaran Nigam Limited.
There is yet another ground which goes to
the root of the impugned disciplinary
proceedings
initiated
under
U.P.
Government
Servant(Discipline
and
Appeal) Rules, 1999(hereinafter referred to
as the Rules, 1999). The reason is that none
of the punishments envisaged under the
Rules-1999 would at all stand attracted in a
situation where a public servant has retired
from service. Looking to the nature of
punishments envisaged under the Discipline
and Appeal Rules, 1999 the interpretation
of Rule 56(a) of the Fundamental Rules has
to be made so as to serve the purpose of
Discipline and Appeal Rules as well as
Regulation 351-A of the Civil Service
Regulations. The phrase 'afternoon' in
common parlance is referable to a point of
time after 12 O' clock in the day.

11. Looking to the factual position
in the present case, once it is clear that the
charge-sheet
was
attempted
to
be
communicated to the petitioner after 12 O'
clock in the day on 28.2.2019, there is no
reason for this Court to understand the
service of charge-sheet prior to 12 O'
clock on 28.2.2019. The question of
jurisdiction would thus arise as to whether
a retired public servant can be visited
with a charge-sheet in the afternoon of his
last working day in office when he is
understood to have retired.

12. Learned counsel or the petitioner
in order to substantiate the argument has
placed reliance upon the judgment of the
Hon'ble Apex Court in the case of Union
of India and others versus Dinanath
Shantaram
Karekar
and
others
reported in 1998(16) LCD-1274. The
judgment cited by the petitioner lends
support to the argument purforth.

13. Sri N.K. Seth, learned Senior
counsel in reply to the submission has
argued that the charge-sheet having been
drawn on 27.2.2019 was in fact served
upon the petitioner on 28.2.2019, as such,
it is quite possible that the petitioner may
have evaded service on the same very
day. It is however not disputed that apart
from the mode of service through e-mail
or personal service, any other mode of
service was adopted. It is well known that
the service through email is the most
expeditious mode of service which too
has been invoked on 28.2.2019 at 12.20
pm. This Court would have appreciated
dispatch through any other mode of
service provided the e-mail was not sent
but in the present case, the e-mail itself
was sent in the afternoon. The last day of
working in one's service tenure is
recognized only up to the noon and this
has a definite purpose that the officer
soon thereafter becomes functus officio.
Any other understanding of the rule
would do violence to the very purpose of
Fundamental Rule 56(a). The purpose of
Discipline and Appeal Rules is not only
to initiate the disciplinary proceedings but
to achieve the purpose of punishments
envisaged therein.

14. Even if it is assumed that the
charge-sheet was served on 28.2.2019 yet
none of the punishment as envisaged
under the Rules, 1999 can be inflicted
upon
the
petitioner.
Once
all
the
punishments envisaged under the Rules,
1999 are incapable of being inflicted upon
212 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner, the purpose of initiating
disciplinary proceedings under the Rules,
1999 cannot be allowed to travel to
invade upon the protection which the
Rules provide for a retired public servant.
Nothing beyond the scope of Rules was in
fact a subject matter of consideration
before the competent authority at the time
of taking such a decision.

15. Thus, the issuance of chargesheet in relation to an occurrence having
taken place after more than one year of
petitioner's transfer would stand vitiated
for want of service before 12 O' clock on
28.2.2019 and sending the charge-sheet
by e.mail in the afternoon was thus hit by
a jurisdictional error.

16. For ready reference, the
punishments envisaged under the Rules
1999 are reproduced hereunder :-

3. Penalties. -The following
penalties may, for good and sufficient
reasons and as hereinafter provided, be
imposed upon the Government servants :

Minor Penalties :

(i) Censure;

(ii) Withholding of increments
for a specified period;

(iii) Stoppage at an efficiency
bar;

(iv) Recovery from pay of the
whole or part of any pecuniary loss
caused to Government by negligence or
breach of orders;

(v) Fine in case of persons
holding Group 'D' posts;

Provided that the amount of
such fine shall in no case exceed twentyfive percent of the month's pay in which
fine is imposed.

Major Penalties :

(i) Withholding of increments
with cumulative effect;

(ii) Reduction to a lower post or
grade or time scale or to a lower stage in
a time scale;

(iii) Removal from the service
which does not disqualify from future
employment;

(iv) Dismissal from the service
which
disqualifies
from
future
employment.

Explanation. - The following
shall not amount to penalty within the
meaning of this rule, namely :

(i) Withholding of increment of
a Government servant for failure to pass
a departmental examination or for failure
to fulfil any other condition in accordance
with the rules or orders governing tire
service;

(ii) Stoppage at the efficiency
bar in the time scale of pay on account of
ones not being found fit to cross the
efficiency bar;

(iii) Reversion of a person
appointed on probation to the service
during or at the end of the period of
probation in accordance with the terms of
appointment or the rules and orders
governing such probation;

(iv) Termination of the service
of a person appointed on probation during
or at the end of the period of probation in
accordance with the terms of the service
or the rules and orders governing such
probation.

17. The only course open to the
opposite parties is to proceed against the
petitioner treating him to have retired
from service in accordance with the rules
as may be applicable to a retired public
servant. The case at hand is not the one
where the opposite parties have taken aid
of Discipline and Appeal Rules, 1999
3 All. Sanjay Tewari Vs. State of U.P. & Ors.
213
treating the petitioner having retired. The
period subsequent to the afternoon of last
day of service tenure is a privileged
period
for
the
public
servant
to
commemorate
his
contribution
and
association with his colleagues and
subordinate staff. He becomes functus
officio in the afternoon. It is for this
purpose
that
a
public
servant
is
understood
to
have
retired
in
the
afternoon of last working day otherwise a
decision taken prior to retirement would
make no difference whether it is issued
before
or
after
retirement.
The
disciplinary proceedings after the date of
retirement have to be commenced on a
different consideration altogether. It is for
this reason that Regulation 351-A of Civil
Service Regulations has used a guarded
language.
Regulation
351-A
is
reproduced below :-

"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 an earlier date, on such date;

(b) judicial proceedings shall be
deemed to have been instituted :

(i) in the case of criminal
proceedings, on the date on which
compliant 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".
214 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Regulation 351-A maintains
continuity of disciplinary proceedings
initiated before retirement. It further
provides that the disciplinary proceedings
shall be deemed to have been instituted
when the charges framed against the
pensioner are issued. The charges in the
present case were issued in the afternoon
on 28.2.2011 when the petitioner had
ceased to be in service and had assumed
the status of a pensioner for having
retired. Thus, the proceedings cannot be
deemed
to
have
been
instituted.
Therefore, once a public servant has
retired, the proceedings can be initiated
only by following the procedure under
Regulation 351-A of the Civil Service
Regulations, provided there is no bar.

19. There is yet another judgment
rendered by Hon'ble the Apex Court
reported in (2001), 9 SCC 171(State of
M.P. versus Onkar Chand Sharma) which
the Court may notice in absence of any
assistance rendered by learned counsel for
the parties.

20. In the abovementioned case, the
dispute which fell for consideration
before Hon'ble the apex Court was as to
when the disciplinary proceedings can be
said to have been initiated. The Hon'ble
Apex Court in the circumstances of the
case where an officer was placed under
suspension has held that the disciplinary
proceedings are to be treated to have been
initiated on the date when the chargesheet was signed.

21. In the present case, the petitioner
was
not
placed
under
suspension,
therefore, the initiation of the disciplinary
proceedings is to be understood within the
scope of the plain reading of the relevant
Rules. Regulation 351-A of the Civil
Service Regulations as well as Rule 7(IV)
of
the
U.P.
Government
Servants
Discipline and Appeal Rules, 1999 make
it clear that unless the charge-sheet is
issued,
neither
the
disciplinary
proceedings can be said to have been
initiated nor the period of 15 days for
reply can be computed from any other
date. The issue of charge is thus relevant.
It is to be noted that the issuance of
charge-sheet in the present case on
28.2.2019 at 12.20 p.m. by e-mail leaves
no manner of doubt that the charges
framed were issued in the afternoon on
28.2.2019 and at that time, the petitioner
had entered into the retiral age by virtue
of Rule 56(a) of the fundamental Rules.
Once the status of the petitioner was
recognized as that of a retired public
servant from the afternoon on 28.2.2019
i.e. last working day, this Court is of a
clear
opinion
that
the
disciplinary
proceedings with the issuance of chargesheet treating him a public servant was
erroneous and invades upon the power of
Governor. This Court for the reasons
aforesaid would thus draw a distinction
insofar as the applicability of apex Court
judgment mentioned above to the present
case is concerned. Moreover, the earlier
judgment of the apex Court reported in
1998(16) LCD-1274(supra) does not
seem to have been considered in the later
judgment. That apart the statutory Rules
under
consideration
also
stand
at
variance.

22. This Court would have adhered
to the well settled principle of not
entertaining this writ petition as against
the
charge-sheet
coupled
with
consequential proceedings but for the fact
that the charge-sheet in respect of an
occurrence having taken place after more
than one year of petitioner's transfer was
3 All. Jai Prakash Tiwari Vs. State of U.P. & Ors.
215
not served prior to noon on 28.2.2019,
therefore, the impugned action lacks
authority of law and could not be legally
continued under Regulation 351-A of
Civil
Service
Regulations
read
in
conjunction with Discipline and Appeal
Rules, 1999. The ground for interference
is made out. In these circumstances,
prolonging this case any further for no
useful purpose would be unjust. However,
liberty is open to the opposite party to
proceed
against
the
petitioner
in
accordance with law.

23. The writ petition is accordingly
allowed. The impugned charges-sheet
dated
27.2.2019
along
with
the
consequential proceedings are hereby set
aside. Consequences to follow. There
shall be no order as to cost.
----------
(2019)11ILR A215

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.11.2019

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 31764 of 2019

Jai Prakash Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Pratap Singh

Counsel for the Respondents:
C.S.C., Sri J.B.S. Rathour

A. Service Law- Suspension - Disciplinary
inquiry against a public servant can be
initiated even by an authority higher to
the appointing authority but so far as
the order of suspension is concerned,
that will have to be passed by the
appointing authority or by the authority
lower in rank that has been delegated
with such power but not by any other
authority. (Para 13)

In the present case, the suspension order has
not been passed by the Appointing Authority
but the Superior Authority to the Appointing
Authority, therefore, the suspension order
vitiates. (Para 14)

Petition allowed (E-4)

Precedent followed:-

1. Ashok Kumar Singh Vs St. of U.P. & ors.
[(2006) 3 UPLBEC 2247] (Para 13, 14, 15, 16)
Present petition challenges suspension
order
dated
14.08.2019,
passed
by
Additional Director of Education (Basic),
U.P., Prayagraj.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Manish Kumar, learned
Senior Advocate assisted by Sri Ajay Pratap
Singh, Advocate for the petitioner, Dr. Uday
Veer Singh, learned Additional Chief
Standing Counsel for the State-respondents
and Sri J.B.S. Rathour, learned counsel for
the opposite party No.4.

2. Learned counsel for the petitioner
has filed the supplementary affidavit, today
in the Court, the same is taken on record.

3. In compliance of order dated
19.11.2019, Sri J.B.S. Rathour has
produced the copy of letter dated
21.11.2019 preferred by the District Basic
Education Officer, Sultanpur addressing
to his counsel wherein the authority has
indicated that at the time of suspension of
the petitioner he was serving on the post
of Personal Assistant Grade-II. The letter
dated 21.11.2019 is taken on record.