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Misconduct by retired Government officer can be dealt under Article 351-A of the Civil service regulation Act: Allahabad Court

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The Allahabad High Court while setting aside the order passed by the Single Judge has observed that after the retirement of a government servant, if such employee is found to be guilty of grave misconduct it is the Governor who can take action as provided in Article 351-A of the Civil Service Regulations.

The Division Bench of Justice Devendra Kumar Upadhyaya and Justice Shree Prakash Singh passed this order while hearing a Special Appeal filed by Gaya Prasad Yadav.

By means of the Special Appeal instituted under Chapter VIII Rule 5 of the Rules of the Court, challenge has been made by the appellant-petitioner to a judgment and order dated 11.08.2021, passed by the Single Judge whereby the petition has been dismissed and the order dated 01.11.2018 reiterating the order of dismissal of the appellant petitioner has been affirmed.

The appellant-petitioner was recruited as Constable of Armed Police in the establishment of the Uttar Pradesh Police. On certain charges relating to obtaining employment on the basis of certain allegedly forged education certificates, he was dismissed from service by means of an order dated 20.06.2009, passed by the Superintendent of Police, Sultanpur.

The said order of dismissal was challenged by the appellant-petitioner by filing Writ Petition, which was allowed by the Court by means of order dated 11.09.2013 whereby the order of dismissal passed by the Superintendent of Police, Sultanpur dated 20.06.2009 was set aside with the direction that the appellant-petitioner will be reinstated in service. While allowing the Writ Petition, the Court further observed that it will be open to the Superintendent of Police, Ambedkar Nagar to take action in accordance with law.

In compliance of the aforesaid order dated 11.09.2013, passed by the Court, the appellant-petitioner was reinstated by means of order dated 31.01.2014, passed by the Superintendent of Police, Ambedkar Nagar, however, the departmental proceedings were further carried against the appellant-petitioner and he was again dismissed from service by means of order dated 04.07.2014, passed by the Superintendent of Police, Ambedkar Nagar. By means of another order passed on the same day i.e 04.07.2014, the representation of the appellant-petitioner regarding payment of back wages was also rejected.

Both the aforesaid two orders dated 04.07.2014 whereby the appellant-petitioner was dismissed from service and his claim for payment of back wages was rejected became the subject matter of the Writ Petition which was decided by the Single Judge of the Court by means of an order dated 13.03.2018. By the said order, the order of dismissal dated 04.07.2014 was set aside with the further stipulation therein that the Superintendent of Police, Ambedkar Nagar shall pass a fresh order in accordance with law.

The reason indicated in the order dated 13.03.2018, passed by the Court while quashing the order of punishment of dismissal was that the order of punishment of dismissal which was challenged did not refer to the show cause notice and the reply submitted by the appellant-petitioner to the said show cause notice and accordingly it was held that the appellant-petitioner was denied opportunity of hearing.

The appellant-petitioner, in the meantime, attained the age of superannuation on 31.05.2015. In compliance with the order dated 13.03.2018, passed by the Court in Writ Petition, a show cause notice was given to the appellant-petitioner on 22.05.2018 to which he submitted his reply by means of his letter dated 23.07.2018. The Superintendent of Police, Ambedkar Nagar thereafter passed the order dated 01.11.2018 who reiterated the earlier order of dismissal and further stated that it will not be lawful to reinstate the appellant-petitioner in service. It is this order dated 01.11.2018 which was challenged by the appellant-petitioner by instituting the proceedings of Writ Petition, which has been dismissed by means of judgment and order dated 11.08.2021, which is under challenge herein.

Senior Advocate, Bose impeaching the judgment and order passed by the Single Judge has vehemently argued that since the appellant-petitioner had attained the age of superannuation on 31.05.2015, as such in terms of the provisions contained in Article 351-A of the Civil Service Regulations, it is the Governor who had the authority to take action which could be confined only to the nature of action permissible and given in the said provision, that is to say, curtailment or withholding the pension or recovery therefrom.

It has further been argued on behalf of the appellant petitioner that once the appellant-petitioner attained the age of superannuation and retired on 31.05.2015, for all purposes, relationship between the appellant-petitioner and the State authorities so far as the employment is concerned, got severed and hence, having regard to the provision contained in Article 351-A of the CSR, the appellant-petitioner could not have been inflicted with the punishment of dismissal from service with retrospective date.

Bose, Senior Advocate has, thus, argued that the issue raised in the writ petition has not been addressed by the learned Single Judge while passing the judgment and order dated 11.08.2021, inasmuch as that the Single Judge went to examine the issue as to whether after the appellant-petitioner attained the age of superannuation, any sanction to continue with the departmental proceedings, from the Governor as per the requirement of Article 351-A of the CSR was required or not.

Bose has further argued that the issue raised before the Single Judge was that once the government servant retires and departmental proceedings were already instituted against him prior to his retirement, it is not that any sanction for continuance of the disciplinary proceedings is required; rather in such a situation, it is only the Governor who can take certain action permissible under Article 351-A of the CSR. According to him, the only action permissible against a retired government servant on conclusion of the departmental enquiry is withholding or withdrawing the pension or any part of it for permanently or for a specified period and ordering for recovery from the pension of the whole or part of it.

The issue which emerges for the Court consideration and reflection in the case is as to whether in view of the provisions contained in Article 351-A of the CSR, it was open to the State-respondents to have inflicted punishment of dismissal from service upon the appellant-petitioner once he had retired which is other than the action permissible under Article 351-A of the CSR. In other words, the issue is as to whether the order of dismissal could have been passed by the Superintendent of Police, Ambedkar Nagar after the appellant-petitioner had retired on attaining the age of superannuation.

The other issue which needs for the Court consideration is as to whether the order of dismissal of appellant-petitioner could have been passed with retrospective date considering the provisions of Article 351-A of the CSR and the provisions contained in U.P Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991.

Accordingly, The Court opined that in the case, since the departmental proceedings were already instituted against the appellant-petitioner 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 the Supreme Court in the case of Harihar Bholenath (supra). To this extent we do not find any error in the judgment of the Single Judge which is under appeal herein.

Having observed as above, what the Court further need to reflect upon is the issue as to whether the order of punishment of dismissal from service can be passed in case of the appellant petitioner who had already retired much prior to the date on which the order under challenge before the Single Judge i.e order dated 01.11.2018 was passed.

“Admittedly, in the case the proceedings were instituted prior to retirement of the appellant-petitioner, however, prior to passing of the order dated 01.11.2018 reiterating the order of dismissal, he had already retired on 31.05.2015 on his attaining the age of superannuation and accordingly after 31.05.2015 the employee-employer relationship had already got severed and thus only action permissible against him is in terms of the provisions contained in Article 351A of Civil Service Regulations.

Single Judge while passing the judgment and order under appeal has not addressed the aforesaid issues, though these issues were contended not only in the writ petition but even in the reply submitted by the appellant-petitioner to the show cause notice dated 22.05.2018. Single Judge while passing the judgment and order under appeal appears to have lost sight of the aforesaid aspects of the matter and accordingly, in our opinion, the judgment rendered by the Single Judge is not tenable”, the Court observed while allowing the special appeal.

“The judgment and order dated 11.08.2021 passed by the Single Judge in Writ Petition No 7483 (S/S) of 2019 is hereby set aside. The order dated 01.11.2018 passed by the Superintendent of the Police, Ambedkar Nagar is also set aside.

However, it will be open to the respondents to take action in terms of the provisions contained in Article 351-A of Civil Service Regulations and in case decision to take such action is taken, the process thereof shall be completed within three months”, the Court ordered.

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