Mahendra Singh S/O Navrang Singh ... vs State Of U.P. Through Prin. Secy. ...
2013 Latest Caselaw 7307 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Court No. - 18
 

 
Case :- SERVICE SINGLE No. - 8256 of 2011
 

 
Petitioner :- Mahendra Singh S/O Navrang Singh [Hearing List]
 
Respondent :- State Of U.P. Through Prin. Secy. Revenue Lko. & Ors.
 
Counsel for Petitioner :- A.M.Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Heard Sri Lalit Kishore Tiwari, Advocate, holding brief of Sri A.M. Tripathi, learned counsel for petitioner, learned State counsel and perused the record.

By means of the present writ petition, the petitioner has challenged the impugned orders dated 03.06.2011 and 03.03.2010 (Annexure Nos. 1 and 2) passed by O.P.Nos. 2 and 3 which the petitioner's appeal/representation has been dismissed and removed from service respectively.

Facts in brief of the present case as submitted by learned counsel for petitioner are that the petitioner who was working on the post of Collection Amin placed under suspension by order dated 01.07.1999 and Tehsildar Bighapur has been appointed as Inquiry Officer by the competent authority/Up-Ziladhikari, Bighapur, District Unnao/O.P.No. 3. Thereafter, a chargesheet dated 15.07.1999 has been issued to the petitioner, served on 12.08.1999 to which he submitted his reply and the Inquiry Officer submitted his inquiry report.

Learned counsel for petitioner submits that the Inquiry Officer has submitted the Inquiry Report without fixing date, time and place for holding a disciplinary proceeding, so the inquiry report is in contravention to the principals of natural justice, contrary to law.

After receiving the inquiry report, from the inquiry officer, the punishing officer/O.P.No. 3, as per the provisions as provided under U.P. Government Servant (Discipline & Appeal) Rules 1999 (hereinafter referred to as the Rule, 1999) taking into consideration the charges leveled on the petitioner are not grave in nature which warranted for any major punishment as provided under the Rule, 1999,passed an order dated 3.01.2002 by which petitioner has been compulsory retired from service and post retiral dues has been paid to him.

Thereafter, when the petitioner's matter for payment of pensionary benefit came to consideration before competent authority, the said authority by letter/order dated 28.02.2006 raised an objection that as the petitioner has not completed the requisite age for compulsory retirement as per Fundamental Rule 56 (c) and he has competed only the age of 49 years 03 months and 20 days at the time of passing of orders dated 03.02.2002, so he cannot be compulsory retired from service.

In view of the abovesaid development Secretary, Board of Revenue wrote a letter and a Government Order dated 04.06.2009 have been issued for cancellation of the order dated 03.01.2002 passed by O.P. No. 3 by which the petitioner has been compulsory retired from service. The relevant portion of the Government order dated 04.06.2009 is reproduced hereinbelow:-

"(२) प्रश्नगत आदेश दिनांक ०३.०१.२००२ को निरस्त किये जेन के उपरांत चुकी श्री महेंद्र सिंह अपचारी कर्मचारी के विरुद्ध गंभीर आरोप अनुशासनिक कार्यवाही के फलस्वरूप सिद्ध पाये गए थे | अतः प्रकरण में जाँच अधिकारी के आख्या के स्तर के पुनः नए सिरे के कार्यवाही करते हुए ज़िलाधिकारी/नियक्ति प्राधिकारी नियमानुसार समुचित आदेश पारित करे |"

In pursuance to the said facts, the competent authority/O.P.No. 3 issued an order dated 27.11.2009 in which 8 charges were leveled against the petitioner, the suspension order of the petitioner dated 01.07.1999 passed earlier was continued and Teshsildar Bighapur appointed as Inquiry Officer to conduct the inquiry, the operative portion of the order dated 27.11.2009 is reproduced hereinbelow:-

"मा० परिषद के पत्र सं० 206/2-संग्रह-4/2007 दिनांक 03.04.2007 एवं शासनादेश सं० 544/1-7/2009-7/2009-04 सी० क्यू०/2007 राजस्व अनुभाग 7 दिनांक 04जून 2009 के क्रम में श्री महेंद्र सिंह अनिवार्य सेवा निवृत संग्रह अमिन -- नि० कार्यवाही दिनांक 03.01.2002 को निरस्त किया जाता है | श्री महेंद्र के विरुद्ध उपरोक्त संदर्भित आरोपों के क्रम निलम्बन प्रचलित रखते हुआ तहसीलदार विघापुर को जाँच अधिकरी नियुक्त किया जाता है | जिसके सम्बन्ध में निलम्बित कर्मचारी के विरुद्ध पूर्व में लगाये गए आरोपों कि अविलम्ब जाँच कर एक पक्ष के अंदर जाँच आख्या प्रस्तुत करें ताकि उचित निर्णय लिया जा सके |"

Aggrieved by the order dated 27.11.2009 passed by O.P.No. 3, the petitioner approached this Court by filing Writ Petition No. 86 (SS) of 2010 (Mahednra Singh Vs. State of U.P. and others), by order dated 08.01.2010, an interim order has been passed in his favour, relevant portion quoted as under:-

"Till the next date of listing, recovery proceedings which have been initiated in pursuance of the impugned order, shall be kept in abeyance."

Thereafter, Tehsildar Bighapur who has been appointed as Inquiry Officer to conduct the inquiry proceeding sent a notice to the petitioner dated 02.01.2010 inter alia stating therein that the order dated 27.11.2009 already served on the petitioner on 12.05.2009, so he should appear before him for conducting the inquiry proceedings and put forward his defence wherin the petitioner not participated in the proceeding, so on 25.01.2010, the Inquiry Officer submitted an inquiry report to the O.P.No. 3.

On behalf of the petitioner, it is submited that the Tehsildar Bighapur who has been appointed as Inquiry Officer by the competent authority after setting aside the order of compulsory retirement by order dated 27.11.2009 to conduct the inquiry again as per the charges mentioned in the said order, so it is a fresh inquiry and Inquiry Officer has to conduct the inquiry proceeding as per the procedure as provided for the said purpose i.e. fixing date, time and place for holding disciplinary proceeding but the same has not been done , as such, the inquiry report submitted by the Inquiry Officer dated 25.01.2010 on the ground that in the incidence in question, the charges were proved in the earlier inquiry proceeding, so the same stood proved, hence no need to hold a fresh inquiry is an action contrary to law.

After receiving the inquiry report submitted by the Inquiry Officer on 25.01.2010, the punishing authority/O.P.No. 3 has passed the impugned order thereby removing the petitioner from service and also ordered that necessary action as per the law may be taken for recovery the interim pension/post retiral dues/gratuity paid to the petitioner after he has been compulsory retired from service by order dated 03.01.2002, already set aside.

Aggrieved by the same he filed an appeal/representation before the O.P. No. 2/District Magistrate/Collector, Unnao.

Thereafter the writ petition No. 86 (SS) of 2010 filed, disposed of by order dated 20.01.2011, on reproduction reads as under:-

"Heard learned counsel for the petitioner as well as learned standing counsel and perused the records.

The writ petition has been filed challenging the order dated 27.11.2009, whereby the compulsory retirement was cancelled and a decision was taken to hold disciplinary proceedings against certain charges levelled against the petitioner.

It is submitted that during the pendency of the writ petition, the disciplinary proceedings have been completed and the punishment of removal from service has been inflicted upon the petitioner by order dated 03.03.2010. Learned counsel for the petitioner submits that he has filed a departmental appeal against the said punishment order dated 22.11.2010, which is pending before District Magistrate, Unnao. He further says that the District Magistrate may be directed to decide the said appeal.

Learned standing counsel has no objection.

In view of above, with the consent of the parties, the writ petition is finally disposed of with the direction that the District Magistrate, Unnao , shall consider and decide the departmental appeal filed by the petitioner, in accordance with law, expeditiously, say within a period of four months from the date a certified copy of this order is produced before him. "

Lastly, by order dated 03.06.2011 (Annexure No. 1) O.P.No. 2/District Magistrate/Collector, Unnao dismissed the appeal/representation filed by the petitioner.

Learned counsel for petitioner while challenging the impugned orders submits that in the present case, the order dated 03.01.2002 by which the petitioner has been compulsory retired from service after conducting the disciplinary proceedings on the ground that major punishment as provided under the Rules, 1999 not warranted to be awarded to him has been set aside by order dated 27.11.2009 by the O.P.No. 2 in view of the order passed by Secretary, Board of Revenue, Government Order dated 04.06.2009, and Tehsildar Bighapur, Unnao was appointed as Inquiry Officer to conduct the inquiry proceedings in respect to the eight charges mentioned in the said order, So it is incumbent upon on the part of Inquiry Officer to conduct the disciplinary proceedings after fixing date, time and place, as it is a de novo/fresh inquiry but the said exercise  has not been done by the Inquiry Officer and straightway he had submitted the inquiry report dated 25.01.2010 stating therein that as earlier in the matter charges has been proved against the petitioner in earlier inquiry report, so the same stood proved and no need to hold fresh inquiry is an action which is arbitrary in nature as well as violative of principles of natural justice. In support of his argument, learned counsel for petitioner has placed reliance on the judgment of the Apex Court in the case of State of U.P. and others Vs. Saroj Kumar Sinha, AIR 2010 SC 3131, Chairman-cum-Managing Director Coal India Limited and others, 2011 (5) SCC 142.

Learned counsel for petitioner further submits that in the matter one Sri Surendra Kumar has been charged on the similar charges on which the petitioner has been charged, the said person has been exonerated from the said charges, but the petitioner has been punished, so the impugned order passed by O.P.No. 3 is  violtive of Article 14 of the Constitution of India, liable to be set aside. In support of his argument reliance has been placed on the judgment of this Court reported in 2001 (19) LCD 1189, R.K. Kapoor Vs. Zonal Manager (North), Food Corporation of India and another.

Next argument advanced by learned counsel for petitioner is that the charges leveled on the petitioner are not so grave which result to a major punishment of removal from services as provided under Rule, 1999 because there is no misproportion of money by the petitioner in the present case but only a delay of depositing the same after recovering the said money from the concerned person, thus, the impugned order of removal from service is in contravention to the law as laid down by this Court in the case of Chain Sukh Vs. State of Uttar Pradesh and others, 1997 ALJ 1310.

Another argument advanced by learned counsel for petitioner that after submitting the inquiry report dated 25.01.2010, no show cause notice has been issued to the petitioner by the O.P.No. 3/competent authority and straightway the order of dismissal has been passed, hence the impugned order is in contravention to the law as laid down by this Court by judgment and order dated 05.03.2010 passed in Writ Petition No. 4376 (SS) of 2011 (Rekah Rani Vs. State of U.P. and others). Accordingly, learned counsel for petitioner submits that the impugned order of removal dated 03.03.2010 passed by O.P.No. 2 and order dated 03.06.2011 passed by O.P.No. 3 dismissing the petitioner's representation/appeal are liable to be set aside.

Learned State counsel while defending the impugned orders submits that the petitioner has been placed under suspension a chargesheet has been issued to him to which he has submitted a reply thereby not denying the same and he is not guilty. Thereafter, the Inquiry Officer submitted a inquiry report. Taking into consideration the said facts as well as Rules, 1999 the major punishment was not awarded to the petitioner but he has been compulsory retired by order dated 03.01.2002 passed by O.P.No. 3 thereafter, the said order has been set aside on technical ground by order dated 27.11.2009 passed by O.P.No. 3 taking into consideration the order passed by Secretary, Board of Revenue as well as Government Order dated 04.06.2009.

He further submits as per the order dated 27.11.2009, the Tehsildar Bighapur was appointed as Inquiry Officer issued a notice to the petitioner to appear in the inquiry proceedings on 02.01.2010 and to submit his defence but the petitioner did not appear, so the said authority has submitted the inquiry report dated 25.01.2010 taking into consideration that the inquiry report earlier submitted in the matter on 12.11.2001, hence there is no illegality or infirmity on the part of Inquiry Officer to submit the inquiry report dated 25.01.2010 as argued on behalf of the petitioner rather the said action is in accordance with law, so the impugned order of removal, on the basis of same, dismissal of the appeal by O.P.Nos. 3 and 2 respectively are perfectly valid.

Learned State counsel further submits that even otherwise in the Government Order dated 04.06.2009, it is mentioned that after cancelling the order dated 01.01.2002 of compulsory retirement, fresh proceeding shall be initiated from the stage of submitting inquiry report by the inquiry officer, so order dated 27.11.2009 passed by O.P.No. 3 in view of the order dated 03.04.2007 issued by Board of Revenue and Government Order dated 04.06.2009, setting aside order of compulsory retirement dated 03.01.2002, placing the petitioner under suspension and even if the Inquiry Officer was appointed by the said order to conduct the inquiry proceedings, subsequently as the Inquiry Officer after taking into consideration the earlier inquiry report in which the petitioner has admitted his guilt has submitted a report dated 25.01.2010, on the basis of which the impugned order dated 03.03.2010 has been passed affirmed in appeal by the appellate authority by orders dated 03.06.2011, hence there is no illegality or infirmity in the impugned order in view of the law as laid down by Hon'ble the Apex Courit in the case of Karnataka Bank Ltd. Vs. A.L. Mohan Rao, 2006 (1) SCC 63, Kuldeep Singh Vs. State of Punjab and others Vs. 1996 (10) SCC 659 and Biecco Lwrie Limited and another Vs. State of West Bengal and another, 2009 (10) SCC 32, so the present writ petition filed by the petitioner is liable to be dismissed.

I have heard learned counsel for parties and perused the record.

In the instant case, it is not in dispute between the parties that initially the petitioner has been placed under suspension by order dated 01.07.2009, a chargesheet has been issued containing eight charges to which he submitted reply after conducting the inquiry proceedings, the Inquiry Officer has submitted the inquiry report to the punishing authority/O.P.No. 3, who after considering the case on merit did not award any major punishment to the petitioner as per the Rules, 1999 but has passed order of compulsory retirement dated 01.03.2002 subsequently, the said order has been set aside by order dated 27.11.2009 passed by O.P.No. 3/competent authority in view of the order/letter dated 03.04.2007 written by Secretary, Board of Revenue as well as Government Order dated 04.06.2009 and in the said order, again eight charges were mentioned, the suspension order dated 01.07.2009 by which the petitioner has been placed under suspension has been made validated, Tehsildar, Bighapur appointed as Inquiry Officer to conduct the inquiry proceeding.

Although the enquiry officer is said to be the master of his own procedure, yet his report is just a report and it is subject to acceptance by the disciplinary authority. It may, in some cases, happen that there has been no proper enquiry because some important witness was not examined or certain documentary evidence was not considered by the enquiry officer. In such circumstances, the disciplinary authority may ask the enquiry officer to hold further enquiry and to record further evidence. There is, however, no provision in rules for completely setting aside the previous proceedings and, then, ordering a de novo enquiry by the same or difference enquiry officer.

In Punjab National Bank & Ors. Vs. Kunj Behari Misra, AIR 1998 SC 2713 it was held that the departmental proceedings stand concluded with the final decision of the disciplinary authority. Therefore, the proceedings attain finality, when after acceptance of the inquiry report and considering the reply of the delinquent, the disciplinary authority passes an order imposing punishment or exonerating him.

In Union of India & Anr. Vs. Kunisetty Satyanarayana, AIR 2007 SC 906, the Apex Court considered the issue of double jeopardy, initiation of second enquiry on the same charges and considered its earlier judgment in Lt. Governor, Delhi Vs. HC Narinder Singh, (2004) 13 SCC 342; wherein it had been held that once after holding the enquiry punishment had been imposed, the enquiry comes to an end and it is not permissible for the disciplinary authority to issue show cause again on the same mis-conduct as it would amount to double jeopardy. The Court came to the conclusion that in a case where enquiry stood concluded and final order of exoneration has been passed, the question of initiation of second enquiry/de- novo enquiry does not arise. But where in the earlier proceedings, no finding had been recorded and it dis not attain finality, there could be no bar in initiating the second/de-novo enquiry.

In Anand Narain Shukla Vs. State of Madhya Pradesh, AIR 1979 SC 1923, the Supreme Court reiterated a similar view observing that if the order of punishment was quashed on technical ground there could be no prohibition for the employer to hold a fresh inquiry on merits.

Once by order dated 27.11.2009, the competent authority has appointed Tehsildar, Bighapur as an Inquiry Officer to conduct the inquiry proceedings, the said action is nothing but amounts to a fresh/de novo inquiry in respect to the charges mentioned in the said order (Dated 27.11.2009), thereafter, Tehsildar, Bighapur who has been appointed as Inquiry Office, issued a letter dated 02.01.2010 to the petitioner to appear before him for the inquiry proceeding and submit his reply/evidence in respect to the charges leveled on him even if the petitioner has not appeared before the Inquiry Officer a mandatory duty has been casted on Inquiry Officer to conduct the disciplinary proceedings as per provision as provided under Rule 1999, conducting the same and submitted his inquiry report.

Because, if the disciplinary proceedings are initiated against the delinquent/ public servant , the first and foremost requirement is that the chargesheet should be framed with specific and precise charges which should be accompanied by the copies of such evidence which are sought to be relied upon, including evidence for proving the charges and also the list of witnesses which the prosecution/ department wants to give to the delinquent to submit his reply to the chargesheet and he is also to be afforded adequate opportunity to adduce any evidence in rebuttal and indicate as to whether he intends to examine or cross examine the witnesses.

This requirement of asking about the desire of the delinquent of examining or cross-examining the witnesses does not mean that in case delinquent denies the charges in the reply but does not make any such request to rebut during course of enquiry , the department would stand absolved from proving the charges on the basis of material and evidence on record.

After the service of the chargesheet and receipt of the notice, the inquiry officer is to fix a date, time and place to hold an enquiry which is to be communicated to the delinquent and on that date , the charges are required to be proved by evidence which the department intends to adduce . Such evidence is to be corroborated by oral evidence or documentary as may be admissible under law. Delinquent has to be given opportunity to rebut the evidence both by examining or cross-examining the witnesses . The delinquent thereafter is also required to have an opportunity to adduce independent evidence to rebut the evidence adduced by the department which may be proved against him.

After the evidence part is over, the enquiry officer may prepare the report on the basis of the material on record and making assessment of the evidence before him so as to find out whether the charge/ charges against the delinquent stand proved or not . Such inquiry report will be furnished to appointing authority who will take further action as per the report.

Moreover, in the event, if the delinquent that he does not want to say anything beyond the reply he had submitted would not mean that the charges stand proved. Even in a case where after service of chargesheet, no reply is submitted by the delinquent and/or the delinquent does not participate in the inquiry even then the department has to prove the charges on the basis of documentary evidence, material on record and by adducing oral evidence , if required. Simply because the delinquent has not participated in the inquiry, it would not be presumed that the charges stand proved. To prove the guilt or the charges against the delinquent, the inquiry is to be conducted and non- participating in the inquiry or non- availing of the opportunity by filing reply or appearing in the inquiry would not be taken as admission on the part of the delinquent of the charges levelled against him.

If the enquiry is not done in the manner as stated herein above then in that circumstances the enquiry conducted is in utter disregard to the principles of natural justice and the impugned order passed on the basis of enquiry report, suffers from substantial illegality and violative of principles of natural justice and the order of punishment vitiates.

In the case of State of U.P. V. Shatrughan Lal and another, reported in (1986) 6 Supreme Court Cases 651, the Supreme Court observed that it is not sufficient to say that the petitioner was allowed to inspect but a date has to be fixed for inspection which should be duly communicated to the delinquent and access to the record should be permitted. In the absence of any such evidence it cannot be said that reasonable opportunity was given to the delinquent .It is also settled that in case the delinquent is not supplied the copies of the relevant documents and he is not allowed to inspect the documents he would not be in a position to give any effective reply to the charges levelled against him which deprives him of his legal and fundamental right to put his defence effectively. Holding of an enquiry in such circumstances , would be in gross violation of the principle of natural justice.

Further the Division Bench of this Court in the case of Lucknow Kshetriya Gramin Bank and others Vs. Shri Devendra Kumar Upadhyay, 2009 (27) LCD 990 has held that :-

"In case an employee is charged of misconduct and charge-sheet is issued, it is to contain precise and specific charges along with the evidence which the department wants to rely upon, in proving the charge and the charges along with the copy of document should be provided to the delinquent. After asking the reply from the delinquent , the enquiry is to proceed where he charges are to be proved by the department concerned, on the basis of the evidence which the department chooses to produce, oral as well as documentary. The delinquent also has to be provided, adequate and reasonable opportunity to lead evidence in rebuttal, may be oral or documentary or both. It is on the basis of evidence so led and the material available on record that the Inquiry Officer has to apply his mind to find out whether the charge levelled against him stands proved or not."

In the case of State of U.P. and others Vs. Saroj Kumar Sinha AIR 2010 SC 3131, Hon'ble Supreme Court has held as under:-

"Where the charged government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on him or having knowledge of the date, the inquiry officer shall proceed with the inquiry ex parte. In such a case the inquiry office shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged government servant.

Apart from the above , by virtue of Article 31(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate the punishment being imposed on the employee.

When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with the closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal / removal from service."

In the instant case, the inquiry Officer/Tehsildar, Bighapur appointed by order dated 27.11.2009 did not conduct the inquiry proceeding in accordance with the procedure as stated above for conducting the disciplinary proceeding, so the entire inquiry proceedings and the inquiry report submitted by inquiry officer vitiates being contrary to law, principles of natural justice, as a result of which the order of removal dated 03.03.2010 (Annexure No. 2) as well as appellate order dated 03.06.2011 (Annexure No. 1) passed by O.P.Nos 3 and 2 are liable to be set aside.

Thus, once on technical ground, the inquiry proceeding is set aside and consequently, the order of punishment and appellate order are set aside then what procedure is to be adopted. Keeping in view the fact that petitioner is a retired employee.

Answer to the said question finds place in the judgment given by Hon'ble the Apex Court in the case of Anand R. Kulkarni Vs. Y.P. Education Society, 2013 (6) SCC 515, relevant portion quoted as under:-

"This Court in NOIDA Entrepreneurs Association v. NOIDA & Ors., AIR 2011 SC 2112, examined the issue, and held that the competence of an authority to hold an enquiry against an employee who has retired, depends upon the statutory rules which govern the terms and conditions of his service, and while deciding the said case, reliance was placed on various earlier judgments of this Court including B.J. Shelat v. State of Gujarat & Ors., AIR 1978 SC 1109; Ramesh Chandra Sharma v. Punjab National Bank & Anr., (2007) 9 SCC 15; and UCO Bank & Anr. v. Rajinder Lal Capoor, AIR 2008 SC 1831.

In State of Assam & Ors. v. Padma Ram Borah, AIR 1965 SC 473, a Constitution Bench of this Court held that it is not possible for the employer to continue with the enquiry after the delinquent employee stands retired. The Court observed:-

"According to the earlier order of the State Government itself, the service of the respondent had come to an end on March 31, 1961. The State Government could not by unilateral action create a fresh contract of service to take effect from April 1, 1961. If the State Government wished to continue the service of the respondent for a further period, the State Government should have issued a notification before March 31, 1961."

(Emphasis added)

While deciding the said issue, the Court placed reliance on the judgment in R.T. Rangachari v. Secretary of State, AIR 1937 PC 27.

"In State of Punjab v. Khemi Ram, AIR 1970 SC 214, Hon'ble the Supreme Court observed:

"There can be no doubt that if disciplinary action is sought to be taken against a government servant it must be done before he retires as provided by the said rule. If a disciplinary enquiry cannot be concluded before the date of such retirement, the course open to the Government is to pass an order of suspension and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final order is passed therein."

In Kirti Bhusan Singh v. State of Bihar & Ors., AIR 1986 SC 2116, this Court held as under:

".... We are of the view that in the absence of such a provision which entitled the State Government to revoke an order of retirement....... which had become effective and final, the order passed by the State Government revoking the order of retirement should be held as having been passed without the authority of law and is liable to be set aside. It, therefore, follows that the order of dismissal passed thereafter was also a nullity."

In Bhagirathi Jena v. Board of Directors, O.S.F.C. & Ors., AIR 1999 SC 1841, this Court observed:

"... 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 30-6-1995, 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 U.P. State Sugar Corporation Ltd. & Ors. v. Kamal Swaroop Tondon, (2008) 2 SCC 41, this Court dealt with a case wherein statutory corporation had initiated proceedings for recovery of the financial loss from an employee after his retirement from service. This Court approved such a course observing that in the case of retirement, master and servant relationship continue for grant of retrial benefits. The proceedings for recovery of financial loss from an employee is permissible even after his retirement and the same can also be recovered from the retrial benefits of the said employee.

Thus, it is evident from the above, that the relevant rules governing the service conditions of an employee are the determining factors as to whether and in what manner the domestic enquiry can be held against an employee who stood retired after reaching the age of superannuation. Generally, if the enquiry has been initiated while the delinquent employee was in service, it would continue even after his retirement, but

nature of punishment would change. The punishment of

dismissal/removal from service would not be imposed.

Further in the instant matter, on an identical circumstances, one Sri Surndra Mishra has been chargesheeted in which the petitioner has been chargesheeted and punishment order has been passed but Sri Surendra Mishra has been exonerated whereas the against the petitioner the impugned order has been passed, the said action on the part of opposite parties is violative of Article 14 of the Constitution of India as well in contravention to the law as laid down by this Court in the case of R.K. Kapoor Vs. Zonal Manager (North), Food Corporation of India and another, 2001(19) LCD 1189, relevant portion as under:-

"A similarly situated person of the same department, who was chargedsheeted, similarly, namely, Raunak Ali, was also indicted by the Inquiry Officer and same punishment was awarded against him by stoppage of one increment and same punishment was awrded against him by stoppage of one increment with cumulative effect; but his appeal was allowed. In the appellate order on 9th September, 1994 the appellate officer in the case of Raunak Ali remarked that the evidence adduced was clearly incomplete and the charges against the officer had not been proved. He was exonerated. The appellate authority in the case of the petitioner dismissed the appeal upholding punishment imposed. The enquiry officer report with regard to the two officials had been based on same conclusions and these conclusions were that charges were proved as per preponderance of probability; but prosecution evidence was found to be weak, defective and incomplete. On these similar conclusions in the departmental enquiries different appellate orders were passed as noted above."

In view of the abovesaid facts, I do not feel appropriate to remand the matter again to the competent authority for reconsideration.

For the foregoing reasons, keeping in view the peculiar facts and circumstances of the case, the petitioner who is a retired employee and suffer from mental agony in view of the litigation involved in the present case, in the interest of justice, the impugned orders dated 03.06.2011 and 03.03.2010 (Annexure Nos. 1 and 2) passed by O.P.Nos. 2 and 3 respectively are set aside and keeping in view the principle of "No Work No Pay", the petitioner is not entitled for any salary for the intervening period but the said period shall be counted for consequential/retiral benefit payable to the petitioner as retired employee. Further the petitioner is directed to refund the amount which he has received from respondents after he has compulsory retired from service by an order dated 03.01.2002 within a period of six weeks from today with 6 % simple interest.

With the above observations, the writ petition is allowed.

Order Date :- 05.12.2013

Ravi/