- (1.) A Division Bench (which consisted of two of us) has referred to the Full Bench the following three questions of law: (i) Whether the Government can take resort to the exercise of power under Article 470 (b) of the Civil Service Regulations for fixing the pension at a reduced rate when it has been found that the pensioner by his misconduct, negligence or irregularity had caused pecuniary loss to the Government ? (ii) Whether the scope of the two Articles 351-A and 470 (b) is mutually exclusive and if any case where the pension is reduced for recovery of the pecuniary loss caused by the pensioner by his conduct, the case will not be covered by Article 470 (b) of the Civil Service Regulations ? (iii) Whether Article 351-A will apply only to a case of a pensioner against whom a verdict of guilt of misconduct had been recorded in any departmental or judicial proceedings and in the absence of such a verdict the Government can take resort to Article 470 (b) on the same facts and circumstances on which a departmental inquiry or judicial proceedings could have taken place for the purpose of finding him guilty of misconduct and for having caused pecuniary loss ?
(2.) The Division Bench which made this reference doubted the correctness of the view taken by another Division Bench of this Court in State of U. P. V/s. J. Prasad Varshney,1974 AllLJ 635 as to the relative scope of Arts. 351-A and 470 (b) of the Civil Service Regulations, as adopted for application in the U. P. (shortly the Regulations).
(3.) We shall now set out those' two Articles: "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), and (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 proceeding 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." Article 470 of the Regulations reads: "470. (a) The full pension admissible under the rules is not to be given as a matter of course or unless the service rendered has been really approved. (b) If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks proper. Provided that in cases where the authority sanctioning pension is other than the appointing authority, no order regarding reduction in the amount of pension shall be made without the approval of the appointing authority Note For the purpose of this Article 'appointing authority' shall mean the authority which is competent to make substantive appointment to the post or service from which the officer concerned retires. Decision of the State Government. Subject to the provisions of any law for the time being in force, an appeal against an order sanctioning a reduced pension under clause (b) of the above Article shall lie to the authority to whom an appeal would ordinarily lie against an order of punishment under Chapter XIII of the Classification, Control and Appeal Rules or under the appeal rules promulgated in Government notification No. 2628/11-264, dated August 3, 1932. G. O. No. 343/X-325 dated March 3, 1919).";