High Court · 2025

1. Mr. P.S. Bisht, learned Standing Counsel for the State of Uttarakhand- petitioners. 2. Mr. Vikas Bahuguna, counsel for the respondents. learned

3. Since common questions of fact and law are involved in both the petitions, therefore, these petitions are clubbed together and are being heard & decided together. However, for the sake of brevity and convenience, facts of WPSB No. 490 of 2017 alone are being considered. judgment

4. This writ petition is directed against 06.02.2017 passed by Uttarakhand Public Services Tribunal, Bench Dehradun in Claim Petition No. 23/SB/2015. By the said judgment, the claim petition filed by respondent (Naresh Singh) was allowed and the charge-sheet issued to him, after more than four years of the alleged incident, was quashed by holding that it is violative of Regulation 351-A of the Civil Service Regulations. The relevant discussion is made in para 9.1 and 11.1 of the impugned judgment, which are extracted below:- “9.1 Perusal of Article 351-A (reproduced in paragraph 3.5 of this order) reveals that the “Governor” reserves to himself the right of withholding or withdrawing the pension if the if not the charge sheet was pensioner is found guilty of grave misconduct in departmental proceedings or to have cause pecuniary to Government during his service. Further, it has been provided that such instituted departmental proceedings, before retirement of Government servant, such departmental proceedings cannot be instituted after the retirement of the employee unless sanction of the “Governor” is obtained. In the case at hand, the departmental proceedings were, of course, instituted against the petitioner (and issued on 19.10.2011) before the retirement of the petitioner while he was in service but as has been stated earlier, the charge sheet dated 19.10.2011 was cancelled on 3.09.2014 and it stood dropped and withdrawn. Thereafter, departmental proceedings were initiated against the petitioner afresh on 03.09.2014 after his retirement on 30.09.2012. The petitioner was issued a new charge sheet on 3.9.2014. The earlier charge sheet dated 19.10.2011 no longer existed after its cancellation on 03.09.2014 and departmental proceedings which were initiated on 19.10.2011 (before the retirement of the petitioner) were no longer pending. The respondents issued a fresh charge sheet on 03.09.2014. As a departmental proceedings were started against the petitioner on 03.09.2014 after his retirement. departmental proceedings 03.09.2014 after his retirement on 30.09.2012, it was essential to obtain the sanction of the “Governor” as has been prescribed under proviso to Regulation 351-A. For against instituting petitioner result,

11.1 The question of charge sheet, which is issued after the retirement and after more than four years from the date of alleged incident is time barred, has been dealt with by the Hon’ble Supreme Court in a recent case, Brajendra Singh Yambem Versus Union of India and Another (2016) 9 Supreme Court Cases 20 decided by a bench of three judges on 26.08.2016.”

5. Respondent retired from the post of Assistant Agriculture Officer, Grade-II, Uttarkashi 19.10.2011, a charge sheet was issued against him for the alleged misconduct during the period he served as Store In- charge, Vikasnagar, Block Dehradun in

30.09.2012; challenged

2010. However, the said charge sheet the Director, was withdrawn and issued another Agriculture thereafter 03.09.2014, charge regarding allegations, which pertain to the period, between April, 2010 to June, 2010. Respondent subsequent charge sheet before learned Tribunal by contending that it is time in view of the provisions barred, contained Service Civil Regulations. Respondent also relied upon a Government Order dated 28.04.2003, reproduced in para 3.4 of the impugned judgment, which provides that upon superannuation, charge sheet can be issued as per Regulation 351-A of the Civil Service Regulations in respect of some allegation, which is not more than four years old. Learned Tribunal allowed the claim 6. petition by relying upon the judgment rendered by Hon’ble Supreme Court in the case of Brajendra Singh Yambem vs. Union of India, reported in (2016) 9 SCC 20. Para 34 of the said judgment is extracted below:- “34. Rule 9(2) of the CCS (Pension) Rules, 1972 reads thus: “9. Right of President to withhold or withdraw pension.—(1) *** retirement or during his (2)(a) The departmental proceedings referred instituted while the in sub-rule (1), government servant was in service whether before his re- employment, shall, after the final retirement of the government servant, be deemed to be proceedings under this Rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the government servant had continued in service: Provided the departmental proceedings are instituted by an authority subordinate to the President, that authority shall that where submit a report recording its findings to the President. (b) The departmental proceedings, if not instituted while the government servant was in service, whether before his retirement, or during his re-employment— (i) shall not be instituted save with the sanction of the President, (ii) shall not be in respect of any event which took place more than four years before such institution, and in accordance with (iii) shall be conducted by such authority and in such place as the President may direct the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the government servant during his service.” servant by the government A perusal of the above Rule makes it clear that if the disciplinary proceedings are not instituted against disciplinary authority while he was in service, then the prior sanction of the President of India is required to institute such proceedings against such a person. It is also clear that such sanction shall not be in respect of an event which took place more than four years before the institution of such disciplinary proceedings.”

7. Regulation 351-A of Civil Service Regulations, which is relevant to the present case, is extracted below:- “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 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 re-employment 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 Governor may direct and in accordance proceedings on which an order of dismissal from service may be made;” procedure applicable

8. Regulation 351-A of the Civil Service Regulations permits institution of departmental proceedings against a pensioner with the sanction of the “Governor”, however, with the condition that it may be so instituted in respect of an event, which took place not more than four years before institution of such proceedings. allegation issued after

9. Admittedly, regarding the period between April 2010 to June, 2010, while the charge sheet four years, on 03.09.2014. Hon’ble Supreme Court in the case of State of U.P. & another vs. Shri Krishna Pandey, reported in (1996) 9 SCC 395 has held, as follows:- “6. It would thus be seen that proceedings are required to be instituted against a delinquent officer before retirement. There is no specific provision allowing the officer to continue in service nor any order passed to allow him to continue on re-employment till the enquiry is completed, without allowing him to retire from service. Equally, there is no provision that the proceedings be initiated as a disciplinary measure and the action initiated earlier would remain unabated after retirement. If Regulation 351-A is to be operative in respect of pending proceedings, by necessary implication, prior sanction of the Governor to continue the proceedings against him is required. On the other hand, the Regulation also would indicate that if the officer caused pecuniary loss or committed i.e., the cause to misconduct or embezzlement etc. due negligence or dereliction of duty, proceedings should also be instituted after retirement against the officer as expeditiously as possible. But the events of misconduct etc. which may have resulted in the loss to the Government or embezzlement, institution of proceedings, should not have taken place more than four years before the date of institution of proceedings. In other words, the departmental proceedings must be instituted before lapse of four years from the date on which the event of misconduct etc. had taken place. Admittedly, in this case the officer had retired on 31-3-1987 and the proceedings were initiated on 21-4-1991. embezzlement which caused pecuniary loss to the State took place prior to four years from the circumstances, the State had disabled itself by their deliberate omissions to take appropriate action against the respondent and allowed the officer the provisions of Regulation 351-A of the Regulations. This order does not preclude proceeding with investigation into the offence and taking action thereon.” retirement. Under to escape Obviously,

10. In view of the provisions of the Civil Service Regulations, as interpreted by Hon’ble Supreme Court in the aforesaid judgment, the view taken by learned Tribunal cannot be faulted.

11. Accordingly, writ petitions fail and are hereby dismissed. No order as to costs. (Ashish Naithani, J.) (Manoj Kumar Tiwari, J.)

24.03.2025 Aswal