# Vishnu Swaroop Sharma v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 512
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-12
- **Case number:** Writ A No. 8845 of 2014
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishnu-swaroop-sharma-v-state-of-u-p-ors-51680
- **Pages:** 16

## Headnote

A. Service Law - Constitution of India -
Article 354-A - Disciplinary proceeding -
Prior sanction of Governor - Proceeding
was
initiated
before
retirement
and
continuing after retirement - How far
sanction is necessary - Held, if these
proceedings were continued beyond his
retirement on 21.05.2007 and culminated
in the order impugned passed by the
District Magistrate, Kanpur Nagar on
22.06.2011, there was no necessity to
obtain the Governor's sanction under
Article 351-A of the Service Regulations -
Necessity would have arisen only if the
proceedings have been initiated post
retirement; not otherwise. (Para 17)

B. Service Law - Disciplinary proceeding -
Punishment - Award of adverse entry and
withholding
two
increments
with
cumulative effect - Inordinate delay was
occurred in concluding the proceeding -
Effect - Seriousness of charges, how play
as determining factor - Held, a charge,
that is profoundly serious and widely
impacts
clean
administration
in
the
service, must not be allowed to die or
wither away with time - However, if the
charge(s) is (are) not very serious in the
sense that these do not inevitably attract
the imposition of a major penalty if
proved, or by the nature of the acts, are
not
widely
destructive
of
clean
administration in service, an inordinate
delay that features if the order of
punishment were quashed on some other
grounds and the proceedings revived, may
be a good ground to import the principle
about giving quietus to the disciplinary
proceedings - Held further, the inordinate
delay in the conclusion of disciplinary
proceedings in the background of the
nature and gravity of charges against the
petitioner and the manner in which the
respondents have acted, including the
manifestly illegal order imposing penalty
upon the petitioner, in our opinion, would
require a quietus to be now given to these
proceedings, resting it in the petitioner's
favour. (Para 26 and 40)

Writ petition allowed. (E-1)

List of cases cited :-

## Text

_Characters 0–39,978 of 56,018. This is a partial read: ask again with offset=39978 for what follows._

512 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 31.12.2020 passed by the Regional
Joint Director of Education is hereby
quashed. Consequences to follow.

23. Petitioner shall be paid entire
arrears of salary. He shall also be given
benefit of all retirement dues within two
months' time from the date of receipt of
certified copy of this order.
----------
(2024) 3 ILRA 512
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2024
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 8845 of 2014

Vishnu Swaroop Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri V.K. Singh, Sri D.K. Singh, Sri Sankalp
Narayan

Counsel for the Respondents:
C.S.C.

A. Service Law - Constitution of India -
Article 354-A - Disciplinary proceeding -
Prior sanction of Governor - Proceeding
was
initiated
before
retirement
and
continuing after retirement - How far
sanction is necessary - Held, if these
proceedings were continued beyond his
retirement on 21.05.2007 and culminated
in the order impugned passed by the
District Magistrate, Kanpur Nagar on
22.06.2011, there was no necessity to
obtain the Governor's sanction under
Article 351-A of the Service Regulations -
Necessity would have arisen only if the
proceedings have been initiated post
retirement; not otherwise. (Para 17)

B. Service Law - Disciplinary proceeding -
Punishment - Award of adverse entry and
withholding
two
increments
with
cumulative effect - Inordinate delay was
occurred in concluding the proceeding -
Effect - Seriousness of charges, how play
as determining factor - Held, a charge,
that is profoundly serious and widely
impacts
clean
administration
in
the
service, must not be allowed to die or
wither away with time - However, if the
charge(s) is (are) not very serious in the
sense that these do not inevitably attract
the imposition of a major penalty if
proved, or by the nature of the acts, are
not
widely
destructive
of
clean
administration in service, an inordinate
delay that features if the order of
punishment were quashed on some other
grounds and the proceedings revived, may
be a good ground to import the principle
about giving quietus to the disciplinary
proceedings - Held further, the inordinate
delay in the conclusion of disciplinary
proceedings in the background of the
nature and gravity of charges against the
petitioner and the manner in which the
respondents have acted, including the
manifestly illegal order imposing penalty
upon the petitioner, in our opinion, would
require a quietus to be now given to these
proceedings, resting it in the petitioner's
favour. (Para 26 and 40)

Writ petition allowed. (E-1)

List of cases cited :-

1. Gaya Prasad Yadav Vs St. of U.P. & ors.;
2022 (11) ADJ 287 (DB) (LB)

2. Dev Prakash Tewari Vs Uttar Pradesh
Cooperative
Institutional
Service
Board,
Lucknow & ors.; (2014) 7 SCC 260

3. St. of U.P. & ors. Vs Harihar Bholenath;
(2006) 13 SCC 460

4. Anant R. Kulkarni Vs Y.P. Education Society &
ors.; (2013) 6 SCC 515

(Delivered by Hon'ble J.J. Munir, J.)

1. This case has got a long and
chequered
history,
where
delay
in
3 All. Vishnu Swaroop Sharma Vs. State of U.P. & Ors.
513
conclusion of disciplinary proceedings
against the petitioner has led to much
suffering for him. But, as the course of
proceedings would show, the petitioner
himself
is
responsible
in
substantial
measure for the delay that came about in
consequence of an interim order passed by
this Court, when he challenged his
provisional
reinstatement
in
service,
revoking his suspension. At the centre stage
of challenge in this writ petition is the order
dated 22.06.2011 passed by the District
Magistrate, Kanpur Nagar, awarding the
petitioner the punishment of withholding
two increments with cumulative effect and
awarding him an adverse entry, deciding
the pending disciplinary proceedings by the
said order. The other order impugned is the
one dated 07.06.2012, fixing for the
petitioner his salary by the District Supply
Officer, Kanpur Nagar. The last under
challenge is the order dated 25.04.2013
passed by the District Magistrate, Kanpur
Nagar.

2. The petitioner was appointed a
Clerk in the office of the District Supply
Officer, Kanpur. He was transferred from
Kanpur Head Office to Akbarpur, situate in
Kanpur Dehat in the year 1981. He was
again transferred from Akbarpur to Kanpur
in the year 1982 by an order of 9th
December, 1992 passed by the District
Supply
Officer.
The
petitioner
was
transferred
from
Kanpur
Nagar
to
Farrukhabad.
He
was
placed
under
suspension pending inquiry and vide order
dated 16.12.1983 passed by the District
Magistrate, Farrukhabad. A charge-sheet
was served upon the petitioner after a lapse
of a year and a half on 19.06.1985. The
petitioner submitted his reply to the chargesheet aforesaid on 22.06.1987.

3. Some five years later, the
suspension order dated 16.12.1983 was
revoked
by
the
District
Magistrate,
Farrukhabad vide order dated 27.05.1990
and
the
petitioner
reinstated
on
a
provisional basis. The District Magistrate,
Farrukhabad by a memo dated 14.05.1991
issued a notice to the petitioner asking him
to show cause why his services may not be
terminated. The petitioner submitted his
reply to the show cause on 24.06.1991. It is
averred that after suspension from service
on 16.12.1985, followed by the order dated
22.05.1985,
disciplinary
proceedings
against the petitioner lingered on, which
adversely affected the petitioner's right to
be considered for promotion. It is also
averred that no inquiry was undertaken,
though the petitioner had submitted his
reply to the charge-sheet way back on
22.06.1987, as already said.

4. It appears that inquiry into the
charge-sheet dated 22.05.1985 was not at
all undertaken and without concluding it,
the petitioner was issued with the show
cause notice dated 14.12.1991, already
spoken of, where the District Magistrate
asked him to show cause why his services
may not be terminated. The basis of the
show cause notice was a different charge
altogether, that was not part of the chargesheet dated 22.05.1985, as the petitioner
asserts. In the circumstances, the petitioner
instituted
Civil
Misc.
Writ
Petition
No.22002 of 1991 before this Court,
seeking to quash the pending disciplinary
proceedings, presumably on the ground of
inordinate delay. A further relief was sought
by way of a mandamus commanding the
respondents to transfer the petitioner from
Kanpur to Farrukhabad and pay him his
due salary for the period of suspension. In
the said writ petition, an order was passed
on 02.08.1991, directing the State to file a
return within four weeks, and vide interim
order, it was provided that departmental
514 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings against the petitioner may
continue, but final orders shall not be
pronounced until further orders of this
Court.

5. The interim order dated 02.08.1991
was vacated vide order dated 09.04.2004. It
appears that the order dated 09.04.2004
was not communicated to the respondents,
and, therefore, no final orders were made in
the pending disciplinary proceedings. Civil
Misc. Writ Petition No.22002 of 1991 came
up for hearing before this Court on
25.04.2007. By a judgment and order of
that date, the writ petition was allowed on
the
ground
of
inordinate
delay
in
concluding the inquiry, but limited to the
relief of quashing the order of suspension.
The petitioner made a further application,
being Civil Misc. Modification Application
No.162640 of 2007 before the learned
Judge, who had allowed Civil Misc. Writ
Petition
No.22002
of
1991,
seeking
modification of the judgment and order
dated 25.04.2007 to the extent that the
pending disciplinary proceedings may also
be quashed. This application was rejected
by the learned Judge vide order dated
01.09.2007.
Both
the
orders
dated
25.04.2007 and 01.09.2007 were served by
the petitioner upon the respondents through
an application dated 13.09.2007.

6. There is slew of allegations in the
writ petition that these orders were not
complied with and a contempt application,
bearing No.4360 of 2007 against Alok
Kumar, the then District Magistrate and
another contemnor was also filed. What the
petitioner appears to say that the two orders
passed in Civil Misc. Writ Petition
No.22002 of 1991 were not complied with,
is that he was not given his consequential
benefits, like increments and bonus, that
was paid to other employees like him
consequent upon his order of suspension
being quashed. Also, the petitioner's
grievance was that he was not considered
for promotion like his juniors, who were
considered and promoted during this
period. The contempt application was
dismissed with a remark that in case the
petitioner has any grievance, it would be
open to him to seek its redressal before the
appropriate forum. It is noteworthy that
while all this was happening, the petitioner
attained the age of superannuation and
retired from service on 31.05.2007. The
complexion of the relief that the petitioner
could secure, therefore, changed. The
petitioner also says that apart from being
denied his promotional avenues, pensionery
benefits, gratuity, group insurance, bonus,
due increment while in service and arrears
on that account were never paid to the
petitioner merely on the ground that he had
suffered a suspension while in service. The
petitioner in this case asserts the right that
consequent upon quashing of the order of
suspension, he is entitled to all those
benefits that were his but for the
suspension.

7. The respondents addressed two
letters dated 16.10.2008 followed by
another dated 10th August, 2009, requiring
the petitioner to fill up his pension papers,
and furnish necessary documents. Both the
letters were replied to by the petitioner
saying that he had fulfilled all the required
formalities, duly applied and furnished all
documents. The District Supply Officer,
who had issued the last letter dated 10th
August, 2009, was also informed to the
above effect by the petitioner vide his letter
dated 16.08.2009.

8. Since, the pensionery benefits
worked out for the petitioner were far
below his entitlement, he filed Writ-A
3 All. Vishnu Swaroop Sharma Vs. State of U.P. & Ors.
515
No.44729 of 2009 before this Court,
seeking a direction to the respondents to
pay him all his due service benefits,
including
pensionery
benefits,
appropriately
revised,
adding
thereto
increments and extending the benefits of
pay revisions. The said writ petition was
decided by this Court by a short order
relegating the petitioner to the respondents,
who
were
directed
to
consider
the
petitioner's case and pass appropriate orders
in terms of the following order passed on
07.01.2013 in Writ-A No.44729 of 2009:

"The petitioner had filed the
present writ petition praying for writ of
mandamus commanding the respondents to
pay
and
grant
promotional
benefit,
pensionary benefit, gratuity, insurance,
bonus, increment including arrears. During
the pendency of the writ petition the relief
claimed by the petitioner has been granted
to a large extent.

The learned counsel for the
petitioner, however contended that the
calculation
has
wrongly
been
made,
namely, that the calculation has been made
on the basic salary whereas the calculation
should have been made on the basis of
basic salary revised from time to time.

In this regard, the petitioner may
make an appropriate representation before
the
authority
concerned.
If
such
a
representation is made, the authority
concerned will consider and decide the
matter by a reasoned and speaking order
within three months from the date of
production of a certified copy of this order.

The writ petition is disposed of."

9. A certified copy of the aforesaid
order was served by the petitioner upon the
respondents along with a calculation charge
of his due emoluments, which persons
junior to him have received. The order was
served along with representation dated
24.01.2023 in order to effectuate the order
of this Court dated 07.01.2013 passed in
the writ petition last mentioned. Nothing
was communicated to the petitioner, and,
therefore, he sought information under the
Right to Information Act. It was thereupon
that he received copies of two orders, one
dated 07.06.2012 passed by the District
Supply Officer, Kanpur Nagar and another
dated 25.04.2013 passed by the District
Magistrate, Kanpur Nagar. The order of the
District Supply Officer fixes the petitioner's
pension and other emoluments, much
below entitlement as the petitioner says.
The other order, that is to say, the one
passed by the District Magistrate on
25.04.2013, where it is noticeable that there
is reference to another order passed by the
District Magistrate, bearing No.2247 dated
22.06.2011,
deciding
the
disciplinary
proceedings, punishing the petitioner by
withholding
two
increments
with
cumulative effect and awarding an adverse
entry. This order for some reason had not
been challenged by the petitioner, which in
fact is the substantive order, deciding the
disciplinary proceedings. It was challenged
by making an amendment application after
the remarks of this Court carried in the
order dated 28.11.2017 passed in the
present writ petition.

10. Now, therefore, what is under
challenge is the order of the District
Magistrate dated 22.06.2011 deciding the
disciplinary proceedings and punishing the
petitioner as aforesaid. The order of the
District Supply Officer dated 07.06.2012
working out the petitioner's emoluments
and post retiral benefits in terms of the
District Magistrate's order of June, 2011
and the order dated 25.04.2013 passed by
the District Magistrate, deciding the
petitioner's representation and declining it
516 INDIAN LAW REPORTS ALLAHABAD SERIES
in compliance with this Court's order dated
07.01.2013 passed in Writ-A No.44729 of
2009.

11. Heard Mr. Sankalp Narayan,
Advocate holding brief of Mr. D.K. Singh,
learned Counsel for the petitioner and Mr.
Girijesh Kumar Tripathi, learned Additional
Chief Standing Counsel appearing for the
State.

12. It is argued by Mr. Sankalp
Narayan, learned Counsel for the petitioner
that no punishment could have been
inflicted upon the petitioner after his
retirement, without invoking Article 351-A
of the Civil Service Regulations (for short,
'the
Service
Regulations'),
which
exclusively empowers the Governor to pass
appropriate orders sanctioning proceedings
against a retired employee and the
imposition of punishment. It is submitted
that the petitioner retired from service on
31.05.2007, but the order of punishment
impugned was passed by the District
Magistrate
on
22.06.2011,
without
obtaining the Governor's sanction under
Article 351-A. Reliance in support of his
contention is placed by the learned Counsel
for the petitioner upon a Bench decision of
this Court in Gaya Prasad Yadav v. State
of U.P. and others, 2022 (11) ADJ 287
(DB) (LB); an unreported decision of the
learned Single Judge in Sharda Prasad
Verma v. State of U.P. and others, Writ-A
No.9826 of 2013, decided on 03.04.2023
and the authority of the Supreme Court in
Dev Prakash Tewari v. Uttar Pradesh
Cooperative Institutional Service Board,
Lucknow and others, (2014) 7 SCC 260.

13. Mr. Girijesh Kumar Tripathi,
learned Additional Chief Standing Counsel
has refuted the submissions advanced by
the learned Counsel for the petitioner. He
submits that the petitioner is a government
servant and it is common ground that the
Service Regulations, including Article 351A apply to him. The learned Additional
Chief Standing Counsel submits that there
is no embargo upon the government to
continue
inquiry proceedings
initiated
against an employee before his retirement,
after he retires from service. No sanction
by the Governor is required in such a case.

14. I have keenly considered the
aforesaid submission and found that there
is no cavil that the petitioner is a
government servant, to whom the Service
Regulations apply. Article 351-A of the
Service Regulations provides:

"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

(iii) shall be conducted by such
authority and in such place or places as the
3 All. Vishnu Swaroop Sharma Vs. State of U.P. & Ors.
517
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.

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
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."

15. Apparently, there is embargo on
the power of the Disciplinary Authority
from initiating departmental proceeding
against an officer, who has retired from
service, except with the sanction of the
Governor. This is the clear mandate of
clause (I) of proviso (a) to Article 351-A of
the Service Regulations. The embargo is
upon institution of proceedings after an
officer's retirement from service without
the Governor's sanction. There is absolutely
no prohibition on the continuance of
departmental proceedings that have already
been instituted while the Officer was in
service and before his retirement or during
re-employment. The question fell for
consideration of the Supreme Court in
State of U.P. and others v. Harihar
Bholenath, (2006) 13 SCC 460. In
Harihar
Bholenath
(supra),
it
was
observed by their Lordships:

"12. It is not in dispute that the
respondent was placed under suspension
before
he
reached
his
age
of
superannuation. A departmental proceeding
was not only initiated against him, but an
enquiry officer was also appointed. The
order of suspension, however, remained
stayed by a judicial order. But the same
paled into insignificance once the employee
reached the age of superannuation. By
reason of the same, however, the legal
fiction created in regard to the point of time
when the enquiry proceeding would be
deemed to have commenced was not
effaced.

13. Thus, only because the
enquiry proceeding was actually started
after superannuation of the respondent, the
same would not mean that the enquiry
proceeding had not been initiated. The right
to initiate proceedings which would include
a right to continue the proceedings was
with the Governor. Sanction of the
Governor is required to be obtained when
proceedings are initiated by an authority
other than the Governor.

14. The proceedings for recovery
of the amount from a government servant
can be passed in the event he is held to be
guilty of grave misconduct or caused
518 INDIAN LAW REPORTS ALLAHABAD SERIES
pecuniary loss to the Government by his
misconduct or negligence during his
service.
Some
procedural
safeguards,
however, have been laid down in terms of
proviso appended thereto, including the
requirement to obtain an order of sanction
of the Governor. Such order of sanction,
however, would not be necessary if the
departmental
proceedings
have
been
initiated while the delinquent was on duty.
Proviso appended to Regulation 351-A
merely controls the main proceedings. The
same would apply in the exigencies of the
situation envisaged therein, namely, even
(sic when) the proceedings were initiated
after retirement and not prior thereto."

16. This principle was followed in a
Bench decision of this Court in Gaya
Prasad Yadav (supra), where it was held:

"18. 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 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.

19. 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 CSR
puts
a
prohibition
of
nitiating
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.

20. Accordingly, we are of the
considered opinion that in the instant case,
since the departmental proceedings were
already instituted against the appellantpetitioner prior to his retirement on
attaining the age of superannuation, no
sanction under Article 351- A of the CSR
was required to be taken from the
Governor. This view is fully supported by
the judgment of Hon'ble Supreme Court in
the case of Harihar Bholenath (supra). To
this extent we do not find any error in the
judgment of learned Single Judge which is
under appeal herein."

17. In the present case, disciplinary
proceedings were initiated way back on
16.12.1983, when the petitioner was placed
under suspension. A charge-sheet was
issued to him on 19.06.1985. Therefore, if
these proceedings were continued beyond
his
retirement
on
21.05.2007
and
culminated in the order impugned passed
by the District Magistrate, Kanpur Nagar
on 22.06.2011, there was no necessity to
obtain the Governor's sanction under
Article 351-A of the Service Regulations.
That necessity would have arisen only if
the proceedings have been initiated post
retirement; not otherwise.

18. In this view of the matter, the
first submission advanced by the learned
Counsel for the petitioner cannot be
accepted.

19. The next submission, that is
canvassed by the learned Counsel for the
3 All. Vishnu Swaroop Sharma Vs. State of U.P. & Ors.
519
petitioner, is that in the absence of a
specific Rules, authorizing infliction of
punishment after retirement, no punishment
can be imposed. Reliance in support of this
proposition is placed by the learned
Counsel on Dev Prakash Tewari (supra)
and upon the authority of the Supreme
Court in Anant R. Kulkarni v. Y.P.
Education Society and others, (2013) 6
SCC 515. The principle in both these
authorities, relevant to the submission,
turns on the fact if in the establishment
where the employee serves, there are any
Rules
authorizing
continuance
of
disciplinary proceedings against a retired
employee. In Dev Prakash Tewari, it was
held by the Supreme Court:

"5. We have carefully considered
the rival submissions. The facts are not in
dispute. The High Court while quashing the
earlier disciplinary proceedings on the
ground of violation of principles of natural
justice in its order dated 10-1-2006 [D.P.
Tewari v. U.P. Coop. Institutional Service
Board, Writ Petition (S/B) No. 4328 of
1988, order dated 10-1-2006 (All)] granted
liberty to initiate the fresh inquiry in
accordance with the Regulations. The
appellant who was reinstated in service on
26-4-2006
and
fresh
disciplinary
proceeding was initiated on 7-7-2006 and
while that was pending, the appellant
attained the age of superannuation and
retired on 31-3-2009. There is no provision
in the Uttar Pradesh Cooperative Societies
Employees' Service Regulations, 1975, for
initiation or continuation of disciplinary
proceeding after retirement of the appellant
nor is there any provision stating that in
case misconduct is established a deduction
could be made from his retiral benefits."
(emphasis by Court)

20. Dev Prakash Tewari was a
case, which turned on the provisions of the
Uttar Pradesh Cooperative Societies
Employees' Service Regulations, 1975
and the said Regulations did not provide for
initiation or continuance of disciplinary
proceedings
after
retirement
of
an
employee. The Regulations aforesaid also
did not provide for deduction from the
employee's post retiral benefits, in case the
misconduct was established after his
retirement. It is in those circumstances that
their Lordships held that proceedings after
the employee's retirement could not be
continued in the absence of a provision in
the Rules authorizing that course of action.
In the present case, the relevant Services
Rules applicable are Service the Service
Regulations. It has already been held that
Article 351-A of the Service Regulations
does not at all forbid the continuance of
disciplinary
proceedings
commenced
before retirement of an employ, post
retirement. It does not require any sanction
by the Governor. Therefore, the contention
of the learned Counsel for the petitioner on
this score deserves to be rejected.

21. The next submission that has been
pressed in aid by the learned Counsel for
the petitioner is that on account of the
inordinate and explained delay, that has
occurred in concluding the disciplinary
proceedings, the impugned order deserves
to be quashed. It is pointed out that
proceedings
against
the
petitioner
commenced with his suspension from
service vide order dated 16.12.1983 and
concluded with the impugned order dated
22.06.2011
passed
by
the
District
Magistrate, Kanpur Nagar, that was passed
four
years
after
his
retirement
on
31.05.2007 in the interregnum. There is
absolutely no reason, according to the
learned Counsel for the petitioner, why
these proceedings should have lingered on
for son long. He submits that this kind of
520 INDIAN LAW REPORTS ALLAHABAD SERIES
an inordinate and oppressive delay is
prejudice in itself and a good ground to
quash the impugned order passed much
after the petitioner's retirement from
service.

22. On the other hand, Mr. Girijesh
Kumar Tripathi, learned Additional Chief
Standing Counsel, has refuted the above
submission and says that the delay in
conclusion of the disciplinary proceedings
has been contributed much to by the
petitioner himself. In support of this
submission of his, Mr. Tripathi points out
that the departmental proceedings remained
withheld under interim orders passed by
this Court on 02.08.1991 on the petitioner's
behest in Civil Misc. Writ Petition
No.22002 of 1991 until 09.04.2004, when
the
said
order
was
vacated
at
an
interlocutory stage of the said petition and
before judgment. The learned Additional
Chief Standing Counsel, therefore, submits
that the petitioner has contributed a period
of time little shy of 14 years to the delay
that has been occasioned in the conclusion
of the disciplinary proceedings.

23.

This
Court
has
carefully
considered this most vital submission
advanced by learned Counsel for the
parties.

24. The delay in the conclusion of
disciplinary proceedings is regarded with
considerable reservation as a ground to
quash
a
charge-sheet
or
pending
disciplinary proceedings. The principles in
that regard, with some modification, will
apply to a plea, where an order made at the
conclusion of disciplinary proceedings,
inflicting penalty, is assailed. This question
arose for consideration before the Supreme
Court in Anant R. Kulkarni (supra),
where it was observed:

"Enquiry at belated stage

14. The court/tribunal should not
generally
set
aside
the
departmental
enquiry, and quash the charges on the
ground of delay in initiation of disciplinary
proceedings, as such a power is dehors the
limits of judicial review. In the event that
the court/tribunal exercises such power, it
exceeds its power of judicial review at the
very threshold. Therefore, a charge-sheet or
show-cause notice, issued in the course of
disciplinary proceedings, cannot ordinarily
be quashed by the court. The same
principle is applicable in relation to there
being a delay in conclusion of disciplinary
proceedings. The facts and circumstances
of the case in question must be carefully
examined taking into consideration the
gravity/magnitude of the charges involved
therein. The court has to consider the
seriousness and magnitude of the charges
and while doing so the court must weigh all
the facts, both for and against the
delinquent officers and come to the
conclusion which is just and proper
considering the circumstances involved.
The essence of the matter is that the court
must take into consideration all relevant
facts, and balance and weigh the same, so
as to determine, if it is in fact in the interest
of clean and honest administration that the
said proceedings are allowed to be
terminated only on the ground of delay in
their conclusion. (Vide State of U.P. v.
Brahm Datt Sharma [(1987) 2 SCC 179 :
(1987) 3 ATC 319 : AIR 1987 SC 943] ,
State of M.P. v. Bani Singh [1990 Supp
SCC 738 : 1991 SCC (L&S) 638 : (1991)
16 ATC 514 : AIR 1990 SC 1308] , State of
Punjab v. Chaman Lal Goyal [(1995) 2
SCC 570 : 1995 SCC (L&S) 541 : (1995)
29 ATC 546] , State of A.P. v. N.
Radhakishan [(1998) 4 SCC 154 : 1998
SCC (L&S) 1044 : AIR 1998 SC 1833] ,
M.V. Bijlani v. Union of India [(2006) 5
3 All. Vishnu Swaroop Sharma Vs. State of U.P. & Ors.
521
SCC 88 : 2006 SCC (L&S) 919 : AIR 2006
SC 3475] , Union of India v. Kunisetty
Satyanarayana [(2006) 12 SCC 28 : (2007)
2 SCC (L&S) 304 : AIR 2007 SC 906] ,
Ministry of Defence v. Prabhash Chandra
Mirdha [(2012) 11 SCC 565 : (2013) 1
SCC (L&S) 121 : AIR 2012 SC 2250] and
LIC v. A. Masilamani [(2013) 6 SCC 530 :
JT (2012) 11 SC 533] .)"

25. For one, the principle appears to
have been laid down in the context of plea
seeking
premature
termination
of
disciplinary proceedings on the ground of
delay. There would be some inherent lack
of wisdom to quash proceedings on the
ground of delay after they have reached a
terminus, where the conclusions and the
result with whatever delay is already there.
Perhaps, the only exception in a situation
after the Disciplinary Authority has passed
final orders even with an inordinate delay,
would be if the order of the Disciplinary
Authority is found otherwise vitiated,
requiring a remand, and, a fortiori a further
continuance of ancient proceedings.

26. This Court is mindful of the fact
that in applying any principle that has the
effect
of
preventing
disciplinary
proceedings to reach their logical terminus,
must
always
be
informed
by
the
consideration of the seriousness of charges
involved in the matter. A charge, that is
profoundly serious and widely impacts
clean administration in the service, must
not be allowed to die or wither away with
time. However, if the charge(s) is (are) not
very serious in the sense that these do not
inevitably attract the imposition of a major
penalty if proved, or by the nature of the
acts, are not widely destructive of clean
administration in service, an inordinate
delay that features if the order of
punishment were quashed on some other
grounds and the proceedings revived, may
be a good ground to import the principle
about giving quietus to the disciplinary
proceedings.

27. Here, what has to be noticed is
that the petitioner was suspended pending
inquiry on 16.12.1983 and the charge-sheet
issued to him a year and a half later on
19.06.1985. This charge-sheet carried three
charges, to which allusion would be made
shortly. A fourth charge was added to the
existing charge-sheet dated 22.05.1985 by
the Disciplinary Authority, the District
Magistrate,
Farrukhabad
by
an
endorsement dated 09.12.1985. While these
proceedings were pending, the petitioner
was served with a most illegal order by the
District Magistrate, Farrukhabad dated 14th
May, 1991.

28. It was a show cause notice, which
takes note of the fact that disciplinary
proceedings
are
pending
against
the
petitioner after his suspension from service
vide order dated 16.12.1983 and his
provisional
reinstatement
done
on
27.05.1990. The show cause notice dated
14th May, 1991 says that there has been no
improvement in his work and conduct and
the petitioner does not take interest in
government work, but obstructs the public
distribution system, which is against the
Service Rules. He was, therefore, required
to show cause why his services be not
terminated. This show cause was not based
on the report of an inquiry into the charge,
but dehors those proceedings. It carried
vague allegations. This show cause notice
dated 14th May, 1991, issued by the
District Magistrate, Farrukhabad, was ex
facie the most illegal thing to do.

29. The District Magistrate could not
apparently
proceed
to
terminate
the
522 INDIAN LAW REPORTS ALLAHABAD SERIES
services of a permanent employee by
merely issuing him a show cause notice,
without holding disciplinary proceedings,
that independent of this show cause notice
were already pending on the said date.
After all, the show cause notice was not
traceable to the District Magistrate's
authority to dismiss or remove the
petitioner under Clause (b) of the Second
Proviso
to Article
311
(2)
of
the
Constitution, or any Service Rule similarly
empowering the Disciplinary Authority to
dispense with an inquiry after recording
reasons in writing that it was not
reasonably practicable to hold such inquiry.
This show cause notice was a great
diversion and a contributor delay in the
already highly delayed course of the
pending disciplinary proceedings, that were
then in progress on the basis of the chargesheet dated 22.05.1985. This show cause
notice apparently led the petitioner to
challenge the departmental proceedings
pending against him, seeking these to be
quashed, besides the issue of a mandamus
directing the respondents to transfer him
from Kanpur to Farrukhabad by means of a
writ petition, being Civil Misc. Writ
Petition No.22002 of 1991. He also added
by amendment some relief to the said
petition, seeking promotion and the grant of
annual increments, besides other service
benefits like seniority etc.

30. This Court, perhaps noticing the
show cause notice issued to the petitioner,
passed an interim order dated 02.08.1991,
while issuing notice, directing that the
departmental
proceedings
against
the
petitioner may continue, but final orders
shall not be made until further orders.
Apparently, there was no interference with
the show cause notice and the pending
disciplinary
proceedings
were
not
interdicted either by this Court. All that was
done was that the respondents were
forbidden from passing final orders in the
disciplinary proceedings. The inquiry could
nevertheless be held and everything done,
but the recording of final orders disposing
of the disciplinary matter.

31. A perusal of the record shows that
an inquiry of whatever kind into the
charges against the petitioner was held and
the inquiry report submitted to the
Disciplinary Authority on 02.05.1997, but
no
orders
could
be
made
thereon,
considering of course the interim order, that
was passed on 02.08.1991. The interim
order aforesaid was vacated on 09.04.2004.
After the interim order was vacated, given
the fact that an inquiry report dated
02.05.1997 had already been submitted to
the Disciplinary Authority, the disciplinary
proceedings were not carried forward to
their logical conclusion and decided until
the petitioner's retirement from service
upon attaining the age of superannuation on
31.05.2007. There is absolutely no reason
shown why these proceedings were not
disposed of after this Court vacated the
interim order dated 09.04.2004 and before
the petitioner's retirement on 31.05.2007.
The proceedings instead continued after the
petitioner's retirement until 22.06.2011,
when the impugned order of that date was
passed by the District Magistrate, Kanpur
Nagar, punishing the petitioner on three of
the four charges found proved with
imposition of the major penalty of
permanent withholding of two increments
together with the award of an adverse entry.

32. The calendar of events from the
petitioner's
suspension
from
service
pending inquiry on 16.12.1983 to the final
orders,
disposing
of
the
disciplinary
proceedings,
passed
by
the
District
Magistrate dated 22.06.2011, would show
3 All. Vishnu Swaroop Sharma Vs. State of U.P. & Ors.
523
that it took in all a period of 28 years for
the
respondents
to
conclude
the
proceedings. In this period of time, if one
were to examine the first lap of these
proceedings, where nothing prevented the
respondents from deciding them, it would
appear that from 16.12.1983 to 02.08.1991,
there was no interim order forbidding the
respondents
from
concluding
the
proceedings. Post suspension, the chargesheet was issued on 19.06.1985, as already
said, after a year and a half of the
petitioner's
suspension. The
petitioner
submitted his reply to the charge-sheet on
22.06.1987, which seems to be a rather
delayed act on the petitioner's part. But,
given the fact that the petitioner's reply was
there before the respondents to the charges
by June of 1987, a defisce understanding
what took them all this while in not going
ahead in concluding the disciplinary
proceedings, until the District Magistrate
committed the misadventure of issuing a
show cause notice to the petitioner dated
14th May, 1991, asking him to show cause
for reasons mentioned there why his
services may not be terminated dehors the
pending
disciplinary
proceedings,
as
already noticed.

33. No doubt, after this Court passed
the order dated 02.08.1991, the respondents
could not proceed to decide the disciplinary
proceedings until that order was vacated on
09.04.2004, but again, as already noticed,
nothing prevented them from concluding
the inquiry and keeping matters at a stage
that just awaited recording of final orders.
We have already said that final orders could
be passed immediately after the interim
order dated 02.08.1991 was vacated on
09.04.2004. This never happened and all
the rest of the culpable delay that was
caused by the respondents' laxity has been
noticed for every detail of it. The petitioner
retired on 31.05.2007 and the disciplinary
proceedings were concluded by the District
Magistrate's order dated 22.06.2011.