Aastha Thakur
Published on: 27 September 2022 at 21:43 IST
According to the Allahabad High Court, the Governor has the authority to take the actions outlined in Article 351-A of the Civil Service Regulations if a former government employee is determined to have engaged in significant misconduct or to have caused the government to suffer financial loss.
In light of this, the Justices Devendra Kumar Upadhyaya and Shree Prakash Singh’s Bench ruled that an officer or employee who retires after reaching the age of superannuation cannot be punished with dismissal; however, withholding or withdrawing a pension and ordering the recovery from the pension are both permissible, and that too by an order of the Governor in accordance with Article 351-A of the CSR.
The case in brief
The petitioner (Gaya Prasad Yadav) was recruited as a Constable of the Armed Police with the Uttar Pradesh Police. On certain charges relating to obtaining employment on the basis of certain allegedly forged education certificates. In accordance with an order, he was fired from his position in June 2009. The appellant-petitioner was reinstated in January 2014 as a result of HC’s ruling (setting aside the dismissal order), but the departmental procedures were continued against him, and he was again terminated from service in July 2014.
The order was challenged again before the HC and again the dismissal order in the matter was set aside by court of law, on the ground that the order of punishment of dismissal did not refer to the show cause notice and the reply submitted by the appellant-petitioner to the said show cause notice.
The Ambedkar Nagar, Superintendent of Police, was given permission by the High Court to issue a new order in compliance with the law. In accordance with this HC judgement, the appellant-petitioner received a show cause notice in May 2018 and responded with a letter in July 2018. Meanwhile, the petitioner left his position in May 2015.
But in November 2018, the Superintendent of Police in Ambedkar Nagar issued an order that reiterated the dismissal order from previously and added that it would not be legal to rehire the appellant-petitioner. The Petitioner proceeded to the High Court to contest this same order.
His main contention before the High Court was that the appellant-petitioner had reached the age of superannuation in May 2015, and as a result, under the provisions of Article 351-A of the Civil Service Regulations, the Governor had the authority to take only those actions that were permitted and specified in the said provision, namely, curtailment, withholding, or recovery from the pension.
Contentions Raised Before the Court
Whether the order of dismissal could have been passed by the Superintendent of Police, Ambedkar Nagar after the appellant-petitioner had retired on attaining the age of superannuation in May 2015.
Court’s Observations
The Court firstly observed Article 351-A of the CSR to point out that the Governor has the authority to permanently withhold or revoke the pension or any portion of it upon the retirement of a public employee.
“…after retirement, withholding or withdrawing a pension and ordering the recovery from pension is permissible to be caused only by the Governor i.e. the State Government in terms of the Rules of Business, not only in case such employee is found causing pecuniary loss to the Government by his misconduct or negligence but also in a cases when the employee concerned is found guilty of grave misconduct.”
Regarding the continuation of the departmental proceedings against the petitioner, the Court observed that no sanction under Article 351-A of the CSR was necessary to be taken from the Governor and that such continuation was purely legal in nature given that the such proceedings were already instituted against him prior to his retirement upon attaining the age of superannuation.
The Court was of the opinion that once an employee retires upon reaching the age of superannuation, the punishment of dismissal or removal from service cannot be inflicted because if the person is not in employment, the question of terminating his services would not arise, unless there is a specific rule in that behalf. Now, with regard to the question of whether the order of dismissal of the appellant-petitioner could have been passed with a retrospective date.
The Court cited the case of UCO Bank and ors. Vs. Prabhakar Sadashiv Karvade (2018) wherein it was held that a penalty of dismissal cannot be imposed on an officer/employee after his retirement after attaining the age of superannuation unless there exists a specific rule in that behalf.
The Court did note, however, that if the disciplinary inquiry is launched before the employee in question retires, the same will continue under the terms of Article 351A of the Civil Service Regulations. However, in this scenario, if the employee is found to have engaged in grave misconduct or to have caused the government to suffer financial loss, the Governor may take the appropriate action as outlined in Article 351-A of the Civil Service Regulations.
In light of this, the Court determined that, notwithstanding the validity of the ongoing legal processes, the petitioner’s dismissal from his position as a result of the Superintendent of Police Ambedkar Nagar’s order was invalid.
The Court’s decision to accept the plea, it was made clear that the respondents would be free to take action in accordance with Article 351-A of the Civil Service Regulations.