HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 24 Case :- SERVICE SINGLE No. - 6740 of 2015 Petitioner :- Balwant Respondent :- Provincial Co-Operative Federation Of U.P. & Another Counsel for Petitioner :- Shishir Chandra Counsel for Respondent :- Shiresh Kumar Hon'ble Dr. Devendra Kumar Arora,J.
Notice on behalf of opposite parties has been accepted by Mr. Shiresh Kumar, Advocate.
Heard Mr. Shishir Chandra, learned Counsel for the petitioner and Mr. Shiresh Kumar, learned counsel for the opposite parties.
With the consent of learned counsel for the parties, the writ petition is being disposed of finally at the admission stage itself.
By means of present writ petition under Article 226 of the Constitution of India, the petitioner is challenging the charge-sheet dated 14.5.2015 as well as the continuity of the disciplinary proceedings against him after his retirement on the ground that there is no provision in U.P. Co-operative Federation Service Regulation, 1980 for instituting or continuing disciplinary enquiry against a retired/superannuated employee.
According to the petitioner, he was working as District Manager (Class-III) in Provincial Co-operative Federation, Bahraich at the relevant time i.e. 2014-15. In order to probe into the matter of misappropriation in purchase of wheat, a disciplinary proceeding was initiated by the opposite parties and a charge-sheet dated 14.5.2014 was served upon the petitioner. On receipt of the charge-sheet, the petitioner submitted his reply on 3.7.2014, denying the allegations levelled in the charge-sheet. During the pendency of the enquiry, the petitioner retired from the services of PCF on 31.5.2015. Even on attaining the age of superannuation the disciplinary enquiry against the petitioner is being continued and his retiral dues have been withheld, though there is no provision in the service Rules for either instituting or continuing disciplinary enquiry after the retirement of the delinquent employee.
Feeling aggrieved by the wholly unjustified and illegal action of the opposite parties, the petitioner has preferred the present writ petition.
Submission of the learned counsel fro the petitioner is that issue with respect to continuity of the disciplinary proceeding of an employee of the Co-operative Societies has already been settled by the Supreme Court in the case reported in AIR (SCW) 2014-0-5271, Dev Prakash Tiwari Vs. U.P. Co-operative Institutional Service Board, Lucknow and Ors, wherein the Supreme Court relying upon its earlier decision in the case of Bhagirathi Jena Vs. Borad of Directors, O.S.F.C. and Others (1999) 3 SCC 666 has held that no disciplinary proceedings can be continued against such employees of Cooperative Societies after retirement.
The relevant paragraphs of Dev Prakash Tiwari's case read as follows:-
" 4. Per contra the learned counsel appearing for the respondents contended that pursuant to the liberty given by the High Court in its order dated 10.01.2006 fresh disciplinary proceeding was initiated and as held by this Court in its decision rendered in U.P. Coop. Federation Ltd. Case (supra) the right of the employer to hold a fresh inquiry cannot be denied on the ground that the employee has since retired from service and the impugned order is sustainable.
We have carefully considered the rival submissions. The facts are not in dispute. The High Court while quashing the earlier disciplinary proceedings on the ground of violation of principles of natural justice in its order dated 10.1.2006 granted liberty to initiate the fresh inquiry in accordance with the Regulations. The appellant who was reinstated in service on 26.4.2006 and fresh disciplinary proceeding was initiated on 7.7.2006 and while that was pending, the appellant attained the age of superannuation and retired on 31.3.2009. There is no provision in the Uttar Pradesh Co-operative Employees Service Regulations, 1975, for initiation or continuation of disciplinary proceeding after retirement of the appellant nor there is any provision stating that in case misconduct is established a deduction could be made from his retiral benefits. An occasion came before this Court to consider the continuance of disciplinary inquiry in similar circumstance in Bhagirathi Jena's case (supra) and it was laid down as follows:
" 5. Learned Senior Counsel for the respondents also relied upon Clause (3) (c) of Regulation-44 of the Orissa State Financial Corporation Staff Regulations, 1975. It reads thus : "When the employee who has been dismissed, removed or suspended is reinstated, the Board shall consider and make a specific order :-
(i) Regarding the pay and allowances to be paid to the employee for the period of his absence from duty, and (ii) Whether or not the said period shall be treated as a period on duty."
6. It will be noticed from the abovesaid regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of the departmental enquiry after superannuation.
7. In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.6.95 there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.
In the subsequent decision of this Court in U.P. Coop. Federation case (supra) on facts, the disciplinary proceeding against employee was quashed by the High Court since no opportunity of hearing was given to him in the inquiry and the management in its appeal before this Court sought for grant of liberty to hold a fresh inquiry and this Court held that charges levelled against the employee were not minor in nature, and therefore, it would not be proper to foreclose the right of the employer to hold a fresh inquiry only on the ground that the employee has since retired from the service and accordingly granted the liberty sought for by the management.
6. While dealing with the above case, the earlier decision in Bhagirathi Jena's case (supra) was not brought to the notice of this Court and no contention was raised pertaining to the provisions under which the disciplinary proceeding was initiated and as such no ratio came to be laid down. In our view the said decision cannot help the respondents herein.
Once the appellant had retired from service on 31.3.2009, there was no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority it must be held that the enquiry had lapsed and the appellant was entitled to get full retiral benefits."
Per contra, Mr. Shirish Kumar, learned Counsel for the opposite parties has fairly submitted that there is no provision in the U.P. Co-operative Federation Service Regulation, 1980 for continuity of disciplinary proceedings against the superannuated persons but contended that disciplinary proceedings against the petitioner have not been initiated after retirement but it was institute much prior to his retirement.
Appreciating the submissions of the learned counsel for the parties, this Court is of the view that since controversy involved in the present case is purely legal, which has been settled by the Hon'ble Supreme Court and further there is no quarrel between the parties that there is no provision in the Service Regulation, 1980 for continuity of disciplinary proceedings against the superannuated employee, therefore, the action of the opposite parties are illegal and against the Regulation.
For the reasons aforesaid, opposite parties are restrained from proceeding further against the petitioner in the departmental proceedings. However, the aforesaid restraint order will not preclude the respondents/authorities from taking any legal action as permissible under law.
As far as retiral dues are concerned, opposite parties are directed to release the same in favour of the petitioner, expeditiously.
With the above observations and directions, the writ petition stands disposed of finally.
Order Date :- 26.11.2015 Ajit/-