Shiv Ram Verma vs U.P. Coop. Union Ltd. & Others
2013 Latest Caselaw 1174 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

									                   A.F.R.
 
										   Reserved											
 

 
Case :- SERVICE SINGLE No. - 5665 of 1994
 

 
Petitioner :- Shiv Ram Verma
 
Respondent :- U.P. Coop. Union Ltd. & Others
 
Petitioner Counsel :- S.C. Mishra,K.C.Misra,Mrs Seema Srivastava,P.N. Bajpai,Rakesh Kr. Srivastava
 
Respondent Counsel :- Rakesh Kumar
 

 
Hon'ble Pankaj Mithal,J.

Heard Sri Rakesh Kumar Srivastava, learned counsel for the petitioner and Sri Rakesh Kumar, learned counsel for the respondents.

The petitioner has challenged the punishment order dated 11.2.1994 and the appellate order thereto dated 8.8.1994 by means of this writ petition.

The petitioner was appointed as Cooperative Supervisor and his services stood absorbed in Cooperative Federal Authority. He retired there from on 31.7.1991.

Before the retirement petitioner was put under suspension on 26.2.1990.

It appears that even before the suspension order was passed a disciplinary inquiry was initiated against him and a charge sheet dated 9.11.1989 was submitted to him. The date of the charge sheet is disputed and according to the petitioner as per annexure-3 it is 8th January, 1990.

The date of charge sheet either 9.11.1989 or 8.1.1990 makes no difference in so far as the present writ petition is concerned as in either case it happens to be prior to the retirement of the petitioner.

The suspension order passed against the petitioner was challenged by him by filing writ petition No. 4542 of 1990, Shiv Ram Verma Vs. U.P. Cooperative Union Ltd. And others. The said writ petition was disposed of vide judgment and order dated 17.9.1991 with certain observations which included direction to conclude inquiry within three months from the date of furnishing copies of the documents to the petitioner and in case the inquiry is not concluded within the aforesaid period, the suspension shall stand revoked but the inquiry shall continue.

Ultimately, an order of punishment was passed on 11.12.1994 directing not to pay any salary to the petitioner for the period of suspension other than subsistence allowance and to recover a sum of Rs.21,838/- with 16% interest as a loss caused to the department by the action of the petitioner.

The departmental appeal against it was dismissed on 8.8.1994.

Challenging the above two orders, the primary submission of learned counsel for the petitioner is that as there is no provision under the U.P. Cooperative Federal Authority (Business) Regulations, 1976 for initiating or continuing a departmental inquiry on the retirement of an employee. The order of punishment is therefore, without jurisdiction. In support of the above argument learned counsel for the petitioner has relied upon a decision of the Supreme Court in Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and others (1999) 3 SCC 666 and a Division Bench decision of this court in S.S.L. Verma Vs. U.P. Corporation Bank Ltd. and others 2004 (22) LCD 659.

The aforesaid argument has been countered by Rakesh Kumar, learned counsel for the respondents on the basis of a decision of the Supreme Court in the case of U.P. Cooperative Federation Ltd. And others Vs. L.P. Rai 2007 AIR SCW 5224 and a division Bench of this court dated 18.12.2009 passed in writ petition No.1919 of 2009 Dev Prakash Tewari Vs. U.P. Cooperative Institutional Service Board. He contends that as in the writ petition arising out of the suspension order a direction was issued on 17.9.1991 to complete the inquiry within three months with the further observation that in case the inquiry is not completed within three months the suspension will stand revoked but inquiry will continue, the authorities were impliedly permitted to proceed with the inquiry even if the petitioner has retired in the meantime.

In addition to the above rival submissions advanced by the learned counsel for the parties, learned counsel for the petitioner has tried to assail the impugned orders on various other grounds namely that the impugned order is not reasoned, petitioner was not supplied with the documents referred to in the charge sheet even after a demand was raised and that the charge sheet was not issued signed and approved by the competent authority.

An ancillary argument on the basis of Fundamental Rule 54 B of the Financial Hand Book Vol. II part II to IV was raised that as before stopping part of the salary opportunity of representation was not given, the order in so far as it directs for payment of only subsistence allowance during the period of suspension and no other part of the salary, stand vitiated.

The first point as to whether a departmental inquiry can be instituted after the retirement of an employee or if instituted earlier could not be continued on his retirement clinches the issue and is sufficient for deciding the present petition. Therefore, I refrain my self in dealing the other points.

Admittedly, the departmental inquiry against the petitioner was instituted prior to his retirement on 31.7.1991 but the order of punishment was passed on 11.2.1994.

Learned counsel for the parties are unanimous that U.P. Cooperative Federation Authority, (Business) Regulation, 1976 governs the services of the petitioner and that the aforesaid regulations do not provide for initiation or continuation of any inquiry after the retirement of the employee.

I have also considered the above regulations and find that they are completely silent as regards the continuation of any departmental inquiry after the retirement of the employee.

A retired employee who is no longer in service cannot be inflicted any punishment of dismissal or removal from service, reversion or reduction in rank and stoppage of increments etc. It is only by virtue of specific rule permitting imposition of punishment after retirement that the appointing authority can do so and if necessary after taking leave of the authority concern. This logically means that when a retired employee cannot be punished as aforesaid there is no point in continuing a departmental enquiry against him once he has been superannuated.

In the case of Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and others (1999) 3 SCC 666 their lordships while faced with a similar situation in respect of an employee governed by the Orissa Financial State Corporation Staff Regulations, 1975 held that in the absence of any specific provision in the regulations for continuing of departmental inquiry after superannuation, the corporation was vested with no legal authority to continue the departmental inquiry even for the purposes imposing any punishment of reduction in retirel benefits admissible to the delinquent employee and that the inquiry lapses with the retirement.

The aforesaid decision has been followed by a Division Bench of this court in 2004 (22) LCD 659 S.S.L Verma Vs. U.P. Cooperative Bank Ltd. and others and it has been held by their lordships that in the absence of any statutory provision or rule, no inquiry can be initiated or continued after an employee has retired and consequently no punishment can be inflicted upon a retired employee.

The reliance placed upon 2007(7) SCC 81 U.P. Cooperative Federation Ltd. and others Vs. L.P. Rai wherein the Supreme Court permitted continuation of the departmental inquiry even after retirement looking to the seriousness of the charges does not come to the rescue of the respondents. In that case the High Court had quashed the punishment orders on the ground of irregularity in holding the inquiry and had directed for extending all benefits to the employee. In setting aside the said order of the High Court, the Supreme Court observed that as the order of punishment was set aside on the ground of irregularity the better course was to direct the disciplinary authority to pass a fresh order and it was not proper for the High Court to have foreclosed such a fresh inquiry even if the employee has retired from service. The court in deciding the above case was not called upon to deal with the question as to whether in the absence of statutory provision, a departmental inquiry could be continued after retirement. The said aspect of the matter was not raised and considered in the above decision.

The Division Bench of this High Court in the unreported decision dated 18.12.2009 passed in Writ Petition No.1919 of 2009 Dev Prakash Tewari Vs. U.P. Cooperative Institutional Service Board simply followed the above decision of the Apex Court without considering that in the above case of L.P. Rai (Supra) Supreme Court was not called upon to decide the above controversy and it was not even dealt with and as such it was not an authority on the proposition regarding continuation of departmental inquiry after retirement when the rules do not specifically permit it.

More than a century ago Lord Halsbury in Quinn Vs. Leathem 1900-1903 All England Reporters 1 propounded that a case is only an authority for what it actually decides. It cannot be quoted for a proposition that may seem to follow logically from it.

Applying the above principle it has been settled by the courts of this country that the judgment is precedent on what it actually decides and not what can logically be inferred from it. Therefore, since the above two decisions do not decide about the continuity of departmental proceedings on the retirement when the statutes do not specifically provide for its continuity, they are of no assistance to the respondents.

The argument that the departmental inquiry could have been continued even after retirement as there was direction from the High Court is also not sustainable.

This court while deciding the Writ Petition No.4242 of 1990 of the petitioner which related to the suspension instead of interfering with the suspension order directed for the completion of the inquiry expeditiously but in ignorance of the fact that the petitioner was due to retire and that the departmental inquiry cannot be continued against him after his retirement in the absence of statutory rules in that regard. Therefore, continuation and completion of departmental inquiry provided therein was by way of casual observation and not as if laying down any absolute authority in that connection.

Additionally, the above direction inherently includes a direction to decide the matter in accordance with law which necessarily means only if the authority under the relevant provision has the jurisdiction to do so and not otherwise.

The law is well settled that conferment of jurisdiction is a legislative function and it cannot be conferred either with the consent of the parties or by the superior court. The court cannot derive jurisdiction to act in a particular manner from any other source apart from the statute.

Thus in the absence of any statutory provision providing for initiation or continuation of the departmental inquiry on the retirement of an employee the same cannot be conferred by a fiat of the court issued in oblivion of the statutory rules.

In this view of the matter also the aforesaid order of the High Court cannot be taken to be conferring jurisdiction upon the authorities to continue with the departmental inquiry even on the retirement of the petitioner.

Accordingly, in the aforesaid facts and circumstances and the legal position, the impugned orders dated 8.8.1994 and 11.2.1994 are not tenable in law and are hereby quashed.

The writ petition is allowed and the petitioner is held entitle to all consequential benefits.

Order Date :- 23.4.2013

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