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2014 (2) TMI 1433 - HC - Indian LawsRecovery of amount from the gratuity and pension of the petitioner under the provisions of Rule 9(1) of the U.P. Retirement Benefits Rules 1961 - Guilty for misappropriation of funds - HELD THAT - Rule 7 (vii) of the U.P. Government Servant (Conduct and Appeal) Rules 1999 deals with the procedure for imposing major penalties and enjoins that where the charged Government Servant denies the charge the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government Servant who shall be afforded an opportunity to cross-examine such witnesses. After recording the aforesaid evidences the Inquiry officer shall call and record the oral evidence which the charged Government Servant desired in his written statement to be produced in his defence. Rule 8 deals with the submission of enquiry report whereas Rule 9 prescribes action on the enquiry report. In State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan 1960 (11) TMI 130 - SUPREME COURT State of U.P. v. Shatrughan Lal and another 1998 (7) TMI 689 - SUPREME COURT and State of Uttaranchal and others v. Kharak Singh 008 (8) TMI 1026 - SUPREME COURT the Apex Court has emphasized that a proper opportunity must be afforded to a Government servant at the stage of the enquiry after the charge-sheet is supplied to the delinquent as well as at the second stage when punishment is about to be imposed on him. In State of Uttaranchal and others v. Kharak Singh the Apex Court has enumerated some of the basic principles to be observed in the departmental inquiries and consequences in the event if these basic principles are not adhered to the order is to be quashed. It is required to be examined that whether there is any defect in the enquiry or not. The petitioner while submitting reply as indicated in para 11 of the writ petition has stated that he may be permitted to cross-examine S/Shri D.N. Upadhyaya Ram Surat Dubey D.N. Verma Uma Shanker Shukla Santoshi Ram and few other persons but during the course of enquiry only Santoshi Ram was examined and no other witness was called for. In paragraph 16 of the rejoinder-affidavit the petitioner has specifically stated that he was not permitted to cross-examine the witnesses nor any personal hearing was afforded - No documentary evidence has been produced by the respondents to establish that it is the petitioner who did not cross-examine the witnesses though he was afforded ample opportunity. In para 29 of the writ petition it may be added that the petitioner requested for cross-examination of Shri Ram Surat Dubey and Shri B.N. Upadhaya who as indicated in para 7 of the counter-affidavit that they have submitted report against the petitioner. Despite requests the Enquiry Officer did not call them for cross-examination and submitted its report. Thus the enquiry was conducted not only in the breach of the principles of natural justice but in violation of the Rules referred. The services of the petitioner are governed by U.P. Government Servant (Disciplinary and Appeal) Rules 1999. The rules contemplate that an enquiry can be conducted against a person appointed to public services and posts in connection with the affairs of the State of Uttar Pradesh. The power to impose penalty is contained under the Rules of 1999 which provides penalties which can be imposed against the Government servants. There is no provision under the Rules allowing the enquiry to be conducted against the person who has retired from service. In absence of any such rule the enquiry cannot be continued against a Government servant who has retired - Regulation 351-A provides that the Government has a right to withhold or withdraw a pension or any part of it whether permanently or for a specific period and also has a right to order for the recovery from a pension of the whole or part of any pecuniary loss caused to the 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 the Government by misconduct or negligence during his service. However this rule has certain exceptions which are germane for determination of the controversy in hand. It may be added that there are specific provisions in Regulation 351-A which are to be followed before initiating the disciplinary proceedings against a retired employee. The conditions for the purpose of invoking Regulation 351-A have not been satisfied. There is no valid approval of Governor and the matter regarding the alleged misconduct relates to four years prior to institution of proceedings. In other words alleged misconduct has been committed beyond the period of four years as contemplated under the Rules. On plain reading of the Regulations it clearly emerges that the same cannot be invoked in the present case. The impugned order of punishment dated 20.3.2001 is hereby quashed. The unpaid terminal benefits due to the petitioner together with admissible interest shall be paid to the petitioner expeditiously say within a period of three months from the date of receipt a certified copy of this order - Petition allowed.
Issues Involved:
1. Validity of the order dated 30.3.2001 for recovery from the petitioner's pension and gratuity. 2. Procedure followed in the departmental enquiry. 3. Compliance with principles of natural justice. 4. Authorization for initiating disciplinary proceedings post-retirement. 5. Time-bar for initiating proceedings under Regulation 351-A of CSR. Detailed Analysis: 1. Validity of the order dated 30.3.2001 for recovery from the petitioner's pension and gratuity: The petitioner challenged the order dated 30.3.2001, which directed the recovery of Rs. 50,82,266/- from his gratuity and pension under Rule 9(1) of the U.P. Retirement Benefits Rules, 1961, on grounds of misappropriation of funds. The court scrutinized the procedural and substantive aspects of the order. 2. Procedure followed in the departmental enquiry: The petitioner argued that he was not provided with the necessary documents mentioned in the charge-sheet, nor was he given a fair opportunity to cross-examine the witnesses. The court emphasized that the Inquiry Officer must consider all evidence and circumstances before submitting a report to the Disciplinary Authority. The Inquiry Officer's conclusions should be based on "cast iron logic," as highlighted in the Supreme Court case Girdhari Lal v. Assistant Collector, 1970(2) SCC 530. 3. Compliance with principles of natural justice: The court noted that the petitioner was not given a proper opportunity to cross-examine key witnesses and that the Enquiry Officer failed to provide an oral hearing on the dates fixed. This was in violation of Rule 7(vii) of the U.P. Government Servant (Conduct and Appeal) Rules, 1999, which mandates an oral enquiry and cross-examination opportunities. The court cited several Supreme Court cases, including State of U.P. v. C.S. Sharma, AIR 1968 SC 158, and Meenglas Tea Estate v. Their Workmen, AIR 1963 SC 1719, which underscore the necessity of providing a fair chance to hear and rebut evidence. 4. Authorization for initiating disciplinary proceedings post-retirement: The court examined whether the disciplinary proceedings were initiated with proper authorization. It was found that the Secretary of the Revenue Department, not the Governor, had authorized the proceedings, which is against Regulation 351-A of the CSR. The court referenced the Supreme Court decision in State of U.P. and another v. Shri Krishna Pandey, AIR 1996 SC 1656, which mandates the Governor's prior sanction for such proceedings. 5. Time-bar for initiating proceedings under Regulation 351-A of CSR: The court highlighted that Regulation 351-A requires that proceedings must be initiated within four years of the alleged misconduct. In this case, the charge-sheets were served on 4.8.1995, more than four years after the petitioner's retirement on 31.7.1991. The court ruled that the proceedings were time-barred, referencing the Supreme Court decision in State of U.P. and another v. Shri Krishna Pandey, AIR 1996 SC 1656, which states that proceedings must be initiated within four years of the event of misconduct. Conclusion: The court concluded that the disciplinary proceedings were conducted in violation of the principles of natural justice and without proper authorization. The proceedings were also initiated beyond the permissible time frame. Consequently, the writ petition was allowed, and the impugned order dated 30.3.2001 was quashed. The court directed that the unpaid terminal benefits, along with admissible interest, be paid to the petitioner within three months.
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