Prem Krishna Srivastava S/O Late Rai Kashi Prasad Vs. State of U.P. Through Principal Secretary, Medical and Health Secretariate, - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. tarun agarwala, j.1. heard learned counsel for the petitioner and the learned standing counsel appearing for the respondents.2. the petitioner retired from service on 31.12.1998. after his retirement, a show cause notice dated 27.9.1999 was issued and on this basis, a charge sheet dated 8.11.1999 was issued alleging a financial loss of rs. 36,517/- on the department. thereafter, a departmental inquiry in pursuance of the charge sheet was initiated against the petitioner. this enquiry is still pending even after a lapse of six years.3. the petitioner has filed the present writ petition praying that the amount of rs. 36,517/- had been illegally withheld from the. gratuity of the petitioner and that this amount could not be withheld after the petitioner had retired since no previous sanction was obtained from the governor under regulation 351a of the civil service regulations.4. on the other hand, the learned standing counsel submitted that on the basis of certain audit objections, a charge sheet has been issued and that an enquiry is pending and, pending completion of the enquiry, a tentative amount of rs. 36,517/- has been withheld from the gratuity of the petitioner and, this amount has been withheld for the simple reason that, in the event, the petitioner was found guilty of the loss, the same would be recovered from the gratuity.5. the question which arises for consideration is, whether this amount could be legally withheld from the gratuity that was payable to the petitioner upon his retirement it is an admitted case, that no charge sheet or show cause notice was served upon the petitioner prior to his retirement. regulation 351a of the civil services regulations contemplates that when a person has retired and disciplinary proceedings are to be initiated after his retirement, in that eventuality, such disciplinary proceedings could only be initiated after obtaining previous sanction from the governor. admittedly, from a perusal of the order dated 7.2.2000 issued by the respondents, it is clear that no previous sanction was obtained from the governor.6. the learned standing counsel further submits that regulation 351a contemplates the recovery of the amount from the pension, whereas, in the present case, the recovery has been sought from the gratuity, as such, regulation 351a would not be applicable. in my opinion, the submission of the learned standing counsel is not correct. regulation 351a of the civil service regulations reads as follows :'351-a. the governor reserves to himself the right of withholding or withdrawing a pension or any part 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 to government, if the pensioner is found in departmental or judicial proceedings to have been guilty or grave mis-conduct, 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 re-employment'[i] shall not be instituted save with the sanction of the governor.'further, regulation 41 of the civil service regulations states as under:'41. pension- except when the term 'pension is used in contradistinction to gratuity 'pension' includes gratuity.' 7. from the aforesaid reading of regulation 41, it is clear that the usage of the word 'pension' in regulation 351a would include gratuity.8. in view of the aforesaid, i find that the disciplinary proceedings ' initiated against the petitioner after his retirement was ex-facie, illegal as it did not have the sanction of the governor. consequently, the petitioner is entitled to be relief as moulded during the course of the hearing of the writ petition. since no previous permission was obtained from the governor, the disciplinary proceedings initiated against the petitioner is quashed. the amount withheld from, the gratuity is liable to be paid, to the petitioner. consequently, a mandamus is issued directing the respondents to release the balance amount of the gratuity within three months from the date of production of the certified copy of this order. if the amount is released within the aforesaid period, no interest would be payable. however, if the amount is not paid within the aforesaid period, interest would be payable at the rate of 12% per annum from the date of withholding the amount till the date of payment. in the circumstances of the case, parties will bear their own costs. writ petition stands allowed.