2006 Supreme(SC) 1037

2006(8) Supreme 793
SUPREME COURT OF INDIA
(From Allahabad High Court)
S.B. Sinha and Markandey Katju, JJ.
State of U.P. & Ors. - Appellants
versus
Harihar Bhole Nath - Respondent
Civil Appeal No. 4638 of 2006
(Arising out of S.L.P. (C) No. 2980/2006)
Decided on 1-11-2006
Counsel for the Parties :
For the Appellants : Dinesh Dwivedi, Sr. Advocate, S.W.A. Qadri, Rajeev Dubey and Kamlendra Mishra, Advocates.
For the Respondent : Neeraj Kumar Jain, Bharat Singh, Sanjay Singh, Vikrant Hooda, Umang Shankar and Ugra Shankar Prasad, Advocates.

IMPORTANT POINT
In terms of Regulation 351-A of Civil Service Regulations, sanction would not be necessary if the departmental proceedings were initiated while the delinquent was on duty and sanction would not be required for purposes of continuance of proceedings which had already been initiated.

Headnote:SERVICE LAW - Civil Service Regulations - Regulations 351-A and 470 - Recovery of amount suffered by the Government from the amount of pension and gratuity payable to a delinquent employee when found guilty of commission of misconduct or negligence causing pecuniary loss to Government - Departmental proceedings could be initiated in three different situations - Respondent, Deputy Inspector General of Registration, was charged with commission of misconduct involving gross irregularities - He was placed under suspension on 24-3-1993 - Charge-sheet dt. 22-3-1993 was served on him on 24-3-1994 and Enquiry Officer was appointed - Respondent retired on 31-3-1993 - Departmental Enquiry was commenced on 4-1-1997 - On basis of report of Enquiry Officer show cause was issued - Respondent did not submit any reply - Punishment of recovery of sum of Rs. Rs. 7,02,279 was awarded on 7-1-2000 and was ordered to be recovered from gratuity and pension payable and moveable and immovable assets of Respondent - High Court set aside the order in writ holding that before a departmental proceeding against a Govt. servant after his retirement was initiated, it was obligatory on part of appellant to obtain sanction of the Governor and sanction was necessary for continuance of disciplinary proceedings after superannuation of an employee even where such proceedings had been initiated prior to his superannuation - Appeal - Sanction of Governor was required to be obtained when proceedings were initiated by an Authority other than the Governor - Order of sanction would not be necessary if departmental proceedings were initiated while delinquent was on duty - Whether sanction of Governor was required even for purpose of continuance of proceedings which had already been initiated? No.

       Held : It is not in dispute that Respondent was placed under suspension before he reached his age of superannuation. A departmental proceeding was not only initiated against him, but an Enquiry Officer was also appointed. The order of suspension, however, remained stayed by a judicial order. But the same paled into insignificance once the employee reached the age of superannuation. By reason of the same, however, the legal fiction created in regard to the point of time when the enquiry proceeding would be deemed to have commenced was not effaced.(Para 12)

       Thus, only because the enquiry proceeding was actually stared after superannuation of Respondent, the same would not mean the enquiry proceeding had not been initiated. The right to initiate proceedings which would include a right to continue the proceedings was with the Governor. Sanction of the Governor is required to be obtained when proceedings are initiated by an Authority other than the Governor. (Para 13)

       The proceedings for recovery of the amount from a Government servant can be passed in the event he is held to be guilty of grave misconduct or caused pecuniary loss to Government by his misconduct or negligence during his service. Some procedural safeguards, however, have been laid down in terms of proviso appended thereto, including the requirement to obtain an order of sanction of the Governor. Such order of sanction, however, would not be necessary if the departmental proceedings have been initiated while the delinquent was on duty. Proviso appended to Regulation 351-A merely controls the main proceedings. The same would apply in the exigencies of the situation envisaged therein, namely, even the proceedings were initiated after retirement and nor prior thereto. (Para 14)

       But the said Rules read with the Proviso and the Explanation appended thereto construed in their entirety clearly postulate that the proceeding initiated before the delinquent officer reached his age of superannuation would be valid.(Para 22)

       The question, however, is whether the sanction of the Governor was required even for the purpose of continuance of the proceedings which had already been initiated. Answer thereto must be rendered in the negative.(Para 23)

       Such is not the position herein. We are, therefore, of the opinion that the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed. However, as the other contentions raised by Respondent have not been determined in the writ petition, the matter is remitted to the High Court for consideration on the merit in respect of the other contentions raised by Respondent.(Para 27)