Daniel Dayal vs State Of U.P. And 3 Others
2017 Latest Caselaw 6104 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						A.F.R.
 
Court No. - 28
 

 
Case :- WRIT - A No. - 22999 of 2016
 

 
Petitioner :- Daniel Dayal
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Rahul Jain
 
Counsel for Respondent :- C.S.C.,Mahboob Ahmad,Nripendra Mishra,Pranjal Mehrotra
 
Hon'ble Saumitra Dayal Singh,J.

Heard Sri Rahul Jain, learned counsel for the petitioner, Sri Nripendra Mishra and Sri Pranjal Mehrotra, learned counsel for the respondents.

This writ petition has been filed, seeking a writ of certiorari to quash the order dated 28.03.2016 passed by the respondent no.4-Chief Engineer (Distribution), Ghaziabad Kshethra, Pashimanchal Electricity Distribution Corporation Ltd. by which the petitioner's appeal against the order of termination dated 02.05.2015 passed by respondent no.3 has been dismissed.

In short, the petitioner's case is that on account of his acute medical condition, he could not attend to his duties for the period 05.09.2003 to 30.05.2004. In this regard, he further claims to have applied for medical leave, which was somehow never granted. Thereafter, the petitioner was terminated vide order dated 23.11.2004. This order became the subject matter of challenge in Writ Petition No. 31934 of 2005 filed by the petitioner. It was allowed by the judgement dated 23.09.2014, wherein the Court found that termination order had been passed without any inquiry being conducted. That writ petition was decided on 23.09.2014 in the following terms:

"Having heard learned counsel for the parties and having perused the material on record, this court is of the opinion that to dispense with the inquiry before passing of an order of termination in the facts and circumstances of the case, was not justified at all. The petitioner should have been given a proper opportunity of hearing and also of facing a medical board to test whether his medical leave was to be sanctioned or not. Thus the impugned order is not justified. It is set aside.

In view of the above, the respondents are directed to give to the petitioner an opportunity of hearing including to appear before the medical board. He may also be allowed to adduce such evidence as he deems necessary to show his medical certificate of the relevant time and to prove them. He may also be put at the fresh medical examination done while considering his case of termination fresh.

For the foregoing reasons, the writ petition is allowed. The respondents shall decide this matter within a period of three months. The petitioner may approach the respondents for fresh consideration within the next one month."

Against the aforesaid judgement, the respondents herein filed Special Appeal (Defective) No. 68 of 2015, which was disposed of by order dated 04.02.2015 in the following terms:

"At the hearing of the special appeal, the only point which has been pressed on behalf of the appellants is that in pursuance of the order of the learned Single Judge, the first respondent was directed to appear before the Medical Board and the report of the Medical Board is likely to be available shortly. Learned counsel stated that based on the liberty which has been granted by the learned Single Judge, the appellants seek an extension of time to decide the matter and that the appellants would be holding a full-fledged departmental inquiry. The order of the learned Single Judge does not preclude or prohibit the appellants from taking recourse to the disciplinary proceedings in accordance with law. However, we clarify that since this is the only ground which was pressed, we extend the time granted by the learned Single Judge by a further period of three months from today. The special appeal is, accordingly, disposed of since no other point is pressed. There shall be no order as to costs."

Thereafter a charge-sheet appears to have been issued to the petitioner on 18-28.02.2015 in pursuance of which the order of termination dated 02.05.2015 came to be passed.

Though as a fact the petitioner attained the age of superannuation on 31.03.2013, this fact was never brought on record in the earlier litigation, either before the Single Judge or before the Division Bench. However, it is not disputed by the respondents that the petitioner did attain the age of superannuation on 31.03.2013 and thus retired from service well before issuance of the charge-sheet.

The short ground raised in the present writ petition is that the petitioner's services were governed under U.P. State Electricity Board (Officers and Servants) (Condition of Services) Regulations, 1975 (hereinafter referred to as 'the Regulations'). It has been submitted that there is no power under the aforesaid Regulations to initiate a domestic inquiry against a retired employee.

Learned counsel for the petitioner submits, it is settled law that disciplinary proceedings cannot be initiated against a retired employee unless the governing Rules allow for the same. In this regard, reliance has been further place on a division bench judgement of this Court in the case of Keshav Deo Pandey Vs. Chairman and Managing Director, Uttar Pradesh Power Corporation Ltd. and others 2012 (11) ADJ 625, wherein in paragraph 19 of that judgement it has been held as below:

"19. The respondents have not placed on record the decision of the Board, by which Art.351A of the CSR was alleged to be adopted for the purposes of continuing the disciplinary enquiry, after retirement or to initiate disciplinary proceedings against the retired employee within four years of the incident, with the permission of the employer and with the sanction of the Board. The Board's Circular dated 19th February 1964, refers to the 72nd meeting held on 26th December 1963, in which the Board decided in principle to adopt the U.P. Government Rules and Regulations viz. qualifications, control, and appellate rules, Government Servant Conduct Rules, Traveling Allowance Rules; Medical Attendance Rules, and the Pensionary Rules as amended from time to time and accordingly directed that the Rules and Regulations shall apply mutis mutandis to all categories of officers, and staff of the Board other than those, who are governed by separate agreement or coveyance. The U.P. State Electricity Board (Officers and Servants) (Conditions of Services) Regulation, 1975, were made after the issuance of the Circular of the Board dated February 19th, 1964. These Regulations of 1975, provide for Rules regarding the authority competent to remove, dismiss, all matters on conduct and discipline (including matters relating to punishment, constitution of committee) to enquire into the case and the appeal and representation to the Chairman of the Board. They, however, do not provide for applicability of the Rules stated to have been adopted by the Board on 26th December, 1963, nor do they specifically authorised the Board to continue with the departmental proceedings after the employee attained the age of superannuation and retires. The Regulations of 1975, also do not mention of any adoption or incorporation of the Classifications, Control, and Appeal rules, Government Servant Conduct Rules etc. We thus find that with the enforcement of the Regulations of 1975, w.e.f. October 18th, 1975 all the rules relating to conditions of service including discipline and appeal were consolidated and thus only these resolutions of the Board relating to the conditions of service, which are incorporated in the Regulations of 1975, were made applicable to the employees."

Opposing the aforesaid submission made by learned counsel for the petitioner, learned counsel for the respondents submits that charge-sheet had been validly issued to the petitioner, in view of the observations made by the division bench of this Court in its judgement dated 04.02.2015, wherein it had clearly been observed that the order of learned single judge would not preclude or prohibit the employer from taking recourse to disciplinary proceedings. It has been thus submitted that the division bench had authorized the employer to initiate proceedings against the petitioner and in view of the fact that the petitioner never challenged the judgement of the division bench, he cannot be heard to set up invalidity in the proceedings initiated in pursuance of the direction issued by the division bench.

It has further been submitted that though the petitioner had retired on 31.03.2013, Writ Petition No. 31934 of 2005 was allowed thereafter on 23.09.2014 and upon issuance of the charge-sheet, the petitioner had filed another Writ Petition No. 32548 of 2015, which was dismissed on the ground of alternative remedy. It has therefore been submitted that the petitioner had been directed to avail legal remedies as to the merits of the case and therefore, he cannot be heard on invalidity in such proceedings.

Having considered the argument so made by learned counsel for the parties, I find that the ground of invalidity as set up by the petitioner is in the nature of jurisdictional objection in so far it is alleged that disciplinary proceedings could not have been initiated against the petitioner. This objection has two factual premise. First, the date of retirement of the petitioner which in this case admittedly is much before the date of issuance of the charge sheet to him. Second, is the non-existence of enabling regulation or rule to first initiate disciplinary proceedings against a retired employee. Again, learned counsel for the respondents have not shown to exist any such regulation, rule or law.

Thus admittedly, the petitioner retired on 31.03.2013 and the charge-sheet was first issued on 18-28.02.2015. Further, the earlier termination was not preceded by issuance of any charge-sheet. Thus the petitioner had earlier been terminated without the conduct of any disciplinary proceedings. That order was set aside by the learned single judge and petitioner directed to appear before the Medical Board to give him an opportunity to establish his medical condition for consideration of sanction of his medical leave. Plainly, the learned single judge did not contemplate a possibility of holding of a disciplinary proceeding against the petitioner.

Then the direction issued by the division bench, giving the respondents liberty to initiate disciplinary proceedings did not and it could not have created jurisdiction which otherwise did not exist. In fact, the division bench only permitted the respondents to take recourse to disciplinary proceedings 'in accordance with law'. Thus the direction issued by the division bench to initiate disciplinary proceedings was, in any case, qualified and not absolute. In other words, the division bench only provided that such a proceeding may be initiated, if it is otherwise valid and permissible in law to be initiated. Neither the date of retirement of the petitioner was informed to the division bench nor it examined and ruled on its impact on the disciplinary proceeding contemplated by it, in light of the governing Regulations.

Then, it is noted, the Supreme Court, in Dev Prakash Tewari v. U.P. Coop. Institutional Service Board, (2014) 7 SCC 260 held as below :

"6. An occasion came before this Court to consider the continuance of disciplinary inquiry in similar circumstance in Bhagirathi Jena case and it was laid down as follows: (SCC pp. 668-69, paras 5-7)

"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:

''44. (3)(c) 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 30-6-1995, 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."

7. In a subsequent decision of this Court in U.P. Coop. Federation case2 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. While dealing with the above case, the earlier decision in Bhagirathi Jena case 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.

8. 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.

9. The question has also been raised in the appeal with regard to arrears of salary and allowances payable to the appellant during the period of his dismissal and up to the date of reinstatement. Inasmuch as the inquiry had lapsed, it is, in our opinion, obvious that the appellant would have to get the balance of the emoluments payable to him".

Applying the ratio of the aforesaid decisions it cannot be said that the disciplinary proceedings could be initiated against the petitioner on 18-28.02.2015 though he had retired from the corporation earlier, on 31.03.2013. There is no provision in the Regulation noted above, that may authorize initiation of such proceedings. No other law has been shown or relied upon by learned counsel for the respondent to establish validity of the impugned disciplinary proceedings.

Therefore, despite the observation made by the division bench with regard initiation of disciplinary proceedings, in view of the fact that there is no enabling provision in the Regulations to allow for initiation of such proceedings after the retirement of the petitioner, the proceedings initiated by charge-sheet dated 18-28.02.2015 are clearly without authority.

In that view of the matter, the consequential penalty order and the order in appeal rejecting the petitioner's appeal against must fall. The writ petition is consequently allowed. The orders dated 28.03.2016 passed by the respondent no.4 and 02.05.2015 passed by the respondent no.3 are quashed. No order as to costs.

Order Date :- 1.11.2017

Lbm/-