- (1.) AMITAVA Lala, J. The petitioner was initially appointed to the post of Sub-District Inspector of Schools. Later on he was promoted to the post of District Inspector of Schools and at the time of superannuation dated 28th February, 2006 he was holding the post of Vice-Principal in D. I. E. T. Charkhari, Mohaba.
(2.) IN the year 2001 when the petitioner was posted as District INspector of Schools, Jalaun, the respondent No. 1 vide order dated 21st June, 2001, placed him under suspension by exercising provisions of Rule 4 of the U. P. Government Servant (Discipline and Appeal) Rules, 1999. Enquiry against him was contemplated in view of Rule 7 therein. Departmental proceeding had initiated on 21st June, 2001 and till date of retirement on 28th February, 2006 the same had not been concluded in spite of favourable enquiry report given by the Enquiry Officer on 6th April, 2004. The petitioner's contention is that in view of item No. 17 of the Time Schedule under the U. P. Pension Cases (Submission, Disposal and Avoidance of Delay) Rules, 1995, the pending departmental proceeding as against the retired employee must be completed within six months after retirement. However, respondent No. 1 illegally and arbitrarily had issued the impugned order on 6th October, 2006 for re- starting departmental proceeding under the U. P. Government Servant (Discipline and Appeal) Rules, 1999 taking the advantage of the Regulation 351-A of the Civil Service Regulations (hereinafter called as CSR ). Learned Standing Counsel, did not file any affidavit. But relied upon a letter written by Sri Shyam Sunder Agnihorti, Joint Secretary, Secondary Education, U. P. Government to Sri C. K. Rai, Standing Counsel dated 12th February, 2007 to establish before this Court that petitioner's entire retiral benefits have been deposited. For the purpose of consideration of representation by the authority a date has been fixed being 20th February, 2007. Alongwith the same, he has only intimated that the matter of disciplinary proceeding has been forwarded to the Higher Authorities by a letter of the Public Service Commission only on dated 20th December, 2006 but nothing in respect of any decision.
(3.) THE petitioner has thrown challenge not with regard to consideration or reconsideration of release of his retiral benefits or exoneration from the charges, if any but with regard to the applicability of Regulation 351-A of CSR in his case. THE regulation is as follows : "351-A. THE Provincial Government reserve to themselves the right to order the recovery from the pension of an officer who entered service on or after 7th August, 1940 of any amount on account of losses found in judicial or departmental proceeding to have been caused to Government by the negligence or fraud of such officer during his service. Provided that - (1) such departmental proceedings, if not instituted while the officer was on duty. (i) shall not be instituted save with the sanction of the 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) (a), and (c) the Public Service Commission, U. P. , shall be consulted before final orders are passed. Provincial Government: (ii) shall be instituted before the officer's retirement from service or within a year from the date on which he was last on duty whichever is later; (iii) shall be in respect of an event which took place not more than one year before the date on which the officer was last on duty and; (iv) shall be conducted by such authority and in such places whether in India or elsewhere, as the Provincial Government may direct; (2) all such departmental proceedings shall be conducted, if the officer concerned so requests in accordance with the procedure applicable to departmental proceedings on which an order of dismissal from service may be made; and (3) such judicial proceedings, if not instituted while the officer was on duty, shall have been instituted in accordance with sub-clauses (ii) and (iii) of clause (1 ). 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. Explanation.- For the purpose 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 or 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. " From the first proviso to the Regulation, certain aspects are very much categorical. If departmental proceedings is not instituted prior to retirement, three conditions are to be fulfilled. Firstly, sanction of the Governor is required. Secondly, proceedings should not be beyond a period of four years. Thirdly it can be done where the order of dismissal may be passed. State instituted the enquiry proceedings under order impugned on 6th October, 2006 with the approval of the Governor under Article 351-A of the CSR but no decision was taken before filing of the writ petition on 30th January, 2007.;