Jagdamba Prasad Mishra v. Honble High Court of Judicature at Allahabad and another, which was

5. Shri Gaurav Mehrotra, learned counsel has placed on record the written instructions provided to him by the High Court, which is taken on record.

6. Perused the record as well as instructions provided by learned counsel for the High Court.

7. A perusal of the written instructions shows that the charge sheet in the departmental proceedings was not served to the petitioner prior to his retirement from the post of Record Keeper. Neither any sanction for institution of Departmental Proceedings was sought and accorded by the Governor. However, it is submitted on behalf of the respondent that on the basis of written instructions that due proceedings against the petitioner were initiated prior to his retirement vide notice dated 13.05.2020 regarding his failure consigning more than 300 officials files which were in his possession.

8. Perusal of the record, it appears that earlier the petitioner has filed Writ- A No.1230 of 2023, Jagdamba Prasad Mishra Vs. Honble High Court of Judicature at Allahabad and another, which was disposed of vide order dated 18.3.2024 with liberty to the petitioner to file a fresh representation before opposite party no.2 i.e. District Judge, Civil Court, Sultanpur, who was further directed to consider the same in a time bound manner. In compliance of the order dated

18.03.2024 passed in Writ - A No.1230 of 2023, the representation of the petitioner was consider and has been rejected by the learned District Judge, which is under challenged in this petition.

9. Reasoning assigned in the impugned order reveals that 316 files, which were in the custody of the petitioner, have not been returned. It is further noted that the petitioner has not submitted any reply to the show cause notice. Consequently, 'No Dues Certificate' has not been issued to the petitioner. The order also says that pension, gratuity, and other retirement benefits can only be given if the employee provides a 'No Dues Certificate' for the last five years. Since the petitioner has failed to obtain and submit the said certificate, the same has not been issued to him. Further, a finding has been recorded in the impugned order to the effect that, on the basis of the inquiry report, the petitioner has been found guilty. It has also been submitted by the respondents that, till date, no final decision has been taken in the disciplinary proceedings initiated pursuant to the charge sheet dated 23.11.2016.

10. Article 351-A of the Civil Service Regulations provides that an enquiry against an employee cannot be instituted after four years of his retirement except with the prior approval from His Excellency the Governor. Article 351-A 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 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 sub-clause (ii) of clause (a); (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 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."

11. From the reading of the Article 351-A it is evident that His Excellency, the Governor reserves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, if the petitioner is found in departmental and judicial proceedings to have committed any grave misconduct. However, a proviso to the Regulation 351-A clearly provides that no departmental proceedings, if not instituted while the officer was on duty either before the retirement or during re- employment, shall be instituted without sanction of the Governor. Explanation-A of the Regulation 351-A of Civil Service Regulations further provides that departmental proceedings shall be deemed to have been instituted in case the charges framed against the petitioner are issued to him.

12. Considering the above submissions of the parties' counsel, perusal of the record also the Article 351-A of the Civil Services Regulation, it unequivocally appears that the charge sheet against the petitioner was issued on

23.11.2016, which is after his retirement i.e on 31.07.2015. It is also not in dispute between the parties that no sanction from the Governor was obtained prior to issuance of the said charge sheet. As such, the departmental proceedings are deemed to have been instituted on 23.11.2016, i.e., after the petitioner’s retirement. Thus, the charge sheet dated

23.11.2016 having been issued post-retirement and without the requisite sanction, could not have been issued in view of the proviso (a)(i) of Article 351-A read with Explanation (a). Consequently, the petitioner’s pension and other post- retirement dues could not have been withheld on the ground that 'No Dues Certificate' had not been issued, especially when the non-issuance was based on an inquiry report submitted in furtherance of the charge sheet. Therefore, the ground taken by respondent no. 2 for withholding the retiral benefits of the petitioner is not sustainable in law.

13. Accordingly, in view of the above discussion, the writ petition is allowed. The impugned order dated 23.05.2024 passed by opposite party no. 2 is hereby set aside. A writ in the nature of mandamus is issued, directing opposite party no. 2 to issue 'No Dues Certificate' to the petitioner for the purpose of processing his retiral benefits. The respondents are further directed to pay all post-retirement dues of the petitioner, including pension, gratuity, and other admissible benefits, as per law. Order Date :- 12.5.2025 KR RABINDRA KUMAR High Court of Judicature at Allahabad, Lucknow Bench

5. Shri Gaurav Mehrotra, learned counsel has placed on record the written instructions provided to him by the High Court, which is taken on record.

6. Perused the record as well as instructions provided by learned counsel for the High Court.

7. A perusal of the written instructions shows that the charge sheet in the departmental proceedings was not served to the petitioner prior to his retirement from the post of Record Keeper. Neither any sanction for institution of Departmental Proceedings was sought and accorded by the Governor. However, it is submitted on behalf of the respondent that on the basis of written instructions that due proceedings against the petitioner were initiated prior to his retirement vide notice dated 13.05.2020 regarding his failure consigning more than 300 officials files which were in his possession.

8. Perusal of the record, it appears that earlier the petitioner has filed Writ- A No.1230 of 2023, Jagdamba Prasad Mishra Vs. Honble High Court of Judicature at Allahabad and another, which was disposed of vide order dated 18.3.2024 with liberty to the petitioner to file a fresh representation before opposite party no.2 i.e. District Judge, Civil Court, Sultanpur, who was further directed to consider the same in a time bound manner. In compliance of the order dated

18.03.2024 passed in Writ - A No.1230 of 2023, the representation of the petitioner was consider and has been rejected by the learned District Judge, which is under challenged in this petition.

9. Reasoning assigned in the impugned order reveals that 316 files, which were in the custody of the petitioner, have not been returned. It is further noted that the petitioner has not submitted any reply to the show cause notice. Consequently, 'No Dues Certificate' has not been issued to the petitioner. The order also says that pension, gratuity, and other retirement benefits can only be given if the employee provides a 'No Dues Certificate' for the last five years. Since the petitioner has failed to obtain and submit the said certificate, the same has not been issued to him. Further, a finding has been recorded in the impugned order to the effect that, on the basis of the inquiry report, the petitioner has been found guilty. It has also been submitted by the respondents that, till date, no final decision has been taken in the disciplinary proceedings initiated pursuant to the charge sheet dated 23.11.2016.

10. Article 351-A of the Civil Service Regulations provides that an enquiry against an employee cannot be instituted after four years of his retirement except with the prior approval from His Excellency the Governor. Article 351-A 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 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 sub-clause (ii) of clause (a); (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 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."

11. From the reading of the Article 351-A it is evident that His Excellency, the Governor reserves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, if the petitioner is found in departmental and judicial proceedings to have committed any grave misconduct. However, a proviso to the Regulation 351-A clearly provides that no departmental proceedings, if not instituted while the officer was on duty either before the retirement or during re- employment, shall be instituted without sanction of the Governor. Explanation-A of the Regulation 351-A of Civil Service Regulations further provides that departmental proceedings shall be deemed to have been instituted in case the charges framed against the petitioner are issued to him.

12. Considering the above submissions of the parties' counsel, perusal of the record also the Article 351-A of the Civil Services Regulation, it unequivocally appears that the charge sheet against the petitioner was issued on

23.11.2016, which is after his retirement i.e on 31.07.2015. It is also not in dispute between the parties that no sanction from the Governor was obtained prior to issuance of the said charge sheet. As such, the departmental proceedings are deemed to have been instituted on 23.11.2016, i.e., after the petitioner’s retirement. Thus, the charge sheet dated

23.11.2016 having been issued post-retirement and without the requisite sanction, could not have been issued in view of the proviso (a)(i) of Article 351-A read with Explanation (a). Consequently, the petitioner’s pension and other post- retirement dues could not have been withheld on the ground that 'No Dues Certificate' had not been issued, especially when the non-issuance was based on an inquiry report submitted in furtherance of the charge sheet. Therefore, the ground taken by respondent no. 2 for withholding the retiral benefits of the petitioner is not sustainable in law.

13. Accordingly, in view of the above discussion, the writ petition is allowed. The impugned order dated 23.05.2024 passed by opposite party no. 2 is hereby set aside. A writ in the nature of mandamus is issued, directing opposite party no. 2 to issue 'No Dues Certificate' to the petitioner for the purpose of processing his retiral benefits. The respondents are further directed to pay all post-retirement dues of the petitioner, including pension, gratuity, and other admissible benefits, as per law. Order Date :- 12.5.2025 KR RABINDRA KUMAR High Court of Judicature at Allahabad, Lucknow Bench