CAUSE TITLE:
Eklavya Kumar Vs State Of UP
DATE OF ORDER:
18 August 2022
JUDGE(S):
HON’BLE MR. JUSTICE ALOK MATHUR
PARTIES:
Petitioner: EKLAVYA KUMAR
Respondents: STATE OF U.P
IMPORTANT PROVISIONS
Regulation 351 - A of the Regulations
351-A - The Governor reserves to himself the right of with holding 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 mis-conduct, or to have caused pecuniary loss to the Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement;
Provided that -
(a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during reemployment
(i) shall not be instituted save with the sanction of the Governor,
(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 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 re-employment, 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
BRIEF FACTS
- The petitioner through this writ petition challenged the order of punishment dated 05.06.2020 passed by Secretary, PWD, Government of U.P, Lucknow holding him guilty and ordering a 50% reduction in pension for a period of 3 years.
- As per the petitioner, he was appointed to the post of Assistant Engineer in 1992 and was promoted to the post of executive engineer on 20.11.2005 and remained on the said post till 30.09.2018. Disciplinary proceedings were initiated against him by way of an office memorandum dated 26.03.2018. the charge sheet was given to him on 26.05.2018.
- The petitioner in his reply denied all charges saying that he did not promote daily wagers to the post of ‘work agents’ but only the work of work agents was assigned to them. He contended that such action is neither illegal nor contrary to rule as no rules for promotion had been framed and hence order passed by the petitioner cannot be construed as a promotion order.
- Subsequent to this reply filed by the petitioner, the inquiry was concluded and a report was submitted. Petitioner was called upon to submit his reply to the inquiry report. The petitioner in his reply to the inquiry report again denied the charges. Considering this reply, the impugned order of punishment was passed. considering the fact that the petitioner superannuated from service on 30.09.2018, and the order of punishment was passed after three years of his superannuation.
ARGUMENTS OF PETITIONER
- The order of punishment passed by the respondents could not have been passed as it does not find mentioned in the U.P. Government Servant (Discipline and Appeal) Rules, 1999 or under Section 351- A of the Civil Service Regulations, which is applicable to the employees of the State Government.
- No date, time, and place were fixed for inquiry which disabled the petitioner from defending himself.
- No evidence on basis of which punishment has been awarded was submitted to the inquiry officer by presenting officer on behalf of the department.
- Petitioner also submitted that the punishment under Rule 351- A which empowers the respondents to pass order to recover from the pension of the petitioner can be passed only in cases where it is established that some financial loss has been caused to the State.
ARGUMENTS OF RESPONDENTS
- The counsel for respondents has opposed the writ petition saying that the inquiry took place in accordance with rules and the petitioner was accorded an adequate opportunity of hearing.
QUESTIONS RAISED
Was the order of punishment passed by the Secretary, PWD, Government of Uttar Pradesh legal?
ANALYSIS
- Court observed that Rule 351A empowers the state to recover from the pension but it has to be categorically recorded that the delinquent employee has caused pecuniary loss to the state.
- In this case, nor there was any such charge against the petitioner, nor any evidence to this regard was presented.
- Court held that the order is vitiated and the punishment imposed is illegal. Writ petition allowed. By not fixing date and time for the proceedings, officer has committed gross illegality.
CONCLUSION
The court reiterated the principle laid down by the Apex court that the inquiry proceedings is not a casual exercise and same have to be conducted in accordance with the law and appropriate opportunity of hearing has to be given to the delinquent employee to place all the material in his defense. Date, time and place is fixed for affording an opportunity to the delinquent employee to place material in his defence before the inquiry officer.
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