Dr. R. T. Singh v State of Uttar Pradesh and others

Dr. R. T. Singh v State of Uttar Pradesh and others

Allahabad High Court

2 August 2013

Writ -A No. 67735 of 2011

The Judgment was delivered by : L. K. Mohapatra, J.

1. Petitioner, who retired as Chief Medical Officer, Mirzapur on superannuation in the year 2005, has filed this writ application praying for quashing the order dated 07.09.2011 in Annexure 7 directing recovery of 10 % from pension of the petitioner towards loss sustained by the State Exchequer.

2. Brief facts of the case are that the petitioner initially joined the Provincial Medical Services on 23rd September, 1970 as Medical Officer in the district hospital at Ghazipur. Thereafter, he was promoted to different posts and was also transferred to different places. His last posting was on the post of Chief Medical Officer at Mirzapur in the year 2002. While continuing in the said post, he retired on superannuation w.e.f. 31st December, 2005. Long after his retirement, in the year 2011, the impugned order was passed directing recovery of 10% from the pension of the petitioner. The above order was issued on the allegation that some persons had been given appointments in class-IV posts on the basis of forged documents and the petitioner during his tenure as Chief Medical Officer, Mirzapur paid salary to them from the State Exchequer. Accordingly, for having paid salary to those employees from the State Exchequer, the State sustained loss, which was sought to be recovered from the pension of the petitioner.

3. The petitioner in the writ application has made specific averments that after he joined on the post of Chief Medical Officer at Mirzapur in April, 2002, such illegal appointments came to his notice and he immediately took steps in September, 2002 and wrote a letter to the Deputy Chief Medical Officer, Mirzapur to conduct an enquiry in relation to 4 such employees, who had been appointed against the class-IV posts on the basis of forged documents. He also directed the Deputy Chief Medical Officer III, Mirzapur on 01.10.2002 to lodge F.I.R. against one Shiv Kumar Rai, who had obtained such appointment on production of forged documents. Later on in the same year, he had also taken steps by directing the Deputy Chief Medical Officer to lodge F.I.R against the other 3 employees namely Dilip Kumar, Dharmendra Singh Yadav and Shiv Kumar. He also stopped payment of salary to those 4 persons and due to his efforts, the services of those 4 persons were terminated. It is the further case of the petitioner that though he had taken all the necessary steps to prevent the illegal appointees from continuing in service any further and also to stop payment of their salary from August, 2002, the impugned order directing the recovery has been passed without conducting any enquiry or proceeding. It is also stated by the petitioner that he having retired from service, no recovery could be made from his pension without approval of the Governor.

4. A counter affidavit has been filed by the State authorities wherein it is stated that the illegal appointees were paid salary not only during the tenure of the petitioner as Chief Medical Officer, Mirzapur but also by his predecessors who had been proceeded against and punished. Therefore, no discrimination could be made so far as the present petitioner is concerned. It is also stated in the counter affidavit that the approval of the competent authority had been taken before the proceeding was initiated.

5. Sri O.P.Singh, learned senior counsel assisted by Sri S.K.Lal, learned counsel for the petitioner, assails the impugned order in Annexure 7 on the following grounds:

1. The petitioner had taken all steps to prevent the above 4 class-IV employees from taking salary, w.e.f. August, 2002 and also took all steps to see that their services are terminated. Those 4 persons having not been paid salary till the date of termination, there was no loss to the State Exchequer during the tenure of the petitioner in the said post.

2. The second ground taken by the learned senior counsel appearing on behalf of the petitioner is that no proceeding had been initiated against the petitioner and on the basis of an exparte enquiry report, the impugned order was passed.

3. The third ground taken by the learned senior counsel appearing on behalf of the petitioner is that the petitioner having retired from service in 2005, approval of the Governor before initiation of any proceeding was required under Regulation 351-A of the Civil Services Regulations (hereinafter referred to as ‘the Regulations’) and in absence of the approval from the Governor, the impugned order is liable to be set aside.

6. Learned Standing Counsel with reference to the counter affidavit filed on behalf of the State submitted that an enquiry was conducted, the petitioner was given an opportunity of hearing and after obtaining approval of the competent authority, the impugned order was passed. Therefore, there is no illegality in the impugned order directing recovery from the pension of petitioner for the loss sustained by the State Exchequer.

7. So far as the first ground taken by the learned senior counsel appearing on behalf of the petitioner is concerned, specific averments have been made in the writ petition that after joining in April, 2002, the petitioner came to know about such illegal appointees continuing in service, sometime in August, 2002, and he immediately stopped payment of their salary and thereafter, he took steps by directing the Deputy Chief Medical Officer to conduct enquiry and also lodge F.I.R.. These averments made in the writ petition are not at all denied in the counter affidavit filed by the State. Therefore, the above stand taken by the petitioner stands uncontroverted. Therefore, the Court accepts the submission of learned senior counsel appearing for the petitioner that immediately after the petitioner learnt about the continuance of such employees, who had been illegally appointed, he had taken steps as required under law.

8. So far as the second ground is concerned, it is contended by the learned Standing Counsel for the State that a charge sheet had been drawn against the petitioner and he had submitted a reply, on consideration of which the enquiry report had been submitted. The charge sheet is not available on record but it appears from the order sheet that when the case was taken up on 05.12.2011, a supplementary affidavit was filed on behalf of the petitioner wherein he admitted to have received the charge sheet and submitted a reply thereto. We have perused the supplementary affidavit filed by the petitioner and find that in paragraph 3 thereof it is specifically admitted by the petitioner that he had received the letter dated 21.04.2009 but could not know that it was a charge sheet and submitted his reply on 01.06.2009. We are unable to accept such stand taken by the petitioner considering the fact that he was an experienced officer and was holding the highest post at Mirzapur in his own discipline and could not have taken the charge sheet to be a letter. Therefore, it is clear from the above admission that the petitioner had received a copy of the charge sheet and had also submitted a reply. Thus, the second ground taken by the petitioner that he had not been given an opportunity of hearing, is not borne out from the record.

9. So far as the third ground is concerned, in the counter affidavit filed by the State authorities it is only stated that the approval of the competent authority had been taken. Regulation 351-A of the Regulations clearly provide that after retirement, departmental proceedings could be initiated only after obtaining sanction from the Governor. There is no material on record to show that such sanction from the Governor had been taken. In this connection reference may be made to a decision of this Court in the case of Malik Zafar Lari vs. State of U.P. and others reported in [(2012) 3 UPLBEC 2118]. Several other decisions were taken note of by the Court in the said judgement. Therefore, so far as this case is concerned, we find that the approval of the Governor for initiation of the departmental proceeding having not been taken, the entire proceeding as well as the order impugned passed on the basis of enquiry report is vitiated and cannot be acted upon. We therefore, allow the writ petition and quash the impugned order in Annexure 7.

10. In the circumstances, no order is passed as to costs. Writ petition allowed. For orders see order of date on separate sheets .

Petition allowed

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