- (1.) R. A. Sharma. J. The petitioner, who was Basic Shiksha Adhikari, retired from service on 31-12-1987. A charge-sheet dated 16-4-1988 containing some charges, was served on him. An inquiry was according conducted and the petitioner was held guilty of the charges. Pursuant to the report of the Inquiry Officer the Government passed an order on 11-9-1990 deducting fifty percent of pension of the petitioner. Being aggrieved by it the petitioner has filed this writ petition.
(2.) PARTIES have exchanged affidavits and we have heard the learned counsel for the parties. After a Government Servant has retired from service, it is open to the Government under Regulation 351-A of the Civil Services Regulation, to in itiate departmental proceeding against him and, if, he is found guilty of the char ges of grave misconduct or is found to have caused pecuniary loss to Government by misconduct or negligence, during his service, the Government can withhold or withdraw his pension or any part of it. Regulation351-A of the aforesaid regulation, so far as it is relevant, is reproduced below: "351-A. The Governor reserves to himself the right of with holding 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 pen sioner is found in departmental or judicial proceedings to have been guilty of grave miscon duct or to have caused pecuniary loss to Govern ment 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 retire ment 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. " In view of clause (1) of proviso (a) to Regulation 351-A, the Government can not initiate departmental proceeding against the Government servant after his retirement, save with the sanction of the Government. In paragraph 13 of the writ petition, which is re-produced below, it has been stated that the sanction of the Governor was not obtained: "13. That before instituting the departmental proceedings against the petitioner, sanction of the Governor was not obtained which was required by clause 1 of the first proviso the Regulation 351 - A. " Paragraph 11 of the counter-affidavit which contains the reply of paragraph 13 of the writ petition, as translated in English, is as under: "that the contents of para 13 of the the writ petition are not admitted. The departmen tal proceedings were initiated against the petitioner after obtaining approval of the Government. " As the petitioner has denied the grant of sanction by the Governor, it was the duty of the Government to place the order of the Governor granting the sanc tion. But that was not done. We, therefore, passed an order on 8th July, 1996, which is re-produced below, directing the learned Standing Counsel to file letter of sanction of the Governor alongwith supplementary affidavit: "on the points raised by learned counsel for the petitioner in support of writ petition is that departmental proceedings under regula tion 351-A have been initiated after the petitioner's retirement without sanction of the Governor. Petitioner has specifically pleaded this fact in paragraph 13 of the writ petition. In paragraph 11 of the counter-affidavit although contents-of paragraph 13 of the writ petition have not been accepted, but letter of sanction of the Governor has not been filed alongwith counter- affidavit. Learned Standing Counsel is directed to file letter of sanction of the Governor alongwith supplementary affidavit within two weeks from today. " List this petition on 23-7-1996. Inspite of the above order, the order of sanction of the Governor has not been filed. Learned Standing Counsel has stated that he has already sent a letter to the concerned department for filing a sup plementary affidavit in pursuance of the aforesaid order of this Court, but there is no response. He, who asserts the existence of a document or order, must prove it by producing it before the Court, if existence of such document or order is denied. It was, therefore, obligatory for the Govern ment to place the order of sanction before the Court. But as mentioned before the State has failed to produce such an order. We have no alternative but to accept the averments made by the petitioner in paragraph 13 of the writ petition, according to which, departmental proceeding has been initiated against the petitioner after his retirement without obtaining necessary sanction from the Governor. As sanction of the Governor is a condition precedent for initiating departmental proceeding against a Government Servant after his retirement, the proceedings initiated in the instant case, are void ab initio and are liable to be quashed.
(3.) FOR the reasons given above, this writ petition is allowed with costs. The impugned order dated 11-9- 1990 is quashed. The petitioner will be paid post retirement benefits as are permissible under law within a period of three months' from the date of presentation of certified copy of this order before the State Government. Petition allowed. .;