Holding

Disciplinary proceedings validly instituted while an officer is in service may continue after his retirement without the Governor’s sanction under Regulation 351A.

Summary

R.C. Misra, a Block Development Officer, was suspended on 20‑Oct‑1997 and served a charge‑sheet on 24‑Oct‑1997. He retired on 31‑Oct‑1997. An enquiry completed after his retirement found him guilty and the State ordered recovery of Rs 9,69,141.60 from his pension. The Uttar Pradesh Service Tribunal set aside the order, holding that continuation of the disciplinary proceedings required the Governor’s sanction under Regulation 351A of the Civil Service Regulations. The State appealed, arguing that the proceedings had been instituted while Misra was still in service, and therefore the proviso to Regulation 351A, which mandates Governor’s sanction only for proceedings not instituted while the officer was on duty, did not apply. The Supreme Court held that the term “institute” in the proviso refers to the initiation of proceedings, not their continuance, and since the charge‑sheet and suspension occurred before retirement, the proceedings could lawfully continue after retirement without the Governor’s sanction. Consequently, the appeal was allowed, the High Court judgment set aside, and the matter remitted to the Tribunal for fresh adjudication.

Issues considered

Whether disciplinary proceedings instituted before an officer's retirement can continue after retirement without the Governor’s sanction under Regulation 351A of the Civil Service Regulations.
Interpretation of the word “institute” in the proviso to Regulation 351A – does it cover continuance of proceedings?

Subjects

Civil Service Regulationsdisciplinary proceedingspension recoveryGovernor's sanctioninstitution vs continuationsuperannuationsuspensioncharge sheetdepartmental enquiry

Judgment

A STATE OF U.P. AND ORS.
v.
R.C. MISRA

MARCH 22, 2007

B [G.P.MATHURANDLOKESHWARSINGHPANTA,JJ.]

Service Law-Civil Service Regulations-Regulation 35JA-
Disciplinary proceedings instituted against employee while he was in service-
C Continuance of, after retirement-Held: Did not require sanction of the .
Governor.

Words and Phrases- 'Institute'', ''Continue'', ''Proceed'' and ''Go on''-
Meaning of-In context of clause (a) of the proviso to Regulation 351A of
the Civil Service Regulations-Explained
D Disciplinary proceedings were initiated against Responc;lent prior to his
retirement by issuing a charge sheet.

The question which arose for consideration in the present appeal is
whether the disciplinary proceedings could not have continued after his
E retirement unless specific order for its continuance had been taken from the
Competent Authority i.e. the Governor, as provided in Regulation 351A of the
Civil Service Regulations.

Allowing the appeal, the Court

p HELD: 1.1 The substantive part of Regulation 351A confers the power
upon the Government 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 of grave misconduct, or to have caused
G pecuniary loss to Government by misconduct or negligence, during his service,
including service rendered on re-employment after retirement. There is a
proviso appended to the Regulation which circumscribes the power conferred
by the substantive part of the Regulation. Clause (a) of the proviso uses the -\'"
expression if not instituted while the officer was on duty either before

H 360
STATEOFU.P. v. R.C. MISRA 361
• retirement or during re-employment. Clause (a) of the proviso will, therefore, A
get attracted only when the departmental proceedings are instituted against
the officer after his retirement or when he is not in re-employment. If the
departmental proceedings are instituted before an officer has attained the age
of superannuation and before his retirement, proviso (a) can have no
application. In order to remove any doubt regarding the date of institution of B
enquiry or the judicial proceedings an Explanation has been appended after
the proviso. According to Explanation (a), departmental proceedings shall be
deemed to have been instituted (i) when the charges framed against the officer
are issued to him, or (ii) if the officer has been placed under suspension from
an earlier date, on such date. By incorporating the explanation, the rule
framing authority has notionally fixed two dates as the date on which the C
departmental proceedings shall be deemed to have been instituted against an
officer. [Para 6) (365-H; 366-A-El

1.2 A combined reading of the proviso and the explanation would show
that there is no fetter or limitation of any kind for instituting departmental
proceedings against an officer if he has not attained the age of superannuation D
and has not retired from service. If an officer is either placed under suspension
or charges are issued to him prior to his attaining the age of superannuation,
the departmt;ntal proceedings so instituted can validly continue even after he
has attained the age of superannuation and has retired and the limitations
imposed by sub-clause (i) or sub-clause (ii) of clause (a) of proviso to E
Regulation 351A will not apply. It is only where an officer is not placed under
suspension or charges are not issued to him while he is in service and
departmental proceedings are instituted against him under Regulation 351A
after he has attained the age of superannuation and has retired from service
and is not under re-employment that the limitations imposed by sub-clauses
(i) and (ii) of proviso (a) shall come into play. (Para 6] (366-E-G] F
1.3 The word used in proviso (a) is "institute". The dictionary meaning·
of the word "institute" is set up; cause to come into existence; to originate
and get established; to commence. It obviously refers to the initial action or
the commencement of the action. It is entirely different from continuance of
an action already initiated. If the intention of the rule making authority had G
been that an enquiry instituted against an officer while in service should not
· ., proceed after his retirement, save with the sanction of the Governor, then the
proviso (a) would have been differently worded and instead of the word
"instituted", the words "continue" or "proceed" or "go on" would have been
used. This being not the language of the proviso, there is absolutely no warrant H
'

-i·
362 SUPREME COURT REPORTS [2007] 4 S.C.R.

A for holding that an enquiry validly instituted against an officer while he was J. ·
in service would, after retirement of the officer, require sanction of the
Governor for its continuance and culmination. [P~ra 7) (366-H; 367-A-BJ

2.1. In the present case, the respondent had ~en placed under
suspension and charges were also served upon him while he was in service.
B In such circumstances, proviso (a) did not come into play at all and there was
no requirement of obtaining sanction of the Governor. The enquiry which had
been instituted prior to the retirement of the respondent and was completed
after his retirement could not, therefore, be held to be illegal on the ground
of want of sanction of the Governor..JPara 8) (367-C-D]
c 2.2 Regulation 351A cannot be interpreted in a manner that a
departmental proceeding validly instituted while the officer is in service would
require sanction of the Governor for its continuance subsequent to his
retirement as the limitation imposed by sub-clause (i) of clause (a) of the proviso
is only on institution of the proceedings and not the continuance thereof.
.D [Para IOJ (368-G]

State of UP. & Ors. v. Harihar Bhole Nath, JT (2006) 9 SC 567, relied
on.

State of UP. v. Shri Krishna Pandey, (1996) 9 SCC 395, referred to.
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1539 of2007.

From the Final Judgment and Order dated 16.3.2004 of the High Court
of Judicature at Allahabad, Bench at Lucknow in W.P. No. 1292(SB) of2002.

F Dinesh Dwivedi, Niranjana Singh, and Abhishek Chaudhary for the
Appellants.

Sunil Gupta, Shail Kumar Dwivedi and G.V. Rao for the Respondent.

The Judgment of the Court was delivered by
G G. P. MATHUR, J. I. Leave granted.

2. This appeal, by special leave, has been preferred against the judgment
and order dated 16.3.2004 of Allahabad High Court (Lucknow Bench), by .......... -
which the writ petition filed by the State of U .P. was dismissed. In the writ
H petition challenge was laid to the order dated 10.4.2002 passed by U.P. Public
STATEOFU.P. v. R.C.MISRA[G.P.MATHUR,J.] 363

- .;,.
_. Service Tribunal, Lucknow (hereinafter called 'the Tribunal') by which the
claim petition filed by the respondent R.C. Misra had been allowed and the
A.

order passed by the State Government for recovery of certain amount from
his pension/gratuity was set aside.

3. The respondent was working as Block Development Officer when he
was placed under suspension by the order dated 20.10.1997 and a charge B
sheet containing 12 charges was served upon him on 24.10.1997. The
respondent attained the age of superannuation on 31.10 .1997 and retired from
service. The enquiry officer submitted a report on 16.11.1999 that all the 12
charges levelled against the respondent were found to have been established.
Thereafter, an order was passed by the State Government on 25.1.2001 directing C
recovery ofRs.9,69, 141.60 from the pension/gratuity of the respondent. The
respondent filed a claim petition before the U.P. Public Service Tribunal,
Lucknow, challenging the aforesaid order passed by the State Government.
The Tribunal allowed the claim petition by the order dated 10.4.2002 and set
aside the order passed by the State Government directing recovery of
Rs.9,69,141.60 from the respondent. It was, however, left open to the State D
Government to proceed against the respondent under Regulation 351A of the
Civil Service Regulations after obtaining sanction from the competent authority.
The appellant State ofU.P. filed a writ petition challenging the aforesaid order
of the Tribunal but the same was dismissed on 16.3 .2004.

4. We have heard Shri Dinesh Dwivedi, learned senior counsel for the E
appellant, Shri Sunil Gupta, learned senior counsel for the respondent and
have perused the record.

5. There is no dispute regarding the factual position that the respondent
was placed under suspension on 20.10. I 997 and a charge sheet containing I 2 F
charges was served upon him on 24.10.1997 and shortly thereafter he attained
the age of superannuation on 31.10. I 997. The enquiry officer recorded a
finding that all the charges. were found to have been established against the
respondent. The Tribunal has held that the disciplinary proceedings were
initiated against the respondent prior to his retirement by issuing a charge
sheet but the same could not have continued after his retirement unless G
specific order for its continuance had been taken from the competent authority
i.e. the Governor, as provided in Regulation 351 A of the Civil Service
Regulations. The High Court has accepted the aforesaid reasoning of the
Tribunal and has observed as under :-

" ..... This enquiry was thus, initiated few days before the date of H
\
I

364 SUPREME COURT REPORTS (2007) 4 S.C.R.

A retirement of the respondent no. I. At that time there was no occasion
for the State Government to take any permission or sanction under
Regulation 35IA of the Civil Service Regulations. During continuance
of the enquiry the respondent no. I retired from service on attaining
the age of superannuation but no sanction or permission as required
under Regulation 35 IA of the Civil Service Regulations was taken
B from the Governor by the petitioner."

The High Court repelled the contention raised on behalf of the appellant
State of U.P. that as the enquiry had been initiated before the respondent had
attained the age of.superannuation, no sanction of the Governor was required
C and for this reliance was placed on a decision of this Court rendered in State
of U.P. v. Shri Krishna Pandey, [1996] 9 SCC 395.

6. Regulations 351A and 470 of Civil Service Regulations read as under:-

"351A. The Governor reserves to himself the right of withholding or
withdrawing a pension or any part of it, whether permanently or for
D 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 of grave misconduct, or to have
. caused pecuniary loss to Government by misconduct or negligence,
E during his service, including service rendered on re-employment after
retirement:

Provided that-

(a) Such departmental proceedings, if not instituted while the officer
F 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 proceedings; and

G (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, ifnot instituted while the officer was on duty
H either before retirement or during re-employment, shall have been
,
STATEOFU.P. v. R.C.MISRA [G.P. MATHUR,J.] 365

--
;..
,A
instituted in accordance with Sub-clause (ii) of Clause (a); and A
(c) The Public Service Commission, UP shall be consulted before final
orders are passed.
' (Provided further that if the order passed by the Governor relates to
a case dealt with under the Uttar Pradesh Disciplinary Proceedings
B
(Administrative Tribunal) Rules, 1947, it shall not be necessary to
consult Public Service Commission.)

Explanation - For the purpose of this article-

(a) departmental proceedings shall be deemed to have been instituted
when the charges framed against the pensioner are issued to him or, c
if the officer has been placed under suspension from an 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 D
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.
E
470. (a) The full pension admissible under the Rules is not to be given
as a matter of course, or unless the service rendered has been really
approved (See Appendix 9)

(b) If the service has not been thoroughly satisfactory the authority
sanctioning the pension should make such reduction in the amount F
as it thinks proper. Provided that in cases where the authority
sanctioning pension is other than the appointing authority, no order
regarding reduction in the amount of pension shall be made without
the approval of the appointing authority.

Note: For the purpose of this Article 'appointing authority' shall mean G
-: the authority which is competent to make substantive appointment to
the post or service from which the officer concerned retires."

The substantive part of Regulation 351A confers the power upon the
Government of withholding or withdrawing a pension or any part of it, whether ·
pennanently or for a specified period and the right of ordering the recovery H
r.
366 SUPREME COURT REPORTS [2007] 4 S.C.R.

; .A from a pension of the whole or part of any pecuniary loss caused to Government,
ifthe 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. There is a proviso appended to the
Regulation which circumscribes the power conferred by the substantive part
B of the Regulation. Clause (a) of the proviso with which we are concerned here
uses the expression if not instituted while the officer was on duty either
before retirement or during re-employment. Clause (a) of the proviso will, )...
therefore, get attracted only when the departmental proceedings are instituted
against the officer after his retirement or when he is not in re-employment. If
C the departmental proceedings are instituted before an officer has attained the
age of superannuation and before his retirement, proviso (a) can have no
application. In order to remove any doubt regarding the date of institution of
. l
enquiry or the judicial proceedings an Explanation has been appended after
the proviso. According to Explanation (a), departmental proceedings shall
be deemed to have been instituted (i) when the charges framed against the
D officer are issued to him, or (ii) ifthe officer has been placed under suspension
from an earlier date, on such date. By incorporating the explanation, the rule
framing authority has notionally fixed two dates as the date on which the
departmental proceedings shall be deemed to have been instituted against an
officer. A combined reading of the proviso and the explanation would show
E that there is no fetter or limitation of any kind for instituting departmental
proceedings against an officer if he has not attained the age of superannuation
and has not retired from service. If an officer is either placed under suspension
or charges are issued to him prior to his attaining the age of superannuation,
the departmental proceedings so instituted can validly continue even after he
has attained the age of superannuation and has retired and the limitations
F imposed by sub-clause (i) or sub-clause (ii) of clause (a) of proviso to
Regulation 35 IA will not apply. It is only where an officer is not placed under
suspension or charges are not issued to him while he is in service and
departmental proceedings are instituted against him under Regulation 35 lA
after he has attained the age of superannuation and has retired from service
G · and is not under re-employment that the limitations imposed by sub-clauses
(i) and (ii) of proviso (a) shall come into play.

7. The word used in proviso (a) is "institute". The dictionary meaning
>
of the word "institute" is set up; cause to come into existence; to originate
and get established; to commence. It obviously refers. to the initial action or
H the commencement of the action. It is entirely different from continuance of
STA TE OF U.P. v. R.C. MISRA [G.P. MATHUR, J.] 367
· J. an action already initiated. If the intention of the rule making authority had A
been that an enquiry instituted against an officer while in service should not
proceed after his retirement, save with the sanction of the Governor, then the
proviso (a) would have been differently worded and instead of the word
"instituted", the words "continue" or "proceed" or "go on" would have been
used. This being not the language of the proviso, there is absolutely no
warrant for holding that an enquiry validly instituted against an officer while B
he was in service would, after retirement of the officer, require sanction of the
Governor for its continuance and culmination.

8. In the present case, the respondent had been placed under suspension
and charges were also served upon him while he was in service. In such C
circumstances, proviso (a) did not come into play at all and there was no
requirement of obtaining sanction of the Governor. The enquiry which had
been instituted prior to the retirement of the respondent and was completed
after his retirement could not, therefore, be held to be illegal on the ground
of want of sanction of the Governor. The view to the contrary taken by the
Tribunal and by the High Court is, therefore, clearly erroneous in law and D
cannot be sustained.

9. The provisions of Articles 3 51 A and 4 70 of Civil Service Regulations
have recently been examined by this Court in State of U.P. & Ors. v. Harihar
Bho/e Nath, JT (2006) 9 SC 567, and it is held as under in paras 14 and 15
of the report :- E
"14. The proceedings for recovery of the amount from a Government
servant can be passed in the event he is held to be guilty of grave
misconduct or caused pecuniary loss to Government by his misconduct
or negligence during his service. Some procedural safeguards, however, F
have been laid down in terms of proviso appended thereto, induding
the requirement to obtain an order of sanction of the Governor. Such
order of sanction, however, would not be necessary if the depa~ental
proceedings have been initiated while the delinquent was on duty.
Proviso appended to Regulation 35 l-A merely controls the main
proceedings. The same would apply in the exigencies of the situation G
envisaged therein, namely, when the proceedings were initiated after
retirement and not prior thereto. '
15. Explanation appended to Regulation 351-A provides for a legal
fiction in terms whereof departmental proceedings would be deemed
to have been instituted when the charges are framed against the H
368 SUPREME COURT REPORTS [2007) 4 S.C.R.

A pensioner or issued or the delinquent has been placed under
suspension from an earlier date, on such date."

10. The High Court has placed reliance upon State of U.P. v. Shri
Krishna Pandey, [1996] 9 SCC 395 for coming to the conclusion that even
when departmental proceedings have commenced prior to retirement of an
B officer, they cannot continue after retirement without the sanction of the
Governor. In this case, the officer had retired en 31.3 .1987 and the proceedings
were initiated on 21.4.1991. Thus, the departmental proceedings were instituted
long after the retirement of the officer and in such a situation the limitations
imposed by proviso (a) clearly got attracted and no enquiry could have been
C instituted against him save with the sanction of the Governor. This decision
has been noticed and explained in State of U.P. & Ors. v. Harihar Bhole Nath
(supra) in para 20 of the reports which is being reproduced below:-

"20. The High Court has placed strong reliance on State of U.P. and
Anr. v. Shri Krishna Pandey, AIR (1996) SC 1656, wherein the
D departmental enquiry was initiated after the delinquent officer reached
his age of superannuation. Notidng Rule 351-A of the Civil Services
Rules and that the departmental proceeding was initiated after the
retirement of the employee, the same was held to be impermissible in
law. Although it was not necessary to pronounce upon the construction
of Rule 351-A involving a case where a departmental proceeding was
E initiated prior to reaching of the age of superannuation by the
delinquent officer, it was observed that as the officer had retired on
31st March, I 987 and proceedings were initiated against him on 12th
April, 1991, proviso appended to the Rule would be applicable."

The decision in State of U.P. & Ors. v. Shri Krishna Pandey (supra) is
F clearly not an authority for the proposition that the departmental proceedings
instituted while the officer was on duty either before retirement or during re-
employment cannot be continued after his retirement save with the sanction
of the Governor. Regulation 3 5 I A cannot be interpreted in a manner that a
departmental proceeding validly instituted while the officer is in service would
G require sanction of the Governor for its continuance subsequent to his
retirement as the limitation imposed by sub-clause (i) of clause (a) of the
proviso is only on institution of the proceedings and not the continuance
thereof.

I I. For the reasons discussed above, the appeal is allowed with costs. - J
H The judgment and -order dated 10.4.2002 of the U.P. Public Servic"e Tribunal, ,
I.
STATEOFU.P. v. R.C.MISRA[G.P.MATHUR,J.] 369
- ..6. Lucknow and judgment and order dated 16.3.2004 of Allahabad High Court A
(Lucknow Bench) are set aside. The matter is remitted to the Tribunal for
a fresh decision of the claim petition filed by the respondent on merits and
in accordance with law. The Tribunal shall make all possible endeavour to
decide the proceedings as expeditiously as possible, preferably within a
period of four months from the date of filing of a certified copy of this B
judgment, which shall be done by the parties at the earliest.

B.B.B. Appeal allowed.