Neutral Citation No.

- 2021:AHC:73562

Court No. - 6

Case :- WRIT - A No. - 6544 of 2021

Petitioner :- Anil Kumar Sharma

Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- R.K. Mishra
Counsel for Respondent :- C.S.C.,Abhishek
Srivastava,Krishna Agarawal

Hon'ble Pankaj Bhatia,J.

1. Heard Sri R.K. Mishra, counsel for the petitioner, Sri
Abhishek Srivastava, counsel appearing on behalf of the
Power Corporation, Respondents No. 2 and 3, Sri
Krishna Agarwal, Advocate, who appears on behalf of the
Respondents No. 4 to 6, learned Standing Counsel and
perused the record.
2. The present writ petition has been filed alleging that
the petitioner is not being paid his retiral dues and thus, is
being denied of his rights enshrined and protected under
Article 300-A of the Constitution of India without any
authority of law.
3. Brief facts leading to the filing of the present writ
petition are as under:
4. The petitioner was initially appointed on 4.6.1974 on a
permanent and regular post of Petrol Man and it is stated
that he was promoted to the post of Junior Engineer in the
year 2014 and since then he continued to discharge his
duties as Junior Engineer. The petitioner retired from
services on 31.12.2018 from the post of Junior Engineer
while he was working in the office of Respondent No. 6
at the time of retirement. The retiral dues of the
petitioner are not being paid which has led to the filing of
the present writ petition.
5. Counsel for the respondents have filed compilation of
documents as well as a short counter affidavit detailing
the reasons for non-payment of pension to the petitioner.
6. From the material on record, the contention of the
counsel for the respondents for non-payment of pension
in short are that on 5.11.2018 while the petitioner was in
service, a report was received regarding involvement of
the petitioner in various acts of theft of electricity.
Another complaint was made on 14.11.2018, to the effect
that the petitioner and his brother had obtained
appointment under the dying in harness rules while only
one of the brothers was entitled for appointment. On the
basis of the preliminary enquiry dated 14.11.2018 which
was based upon a report, the services of the petitioner
was placed under suspension vide order dated
22.11.2018. On 28.12.2018, the suspension of the
petitioner was revoked. In the said order of revocation, it
was specified that the suspension was being revoked on
account of retirement of the petitioner which was due on
31.12.2018. Subsequently on 31.12.2018, the petitioner
retired from services.
7. In the compilation filed by the counsel for the
respondents, it bears that on 11.4.2019, the papers were
sent for sanction for carrying out the disciplinary
proceedings in respect of two draft charge sheets, which
were annexed in the letter dated 11.4.2019 sent for
approval and for continuation of disciplinary proceedings
against the petitioner. On dates starting from 11.4.2019
to 24.4.2019 sanction was accorded by the Managing

2 of 12
Director for continuing disciplinary proceedings against
the petitioner. The said sanction was communicated vide
letter dated 1.5.2019.
8. The case of the respondents is that on 30.8.2019, a
show cause notice was served upon the petitioner along
with two charge sheets, which the petitioner denies
having received and the case of the petitioner is that he
received two charge sheets on 7.11.2019.
9. Counsel for the respondents argue that although the
first charge sheet was sent on 30.8.2019, however, on the
request of the petitioner, the same were resent on
5.11.2019 which, according to the petitioner, were
received by the petitioner on 7.11.2019. It is also argued
that the sanction of Governor in the case of respondent
corporation would mean Managing Director of the
Corporation in terms of Circular of Board dated 21.6.91
and Resolution of Board of Directors dated 2.8.2007
10. In the light of the facts of the case, as disclosed
above, what emerges for decision is whether payment of
pension to the petitioner can be withheld by the
respondents or not. It is common ground in between the
parties that Regulation 351-A of the Civil Service
Regulations (in short ‘ CSR Regulations) is applicable to
the employee of the Power Corporation, which was
earlier a Board. The said question is no more disputed in
view of the full Bench judgment of this Court in the case
of UP Power Corporation Ltd. and another Vs. Kanti
Prasad Varshney and others, 2019 (6) ADJ 684 (LB)
(FB) wherein this Court had categorically held that
Regulation 351-A of the Civil Service Regulation framed
by the State Government are applicable to the employees

3 of 12
of the UP Power Corporation. On the strength of
Regulation 351-A, the stand of the counsel for the
respondents is that the petitioner is not entitled to
payment of pension and at best the petitioner may apply
for provisional pension in accordance with the provisions
of Regulation 351-AA and 919-A of the said CSR
Regulations and if the petitioner pursues for payment of
provisional pension, the same shall be considered by the
department in accordance with law. He lastly argues that
the respondents be permitted some reasonable time to
conclude the disciplinary proceedings against the
Petitioner.
11. Although the proceedings initiated and carried out
against the petitioner are not challenged in the present
writ petition, however, as the main prayer of the
petitioner for payment of pension is to be considered and
is intrinsically linked to the pending disciplinary
proceedings against the petitioner, the same cannot be
decided without considering the merit of the pending
disciplinary proceedings vis a vis bar created under
Regulation 351-A. This Court is going into the validity
of the departmental proceedings moreso, in the light of
the specific defence taken by the counsel for the
respondents justifying the withholding the pension in
view of the pending departmental proceedings against the
Petitioner.
12. Thus, what precipitates from the arguments raised at
the Bar is whether the department was justified in
withholding the pension on the strength of Regulation
351-A as applicable in the State of Uttar Pradesh.

4 of 12
Regulation 351-A of the Civil Service Regulation is
quoted herein below:
"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 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 an earlier date, on such
date ; and
(b) judicial proceedings shall be deemed to have been instituted:

5 of 12
(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 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."

13. A plain reading of the said Regulation 351-A makes it

clear that the Government reserves the right to recover
the pecuniary loss caused to the Government on account
of act of an employee by ordering recovery from the
pension either wholly or in part after a departmental
proceeding/judicial proceeding. Further, the said power
to recover under Regulation 351-A stands circumcised
by the proviso to the said Regulation which prohibits
recourse to disciplinary proceedings except in the
circumstances as enumerated in the proviso a (i),(ii),(iii),
read with Explanation to the said proviso. The scope of
Regulation 351-A and the explanation attached thereto
came up for consideration before another Full Bench of
this Court in the case of Shivgopal and others Vs. State
of UP and others, 2019 (5) ADJ 441 (FB) wherein the
scope of Regulation 351-A, the proviso and the
explanation to the said proviso were dealt with and the
Court recorded as under:
“41. Explanation to Article 351-A clarifies that departmental
proceedings shall be deemed to have been instituted: (i) when charges
are framed against the pensioner; or (ii) the officer has been placed
under suspension from such date. Further, judicial proceedings is
deemed to have been instituted against the pensioner: (i) in the case of
criminal proceedings, on date on which complaint is made or charge-
sheet is submitted to a criminal court; (ii) in case of civil proceedings on
the date on which plaint is presented or as the case may be, an
application is made to Civil Court.

6 of 12
42. Now we will refer to the proviso to Article 351-A. The proviso speaks
about initiation of disciplinary proceedings or judicial proceedings
against the government servant after retirement. For initiating
proceedings the conditions specified therein must be satisfied, that is,
departmental proceedings as indicated in proviso (a) if not instituted
while the officer was on duty then it shall not be instituted except:
(i). with the sanction of the Governor;
(ii). it shall be initiated on an event which took place not
more than 4 years before the institution of the proceedings;
(iii). such proceedings would be conducted by such authority
and in such place 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.
43. On perusal of Proviso and its Explanation, referred to above, deals
only with the conditions for initiation for disciplinary
proceedings/judicial proceedings and the limitation within which such
initiation of the proceedings can be done has been made explicit.

14. Thus, to invoke the bar under Regulation 351-A,

it is essential that on the date of retirement, the
departmental proceedings should have been
instituted against the petitioner and if instituted after
retirement should be in after satisfying the test as laid
down in clause(i) to(iii) of Proviso (a) to CSR
Regulation 351 -A
15. The term ‘institution’ of departmental
proceedings is explained in Explanation (a) to the
proviso(a) to the Regulation 351-A and it creates a
legal fiction of the date of institution of proceedings,
being either the date of issuance of charges framed
against the pensioner, or if the officer is placed under
suspension prior to the service of charge sheet on
such date. The cumulative effect of Explanation (a)
to the proviso (a) to Regulation 351-A is that either
the suspension order should be passed against the
7 of 12
petitioner prior to the retirement of the pensioner or
the charge sheet ought to be served upon the
pensioner prior to the date of the retirement.
16. In the present case, the admitted ground in
between the parties is that the petitioner was placed
under suspension on 22.11.2018 and suspension was
revoked on 28.12.2018. Thus, what calls for
consideration as to whether on the date of retirement,
the petitioner can be considered to be under
suspension or not.
17. Sri Krishna ji Agarwal, counsel appearing on
behalf of the respondents, on a query, argues that
revocation of the suspension was only in view of the
event of retirement of the petitioner due on
31.12.2018 and thus, the normal logic would be that
the petitioner was under suspension and thus, in
terms of the explanation (a) to the proviso to
Regulation 351-A, the departmental proceedings
stood instituted and thus, no sanction was required
from the Governor and the recourse to stopping
payment of pension by resorting Regulation 351-A is
wholly justified in the alternative he argues that in
any case the sanction of Managing Director was
obtained who is to be read as substituted for
Governor as prescribed under CSR Regulation 351 -
A in terms of Circular of Board dated 21.6.91 and
Resolution of Board of Directors dated 2.8.2007. He
further clarifies his stand by arguing that once the
petitioner was placed under suspension on
22.11.2018, the enquiry would stand instituted even
if revocation of suspension order dated 28.12.2018 is

8 of 12
taken into account.
18. It is well settled that the pension is not a bounty
and is a right vested on account of the services
rendered by any person and qualifies to be property
in terms of Article 300-A of the Constitution of India.
Article 300-A of the Constitution of India
specifically prohibits depriving of a citizen of his
property save by ‘authority of law’. The ‘authority
of law’ as used under Article 300-A has to be
interpreted strictly in view of the fact that the law (in
the present case CSR Regulation 351A) prescribes
for deprivation of property of a citizen and in that
sense is an ' ex-propriatory' legislation. Any liberal
interpretation given to law which is basically 'ex-
propriatory' in nature would be in clear violation of
Article 300-A of the Constitution of India and would
militate against the spirit of Article 300-A of the
Constitution of India.
19. A plain reading of explanation(a) to the proviso
(a) to Regulation 351-A leaves no doubt that the date
of institution of the enquiry has to be the date when
charge sheet are issued to the pensioner or the date
from when the petitioner is placed under suspension.
One the said acts are required to be performed prior
to the date of retirement. In the facts of the present
case, on the date of retirement i.e. 31.12.2018, there
was no suspension order in force as the suspension
order dated 22.11.2018 stood revoked vide order
dated 28.12.2018 in very clear terms and as the
charge sheet admittedly was served after the date of
retirement thus, I have no hesitation in holding as on

9 of 12
31.12.2018 neither the petitioner was under
suspension nor any charge sheet was served upon
him or issued to him. Thus, in view of the specific
bar created by Regulation 351-A, no proceedings
could have been initiated against the petitioner
except with sanction of Governor and after satisfying
the test of clase (i) to (iii) of proviso (a) to CSR 351-
A.
20. Now coming to the second argument of Shri
Agarwal that the departmental proceedings were
being continued against the petitioner after sanction
from the Managing Director who has to be read in
substitution of Governor as specified under CSR 351
A based upon a Circular dated 21.6.1991 whereby
word 'Governor' was substituted by 'Board' and
Respondents Companies Resolution dated 2.8.2007
whereby all the powers under Regulation 351 A were
resolved to be with sanction of Managing Director.
The circulars as well as Company’s Resolution has
been placed on record. The circular dated 21.6.1991
was issued by the Secretary of the Board which
existed prior to the creation of the companies
wherein with a view to simplify the payment of
pension certain guidelines were issued. In the said
guidelines, it was provided that the words used in the
Government Order dated 28.7.2009 shall be
substituted by the other words, the word ‘Governor’,
shall be substituted by the ‘Board’. After the creation
of the companies, the companies proceeded to pass
resolution on 2nd August, 2007 wherein it was
provided that all the powers related to Regulation

10 of 12
351-A shall be exercised by the Managing Director.
The same is not worth of acceptance in as much as
the CSR Regulations have been framed in pursuance
to the powers conferred under Article 309 of the
Constitution of India and have been adopted and
made applicable to the State and can be
modified/amended only by the amendment in
Regulations in respect of services in the State and
not by issuance of Circular or a Company resolution
as is being contended by the Counsel for
Respondents. The sanctioning Authority specified as
'Governor' in the CSR Regulations cannot be read as
'Managing Director' of a corporation except when it
is amended in accordance with law .In the present
case there being no sanction of Governor and no
delegation of power by Governor in favour of
Managing Director the sanction by Managing
Director cannot be accepted as sanction as mandated
in Proviso a to CSR 351 -A.
21. As discussed above on both the counts the
defence of the respondents is not worthy of
acceptance,to clarify further in the present case no
Disciplinary proceedings were instituted against the
Petitioner prior to his date of Retirement and no
sanction of Governor as required under CSR 351 A
exists for initiating disciplinary proceedings against
the Petitioner after his retirement.
22. Thus, in the light of what has been decided, I
have no hesitation in holding that denial of pension
to the petitioner taking recourse to Regulation 351-A
as well as continuation of proceedings against the

11 of 12
petitioner by taking recourse to Regulation 351-A is
wholly arbitrary and bad in law and contrary to the
provisions of Article 300-A as well as CSR
Regulation 351-A, accordingly, petitioner is entitled
to relief from this Court by issuance of a mandamus.
The respondents are directed to pay all the retiral
dues of the petitioner including the gratuity along
with interest at the rate of 9% per annum from the
date of retirement till actual payment. The said
payment shall be made to the petitioner within a
period of two months from today failing which the
respondents shall be further liable to penal cost at the
rate of 6% over and above 9% interest granted by
this Court.
23. Considering the stand taken by the respondents,
which is arbitrary on the face of record, I deem it
appropriate to award a cost of litigation to the
petitioner for being harassed for a period of three
years, which are quantified at Rs. 25,000/-. The said
cost shall also be paid to the petitioner within a
period of two months from today.
24. The writ petition stands allowed in terms of the
said order.
Order Date :- 23.7.2021
vinay

12 of 12