- (1.) The petitioner, a class III employee of the judgeship of Allahabad retired on 31.3.2011 on attaining the age of superannuation. By impugned order dated 12.11.2013 passed by the first respondent (District Judge, Allahabad), he has been punished in a disciplinary proceeding held against him by providing for deduction of 20% of his pension. In the year 2004, it transpired that the record of Misc. Case no. 285 of 1978 Rajkali vs. State, decided on 13.1.1979 is not traceable. At the relevant time, the petitioner was posted as Misc. Case Clerk. A preliminary enquiry was held by Civil Judge (Senior Division) (East), Allahabad following which a report dated 20.5.2005 was submitted holding the petitioner prima facie guilty of loss of record. By an order dated 9.9.2005, the District Judge, Allahabad directed for holding a regular departmental enquiry against the petitioner. The Additional Chief Judicial Magistrate, Court No.5 was appointed as Enquiry Officer and he was required to frame the charge sheet and after getting it approved from the District Judge, Allahabad to proceed with the enquiry. Subsequently, the second respondent (Additional Sessions Judge, Court no. 10, Allahabad) came to be appointed as Enquiry Officer and he framed a charge sheet dated 6.3.2013 and got it approved from the first respondent on 13.3.2013. The Enquiry Officer submitted a report dated 13.9.2013 indicting the petitioner of the charges leveled against him. On basis thereof, the first respondent issued a show cause notice dated 17.9.2013 seeking his explanation as to why major penalty including termination of service be not awarded to the petitioner. The petitioner replied to the show cause notice contending that he having retired on 31.3.2011, disciplinary proceedings initiated against him by issuing charge sheet dated 13.3.2013 without there being sanction of the Governor, is in violation of Regulation 351-A of the Civil Service Regulations. It was further contended that the charge relates to an event which took place more than four years before the institution of the proceedings and consequently the entire proceedings are illegal. It was pleaded that the copy of the charge sheet was never served on the petitioner and the proceedings were held in gross violation of the principles of natural justice.
(2.) The first respondent by impugned order dated 12.11.2013 imposed punishment of deduction of 20% of pension after repelling the contention of the petitioner that proceedings were held in violation of Regulation 351-A. It is held that the officer conducting the preliminary enquiry submitted the report on 20.5.2005. On basis thereof, the then District Judge by order dated 9.9.2005 directed for holding regular enquiry. The petitioner had moved applications in the year 2005 and again in the year 2008 for perusal of the record and for making available various documents to him. On 1.11.2012, the petitioner made a complaint to the Administrative Judge, High Court and whereupon the Administrative Judge issued direction on 5.11.2012 following which the then District Judge on 15.11.2012 directed the Enquiry Officer to submit report within 15 days. Enquiry Officer got the charge sheet approved on 13.3.2013 and thereafter conducted the departmental proceeding followed by enquiry report dated 13.9.2013. On the basis of these facts, the first respondent concluded by holding as under :- "The above facts show that enquiry was not initiated after retirement of Sri Mahendra Prakash Srivastava, the enquiry is pending since 2005 much before the retirement of Sri Mahendra Prakash Srivastava on 31.3.11. The record also shows that on one or other pretext, he was avoiding and seeking time. During enquiry he never cooperated in the enquiry. He can not get any benefit, if there is any delay in enquiry. The Hon'ble Supreme Court in Union of India Vs. A.K. Patnaik, 1996 AIR(SC) 280 held that if any disciplinary proceedings is pending and employee retires, then on the basis of the retirement, the proceedings can not be ceased in the enquiry. The Article 351 A also provides that if there is any enquiry initiated before retirement, the disciplinary proceedings can be taken up against an employee, hence there is no force in the contention of Sri Mahendra Prakash Srivastava that there can be no enquiry against him after his retirement regarding his misconduct during his service period when enquiry is pending prior to his retirement."
(3.) Learned counsel for the petitioner submitted that the impugned order is in the teeth of the mandatory provisions of Regulation 351-A. It is urged that in view of the Explanation to Regulation 351-A, the departmental proceedings shall be deemed to have been instituted when the charges framed against the petitioner were issued to him. The proceedings relating to the preliminary enquiry instituted in the year 2004 nor the proceedings prior to the date on which charge sheet was issued, are relevant for determining the applicability of Regulation 351-A. It is urged that the petitioner was not provided with the copy of chalan bahi and rasid bahi which he had been asking for since the inception of the preliminary enquiry and thus, merely on account of the fact that the same request was made by him in the year 2005 and 2008, would not be of any relevance while determining the date of initiation of departmental proceedings. It is further submitted that the charge sheet was never served on the petitioner; the departmental proceedings were held in gross violation of the principles of natural justice; that even if the departmental proceedings were held exparte, it was incumbent upon the respondents to have proved the charges by leading oral evidence, which was not done in the instant case; the report of the Enquiry Officer itself mentions that Goswara of the relevant year is not traceable and thus the respondents failed to contradict the specific case of the petitioner that the file of Misc. Case No. 285 of 1978 was consigned to the record through the Goswara.;