Judgment:
1. Heard Sri Vinod Sinha, learned counsel for the petitioner and learned Standing Counsel for the respondents.
2. By this petition, the petitioner has sought the following reliefs: a. Issue a writ, order or direction in the nature of mandamus directing the respondents to pay the current pension and arrear of pension alongwith interest to the petitioner with effect from the date of his retirement. b. Issue a writ, order or direction in the nature of mandamus directing the respondent no.2 to decide the representation dated 25.10.2010 filed by petitioner (Annexure-14 to the writ petition). c. Issue any other writ, order or direction, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the present case. d. To award the cost of the present case.
3. The facts leading to the case are that the petitioner was appointed as Anaesthetist in District Hospital, Bulandshahar, by order dated 23.3.1973 passed by the State Government. Thereafter vide order dated 20.6.1978 he was promoted and posted as In-charge Medical Officer, Chandaus District: Aligarh. Thereafter vide order dated 25.5.1979, he was transferred from Chandaus to District Hospital, Bulandshahar as Medical Officer. While working as Medical Officer in District Hospital, Bulandshahar he was transferred by order dated 16.8.1983 to District Bijnor, however, that order of transfer was stayed by authority consequently the petitioner continued to work upto 28.2.1985 in District Hospital, Bulandshahar. It is stated that in the mean time, the wife and brother of the petitioner became ill. The elder brother of the petitioner was a cancer patient. In view of his personal difficulties, the petitioner was unable to join in Bijnor after 28.2.1985. However, Senior Medical Superintendent, District Hospital, Bulandshahar vide order dated 28.8.1986 informed the petitioner that he may join the new place of posting and it would not be possible to further stay the order of transfer. Thereafter, he went on 1.9.1986 to join at Bijnor but he was not permitted to join, consequently, an application was moved by the petitioner requesting the respondent no.3 to post him anywhere else, but no order was passed by the respondents in spite of requisite efforts made by the petitioner. It is stated that in the mean time the petitioner has attained the age of superannuation on 30.11.1999 and after his retirement he was paid his G.P.F. vide order dated 20.7.2007 passed by the respondents. Thereafter treating the petitioner as having been retired on 28.2.1985, the pension paper has been forwarded by the respondent no.3 to respondent no.2 vide letter dated 27.9.2007. In pursuance thereof, a letter has been written by the office of the respondent no.2 on 29.10.2007 to respondent no.3 to send the service record of the petitioner for the purpose of approving his pension. In pursuant thereto a letter has been written by the respondent no.2 to Accountant General Office, Allahabad on 22.1.2008 for taking approval regarding payment of pension to the petitioner from the office of competent authority. Thereafter a query was made by the office of Accountant General Office, Allahabad from the respondent no.3 vide letter dated 16.5.2008. It is stated that the petitioner has also been informed by the Accounts Officer, Accountant General Office, Allahabad vide letter dated 1.09.2008 that department is treating the date of retirement of the petitioner as on 28.2.1985 instead of 30.11.1999 and necessary action would be taken after receipt of the papers.
4. It is stated that the petitioner again represented the matter to the Accountants Officer to expedite payment of his pension. In pursuant thereto he has been informed from the office of Accountants vide letter dated 13.4.2009 that everything has been done at the end of Accountant General Office, Allahabad and rest would be done by the department. Thereafter, a letter has been written by the office of Accountant General, Allahabad to respondent no.2 on 20.4.2009 to the effect that according to service record the date of retirement of the petitioner is 30.11.1999, whereas, in pension papers his date of retirement is mentioned as 28.2.1985, therefore the retirement of the petitioner is not in accordance with law and if any order has been passed by the State Government in this regard then the office may be informed. If no order has been passed, then the matter regarding pension of the petitioner is not to be decided by the office of the Accountant General, Allahabad as it relates to the year 1999. In pursuance thereof, Joint Director wrote a letter to the respondent no.3 on 14.9.2009 that no decision is required to be taken in respect of payment of pension and petitioner may be informed accordingly. It is stated that the paper relating to pension of the petitioner has not been returned by the Accountant General Office, Allahabad to the respondent no.3.
5. It is further stated that if any order has been passed treating the petitioner as retired w.e.f. 28.2.1985, even then the petitioner would be entitled for the pension as the petitioner has rendered qualifying service for the purpose of receiving pension. No decision has been taken on merit by the authorities permitting or refusing the payment of pension to the petitioner. Only correspondence has been done from one office to another. It is stated that the petitioner is now aged about 69 years. He is facing difficulties in these hard days to survive without pension.
6. Having considered the rival submissions of the learned counsel for the parties and on perusal of the record, it appears that the petitioner was initially appointed as an Anaesthetist in District Hospital, Bulandshahr on 23.3.1973. Thereafter he was promoted as Medical Officer and was posted at different places. While working as Medical Officer in District Hospital, Bulandshahar, he was transferred to District-Bijnor, vide order dated 16.8.1983, but said order of transfer was stayed by the authorities and he was permitted to continue in DistrictBulandshahar upto 28.2.1985. Thereafter, Senior Medical Superintendent, District Hospital, Bulandshahar vide order dated 28.8.1986 informed the petitioner to join the duties at new place of posting at Bijnor but he could not immediately join his duty at Bijnor. According to the petitioner, he went on 1.9.1986 to join at Bijnor but he was not permitted to join his duties, consequently an application was moved by him requesting the respondent no. 3 to post him anywhere else, but no order was passed directing him to join at any place in spite of efforts made by the petitioner.
7. From the records there is nothing to indicate that when the petitioner was not permitted to join at Bijnor on 1.9.1986, he had made any effort and taken any legal step and/or action for joining at said place or any place either by moving any representation before the superior authorities or before U.P. Public Service Tribunal or before this Court, instead thereof, it appears that after his transfer at Bijnor he did not join at his transferred place of posting rather abandoned his services in the year 1986 and remained absent from duty for more than 13 years till attaining his age of superannuation i.e.30.11.1999. Thus, in view of the provisions of F.R. 18 contained in Chapter-III of U.P. Financial Hand Book Vol. (2) part II to IV, after a period of 5 years continuous absence from duties with or without leave, he could be treated to have abandoned his services and he was liable to be subjected to disciplinary inquiry.
8. For ready reference the provisions of Fundamental Rule 185 of Chapter-III of Financial Hand Book Vol. (2) part II to IV is reproduced as under:-
"[18. Unless the Government, in view of the special circumstances of the case, otherwise determine, after five years continuous absence from duty elsewhere than on foreign service in India, whether with or without leave, no Government servant shall be granted leave of any kind. Absence beyond five years will attract the provisions of rules relating to disciplinary proceedings.]"
9. From the pleadings of the petitioner and material available on the record and from the instructions received by the Learned Standing Counsel placed before the Court, there is nothing to indicate that Government has taken any disciplinary action against the petitioner for his continuous absence from duty for a period of more than 13 years, which was grave misconduct at the instance of the petitioner.
10. Now next question arises for consideration is that as to whether at this stage any disciplinary inquiry can be held against the petitioner or not In this connection it would be appropriate to refer the provisions of Article 351 and 351-A of Civil Service Regulations which are relevant for holding disciplinary enquiry against a retired Government servant and rights of the Government to withhold or withdraw the pension. The aforesaid provisions are as under:-
"[351. Future good conduct is an implied condition of ever grant of a pension. The State Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner be convicted of serious crime or be guilty of grave misconduct.
The decision of the State Government on any question of withholding or withdrawing the whole or any part of pension under this regulation shall be final and conclusive.
[351-A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part6 of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused Government, if the pensioner 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 reemployment- (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 proceeding; 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. (b) Judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a) ; and (c) the Public Service Commission, U.P. shall be consulted before final orders are passed. [Provided further that of the order passed by the Governor relates to a cash dealt with under the Uttar Pradesh Disciplinary Proceedings, (Administrative Tribunal) Rules, 1947, it shall not be necessary to consult Public Service Commission]. Explanation- For the purposes of this article- (a) Departmental proceeding shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the officer has been placed under suspension from and earlier date, on such date; and (b) judicial proceedings shall be deemed to have been instituted; (i)in the case of criminal proceedings, on the date on which complaint is made, or a charge-sheet is submitted, to a criminal court; and (ii) In the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to a Civil court. Note- As soon as proceedings of the nature referred to in this article are instituted the authority which institutes such proceedings shall without delay intimate the fact to the Audit Officer concerned."
11. From a plain reading of the provisions of Article 351 of the Civil Service Regulations, it is clear that further good conduct of Government servant is an implied condition of ever grant of a pension. The State Government reserves its right of withholding or withdrawing the whole or any part of pension if the pensioner is convicted in a serious crime or is found to be guilty of grave misconduct. Although Civil Service Regulations do not provide any provision for imposing any restriction or limitation for prosecuting a retired Government servant in a criminal case but from a careful reading of provision of Article 351-A of Civil Service Regulations, it is clear that departmental proceeding for disciplinary inquiry can be initiated against a retired Government servant in respect of an event which took place not more than four years before institution of such proceeding only with the sanction of Governor, if it was not initiated or instituted while the officer was on duty. Thus, a disciplinary inquiry can be instituted against a retired Government servant by the competent authority only after sanction of the Governor of the State, which too in respect of an event, constituting the misconduct, took place not more than four years before the institution of such proceeding. In other words, no such disciplinary inquiry can be initiated against a retired Government servant in respect of an event constituting a misconduct, which took place beyond a period of four years from the date of institution of such proceeding.
12. Since the petitioner has already attained his age of superannuation in the year 1999 and the misconduct for his continuous absence from duties for more than 13 years without any justifiable cause was related to the year 1986, therefore, in our opinion, now at this belated stage, the Government cannot institute any disciplinary inquiry against the petitioner on account of his aforesaid continuous absence from duty for more than 13 years which was a serious misconduct against him nor this Court should direct the Government to institute such disciplinary enquiry against the petitioner by seeking permission from the Governor. Therefore, it is not permissible under law to issue any such direction for holding any disciplinary enquiry against the petitioner for grave misconduct committed by him on account of his continuous absence from duty without any justification under law prior to attaining his age of superannuation on 30.11.1999.
13. At this juncture it is to be noted that Article 353 of Civil Service Regulations provides that no pension may be granted to an officer dismissed or removed for misconduct, insolvency or inefficiency but to the officer so dismissed or removed, compassionate allowances may be granted when he is deserving of special consideration provided that the allowances granted to any officer shall not exceed two third of the pension, which would have been admissible to him if he had retired on invalid pension.
14. In view of the aforesaid statement of law, we are of the considered opinion that in case any disciplinary enquiry would have been held by the State Government against the petitioner while he was either in service or within prescribed period of limitation on attaining his age of superannuation, in our mind, in such situation Government would have dismissed or removed the petitioner from service for such a grave misconduct of his continuous absence from duty without any justifiable cause for a period of more 13 years, i.e. since August 1986 to November 1999. But since the State Government did not take care of holding disciplinary enquiry against the petitioner while he was in service and was absented from duty without any justification under law, therefore, we are constrained to observe that the inaction on the part of the Government, in such a situation, cannot be appreciated by this Court, and we are further constrained to record our strong displeasure against such approach of the State Government.
15. Since in our opinion the petitioner could be dismissed or removed from the service for the aforesaid grave misconduct committed by him while he was in service, before attaining the age of superannuation, therefore, he is not entitled for grant of pension, merely on account of fact that he has rendered 11 years and 11 months service till 28.2.1985 from the date of his appointment. In given facts and circumstances of the case, we are of the further opinion that the petitioner is not entitled for grant of any compassionate allowances contemplated by Article 353 of the Civil Service Regulations. Therefore, the Government should not be asked to grant pensionery benefits to the petitioner who has abandoned the services of the Government in the year 1986 and while doing so committed grave misconduct and was liable to be subjected to disciplinary enquiry.
16. As revealed from the record, the date of birth of the petitioner was 20.11.1941, therefore, his date of retirement after attaining the age of 58 years could be 30.11.1999 but he has very cleverly mentioned his date of retirement as on 28.2.1985 in the pension papers submitted by him in the year 2002. If the petitioner has himself shown his date of retirement as on 28.2.1985, it is not understandable why he kept mum and submitted his pension papers in the year 2002 after lapse of 17 years of his retirement and further kept quiet uptill now and did not approach this Court earlier to it for redressal of his grievances.
17. It is also necessary to point out that by 28.2.1985, the petitioner could also not seek voluntary retirement from service for the simple reason that by that time he had neither attained the age of 45 years nor he had completed 20 years qualifying service for voluntary retirement as required under F.R. 56(C) of Chapter IX of F.R. Vol.(2) Part II to IV of U.P. Financial Hand Book, even if he would have asked by moving formal application for the same on 28.2.1985. Therefore, on this count also he is not entitled for any retiring pension. At any rate having regard to the facts and circumstances of the case, we are not inclined to exercise discretionary writ jurisdiction under Article-226 of the Constitution in favour of petitioner for grant of relief claimed in the writ petition.
18. Since the petitioner has approached this Court after this belated stage without any explanation for causing delay in the matter and did not come to this court with clean hand, therefore, we are not inclined to entertain this petition for reliefs claimed. Thus, the writ petition is also liable to be rejected on the ground of latches. Accordingly the writ petition stands dismissed at very thresh hold without asking for any response from the State Government.
Note:-Registrar General is directed to communicate this judgment to the concerned Principal Secretary of the Health Department of the State Government for necessary action in the matter and other similar matters.