Virendra Bahadur Singh vs U.P. State Warehousing Corp. ...
2017 Latest Caselaw 7012 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

1.	Supplementary affidavit filed today to explain the delay    in filing the writ petition, is taken on record. We found that the latches in filing writ petition have sufficiently been explained.
 
2. 	Since purely question of law is involved in the writ petition, we proceeded to hear the matter with the consent of  parties.
 
3.  The writ petition has been filed with a prayer for quashing the impugned order dated 24.11.2015 by which the order of recovery by way of punishment has been passed against the petitioner and the disciplinary proceedings have been disposed of accordingly. The petitioner has further prayed for a direction to the opposite parties to pay all retiral dues including leaveencashment and security amount to the petitioner alongwith 8% interest.
 
4.	The facts, in brief, for disposal of the present writ petition are that the petitioner was initially appointed on the post of Clerk in the office of Uttar Pradesh State Warehousing Corporation, Aligarh and subsequently he was promoted to several posts and lastly he was promoted on the post of Deputy Manager on 26.12.2013, which is a Class-I post. The petitioner retired from service after attaining the age of superannuation on 31.07.2014. Prior to retirement of the petitioner, an enquiry was instituted against him vide order No. 1237 dated 25.04.2014 issued by the Managing Director in respect to the storage losses occurred in the year 2002, 2003 and 2004, when he was posted at Kalpi Warehouse Center, as loss occurred in wheat, measuring the loss of Rs. 63,277.59/-. The Enquiry Officer issued a charge sheet to the petitioner on 12.06.2014, to which the reply was submitted by the petitioner on 17.06.2014 denying the charges levelled against him and also stating therein that loss, which is said to have occurred, is natural loss and is liable to be written-off. After conclusion of the enquiry, Managing Director issued a letter No. 5947 dated 01.07.2014 annexing therewith the copy of enquiry report dated 23.06.2014 seeking a reply within ten days to the said show cause notice. On 14.07.2014, the petitioner submitted a reply to the Managing Director denying the allegations and submitted documents, specially mentioning that the alleged losses have not occurred due to his fault. It was also mentioned that in the alleged year, there was dryness in the area and due to this reason, wheat absorbed moisture and as such loss was found. The Managing Director of the Corporation passed an order dated 21.07.2014, whereby the liability of Rs.61,276.20/- was determined and fixed against the petitioner without jurisdiction and also in violation of the Principal of Natural Justice. The petitioner challenged the order dated 21.07.2014 by means of filing Writ Petition No. 647 (S/B) of 2015 before this Court which was allowed alongwith other connected Writ Petitions and the impugned order was quashed by means of judgment and order dated 29.07.2015. The operative portion of which, on reproduction, reads as under:
 
"In view of the aforesaid discussion, we are of the view that once the statutory provision prescribes the particular power by the particular authority that has to be exercised accordingly, more so that cannot be abridged by any such decision as has been taken through resolution dated 17.11.2014 passed by the Board of Directors.
 
Therefore, in conclusion, we are of the view that Managing Director of the Corporation has exceeded its jurisdiction to impose a penalty of dismissal as well as on issuing direction to recover the amount indicated in the impugned orders. Accordingly, the orders impugned suffer from jurisdiction, therefore those are hereby quashed. Since we have interfered in the orders impugned only on the ground of jurisdiction, it is appropriate to observe for the competent authority which is the Executive Committee of the Corporation to exercise its power to pass a fresh order in the matter.
 
Subject to aforesaid observations the writ petition stands allowed."
 
In compliance of the order dated 29.07.2015 passed by this Court, the Executive Committee of the Corporation has considered and passed an order communicated through order dated 24.11.2015, impugned in the present writ petition, by which again the proceedings of the earlier order has been confirmed, which was passed by the Managing Director.
 
5.	Heard Sri R.S. Tomar, learned counsel for the petitioner, and Sri N.C. Mehrotra appearing for the opposite parties and gone through the records.
 
6. 	Learned counsel for the petitioner submitted that the services of the employees of the Ware Housing Corporation are governed by the U.P. State Warehousing Regulations, 1962 and in the Regulation, there is no provision provided to initiate or continue with the disciplinary proceedings after retirement of an employee of Corporation from service. Since the petitioner has retired on attaining the age of superannuation on 31.07.2014 and the impugned order dated 24.11.2015 was passed after his retirement, as such, the same is not sustainable as per the dictum of Hon'ble Apex Court as well as this Court. It is further submitted that Hon'ble Supreme Court in several pronouncements has already held that there is no provision to continue any disciplinary proceedings or pass any punishment order after retirement unless specifically provided under the Rules. The petitioner in this regard has relied on the judgment and order dated 23.05.2017 passed in Writ A No. 39590 of 2016 and judgment and order dated 12.10.2017 passed in bunch of Writ Petitions being leading Writ Petition No. 204 (S/B) of 2016 (Satya Ram Yadav versus U.P. State Warehousing Corporation Thru Its M.D. & Others).
 
The petitioner has also relied on the judgment of the the Hon'ble Apex Court in the case of Dev Prakash Tiwari versus U.P. Cooperative Institutional Service Board, Lucknow & others reported in (2014) 3 UPLBEC 1749.
 
7. 	Sri N.C. Mehrotra, learned counsel for the opposite parties submits that though it is not disputed that the enquiry cannot be held or continued after retirement of an employee in the respondent Corporation as it is not provided under the Rules as per the law laid down by Hon'ble Courts, but since there are losses of the Corporation and in the present case, the punishment order was passed on 21.07.2014, prior to retirement of the petitioner, by which recovery of Rs.61276.20/- was directed to be made from the petitioner and on being challenged before this Court, it was set aside by means of a judgment and order dated 29.07.2015 passed by this Court in a bunch of Writ Petitions, being leading writ petition  No. 1052 (S/B) of 2015. Writ Petition No. 647 (S/B) of 2015 of the petitioner was also connected in that bunch of writ petition. By the said judgment and order, this Hon'ble Court had provided that since the Court had interfered in the orders impugned only on the ground of jurisdiction, it is appropriate to observe for the competent authority, which is the Executive Committee of the Corporation to exercise its power to pass a fresh order in the matter and, accordingly, as per the liberty granted by this Court, the impugned order dated 24.11.2015 has been passed in accordance with law after consideration by the Executive Committee of the Corporation, as such, there is no illegality or infirmity in it and the judgment relied by the petitioner are not applicable in the facts and circumstances of the present case.

8. We have considered the submissions of the parties. The issue involved in the present writ petition has earlier been considered by this Court in a bunch of writ petition being leading Writ Petition No. 39590 of 2016 (Rishi Pal Singh versus State of U.P. and another) wherein this Court vide order dated 23.05.2017 while allowing the bunch of writ petitions passed the following order:

"We have considered the submissions raised and having heard learned counsel for the parties, no provision has been pointed out to be available under the U.P. State Warehousing Corporation Staff Regulation, 1961, that may permit the Corporation to proceed to hold disciplinary proceedings and impose any penalty on its employees governed by the aforesaid Regulations under the same after retirement. There is no such provision pari materia with Regulation 351-A of the Civil Services Regulation. The Division Bench in the case of Dhananjay Prasad Pandey (supra) has held as follows:-

"The petitioner was to retire on 31 October 2014 and it appears that for this reason action was taken against the petitioner because the Rules do not permit initiation or continuance of disciplinary proceedings after retirement. The action of the respondents is clearly arbitrary and against the principles of natural justice."

The aforesaid case was in relation to the Warehousing Corporation itself. The same ratio has been followed in the case of Surendra Singh (supra) decided on 22.02.2017, as referrred to hereinabove.

Consequently, since there is no such provision available under which the disciplinary proceedings can be continued or penalty imposed, as a consequence there of, the writ petitions deserve to be allowed.

It is to be noted that all the petitioners have attained their age of superannuation as on the date of imposing of penalty earlier that has already been quashed on 29th July, 2015. With the quashing of the orders, the petitioners simply stood retired from service and, therefore, merely there was an observation in the judgment dated 29.07.2015, the same would not amount to confer any statutory authority on the respondent-Corporation to proceed to take an action, when there is no such provision under the Regulation. Consequently, we hold that the action taken by the respondents to proceed against the petitioners under the regulations is without authority in law. ."

9. Relying on the aforesaid judgment and order this Bench has also allowed a bunch of writ petitions leading being Writ Petition No. 204 (S/B) of 2016 (Satya Ram Yadav versus U.P. State Warehousing Corporation & others, which is in respect of employees of respondent corporation.

10. Our view is also fortified by the dictum of the Hon'ble Apex Court in the case of Bhagirathi Jena versus Board of Directors, O.S.F.C and others reported in (1999) 3 SCC 666 that in view of absence of such a specific provision in the Regulations, the Corporation has no legal authority to make any reduction in the retiral benefits of the appellant. The paragraphs 6 & 7 of the judgment, on reproduction, reads as under:

"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 departmental enquiry after superannuation.

7. In view of the absence of such 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 or 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 authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement."

11. Relying on the aforesaid, judgment and the order has been passed by this Court in the case of S.S.L Verma versus U.P Cooperative Bank Ltd. and others 2004 (22) LCD 659 and Dr. R.B. Agnihotri Versus State of U.P. & others 2000(2) A.W.C 1242 and Writ Petition No.989 of 2010 (P.P Pandey versus State of U.P & others).

12. Relying on several judgments in this regard, similar view has been taken by Hon'ble Supreme Court in Anant R. Kulkarni vs. Y.P. Education Society and others (2013) 6 SCC 515. The relevant paragraph no.34 of the judgment is reproduced hereunder:-

"We may add that the Court has not been apprised of any rule that may confer any statutory power on the management to hold a fresh enquiry after the retirement of an employee. In the absence of any such authority, the Division Bench has erred in creating a post-retirement forum that may not be permissible under law."

13. The same view has been taken by the Hon'ble Supreme Court in Civil Appeal No.5849-49 of 2014 Dev Prakash Tiwari versus U.P. Cooperative Institutional Service Board (2014) 3 UPLBEC 1749. The relevant paragraph 9 is reproduced hereinunder:

"Once the Appellant had retired from service on 31.03.2009, 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.

14. In view of the above, the contention of the opposite parties that since the order was passed prior to the retirement of the petitioner, which was set aside by this Court and liberty was granted to pass a fresh order to the competent authority, it will not come in their way to proceed with the enquiry and pass a fresh order of recovery, is totally misconceived and not tenable. Firstly, because the initial punishment order was passed by an authority not competent to pass the order, as such, it cannot be said to have been passed as it was nullity in the eyes of law, therefore, the said order was set aside by this Court. The Hon'ble Supreme Court in the case of Hasham Abbas Sayyad versus Usman Abbas Sayyad and others reported in (2007) 2 SCC 355 has held as follows:

"22.The core question is as to whether an order passed by a person lacking inherent jurisdiction would be a nullity. It will be so. The principles of estoppel, waiver and acquiescence or even res judicata which are procedural in nature would have no application in a case where an order has been passed by the tribunal/ court which has no authority in that behalf. Any order passed by a court without jurisdiction would be coram non judice, being a nullity, the same ordinarily should not be given effect to."

15. Secondly, since the petitioner has attained the age of superannuation as on the date of imposing of penalty and impugned orders have already been quashed on 29.07.2015 by this Court, with the quashing of the said orders, the petitioner simply stood retired from service and merely because there was an observation in the judgment and order dated 29.07.2015 for the competent authority to exercise its power to pass a fresh order in the matter, the same would not confer any statutory authority on the respondent corporation to proceed to take action, when there is no such provision under the Regulation. Therefore, we hold that the action taken by the respondents to proceed against the petitioner and pass fresh order, which is impugned in the present writ petition, is without authority of law and is not sustainable and is liable to be quashed.

16. Accordingly, the writ petition is allowed. The impugned order dated 24.11.2015 passed by the Managing Director in pursuance of the decision taken by the Executive Committee,is hereby quashed. All the consequential benefits to follow.

17. However, allowing the above captioned writ petition, would not prejudice the right of the Corporation to proceed to take action otherwise as permissible in law.

18. No order as to costs.