Bhagirathi Singh vs State Of U.P. And Others
2018 Latest Caselaw 423 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 13
 

 
Case :- WRIT - A No. - 11623 of 2008
 

 
Petitioner :- Bhagirathi Singh
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- D.R.S. Chauhan
 
Counsel for Respondent :- C.S.C.,Ajeet Kumar Singh,L.D. Rajbhar,R.K. Singh
 

 
Hon'ble Ajit Kumar,J.

1. Heard learned counsel for the parties.

2. The petitioner while working as permanent Junior Booking Clerk was suspended on 25.5.1996 on account of the First Information Report being registered against him under Section 409 I.P.C. on 23.5.1996 for embezzlement of a sum of Rs. 43,185.75. While the criminal proceedings continued with the submission of charge-sheet by the Police and the cognizance taken by the criminal court on the said charge-sheet, ultimately the said proceedings in Criminal Case No. 663 of 1997 resulted in the acquittal of the petitioner vide judgment and order dated 27.4.2005.

3. It is worth noticing that while the criminal case was going on, the petitioner retired on 30th April, 1997. It is after acquittal in the criminal case, the petitioner applied for payment of his dues including retirement dues. Since, no orders were being passed on the petitioner's application dated 3rd August, 2005, the petitioner approached this Court by means of Writ Petition No. 68126 of 2005 and the Court directed vide order dated 26.10.2005 to the concerned authorities, namely, respondent No. 2, to decide the representation of the petitioner.

4. In compliance of the order of this Court dated 26.10.2005, the petitioner submitted the same before the respondent No. 2, however, no action was taken and resultantly the petitioner had no option but to file the contempt application bearing No. 10411 of 2006, in which notices were issued. During the pendency of the contempt application, the respondent No. 2 vide order dated 25th April, 2006, rejected the representation of the petitioner on the ground that a full-fledged departmental inquiry was conducted against him with issuance of charge-sheet and show-cause notice was issued to him and thereafter his services were terminated on 30th November, 1999. So, in view of the fact that the departmental proceedings ultimately culminated in the termination/removal of the petitioner from service, the respondent No. 2 rejected the representation of the petitioner.

5. It is this order, which was initially challenged in this writ petition and the specific plea was taken that the petitioner was never served with any charge-sheet or show-cause notice and was not even communicated with any such order dated 30.11.1999. So, according to the petitioner, the entire proceedings were conducted without putting him to notice, affording opportunity of hearing and show-cause notice of the proposed punishment. Necessary pleadings have been raised vide paragraph Nos. 19 to 24 of the writ petition, which are reproduced herein below:

"19. That the impugned order dated 30.12.99 has been passed by the respondent no. 2 after retirement of the petitioner dated 30.4.1997 and thus the impugned order is illegal, arbitrary, unjust and improper.

20. That the impugned order dated 30.12.1999 has been passed by the respondent no. 2 without giving any show cause notice and without waiting the reply of the same.

21. That the impugned order dated 25.4.2006 has been passed only on the basis of order dated 30.12.99 without considering the demand of petitioner made in the representation.

22. That the impugned order dated 30.12.1999 came in the knowledge of the petitioner on the basis of order dated 25.4.2006, which was annexed in the short counter affidavit in the contempt petition by the respondent no. 2.

23. That the impugned order dated 30.12.1999 has been passed without affording any opportunity of hearing and its copy has not been given to the petitioner still now after making several demand.

24. That the impugned order dated 30.12.1999, 25.4.2006 is against the principles of equity and natural justice."

6. This Court, initially vide order dated 3rd March, 2008, had directed the counsel for the respondent to file counter affidavit and yet no counter affidavit was filed and, ultimately, this Court vide order dated 16th January, 2014, directed the counsel for the respondents to file counter affidavit annexing therewith a copy of the order of termination dated 30th December, 1999. Thereafter, the counter affidavit was filed on 7th February, 2014, annexing therewith the order of termination dated 30th November, 1999. While, the order of termination is dated 30th November, 1999 but it has been signed on 3rd December, 1999 on the first page of it and there is no date under the signature of Regional Manager, who has passed the termination order on its last page and it is also not clear from the first page of the order as to who has signed and who has put in the date i.e., 3rd December, 1999.

7. The petitioner, by means of the amendment application, has challenged the aforesaid dismissal order dated 30th November, 1999. From the perusal of the order of dismissal now impugned in the writ petition, it transpires that the charge-sheet was issued in the year 1996 and the reply was called for. However, the same was not replied to by the petitioner and instead he demanded certain documents to give an effective reply.

8. As already noticed herein above in the earlier part of the judgment that the petitioner had attained the age of superannuation on 30th April, 1997, whereas from the order impugned, it transpires that the inquiry report was submitted on 19th September, 1998, meaning thereby the inquiry continued even after the retirement of the petitioner on 30th April, 1997. Admittedly, the show-cause notice was issued subsequently and thereafter the order of termination was passed on 30th November, 1999 and thereafter signed on 3rd December, 1999.

9. There is no quarrel about the date of superannuation of the petitioner and the fact that the inquiry proceedings continued even after retirement of the petitioner and the order of dismissal from service was passed only on 30th November, 1999 singed on 3rd December, 1999, which is after the retirement of the petitioner. Learned counsel for the petitioner has raised two arguments:

10. The first is that the disciplinary rules, which are applicable to the employees of the corporation do not provide for any continuation of disciplinary proceedings after the delinquent employee has attained the age of superannuation. The argument is that once the employee attains the age of superannuation, the contract of employment comes to an end and unless the rules otherwise provide, the department was not within its right to continue with disciplinary proceedings and to impose any penalty whatsoever.

11. Learned counsel for the petitioner has placed reliance upon a judgment in the case of V.K. Jaiswal vs. UPSRTC and others, in which this Court has recorded categorically and in a quite unequivocally terms that there are no statutory rules permitting the corporation to continue with disciplinary proceedings after its employee has attained the age of superannuation. The Court has recorded the admission of the counsel for the corporation like this:

"..... Sri Mishra has submitted that although numerous dates had been fixed, the petitioner deliberately chose not to participate in the enquiry proceedings and, therefore, it is not open to him now to assert that the principles of natural justice were violated. Insofar as the submission of Sri Tripathi with respect to continuance of enquiry after his retirement is concerned, although Sri Mishra concedes that there is no statutory rule which empowers the Corporation to continue an enquiry after the retirement of an employee, he submits that this principle would, in the facts and circumstances of this case, not be applicable in light of the directions issued by this Court on the earlier writ petition."

12. The Court in the said judgment, ultimately, set aside the impugned order of punishment as it was inflicted after retirement and allowed the writ petition.

13. Learned counsel for the petitioner has further relied upon a Division Bench judgment of this Court in the case of Keshav Dev Pandey vs. Chairman & Managing Director, Uttar Pradesh Power Corporation Ltd. and others, 2002 (2) AWC 1242, wherein the Court quashed the impugned orders and the resolutions by the authorities on the ground that the orders having been passed after retirement and in absence of any statutory provision or rules enabling the disciplinary authority to pass such orders after an employee has retired, such an order was unsustainable in law.

14. The second argument advanced on behalf of the petitioner is that the entire inquiry was ex parte. No show-cause notice was issued to him, no inquiry report was given to him and the impugned order was passed also on his back as the same was also never served upon him and he could come to know about impugned order only from the rejection order of his representation passed by respondent No. 2 on 25th April, 2006. Necessary pleadings that have already been referred herein above raised in the writ petition in paragraphs 19 to 24 have come to be replied in the counter affidavit thus:

"20. That the contents of paragraph Nos. 15, 16, 17, 18 & 19 of the writ petition are wholly misconceived and incorrect, hence, denied. It is submitted that it is admitted fact that the petitioner representation of the petitioner was disposed of within a time by speaking and reasoned order. Despite of the fact that the petitioner has filed a contempt petition but the same was dismissed by this Hon'ble Court vide order dated 27.02.2007.

21. That the contents of paragraph Nos. 20, 21, 22, 23 & 24 of the writ petition are wholly misconceived, and as such, they are not admitted as stated the real facts is that a letter dated 10.11.1996 was served upon the petitioner by a special messenger at his address, but he was denied to take the same, thereafter a final order was served through registered post at his home address as well as it was also the same has been pasted on the Notice Board."

15. Thus, according to the petitioner, the relevant pleadings, as far as ex parte inquiry is concerned, have remained unrebutted to and the entire emphasis in the counter affidavit was that the order is reasoned and speaking order.

16. Per contra, the argument advanced by learned counsel for the respondent is that the order is reasoned and speaking order and ample opportunity was given to the petitioner and, therefore, if the petitioner had not submitted reply to the charge-sheet and has not participated in the inquiry, he cannot be permitted to turn up to say that entire proceedings were ex parte and that the disciplinary proceedings could not have arrived at its logical end. Other argument advanced on behalf of the respondent is that order is of the year 1999 and continuation of proceedings from before the date of the retirement will not absolve the petitioner from liability as has been fastened upon him resulting in for the pecunary loss caused to the corporation.

17. Insofar as, the argument raised on behalf of the petitioner that the proceedings after his attaining the age of superannuation could not have been continued in absence of any rule, governing the disciplinary proceedings in respect of the employees of the corporation, has substance. From the perusal of the entire rules that entitle department concerned to initiate departmental proceedings and that were in fact initiated by issuance of charge-sheet, the rules do not in any manner whatsoever permit the department/corporation to continue with the disciplinary proceedings even after the age of superannuation.

18. It is settled legal position that the employer and employee relationship is dependant only upon the contract of employment. The moment, the contract comes to end as the person is retired from service on attaining certain age under the rules, the relationship comes to an end. In the event of employer of employee relationship coming to an end, the rules have to specifically provide for continuation of proceedings in the first instance and that too with the sanction of higher authorities in the second instance because it will be seen as exceptional circumstance where disciplinary authority would record that for reasons genuine and convincing the disciplinary proceedings could not be concluded and, therefore, it is required that the proceedings be continued even after retirement, but there is no such provision under the rules governing the disciplinary proceedings. In this context, learned counsel for the respondent could not point out any rule, circular or executive instructions even, which may provide for continuance of disciplinary proceedings even after the retirement of the petitioner or any other employee of the corporation. Then again, the question will be that how a punishment is to be imposed as the punishment is awarded only against an employee unless and until employer and employee relationship exists, the order of punishment upon a retired employee cannot be imposed except otherwise provided under the rules. Even in matters of recovery, it is not open for the department to deduct any amount from retiral dues in absence of any rules giving any such authorization.

19. Learned counsel for the respondent has not been able to place before the Court any provision by which recovery can be permitted from the post retirement dues of an employee.

20. The Supreme Court in the case of Dev Prakash Tewari vs. UP Co-operative Institutional Service Board, LAWS(SC)-2014-6-14 decided on 30th June, 2004 had clearly observed that in the absence of any provision in the regulations applicable to the employee, it must be held that the corporation had no legal authority to make any reduction in the retirement benefits of the petitioner.

(Emphasis supplied)

21. The Division Bench of this Court in the case of R.B. Agnihotri vs. State of Uttar Pradesh, 2000 Law Suit(All)186 held thus:

"4. Sri Khare placed strong reliance on a two Judges Division Bench judgment of the Supreme Court in Bhagirathi Jena v. Board of Directors, O.S.F.C., 1999 (82) FLR 143, wherein the following ratio was laid down by the Supreme Court :

"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 authority. It must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement."

5. Sri Srivastava, learned counsel for respondent Nos. 7 and 8 while opposing the prayers made in this writ petition and the submissions made by Sri Khare made many fold submissions on facts but could not rebut the legal position explained by the Supreme Court referred to as above.

6. On the materials on the record, this much is crystal clear that the Vice-chancellor had passed his order according approval to the resolution terminating the services of the petitioner on 27th August, 1999, that is to say much after the statutory superannuation of the petitioner. The ratio laid down by the Supreme Court is binding on us.

7. Accordingly, we hold that in the absence of any express provision, the departmental inquiry could not have continued after the superannuation of the petitioner on 30th June. 1998 and thus it lapsed."

22. Besides above, the petitioner's case is squarely covered by the judgment of a co-ordinate bench of this Court (supra) and the petition deserves to be allowed on that ground, alone. Accordingly, the impugned order deserves to be set aside. So the first point is decided in favour of the petitioner.

23. The second argument on behalf of the petitioner that no opportunity was afforded and no show-cause notice under the order dated 30th November, 1999, I find that in the counter affidavit there is no denial of the aforesaid pleadings raised in the writ petition. In the counter affidavit, the emphasis has been only on the order being reasoned and speaking order. It is further said that the letter dated 10.11.1996 was got served upon the petitioner by special messenger in respect of the inquiry in question and that he refused but no document to that effect had been appended along with counter affidavit indicating the refusal of the petitioner in respect of such notice.

24. Besides above, the counter affidavit is absolutely silent upon service of show-cause notice and the inquiry proceedings, which was admittedly carried on after his retirement. It is also surprising to see the order rejecting the representation dated 25th April, 2006, in which the order of dismissal from service is referred to be as 30th December, 1999 whereas the order that has been brought on record by means of counter affidavit is dated 30th November, 1999. In the bottom of the first page it is signed as 3rd December, 1999. What is further very interesting to note that the said order, which is alleged to have been passed does not bear any date under the signature of the Regional Manager, inasmuch as, the handwriting by which the blank-space that have been filled up in the last paragraph, also does not bear any initial. It appears that the order was only got written and kept in file. Had it been prepared and signed on 30th November, 1999 then under the signature of Regional Manager, it must have carried the date. The second point also, accordingly, stands answered in favour of the petitioner.

25. In any view of the matter as discussed above, the order having been passed after retirement and in absence of any service rules providing for imposition of penalty by disciplinary authority after retirement of the employee, the order cannot be sustained in the eye of law.

26. Accordingly, the writ petition is allowed, the impugned order dated 30th November, 1999/3rd December, 1999, is hereby quashed.

27. The petitioner is held entitled to all the dues including the arrears of salary for the period, he has not been paid the salary and is also entitled to pension if the post is pensionable. It is a case where the conduct of respondent is such where the petitioner has unnecessarily been harassed for so many years and it is but for this harassment, he has not been given any service benefit including post retirement dues till date. The petitioner under the circumstances, is entitled for exemplary cost, which is quantified as Rs. 25,000/-.

Order Date :- 8.5.2018

LN Tripathi