Vipin Kumar Chaudhary v. U.P. Rajkiya Nirman Sahkari Sangh Ltd

1. Heard Mr. J.N. Mathur learned senior counsel assisted by Mr. Altaf Mansoor learned counsel for petitioner, Mr. Alok Sharma learned counsel for opposite party No.1, learned state counsel for opposite parties 2 to 5. Mr. Vivek Shukla, learned counsel for opposite parties 2 to 5 and Mr. Ashutosh Dixit, Advocate holding brief on behalf of Mr. Ravishankar Tiwari learned counsel for opposite party No.6.

2. The petition has been filed challenging order dated 27.12.2023 whereby an amount of Rs.16,93,39,878/- has been imposed against petitioner with deductions to be made for his life at the rate of 20% per mensem. Also under challenge is the order dated 18.01.2024 reiterating the consequential order passed by opposite party No.1 requiring petitioner to deposit the aforesaid amount. Further prayer has also been made for a direction to concerned 2 WRIA No. 785 of 2024 authority to finalize pension of petitioner and payment of regular pension instead of provisional. Prayer for direction for payment of gratuity and leave encashment has also been made.

3. Learned counsel for petitioner has assailed the impugned orders primarily on the ground that they do not conform to provisions of Article 351-A of Civil Services Regulations (hereinafter referred to as the Regulations), that the proceedings as required to be followed in terms of Rule 7 of the Uttar Pradesh Government Servant (Discipline & Appeal) Rules, 1999[herein after referred to as Rules of 1999] have not been followed and that the orders are perverse since they have been passed ignoring material on record.

4. It has been submitted that petitioner was earlier appointed as Managing Director of Uttar Pradesh Rajkiya Nirman Sahkri Sangh Limited earlier known as PACCFED on 11.11.2010 and continued as such till 30.12.2012. During the course of his operations, he continued with the tender process which were floated by the earlier incumbent for purposes of setting up modular operation theaters in various district hospitals. It is submitted that the aforesaid tender process was finalized in favor of one Messrs. C.E.C. Metal Forming Limited and the work was executed. It is submitted that subsequently due to lodging of an F.I.R., petitioner was arrested on 30.05.2012 and was enlarged on bail by trial court vide order dated 29.08.2012 resulting in his deemed suspension. In pursuance thereof, petitioner was placed under suspension vide order dated 07.06.2012 but was reinstated vide order dated 29.05.2014 and an order dated 03.08.2016 was passed allegedly initiating disciplinary proceedings against petitioner in terms of Rule 7 of the Rules of 1999. It is submitted that prior to issuance of the said order, petitioner superannuated from service on 30.09.2016.

5. It is submitted that a perusal of order dated 03.08.2016 makes it evident that the same has been issued purportedly after approval from Governor of State for initiation of enquiry proceedings against petitioner. The note appended thereto also indicates the fact that an approved charge sheet was required to be issued to petitioner and for which purpose an authority was also indicated. Learned Counsel submits that despite aforesaid aspects, no approved charge sheet was ever received by petitioner prior to his superannuation.

6. It is submitted that in fact a charge sheet was issued and served upon petitioner on 10.01.2017 containing eight charges. On receipt of charge sheet, petitioner filed his reply on 21.11.2017 and after conclusion of enquiry proceedings, the report dated 17.02.2018 was submitted. The enquiry report was accepted by disciplinary authority who thereafter issued a 3 WRIA No. 785 of 2024 notice to petitioner in terms of Rule 9(4) of Rules of 1999 on 31.05.2018 to which petitioner submitted a detailed reply on 16.07.2018.

7. It is submitted that out of eight charges, petitioner was found guilty only with regard to charge no.3 and partly guilty with regard to charges 4 and 8. He was exonerated with regard to remaining charges.

8. It is submitted that while petitioner's reply to the notice under Rule 9(4) of Rules of 1999 was pending, opposite parties issued an order dated 02.09.2022 directing recovery of Rs.16,93,39,878/-. The orders dated 16.09.2022 and 21.09.2022 were also passed in consequence thereof. Aforesaid three orders were thereafter challenged in Writ A No. 6472 (S/S) of 2022 and were stayed by means of interim order dated 29.09.2022 primarily on ground that once the reply submitted by petitioner was already pending consideration, order of recovery could not have been passed without affording adequate opportunity of hearing to petitioner.

9. It is submitted that while aforesaid aspect was still pending consideration but after submission of enquiry report, the enquiry officer vide letter dated 18.01.2019 addressed to Commissioner/Registrar, Cooperative, U.P. Lucknow sought information whether aforesaid amount was actually paid to the Firm or not. The said letter was thereafter replied to vide letter dated 04.04.2019 in which the Commissioner/Registrar indicated that there is no record of payment being made to the Firm concerned. The letter however also indicated that the payments which were made were well within the sanctioned amount.

10. Learned counsel for petitioner submits that the very fact that such an information was being sought subsequent to submission of the enquiry report clearly indicates the fact that the enquiry officer did not submit the enquiry report after obtaining all the correct facts.

11. In pursuance of reply submitted by petitioner to the notice under Rule 9(4) of the Rules of 1999, the impugned orders have been passed again imposing recovery of the aforesaid amount.

12. Learned counsel for petitioner has assailed the orders primarily on ground that they do not conform to the provisions of Article 351-A of Civil Service Regulations inasmuch as expost facto sanction by the Governor of the State is meaningless and that such an approval or sanction is required to initiation of disciplinary proceedings against a superannuated employee. It is further submitted that even otherwise, the incident indicated in the charge sheet occurred prior to four years from the date of issuance of the sanction and was therefore also not in accordance issued prior 4 WRIA No. 785 of 2024 with the provision. Learned counsel has also drawn attention to enquiry report to submit that the same is in fact one-sided and no oral enquiry whatsoever was held in the enquiry proceedings to establish charges levelled against petitioner. It is therefore submitted that the procedure as indicated in Rule-7 of Rules of 1999 have not been followed.

13. Learned counsel also submits that the aspect that enquiry officer was required to ask the Commissioner/Registrar with regard to actual payment being made to the Firm was indicative of the fact that he was not of the considered opinion even at the time of submission of enquiry report with regard to payment being made to the Firm. It is, therefore, submitted that since the aforesaid issue remained unresolved, there was no occasion for enquiry officer to have indicated recovery to be effected from petitioner. He has adverted to decisions rendered by Hon'ble the Supreme Court in the cases of Punjab State Power Corporation Limited, Patiala and others versus Atma Singh Grewal, (2014) 13 SCC 666 and U.P. Power Corporation Ltd. and others versus Anil Kumar Sharma and another 2021 SCC OnLine All 768 to buttress his submissions.

14. Learned State Counsel on the basis of counter affidavit has refuted submissions advanced by learned counsel for petitioner with submission that there is no infringement of the provisions of Article 351A of Regulations inasmuch as order dated 03.08.2016 itself indicates that it was passed after obtaining sanction from Governor of the State even prior to petitioner's superannuation on 30.09.2016. It is also submitted that note (ii) appended to the order also indicates that a duly approved charge sheet was prepared and an officer was indicated only for purposes of serving the same upon petitioner. He has adverted to explanation to Article 351A of the Regulations to submit that departmental proceedings are deemed to have been instituted when the charges framed against petitioner are issued to him or if the officer has been placed under suspension, from an earlier date, on such date.

15. Elaborating upon such submission, it is submitted that since petitioner was placed under suspension prior to issuance of charge-sheet and even prior to his superannuation, the explanation clause would apply and due to which no specific approval or sanction for initiation or continuance of disciplinary proceedings was required to be taken.

16. Learned counsel has submitted that thereafter charge sheet was issued on 10.01.2017 after obtaining such sanction. It is submitted that letter dated 10.01.2017 merely indicates issuance of charge sheet which already stood duly approved on 03.08.2016. 5 WRIA No. 785 of 2024

17. It is therefore submitted that there is no infraction of provisions of Article 351A of the Regulations.

18. So far as the aspect of following Rule 7 of the Rules of 1999 is concerned, learned State Counsel submits that since an order of recovery does not constitute a major penalty in terms of Rule 3 of the Rules of 1999, evidently, Rule 7 of the Rules of 1999 would be inapplicable. He therefore submits that adequate opportunity of hearing has been provided to petitioner prior to passing of impugned order.

19. Learned counsel for opposite party no.4 on the basis of counter affidavit filed has submitted that as per information which was sought from the Commissioner/Registrar, letter in response thereto clearly indicates the fact that there was no separate calculation of the amount sought to be recovered as having been paid to the Firm concerned but submits that total amount of Rs.2208.63 lacs was actually spent against the sanctioned amount of Rs.2714.49 lacs. It is therefore submitted that the total amount was paid to the Firm concerned and in view of enquiry report submitted, supports imposition of the penalty as indicated in impugned order.

20. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, the aspect of violation of Article 351A of the the Regulations would require consideration.

21. The provisions of Article 351A of the Regulations are as follows:- 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 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 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 6 WRIA No. 785 of 2024 sub-clause (ii) of clause (a), and (c) the Public Service Commission, U.P., shall be consulted before final orders are passed. [Provided further that of the order passed by the Governor relates to a cash dealt with under the Uttar Pradesh Disciplinary proceedings, (Administrative tribunal) Rules, 1947, it shall not be necessary to consult Public Service Commission). 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.

22. From a perusal of the aforesaid provision, it is evident that power has been conferred upon Governor of State of withholding or withdrawing pension or any part of it in case of any pecuniary loss caused to the government in case 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. The proviso thereto indicates that the departmental proceedings if they had not been instituted while he was on duty before retirement or during employment would not be instituted save with the sanction of the Governor and should not be in respect of an event which took place not more than four years before the institution of such proceedings. thereto

23. Explanation (a) that for purposes of Article, indicates departmental proceedings shall be deemed to have been instituted when charges framed against pensioner are issued to him or, when the officer had been placed under suspension from an earlier date, on such date.

24. In the present facts and circumstances, learned State Counsel has sought to defend the proceedings, firstly on the ground that departmental proceedings had been initiated prior to superannuation of petitioner by means of order dated 03.08.2016. In the alternative, it has been submitted that since petitioner had been placed under suspension from service prior to his date of superannuation, the proceedings would be deemed to have been instituted when he was in service due to which sanction of the Governor 7 WRIA No. 785 of 2024 even otherwise was not required but was obtained as a measure of abundant precaution. Re: Sanction under Article 351-A of the Regulations

25. So far as aforesaid submissions are concerned, a perusal of the order dated 03.08.2016 will make it evident that sanction of the Governor of the State has been obtained for instituting proceedings against petitioner in terms of Rule 7 of the Rules of 1999. Although note (ii) appended thereto indicates that a charge sheet was prepared and approved and was sent for purposes of issuance to petitioner but actually no such charge sheet was ever served upon petitioner prior to 10.01.2017. The aforesaid fact is admitted between the parties.

26. So far as submission of learned State Counsel with regard thereto is concerned, it is evident that the charge sheet was admittedly issued to petitioner by means of covering letter dated 10.01.2017. The charge sheet brought on record does not indicate any separate date of its preparation or approval.

27. In the considered opinion of this court, in case the charge sheet was referable to the order dated 03.08.2016, there was no occasion for the opposite parties to have indicated it being issued on 10.01.2017. Even if it can be assumed that it was only the covering letter by which the charge sheet was issued on 10.01.2017, a separate date of the charge sheet and its approval was required to be indicated. With no such separate date being indicated either of preparation of the charge sheet or its sanction, the date as indicated in the covering letter would be of consequence. In such circumstances, it is 10.01.2017 which only can be deemed to be the date of issuance of charge sheet. This is more so evident since there is absolutely no mention whatsoever in the charge sheet of being approved or issued on 03.08.2016 or prior thereto.

28. The aforesaid aspect is also evident from perusal of the inquiry report dated 17.02.2018 whereunder also the date of charge sheet has been indicated by the inquiry by the inquiry officer himself as 10.01.2017.

29. In such circumstances submission of learned State Counsel country thereto, stands rejected. Whether incident was four years prior to limitation of proceedings?

30. So far as the second aspect is concerned, a perusal of the charge sheet itself would make it evident that charges levelled against petitioner pertained 8 WRIA No. 785 of 2024 to November 2010. In view of the finding which has been recorded herein above that date of initiation of disciplinary proceedings is 10.1.2017, it is thus evident that the charges levelled in the charge sheet pertained to an incident which took place more than 4 years prior to initiation of the inquiry proceedings. The aforesaid aspect is clearly in violation of proviso (a)(ii). In view thereof also, it is evident that initiation of inquiry proceedings were not in accordance thereto. The proceedings would be in violation of proviso (a)(ii) even if charge sheet can be deemed to issued on 3.8.2016.

31. Since the period of four years had definitely expired prior to initiation of any disciplinary proceedings with regard to petitioner, the post-facto sanction could not have been obtained by the opposite parties as has been held by Division Bench of this court in the case of Vishweshwar Pathak versus State of U.P. and others (2014) SCC OnLine All 16225 in the following manner:- " 9. In view of the aforesaid provision, it is essential that if departmental proceedings are not initiated prior to the retirement of a government employee, three conditions are required to be fulfilled, namely, that a sanction of the Governor is required and that proceedings should not be beyond a period of four years and thirdly it can be done when the order of dismissal may be passed. We of the opinion that post facto sanction could not be obtained by the respondents on 21.12.2000 from the Governor under Regulation 351-A of the Civil Services Regulations nor any sanction could cure the initial defect, namely, issuance of a charge sheet which was invalid at the initial stage itself. Once a person retires, no charge sheet could be issued unless prior sanction was obtained from the Governor, which in instant case was not obtained."

32. The Hon'ble Supreme Court in the case of Atma Singh Grewal (supra) has also held in following manner: " 3. In the present case since the charges were of the year 2002 and charge-sheet was served in the year 2008, it was manifest that the alleged event took place much more than 4 years before the serving of charge-sheet and after his retirement. In this ground the learned Single Judge quashed [Atma Singh Grewal v. Punjab SEB, WP (C) No. 11836 of 2008, order dated 16-2-2009 (P&H)] the said charge-sheet dated 7-1-2008. The petitioners chose to file appeal before the Division Bench which has also been dismissed by the Division Bench vide impugned judgment dated 20-8-2009 [Punjab SEB v. Atma Singh Grewal, LPA No. 752 of 2009, decided on 20-8-2009 (Tri)] .

4. After hearing the counsel for the parties we are of the opinion that in view of the aforesaid admitted facts, second proviso of Rule 2 stares at the face of the petitioner and no fault can be found in the judgment of the High Court."

33. Learned state counsel has also adverted to the fact that petitioner was in 9 WRIA No. 785 of 2024 fact placed under suspension prior to his superannuation and therefore also departmental proceedings would be saved with regard to proviso and the explanation since for that purposes, the initiation of inquiry proceedings would be deemed to have taken place from the date of suspension.

34. With regard to aforesaid submission, it is evident and admitted by the parties that petitioner although had been placed under deemed suspension on the date of his arrest and was continued under suspension vide order dated 07.06.2012 in exercise of power vested under Rule 4(3)(a) of Rules of 1999 but the said suspension order was thereafter revoked and petitioner was reinstated in service vide order dated 29.05.2014.

35. The said fact makes it apparent that as on the date of superannuation on 30.09.2016, petitioner was not under suspension. Aforesaid aspect has already been considered by Division Bench of this court in the case of Anil Kumar Sharma (supra) in the following manner:- " 39. There is no dispute about the fact that the stringent provisions of Article 351-A of the CSR purport to enable the authority concerned to impose major penalty on a pensioner whereby the pensioner is visited with grave civil consequences. As such, given the mandate of Article 300-A of the Constitution of India there is little scope of interpreting the provisions of Article 351-A of the CSR liberally or equitably. The appellant-respondents have proceeded on the presumption that once the respondent- petitioner was placed under suspension during the period of his service then, even if the suspension is revoked prior to retirement, the provisions of Explanation (a) of the CSR would enure to their benefit. In our opinion, this presumption and interpretation is fallacious. It has been held by the Supreme Court that a legal fiction is created only for some definite purpose and it is to be limited for the purpose for which it was created and should not be extended beyond that legitimate field17. For Explanation (a) of the CSR to be applicable the incumbent must be under suspension from a date prior to his retirement and continue to be under suspension till the date of his retirement."

36. Upon applicability of aofresaid judgment in the present facts and circumstances, therefore the legal fiction which was created with regard to the deemed suspension came to an end when petitioner was actually placed under suspension by means of order dated 07.06.2012. Once petitioner was subsequently reinstated in service on 29.05.2014, it cannot be construed that he continued under deemed suspension till the date of superannuation. On the contrary due to his reinstatement in service on 29.05.2014, the petitioner was in active duty as on the date of superannuation.

37. In view thereof, the aspect of disciplinary proceedings being initiated 10 WRIA No. 785 of 2024 from the date of suspension of service would be inapplicable in case of petitioner.

38. In view of discussion made herein above, it being evident that initiation of disciplinary proceedings against petitioner was not in conformity with Article 351A of Regulations, this court is not delving into the aspect of violation of Rule 7 of Rules of 1999.

39. Considering discussion made herein above and the findings recorded, the impugned orders dated 27.12.2023 and 18.01.2024 being vitiated on that account are hereby quashed by issuance of writ in the nature of Certiorari.

40. The petition therefore stands allowed.

41. Connected writ A No. 6472 (S/S) of 2022 has been filed challenging order dated 02.09.2022 whereby recovery was initiated of the aforesaid amount of Rs.16,93,39,878/- as well as the consequential orders dated 16.09.2022 and 21.09.2022.

42. As indicated herein above, the aforesaid orders have already been stayed by this court vide order dated 29.09.2022 primarily on the ground that disciplinary proceedings were still pending and the inquiry officer while submitting the inquiry report has exonerated petitioner of the charges as also since no opportunity of hearing was provided to petitioner or to show cause against the impugned orders.

43. In view of the fact that initiation of inquiry proceedings itself has been held to be in violation of Article 351A of the Civil Service Regulations, the orders dated 02.09.2022, 16.09.2022 and 21.09.2022 being consequential to the disciplinary proceedings are also therefore quashed by issuance of writ in the nature of Certiorari.

44. The writ petition therefore stands allowed.

45. Consequences to follow. November 7, 2025 prabhat (Manish Mathur,J.) PRABHAT KUMAR PRABHAT KUMAR High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

1. Heard Mr. J.N. Mathur learned senior counsel assisted by Mr. Altaf Mansoor learned counsel for petitioner, Mr. Alok Sharma learned counsel for opposite party No.1, learned state counsel for opposite parties 2 to 5. Mr. Vivek Shukla, learned counsel for opposite parties 2 to 5 and Mr. Ashutosh Dixit, Advocate holding brief on behalf of Mr. Ravishankar Tiwari learned counsel for opposite party No.6.

2. The petition has been filed challenging order dated 27.12.2023 whereby an amount of Rs.16,93,39,878/- has been imposed against petitioner with deductions to be made for his life at the rate of 20% per mensem. Also under challenge is the order dated 18.01.2024 reiterating the consequential order passed by opposite party No.1 requiring petitioner to deposit the aforesaid amount. Further prayer has also been made for a direction to concerned 2 WRIA No. 785 of 2024 authority to finalize pension of petitioner and payment of regular pension instead of provisional. Prayer for direction for payment of gratuity and leave encashment has also been made.

3. Learned counsel for petitioner has assailed the impugned orders primarily on the ground that they do not conform to provisions of Article 351-A of Civil Services Regulations (hereinafter referred to as the Regulations), that the proceedings as required to be followed in terms of Rule 7 of the Uttar Pradesh Government Servant (Discipline & Appeal) Rules, 1999[herein after referred to as Rules of 1999] have not been followed and that the orders are perverse since they have been passed ignoring material on record.

4. It has been submitted that petitioner was earlier appointed as Managing Director of Uttar Pradesh Rajkiya Nirman Sahkri Sangh Limited earlier known as PACCFED on 11.11.2010 and continued as such till 30.12.2012. During the course of his operations, he continued with the tender process which were floated by the earlier incumbent for purposes of setting up modular operation theaters in various district hospitals. It is submitted that the aforesaid tender process was finalized in favor of one Messrs. C.E.C. Metal Forming Limited and the work was executed. It is submitted that subsequently due to lodging of an F.I.R., petitioner was arrested on 30.05.2012 and was enlarged on bail by trial court vide order dated 29.08.2012 resulting in his deemed suspension. In pursuance thereof, petitioner was placed under suspension vide order dated 07.06.2012 but was reinstated vide order dated 29.05.2014 and an order dated 03.08.2016 was passed allegedly initiating disciplinary proceedings against petitioner in terms of Rule 7 of the Rules of 1999. It is submitted that prior to issuance of the said order, petitioner superannuated from service on 30.09.2016.

5. It is submitted that a perusal of order dated 03.08.2016 makes it evident that the same has been issued purportedly after approval from Governor of State for initiation of enquiry proceedings against petitioner. The note appended thereto also indicates the fact that an approved charge sheet was required to be issued to petitioner and for which purpose an authority was also indicated. Learned Counsel submits that despite aforesaid aspects, no approved charge sheet was ever received by petitioner prior to his superannuation.

6. It is submitted that in fact a charge sheet was issued and served upon petitioner on 10.01.2017 containing eight charges. On receipt of charge sheet, petitioner filed his reply on 21.11.2017 and after conclusion of enquiry proceedings, the report dated 17.02.2018 was submitted. The enquiry report was accepted by disciplinary authority who thereafter issued a 3 WRIA No. 785 of 2024 notice to petitioner in terms of Rule 9(4) of Rules of 1999 on 31.05.2018 to which petitioner submitted a detailed reply on 16.07.2018.

7. It is submitted that out of eight charges, petitioner was found guilty only with regard to charge no.3 and partly guilty with regard to charges 4 and 8. He was exonerated with regard to remaining charges.

8. It is submitted that while petitioner's reply to the notice under Rule 9(4) of Rules of 1999 was pending, opposite parties issued an order dated 02.09.2022 directing recovery of Rs.16,93,39,878/-. The orders dated 16.09.2022 and 21.09.2022 were also passed in consequence thereof. Aforesaid three orders were thereafter challenged in Writ A No. 6472 (S/S) of 2022 and were stayed by means of interim order dated 29.09.2022 primarily on ground that once the reply submitted by petitioner was already pending consideration, order of recovery could not have been passed without affording adequate opportunity of hearing to petitioner.

9. It is submitted that while aforesaid aspect was still pending consideration but after submission of enquiry report, the enquiry officer vide letter dated 18.01.2019 addressed to Commissioner/Registrar, Cooperative, U.P. Lucknow sought information whether aforesaid amount was actually paid to the Firm or not. The said letter was thereafter replied to vide letter dated 04.04.2019 in which the Commissioner/Registrar indicated that there is no record of payment being made to the Firm concerned. The letter however also indicated that the payments which were made were well within the sanctioned amount.

10. Learned counsel for petitioner submits that the very fact that such an information was being sought subsequent to submission of the enquiry report clearly indicates the fact that the enquiry officer did not submit the enquiry report after obtaining all the correct facts.

11. In pursuance of reply submitted by petitioner to the notice under Rule 9(4) of the Rules of 1999, the impugned orders have been passed again imposing recovery of the aforesaid amount.

12. Learned counsel for petitioner has assailed the orders primarily on ground that they do not conform to the provisions of Article 351-A of Civil Service Regulations inasmuch as expost facto sanction by the Governor of the State is meaningless and that such an approval or sanction is required to initiation of disciplinary proceedings against a superannuated employee. It is further submitted that even otherwise, the incident indicated in the charge sheet occurred prior to four years from the date of issuance of the sanction and was therefore also not in accordance issued prior 4 WRIA No. 785 of 2024 with the provision. Learned counsel has also drawn attention to enquiry report to submit that the same is in fact one-sided and no oral enquiry whatsoever was held in the enquiry proceedings to establish charges levelled against petitioner. It is therefore submitted that the procedure as indicated in Rule-7 of Rules of 1999 have not been followed.

13. Learned counsel also submits that the aspect that enquiry officer was required to ask the Commissioner/Registrar with regard to actual payment being made to the Firm was indicative of the fact that he was not of the considered opinion even at the time of submission of enquiry report with regard to payment being made to the Firm. It is, therefore, submitted that since the aforesaid issue remained unresolved, there was no occasion for enquiry officer to have indicated recovery to be effected from petitioner. He has adverted to decisions rendered by Hon'ble the Supreme Court in the cases of Punjab State Power Corporation Limited, Patiala and others versus Atma Singh Grewal, (2014) 13 SCC 666 and U.P. Power Corporation Ltd. and others versus Anil Kumar Sharma and another 2021 SCC OnLine All 768 to buttress his submissions.

14. Learned State Counsel on the basis of counter affidavit has refuted submissions advanced by learned counsel for petitioner with submission that there is no infringement of the provisions of Article 351A of Regulations inasmuch as order dated 03.08.2016 itself indicates that it was passed after obtaining sanction from Governor of the State even prior to petitioner's superannuation on 30.09.2016. It is also submitted that note (ii) appended to the order also indicates that a duly approved charge sheet was prepared and an officer was indicated only for purposes of serving the same upon petitioner. He has adverted to explanation to Article 351A of the Regulations to submit that departmental proceedings are deemed to have been instituted when the charges framed against petitioner are issued to him or if the officer has been placed under suspension, from an earlier date, on such date.

15. Elaborating upon such submission, it is submitted that since petitioner was placed under suspension prior to issuance of charge-sheet and even prior to his superannuation, the explanation clause would apply and due to which no specific approval or sanction for initiation or continuance of disciplinary proceedings was required to be taken.

16. Learned counsel has submitted that thereafter charge sheet was issued on 10.01.2017 after obtaining such sanction. It is submitted that letter dated 10.01.2017 merely indicates issuance of charge sheet which already stood duly approved on 03.08.2016. 5 WRIA No. 785 of 2024

17. It is therefore submitted that there is no infraction of provisions of Article 351A of the Regulations.

18. So far as the aspect of following Rule 7 of the Rules of 1999 is concerned, learned State Counsel submits that since an order of recovery does not constitute a major penalty in terms of Rule 3 of the Rules of 1999, evidently, Rule 7 of the Rules of 1999 would be inapplicable. He therefore submits that adequate opportunity of hearing has been provided to petitioner prior to passing of impugned order.

19. Learned counsel for opposite party no.4 on the basis of counter affidavit filed has submitted that as per information which was sought from the Commissioner/Registrar, letter in response thereto clearly indicates the fact that there was no separate calculation of the amount sought to be recovered as having been paid to the Firm concerned but submits that total amount of Rs.2208.63 lacs was actually spent against the sanctioned amount of Rs.2714.49 lacs. It is therefore submitted that the total amount was paid to the Firm concerned and in view of enquiry report submitted, supports imposition of the penalty as indicated in impugned order.

20. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, the aspect of violation of Article 351A of the the Regulations would require consideration.

21. The provisions of Article 351A of the Regulations are as follows:- 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 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 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 6 WRIA No. 785 of 2024 sub-clause (ii) of clause (a), and (c) the Public Service Commission, U.P., shall be consulted before final orders are passed. [Provided further that of the order passed by the Governor relates to a cash dealt with under the Uttar Pradesh Disciplinary proceedings, (Administrative tribunal) Rules, 1947, it shall not be necessary to consult Public Service Commission). 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.

22. From a perusal of the aforesaid provision, it is evident that power has been conferred upon Governor of State of withholding or withdrawing pension or any part of it in case of any pecuniary loss caused to the government in case 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. The proviso thereto indicates that the departmental proceedings if they had not been instituted while he was on duty before retirement or during employment would not be instituted save with the sanction of the Governor and should not be in respect of an event which took place not more than four years before the institution of such proceedings. thereto

23. Explanation (a) that for purposes of Article, indicates departmental proceedings shall be deemed to have been instituted when charges framed against pensioner are issued to him or, when the officer had been placed under suspension from an earlier date, on such date.

24. In the present facts and circumstances, learned State Counsel has sought to defend the proceedings, firstly on the ground that departmental proceedings had been initiated prior to superannuation of petitioner by means of order dated 03.08.2016. In the alternative, it has been submitted that since petitioner had been placed under suspension from service prior to his date of superannuation, the proceedings would be deemed to have been instituted when he was in service due to which sanction of the Governor 7 WRIA No. 785 of 2024 even otherwise was not required but was obtained as a measure of abundant precaution. Re: Sanction under Article 351-A of the Regulations

25. So far as aforesaid submissions are concerned, a perusal of the order dated 03.08.2016 will make it evident that sanction of the Governor of the State has been obtained for instituting proceedings against petitioner in terms of Rule 7 of the Rules of 1999. Although note (ii) appended thereto indicates that a charge sheet was prepared and approved and was sent for purposes of issuance to petitioner but actually no such charge sheet was ever served upon petitioner prior to 10.01.2017. The aforesaid fact is admitted between the parties.

26. So far as submission of learned State Counsel with regard thereto is concerned, it is evident that the charge sheet was admittedly issued to petitioner by means of covering letter dated 10.01.2017. The charge sheet brought on record does not indicate any separate date of its preparation or approval.

27. In the considered opinion of this court, in case the charge sheet was referable to the order dated 03.08.2016, there was no occasion for the opposite parties to have indicated it being issued on 10.01.2017. Even if it can be assumed that it was only the covering letter by which the charge sheet was issued on 10.01.2017, a separate date of the charge sheet and its approval was required to be indicated. With no such separate date being indicated either of preparation of the charge sheet or its sanction, the date as indicated in the covering letter would be of consequence. In such circumstances, it is 10.01.2017 which only can be deemed to be the date of issuance of charge sheet. This is more so evident since there is absolutely no mention whatsoever in the charge sheet of being approved or issued on 03.08.2016 or prior thereto.

28. The aforesaid aspect is also evident from perusal of the inquiry report dated 17.02.2018 whereunder also the date of charge sheet has been indicated by the inquiry by the inquiry officer himself as 10.01.2017.

29. In such circumstances submission of learned State Counsel country thereto, stands rejected. Whether incident was four years prior to limitation of proceedings?

30. So far as the second aspect is concerned, a perusal of the charge sheet itself would make it evident that charges levelled against petitioner pertained 8 WRIA No. 785 of 2024 to November 2010. In view of the finding which has been recorded herein above that date of initiation of disciplinary proceedings is 10.1.2017, it is thus evident that the charges levelled in the charge sheet pertained to an incident which took place more than 4 years prior to initiation of the inquiry proceedings. The aforesaid aspect is clearly in violation of proviso (a)(ii). In view thereof also, it is evident that initiation of inquiry proceedings were not in accordance thereto. The proceedings would be in violation of proviso (a)(ii) even if charge sheet can be deemed to issued on 3.8.2016.

31. Since the period of four years had definitely expired prior to initiation of any disciplinary proceedings with regard to petitioner, the post-facto sanction could not have been obtained by the opposite parties as has been held by Division Bench of this court in the case of Vishweshwar Pathak versus State of U.P. and others (2014) SCC OnLine All 16225 in the following manner:- " 9. In view of the aforesaid provision, it is essential that if departmental proceedings are not initiated prior to the retirement of a government employee, three conditions are required to be fulfilled, namely, that a sanction of the Governor is required and that proceedings should not be beyond a period of four years and thirdly it can be done when the order of dismissal may be passed. We of the opinion that post facto sanction could not be obtained by the respondents on 21.12.2000 from the Governor under Regulation 351-A of the Civil Services Regulations nor any sanction could cure the initial defect, namely, issuance of a charge sheet which was invalid at the initial stage itself. Once a person retires, no charge sheet could be issued unless prior sanction was obtained from the Governor, which in instant case was not obtained."

32. The Hon'ble Supreme Court in the case of Atma Singh Grewal (supra) has also held in following manner: " 3. In the present case since the charges were of the year 2002 and charge-sheet was served in the year 2008, it was manifest that the alleged event took place much more than 4 years before the serving of charge-sheet and after his retirement. In this ground the learned Single Judge quashed [Atma Singh Grewal v. Punjab SEB, WP (C) No. 11836 of 2008, order dated 16-2-2009 (P&H)] the said charge-sheet dated 7-1-2008. The petitioners chose to file appeal before the Division Bench which has also been dismissed by the Division Bench vide impugned judgment dated 20-8-2009 [Punjab SEB v. Atma Singh Grewal, LPA No. 752 of 2009, decided on 20-8-2009 (Tri)] .

4. After hearing the counsel for the parties we are of the opinion that in view of the aforesaid admitted facts, second proviso of Rule 2 stares at the face of the petitioner and no fault can be found in the judgment of the High Court."

33. Learned state counsel has also adverted to the fact that petitioner was in 9 WRIA No. 785 of 2024 fact placed under suspension prior to his superannuation and therefore also departmental proceedings would be saved with regard to proviso and the explanation since for that purposes, the initiation of inquiry proceedings would be deemed to have taken place from the date of suspension.

34. With regard to aforesaid submission, it is evident and admitted by the parties that petitioner although had been placed under deemed suspension on the date of his arrest and was continued under suspension vide order dated 07.06.2012 in exercise of power vested under Rule 4(3)(a) of Rules of 1999 but the said suspension order was thereafter revoked and petitioner was reinstated in service vide order dated 29.05.2014.

35. The said fact makes it apparent that as on the date of superannuation on 30.09.2016, petitioner was not under suspension. Aforesaid aspect has already been considered by Division Bench of this court in the case of Anil Kumar Sharma (supra) in the following manner:- " 39. There is no dispute about the fact that the stringent provisions of Article 351-A of the CSR purport to enable the authority concerned to impose major penalty on a pensioner whereby the pensioner is visited with grave civil consequences. As such, given the mandate of Article 300-A of the Constitution of India there is little scope of interpreting the provisions of Article 351-A of the CSR liberally or equitably. The appellant-respondents have proceeded on the presumption that once the respondent- petitioner was placed under suspension during the period of his service then, even if the suspension is revoked prior to retirement, the provisions of Explanation (a) of the CSR would enure to their benefit. In our opinion, this presumption and interpretation is fallacious. It has been held by the Supreme Court that a legal fiction is created only for some definite purpose and it is to be limited for the purpose for which it was created and should not be extended beyond that legitimate field17. For Explanation (a) of the CSR to be applicable the incumbent must be under suspension from a date prior to his retirement and continue to be under suspension till the date of his retirement."

36. Upon applicability of aofresaid judgment in the present facts and circumstances, therefore the legal fiction which was created with regard to the deemed suspension came to an end when petitioner was actually placed under suspension by means of order dated 07.06.2012. Once petitioner was subsequently reinstated in service on 29.05.2014, it cannot be construed that he continued under deemed suspension till the date of superannuation. On the contrary due to his reinstatement in service on 29.05.2014, the petitioner was in active duty as on the date of superannuation.

37. In view thereof, the aspect of disciplinary proceedings being initiated 10 WRIA No. 785 of 2024 from the date of suspension of service would be inapplicable in case of petitioner.

38. In view of discussion made herein above, it being evident that initiation of disciplinary proceedings against petitioner was not in conformity with Article 351A of Regulations, this court is not delving into the aspect of violation of Rule 7 of Rules of 1999.

39. Considering discussion made herein above and the findings recorded, the impugned orders dated 27.12.2023 and 18.01.2024 being vitiated on that account are hereby quashed by issuance of writ in the nature of Certiorari.

40. The petition therefore stands allowed.

41. Connected writ A No. 6472 (S/S) of 2022 has been filed challenging order dated 02.09.2022 whereby recovery was initiated of the aforesaid amount of Rs.16,93,39,878/- as well as the consequential orders dated 16.09.2022 and 21.09.2022.

42. As indicated herein above, the aforesaid orders have already been stayed by this court vide order dated 29.09.2022 primarily on the ground that disciplinary proceedings were still pending and the inquiry officer while submitting the inquiry report has exonerated petitioner of the charges as also since no opportunity of hearing was provided to petitioner or to show cause against the impugned orders.

43. In view of the fact that initiation of inquiry proceedings itself has been held to be in violation of Article 351A of the Civil Service Regulations, the orders dated 02.09.2022, 16.09.2022 and 21.09.2022 being consequential to the disciplinary proceedings are also therefore quashed by issuance of writ in the nature of Certiorari.

44. The writ petition therefore stands allowed.

45. Consequences to follow. November 7, 2025 prabhat (Manish Mathur,J.) PRABHAT KUMAR PRABHAT KUMAR High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench