Can Order Recovery U/R 351-A Of Civil Service Regulations After Retirement Only If Pecuniary Loss Is Caused To State: Allahabad HC

The Allahabad High Court has clarified that after the retirement of a government servant, the state government is empowered under regulation Rule 351- A of the Civil Service Regulations to order the recovery from his/her pension, however, the same can be done only where it is established that some financial loss has been caused to the State.

With this, the bench of Justice Alok Mathur quashed an order of the UP Government holding the petitioner (retired Executive Engineer) guilty and awarding a punishment of deduction of 5% from his pension for a period of three years.

The case in brief

The court was essentially dealing with the writ plea of one Eklavya Kumar, who was appointed on the post of Assistant Engineer in the year 1992 and was promoted to the post of Executive Engineer on 20.11.2005 and since then he worked on the said post till his superannuation on 30.09.2018.

In March 2018, disciplinary proceedings were initiated against him by and the charge sheet was given to the petitioner in March 2018, wherein the charge against the petitioner was that when he was posed at General Manager, U.P.R.N.N. he gave charge of work agent to a daily wager as per requirement of the work, on the recommendation of the Assistant Engineer.

The second charge was with regard to appointment of two Daily Wagers, who were also given charge of work agent. According to charge sheet, said promotions were illegal and dehors the rules, consequently the petitioner was asked to submit response to the said charges.

The petitioner submitted his reply to the charge sheet in October 2018 wherein he denied all the charges and stated that he had infact not promoted the daily wagers to the post of work agent but only said work of the post of "work agent" was assigned to them.

Thereafter, the inquiry was concluded and considering the response/reply filed by the petitioner, the impugned order of punishment had been passed. As stated, the petitioner superannuated from service on 30.09.2018, and the order of punishment was passed after three years of his superannuation.

Court's observations 

At the outset, the Court perused Rule 351- A which empowers the State Government to pass order to recover from the pension of the petitioner can be passed only in cases where it is established that some financial loss has been caused to the State.

The Court noted that this rule provides that the State can recover from the pension, but, it has to be categorically recorded that the act of the delinquent employee has caused pecuniary loss to the State and that it is mandatory that such finding is recorded, pursuant to which the respondent could have validly pass the order of recovery from the pension of the petitioner.

"In the present case, neither there is any charge levelled against the petitioner to have caused pecuniary loss to the State nor there is any evidence on record of promoting employees to the post of work agent, hence order of recovery from the pension of the petitioner, could not have been passed...this Court is of view that punishment order is clearly vitiated and impugned order is illegal and arbitrary and the petitioner already stands retired on 30.09.2018, which is clearly two years prior to the passing of impugned order. It is further noticed that no date, time and place was fixed by the inquiry officer which evident from the inquiry report," the Court further remarked 

In view of this, the court set aside the impugned order as illegal and arbitrary and was accordingly quashed. Further,it directed that the amount of deduction made from the pension of the petitioner was liable to be refunded within six weeks, alongwith interest at the rate of 6% from the date of deduction till the amount is refunded to the petitioner.

Case title - Eklavya Kumar v. State Of U.P. Thru. Addl.Chief Secy./Prin.Secy.P.W.D. And Anr.

Citation: 2022 LiveLaw (AB) 408

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