S.H.A. Rara and R.P. Nigam, JJ. - (1.) A departmental enquiry was conducted against the petitioner who was at the relevant time working as acting Deputy Collector (now retired) on the charges that he made certain allotment of land without complying with the procedure. The charge No. 1 related to the appointment of Rajesh Kumar as Seasonal Collection Amin who was the son of the petitioner. Although his appointment was for a period commenced from 17.2.1993 to 31.3.1993. I.e., only for a period of 1 1/2 months. According to the charge, he never started his duty as Seasonal Collection Amin. The petitioner has also appointed one Sudhir Kumar Shukla as Seasonal Collection Amin for different periods who also did not perform his duties but both these persons have realised their salary. According to charge No. 1, the petitioner also appointed one Raghu Nath Prasad as Seasonal Collection Amin in the month of May, 1993 but he also did not work and his salary was paid. The second charge against the petitioner related to allotment of khalihan and land to 79 persons. Besides, above allotments were made in favour of 38 persons. It could not be made as such lands were entered khalihan--rasta, pashu ghar, talab and nala. The third charge related to auction of the village land on a paltry sum of Rs. 9.500 when his valuation was about 1 1/2 lac but as a complaint was made the auction could not be implemented. The fourth charge pertaining to exchange of land by the petitioner in violation of Section 161 of the Land Revenue Act by a simple order. The petitioner submitted his explanation against those charges but in the meantime, he attained the age of superannuation and was retired. Thereafter the enquiry proceedings under Rule 351A of Civil Services Regulation against the petitioner was conducted. The Enquiry Officer submitted his enquiry report to the disciplinary authority in which he recorded a finding that charges stood proved against the petitioner. Ultimately on 18th July. 1998, the State Government ordered the deduction of 20% pension from the petitioner. Being aggrieved against the said order the petitioner filed the present writ petition.
(2.) Before dealing with the question as to whether the enquiry conducted against the petitioner suffers from any infirmity or not and the order passed by the Government of U. P. Is legal or not. It would be relevant to produce Rule 351A of Civil Services Regulations. "351A. 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 period of the whole or part of any pecuniary loss caused to Government, if the petitioner 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."
(3.) A perusal of the Rule it self Indicate that while holding a departmental enquiry under Rule 351A. It is incumbent upon the Enquiry Officer to follow the procedure which is applicable to the proceedings of which an order of dismissal from service may be made. The procedure which is to be followed in the disciplinary proceedings for dismissal has been indicated in Rule 55 of the C.C.A. Rules which provide an elaborate departmental enquiry which is reproduced below : "55. (1) Without prejudice to the provisions of the Public Servant Inquiries Act. 1850, an order other than an order based on facts which had led to his conviction in a criminal court or by a Court material of dismissal, removal or reduction in rank which includes reduction to a lower post or time scale, or to a lower stage in a time scale but excludes the reversion to a lower post of a person who is officiating in a higher post shall be passed, on a person who is a member of a civil service, or holds a civil post under the State unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged and which shall be so clear and precise as to give sufficient indication to the charged Government servant of the facts and circumstances against him. He shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so directs an oral inquiry shall be held in respect of such of the allegation as are not admitted. At that inquiry such oral evidence will be heard as the Inquiry officer considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the Inquiry may for sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of findings and the ground thereof. The office conducting the inquiry may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged Government servant. (2) Where the punishing authority itself inquires into any charge or appoints an inquiry officer for holding an inquiry into such charge, the punishing authority, if it considers it necessary to do so. may by an order, appoint a Government servant or a legal practitioner to be known as "Presenting Officer" to present on its behalf the case in support of the charge. (3) The Government servant may take the assistance of any other Government servant to present the case on his behalf, but not engage a legal practitioner for the purpose unless the presenting officer appointed by the punishing authority is a legal practitioner or the punishing authority having regard to the circumstances of the case, so permits. (4) The rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may for sufficient reason to be recorded in writing be waived, where there is difficulty in observing exactly the requirements of the rule those requirements can in the opinion of the inquiring officer be waived without injustice to person charged. (5) This rule shall also not apply where it is proposed to terminate the employment of either a temporary Government servant or of a probationer whether during or at the end of the period of probation. In such cases a simple notice of termination which in the case of a temporary Government servant must conform to the conditions of his service, will be sufficient.";