Only Governor Can Take Action Under Art. 351 Of CSR If Govt Servant Is Found Guilty Of Grave Misconduct After Retirement: Allahabad HC

The Allahabad High Court has held that after the retirement of a government servant, if such employee is found to be guilty of grave misconduct or is found to have caused pecuniary loss to the Government, it is the Governor who can take action as provided in Article 351-A of the Civil Service Regulations.

With this, the Bench of Justice Devendra Kumar Upadhyaya and Justice Shree Prakash Singh held that the penalty of dismissal cannot be imposed on an officer/employee after his retirement after attaining the age of superannuation, however, withholding or withdrawing a pension and ordering the recovery from the pension is permissible and that too, by an order of the Governor as per the 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, he was dismissed from service by means of an order in June 2009. Pursuant to HC's order (setting aside the dismissal order), the appellant-petitioner was reinstated in January 2014, however, the departmental proceedings were further carried out against him and he was again dismissed from service in July 2014.

This order was again challenged in the High Court and again the dismissal order was set aside (in March 2018) 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 High Court also gave the liberty to the Superintendent of Police, Ambedkar Nagar to pass a fresh order in accordance with the law.  Pursuant to this order of the HC, a show cause notice was given to the appellant-petitioner in May 2018 to which he submitted his reply by means of his letter in July 2018. In the meantime, the petitioner retired in May 2015.

However, the Superintendent of Police, Ambedkar Nagar passed an order in November 2018, reiterating the earlier order of dismissal and further stating that it will not be lawful to reinstate the appellant-petitioner in service. Challenging this very order, the Petitioner moved to the High Court

It was his primary argument before the High Court that the appellant-petitioner had attained the age of superannuation in May 2015, as such in terms of the provisions contained in Article 351-A of the Civil Service Regulations, it is the Governor who had the authority to take action which could be confined only to the nature of action permissible and given in the said provision, that is to say, curtailment or withholding the pension or recovery therefrom.

The issue 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

At the outset, the Court persued Article 351-A of the CSR to note that once the government servant retires, it is the Governor who has the right of withholding or withdrawing the pension or any part of it, permanently or for a specified period.

"...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 noted that since the such proceedings were already instituted against him prior to his retirement on attaining the age of superannuation, no sanction under Article 351- A of the CSR was required to be taken from the Governor and such continuation was purely legal in nature.

Now, regarding the question as to whether the order of dismissal of the appellant-petitioner could have been passed with a retrospective date, the Court was of the view that once an employee retires on attaining the age of superannuation, the punishment of dismissal or removal from service cannot be inflicted for the reason that if the person is not in employment, the question of terminating his services would not arise, unless there exists a specific rule in that behalf.

In this regard, the Court also relied upon the Apex Court's ruling in the case of UCO Bank and others, Vs. Prabhakar Sadashiv Karvade (2018) 14 Supreme Court Cases 98 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.

However, the Court did observe that if the disciplinary inquiry is instituted prior to the retirement of the employee concerned, the same will continue by operation of Article 351A of Civil Service Regulations, however, in such a case if the employee is found to be guilty of grave misconduct of or is found to have caused pecuniary loss to the Government, it is the Governor who can take action as provided in Article 351-A of the Civil Service Regulations.

With this, the Court held that though the continuation of the proceedings was valid, the order of the Superintendent of Police, Ambedkar Nagar dismissing the petitioner from his service after his retirement was not valid. 

Consequently, allowing the plea, the Court, however, clarified that it would be open to the respondents to take action in terms of the provisions contained in Article 351-A of Civil Service Regulations.

Case title - Gaya Prasad Yadav v. State Of U.P.Thru.Prin.Secy.Home Lucknow And Anther [SPECIAL APPEAL No. - 408 of 2021]

Case Citation: 2022 LiveLaw (AB) 448

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