# State of U.P. & Anr v. Dr. Rudra Pratap

- **Citation:** (2023) 2 ILRA 694
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-27
- **Case number:** Special Appeal Defective No. 30 of 2023
- **Bench:** Ramesh Sinha, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-anr-v-dr-rudra-pratap-49731
- **Pages:** 6

## Headnote

A. Service Law - Recovery from pension -
Civil Service Regulations - Article 351A(a)(ii)
- Article 351A of Civil Service
Regulations empowers the State Government to
pass an order for recovery of any amount from
the pension of an officer on account of losses
found in judicial or departmental proceedings to
have been caused to the Government by
negligence or fraud of such officer during his
service. (Para 12)

A bare perusal of the aforesaid provision
of Article 351-A of the Civil Services
Regulations shows that after retirement,
withholding or withdrawing a pension and
ordering the recovery from pension is
permissible to be caused only by the
Governor i.e. the State Government in terms of
the Rules of Business, not only in case such
employee is found causing pecuniary loss to the
Government by his misconduct or negligence
but also in a cases when the employee
concerned is found guilty of grave misconduct.
(Para 13, 14)

Article 351-A of Civil Services Regulations
puts
a
prohibition
of
initiating
the
departmental proceedings in a case of
2 All. State of U.P. & Anr. Vs. Dr. Rudra Pratap
695
retired government servant. However,
such proceedings are permissible to be
instituted with the sanction of Governor,
that too, in respect of an event which took
place not more than four years before
institution
of
such
proceedings.
The
provision further provides that departmental
enquiry in such an event shall be conducted by
such authority and at such place as the
Governor may direct and in accordance with the
procedure applicable. (Para 15)

The Hon'ble Single Judge came to the
conclusion that the inquiry has been
proceeded against the respondent in gross
violation of Article 351-A(a)(ii) and as
such, the entire disciplinary proceedings
are hit by the mandatory provisions of the
said Article. The Hon'ble Single Judge setaside the order of punishment dated
14.03.2022 and allowed the writ petition
by means of the impugned order (dated
07.09.2022). (Para 19)

The respondent had attained the age of
superannuation and retired from service on
30.06.2018. After obtaining permission from his
excellency the Governor, charge-sheet was
served upon the respondent on 25.10.2019,
indicating
the
misconduct
having
been
committed by him during 2013-14, which is
admittedly more than four years prior to date of
service of charge-sheet. (Para 16)

The Hon'ble Single Judge, after going through
the
record,
noted
the
fact
that
appellants/respondents have not disputed the
fact that disciplinary proceedings are
sought to be initiated against the writ
petitioner/respondent after four years
from the date when the charge-sheet
was given to him. The Hon'ble Single
Judge, after going through the order dated
12.12.2017 (which took cognizance of the
irregularities committed in the recruitment
and selection process for the post of
Pasudhan Prasar Adhikari (Veterinary Live
Stock Officer) during the period 2013-14, and
directed the State Government to initiate
disciplinary
proceedings
and
lodge
FIR)
passed in WP No. 19975 of 2015, noted the
fact that 'From perusal of the entire order, it
could not be shown that this Court was
informed of the fact that either the
petitioner
or
other
persons
against
whom
disciplinary
proceedings
were
initiated have retired, had this fact been
brought to the knowledge of this Court, they
would have adhered to the provisions of
Article 351-A of the Civil Service Regulations.'
(Para 18, 20)

Special appeal dismissed. (E-4)

Present
special
appeal
assails
the
judgment and order dated 07.09.2022
passed by the Hon'ble Single Judge in
Writ-A No. 2854 of 2022, whereby the
Hon'ble Single Judge allowed the said
writ petition.

## Text

694 INDIAN LAW REPORTS ALLAHABAD SERIES
such offences, in which, charge-sheet was
not submitted if from the perusal of the
charge-sheet i.e. police report submitted
under Section 173(2) Cr.P.C. he arrives at
the conclusion that such offences also made
out. Similar import is also of the judgment
of the Apex Court in case of Nahar Singh
(supra).

26. As the Single Judge of this Court in
case of Smt. Shalini Kashyap (supra) only
after perusing the judgment of the Apex
Court passed in Girish Radhakrishnan Varde
(supra)
held
that
Magistrate
is
not
empowered to add or subtract any section in
the charge-sheet, therefore, this case will be
of no help for the applicant as at the time of
making such observation, learned Single
Judge of this Court did not discuss the law
laid down by the Constitution Bench in the
case of Dharam Pal (supra), Minu Kumari
(supra), Balveer Singh (supra) and Ajay
Kumar Parmar (supra). Although, Single
Judge in later part of the judgment discussed
the observation made by the Constitution
Bench of Dharam Pal (supra) but with regard
to different question to summon additional
accused.

27. Therefore, from the discussion
made above, in my considered view, as from
the perusal of the statement of opposite party
no.2, the informant and victim of the case,
recorded under Section 161 Cr.P.C. and 164
Cr.P.C. prima facie offence under Section 376
IPC is made out against the applicant,
therefore, Magistrate did not commit any
illegality in summoning him under Section
376 IPC in spite of the fact that no chargesheet was submitted against the applicant
under Section 376 IPC.

28.

Accordingly,
the
instant
application under Section 482 Cr.P.C.
stands dismissed.
----------
(2023) 2 ILRA 694
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.01.2023

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Special Appeal Defective No. 30 of 2023

State of U.P. & Anr. ...Appellants
Versus
Dr. Rudra Pratap ...Respondent

Counsel for the Appellants:
C.S.C.

Counsel for the Respondent:
Sharad Bhatnagar

A. Service Law - Recovery from pension -
Civil Service Regulations - Article 351A(a)(ii)
- Article 351A of Civil Service
Regulations empowers the State Government to
pass an order for recovery of any amount from
the pension of an officer on account of losses
found in judicial or departmental proceedings to
have been caused to the Government by
negligence or fraud of such officer during his
service. (Para 12)

A bare perusal of the aforesaid provision
of Article 351-A of the Civil Services
Regulations shows that after retirement,
withholding or withdrawing a pension and
ordering the recovery from pension is
permissible to be caused only by the
Governor i.e. the State Government in terms of
the Rules of Business, not only in case such
employee is found causing pecuniary loss to the
Government by his misconduct or negligence
but also in a cases when the employee
concerned is found guilty of grave misconduct.
(Para 13, 14)

Article 351-A of Civil Services Regulations
puts
a
prohibition
of
initiating
the
departmental proceedings in a case of
2 All. State of U.P. & Anr. Vs. Dr. Rudra Pratap
695
retired government servant. However,
such proceedings are permissible to be
instituted with the sanction of Governor,
that too, in respect of an event which took
place not more than four years before
institution
of
such
proceedings.
The
provision further provides that departmental
enquiry in such an event shall be conducted by
such authority and at such place as the
Governor may direct and in accordance with the
procedure applicable. (Para 15)

The Hon'ble Single Judge came to the
conclusion that the inquiry has been
proceeded against the respondent in gross
violation of Article 351-A(a)(ii) and as
such, the entire disciplinary proceedings
are hit by the mandatory provisions of the
said Article. The Hon'ble Single Judge setaside the order of punishment dated
14.03.2022 and allowed the writ petition
by means of the impugned order (dated
07.09.2022). (Para 19)

The respondent had attained the age of
superannuation and retired from service on
30.06.2018. After obtaining permission from his
excellency the Governor, charge-sheet was
served upon the respondent on 25.10.2019,
indicating
the
misconduct
having
been
committed by him during 2013-14, which is
admittedly more than four years prior to date of
service of charge-sheet. (Para 16)

The Hon'ble Single Judge, after going through
the
record,
noted
the
fact
that
appellants/respondents have not disputed the
fact that disciplinary proceedings are
sought to be initiated against the writ
petitioner/respondent after four years
from the date when the charge-sheet
was given to him. The Hon'ble Single
Judge, after going through the order dated
12.12.2017 (which took cognizance of the
irregularities committed in the recruitment
and selection process for the post of
Pasudhan Prasar Adhikari (Veterinary Live
Stock Officer) during the period 2013-14, and
directed the State Government to initiate
disciplinary
proceedings
and
lodge
FIR)
passed in WP No. 19975 of 2015, noted the
fact that 'From perusal of the entire order, it
could not be shown that this Court was
informed of the fact that either the
petitioner
or
other
persons
against
whom
disciplinary
proceedings
were
initiated have retired, had this fact been
brought to the knowledge of this Court, they
would have adhered to the provisions of
Article 351-A of the Civil Service Regulations.'
(Para 18, 20)

Special appeal dismissed. (E-4)

Present
special
appeal
assails
the
judgment and order dated 07.09.2022
passed by the Hon'ble Single Judge in
Writ-A No. 2854 of 2022, whereby the
Hon'ble Single Judge allowed the said
writ petition.

(Delivered by Hon'ble Ramesh Sinha, J.)

C.M. Application No. 1 of 2023 :
Application for Condonation of Delay.

(1) This intra Court appeal is barred
by limitation by 105 days.

(2) Heard Shri Ajay Kumar Singh,
learned Standing Counsel for the appellants
and Shri Sandeep Dixit, learned Senior
Advocate
assisted
by
Shri
Sharad
Bhatnagar, Advocate, appearing on behalf
of the respondent/writ petitioner.

(3) Since cause shown in the affidavit
filed
in
support
of
application
for
condonation of delay in filing the instant
appeal
is
satisfactory,
the
aforesaid
application for condonation of delay is
allowed. Delay in filing the appeal is
condoned.

Order on Memo of the Appeal

(4) The State and its authorities have
filed this intra Court appeal, assailing the
judgment and order dated 07.09.2022
passed by the Hon'ble Single Judge in Writ-
696 INDIAN LAW REPORTS ALLAHABAD SERIES
A No. 2854 of 2022 : Dr. Rudra Pratap Vs.
State of U.P. and others, whereby the
Hon'ble Single Judge allowed the said writ
petition
with
the
following
observations/directions :-

"23. In the light of aforesaid
discussion, this Court is of the considered
view that inquiry in the present case has
been proceeded against the petitioner in
gross violation of Article 351-A (a) (ii), and
consequently
the
entire
disciplinary
proceedings are hit by the mandatory
provisions of Article 351-A of Civil Service
Regulations. Hence, the impugned order
dated 14.03.2022, passed by the State
Government, is set aside.

24. The writ petition is allowed.
Consequences to follow."

(5) Pursuant to the interim order dated
12.12.2017 issued by this Court in Writ-A
No. 19975 of 2015 : V.G. Rao Vs. State of
U.P. and others, an investigation with
regard to irregularities committed in the
recruitment for the post of Pasudhan Prasar
Adhikari (Veterinary Live Stock Officer)
during the period 2013-14 was entrusted to
Special
Investigation
Team,
which
submitted its report on 11.12.2018, stating
that there had been large scale irregularities
in conducting the selections.

(6) Respondent/writ petitioner (Dr.
Rudra Pratap) was discharging his duties on
the post of the Director, Animal Husbandry
at the relevant point of time and was also
in-charge of the entire selection process,
but as he retired from service on attaining
the age of superannuation on 30.06.2018,
hence after obtaining approval from His
Excellency the Governor of State of U.P., a
disciplinary inquiry was initiated against
the respondent on the basis of the report of
S.I.T. and a charge-sheet as well as report
of S.I.T. was served upon the respondent on
25.10.2019. On receipt of the charge-sheet,
the respondent submitted his reply on
16.12.2019, denying the charges levelled
against him. The Enquiry Officer, after due
enquiry,
submitted
its
report
dated
02.12.2020 to the Disciplinary Authority. A
show cause notice dated 14.12.2020 along
with a copy of the enquiry report dated
02.12.2020
was
served
upon
the
respondent. On receipt of the show cause
notice, the respondent submitted his reply
on 02.01.2021. By order dated 14.03.2022,
punishment order was passed against the
respondent, withdrawing his entire paid
pension and also to not pay pension in
future.

(7) Aggrieved by the aforesaid order
of punishment dated 14.03.2022, the
respondent has filed Writ-A No. 2854 of
2022 before this Court. By judgment and
order dated 07.09.2022, Hon'ble Single
Judge allowed the writ petition in the
manner
as
stated
in
paragraph-4
hereinabove. The State and its authorities
have filed the instant appeal, challenging
the judgment and order dated 07.09.2022
passed by Hon'ble Single Judge.

(8)

Challenging
the
impugned
judgment and order dated 07.09.2022,
learned Standing Counsel appearing on
behalf of the State/appellants has submitted
that grave irregularities in recruitment for
the post of Pasudhan Prasar Adhikari
(Veterinary Live Stock Officer) were
committed by various persons, including
the respondent/writ petitioner. This Court,
while adjudicating Writ Petition No. 19975
of 2015, took cognizance of the said
irregularities in the selection process and
vide interim order dated 12.12.2017,
directed the State Government to initiate
disciplinary proceedings and lodge First
2 All. State of U.P. & Anr. Vs. Dr. Rudra Pratap
697
Information Report. In compliance thereof,
the State Government had constituted a
Special
Investigation
Team,
which
recommended
to
initiate
disciplinary
proceedings
against
various
persons
including the respondent.

(9) Shri Ajay Kumar Singh, the
learned Standing Counsel has submitted
that the entire disciplinary proceeding was
initiated against the respondent/ writ
petitioner in pursuance of the direction of
this Court dated 12.12.2017, hence it
cannot be said that the disciplinary
proceedings initiated against the respondent
are not in consonance with law and the
same are in violation of the provisions of
Article 351-A (a) (ii) of the Civil Service
Regulations. Therefore, his submission is
that the impugned judgment passed by
Hon'ble Single Judge is liable to be setaside.

(10) Per contra, Shri Shri Sandeep
Dixit, the learned Senior Advocate assisted
by
Shri
Sharad
Bhatnagar, Advocate,
appearing on behalf of the respondent/writ
petitioner, has vehemently opposed the
aforesaid submissions of the learned Standing
Counsel and he has contended that once the
respondent attained the age of superannuation
and retired on 30.06.2018, for all purposes,
relationship of employee and employer
between the respondent and the State
authorities got severed. He has submitted that
the charge-sheet was served upon the
respondent on 25.10.2019 levelling the
charge of misconduct alleged to have been
committed during the period 2013-14, which
was more than four years prior to the date of
service of the charge-sheet. Hence, the
punishment order has been passed in
violation of Article 351-A (a) (ii) of the Civil
Services Regulations. Shri Dixit submits that
Hon'ble Single Judge has rightly allowed the
writ petition preferred by the respondent.

(11) We have examined the submissions
advanced by the learned Counsel for the
parties and gone through the impugned
judgment passed by Hon'ble Single Judge as
well as the material brought on record.

(12) Article 351A of Civil Service
Regulations empowers the State Government
to pass an order for recovery of any amount
from the pension of an officer on account of
losses found in judicial or departmental
proceedings to have been caused to the
Government by negligence or fraud of such
officer during his service. Article 351-A of
Civil Service Regulations reads as under : -

"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 reemployment 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
proceedings, and
698 INDIAN LAW REPORTS ALLAHABAD SERIES

(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) (a), and

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

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 ; and

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

(i) in the case of criminal
proceedings, on the date on which a
complaint is made, or a charge-sheet is
submitted to a criminal court ; and

(ii)
in
the
cases
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
or 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."

(13) A bare perusal of the aforesaid
provision of Article 351-A of the Civil
Services Regulations shows that once the
Government Servant retires, it is the
Governor who has the right of withholding
or withdrawing the pension or any part of
it, permanently or for a specified period.
The Governor under the said provision has
also the right to pass an order for recovery
from the pension of the whole or part of
any
pecuniary
loss
caused
to
the
Government, if the employee is found in
departmental or judicial proceedings to
have caused pecuniary loss to Government
by misconduct or negligence during his
service or he has been found guilty of gross
misconduct.

(14) It is, thus, clear that after
retirement, withholding or withdrawing a
pension and ordering the recovery from
pension is permissible to be caused only by
the Governor i.e. the State Government in
terms of the Rules of Business, not only in
case such employee is found causing
pecuniary loss to the Government by his
misconduct or negligence but also in a
cases when the employee concerned is
found guilty of grave misconduct.

(15) The provision of first proviso
appended to Article 351-A of the CSR
clearly prohibits institution of departmental
proceedings except with the sanction of
Governor if such proceedings were not
instituted while the employee was on duty
either before retirement or during reemployment. Thus, Article 351-A of Civil
Services Regulations puts a prohibition of
initiating the departmental proceedings in a
case
of
retired
government
servant.
However, such proceedings are permissible
to be instituted with the sanction of
Governor, that too, in respect of an event
which took place not more than four years
before institution of such proceedings. The
provision
further
provides
that
departmental enquiry in such an event shall
be conducted by such authority and at such
place as the Governor may direct and in
accordance with the procedure applicable.
2 All. Anjali Chaurasiya Vs. State of U.P. & Ors.
699

(16) Admittedly, the respondent had
attained the age of superannuation and retired
from service on 30.06.2018. After obtaining
permission from his excellency the Governor,
charge-sheet was served upon the respondent
on 25.10.2019, indicating the misconduct
having been committed by him during 201314, which is admittedly more than four years
prior to date of service of charge-sheet.

(17) The Hon'ble Single Judge, after
appreciating the submissions advanced by the
learned Counsel for the parties and noting the
provisions sub-clause (a) (ii) of Article 351-A of
the Civil Services Regulations, has opined that
''the question which arises for consideration of
this Court is as to whether the respondents were
under duty to follow the provisions of Article
351-A (a) (ii) of Civil Service Regulations, or
the disciplinary proceedings could have been
conducted in violation of Article 351-A of CSR,
in pursuance to the order of this Court'.

(18) The Hon'ble Single Judge, after
going through the record, noted the fact that
appellants/respondents have not disputed the
fact that disciplinary proceedings are sought to
be
initiated
against
the
writ
petitioner/respondent after four years from the
date when the charge-sheet was given to him.
The Hon'ble Single Judge, after going through
the order dated 12.12.2017 passed in Writ
Petition No. 19975 of 2015, noted the fact that
''From perusal of the entire order, it could not
be shown that this Court was informed of the
fact that either the petitioner or other persons
against whom disciplinary proceedings were
initiated have retired, had this fact been brought
to the knowledge of this Court, they would have
adhered to the provisions of Article 351-A of the
Civil Service Regulations.'

(19)

Noting
the
aforesaid
observations, the Hon'ble Single Judge
came to the conclusion that the inquiry has
been proceeded against the respondent in
gross violation of Article 351-A (a) (ii) of
the Civil Services Regulations and as such,
the entire disciplinary proceedings are hit
by the mandatory provisions of Article 351A of the Civil Service Regulations. In these
backdrops, the Hon'ble Single Judge setaside the order of punishment dated
14.03.2022 and allowed the writ petition by
means of the impugned order.

(20) The learned Standing Counsel
also did not dispute before us that
disciplinary proceedings initiated against
the respondent arose out of incident that
took place more than four years prior to
institution of the proceedings.

(21) In view of the aforesaid
observation, we are in full agreement with
the view taken by the Hon'ble Single Judge
and we do not find any reason to interfere
with the same.

(22)

The
special
appeal
is,
accordingly, dismissed. However, there
will be no order as to costs under the facts
and circumstances of the case.
----------
(2023) 2 ILRA 699
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.02.2023

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Special Appeal Defective No. 40 of 2023

Anjali Chaurasiya ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Avinash Chandra