Narendra Singh Yadav vs State Of U.P. And 2 Others
2018 Latest Caselaw 3085 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved On 18.09.2018
 
Delivered On 08.10.2018
 
Court No. - 3
 
Case :- WRIT - A No. - 17745 of 2018
 
Petitioner :- Narendra Singh Yadav
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Sujit Kumar Rai
 
Counsel for Respondent :- C.S.C.,Rohit Ranjan Agarwal
 

 
Hon'ble Neeraj Tiwari,J.

Heard Sri Sujit Kumar Rai, learned counsel for the petitioner learned Standing Counsel for respondent no. 1 and Sri Rohit Ranjan Agarwal, learned counsel for respondent nos. 2 and 3.

Pleadings have been exchanged between the parties. With the consent of parties, writ petition is being decided at the admission stage itself.

By way of present petition, petitioner is seeking writ of mandamus directing the respondent no. 3 to release gratuity amount of Rs. 6,55,608/-, leave encashment of 90 days and arrears of salary of two increments from 1.1.2012 to 1.1.2013 and 1.1.2013 to 1.1.2014 along with interest. Further he also prays for writ of certiorari quashing the order dated 27.8.2018 passed by respondent no. 3.

Brief facts of the case are that petitioner was an employee of District Cooperative Bank Ltd. and his service is governed by U.P. Cooperative Societies Employees Service Regulation 1975 (hereinafter referred to as 'Regulation 1975') framed under Section 122 of the U.P. Co-operative Societies Act, 1965 (hereinafter referred to as 'Act 1965'). After appointment in the Bank, he was given increment vide order dated 31.1.2012 and he was also promoted from Class-III to Class-II employee in pay scale of Rs. 9370-800/10-17370-875/20-36120 vide order dated 25.7.2014. A notice dated 31.10.2015 was issued to the petitioner informing him that he would attain the age of superannuation at the age of 60 years on 30.11.2015 and retire from the service on that date.

Learned counsel for the petitioner submitted that annual increment from 1.1.2012 to 1.1.2013 and 1.1.2013 to 1.1.2014 has not been given to the petitioner without any reason. He further submitted that apart from annual increment, he has also not been paid gratuity as well as leave encashment of 90 days. He informed that vide order dated 21.8.2018, this Court has directed to learned counsel for respondents to file short counter affidavit. Pursuant to order dated 21.8.2018, a short counter affidavit has been filed. In short counter affidavit, for the first time, respondent no. 3 has annexed order dated 27.8.2018, by which, petitioner was directed to deposit Rs. 34,73,983/-, failing which, money shall be adjusted against his amount due with the Bank. After receiving the notice, petitioner has challenged the said order by way of filing amendment application, which was allowed by this Court vide order dated 14.9.2018.

Learned counsel for the petitioner submitted that the notice impugned is ex facie bad as Regulation 1975 does not provide any authority to make reduction in the retiral benefits or initiate any departmental proceeding after attaining the age of superannuation. This fact is undisputed that petitioner has attained the age of superannuation on 30.11.2015 and by that time, neither any disciplinary proceeding was initiated nor any notice was issued to him. He further submitted that as per Regulation 1975, there was no authority vested in the Corporation for initiating departmental proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the employees. In absence of such authority, enquiry had lapsed and the employee was entitled to get full retiral benefits on retirement. In support of his contention, learned counsel for the petitioner has relied upon a judgement of Apex Court in the case of Dev Prakash Tewari Vs. U.P. Cooperative Institutional Service Board; 2014 (7) SCC 260, in which, it has been held that there is no authority vested in the Corporation for continuing disciplinary proceeding after retirement.

Learned counsel for respondent nos. 2 and 3 submitted that a letter dated 27.7.2018 was issued to the petitioner stating therein that he should deposit the said amount with the Bank otherwise the same shall be adjusted with his retiral dues. He further submitted that this notice was based on an enquiry report dated 18.5.2018, in which, petitioner was found guilty for embezzlement of amount as mentioned in show cause notice. So far as legal position with regard to provision for enquiry after retirement is concerned, he could not demonstrate any such provision either in Regulation 1975 or Act 1965.

I have considered the rival submissions raised by learned counsel for the parties and have perused the record as well as law laid down by the Apex Court and this Court.

It is undisputed that the petitioner retired from service on 30.11.2015 as Junior Branch Manager, Branch Fafund, Etawah and by that time, no enquiry proceeding was initiated against him. Even in counter affidavit, it is stated that enquiry report was submitted on 18.5.2018 i.e. after retirement of petitioner and thereafter notice dated 27.8.2018 issued to him for depositing the money mentioned in the notice. I have also seen the notice that refers two enquiry committee, one was constituted on 24.4.2014 and the other was constituted on 21.11.2017. It appears that when earlier constituted committee dated 21.4.2014 has not started enquiry proceeding, then subsequent enquiry committee was constituted on 21.11.2017, which submitted his report on 18.5.2018. Further, notice dated 27.8.2018 itself shows that petitioner was prima facie found guilty and directed to deposit the money mentioned in notice. Apart from that, the amount so claimed by the petitioner has also not been disputed by the respondents in short counter affidavit.

Learned counsel for respondent nos. 2 and 3 also could not distinguish the law laid down by Apex Court in the case of Dev Prakash Tewari (supra). For reference, relevant paragraphs 8 and 9 of the said judgement are being quoted herein below;

"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 upto 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."

By perusal of paragraphs 8 and 9 of the said judgement, it is clear that in absence of such authority, enquiry had lapsed and the employee was entitled to get full retiral benefits on retirement. From the perusal of the record, it is also clear that the enquiry was completed on 18.5.2018 and notice was issued to the petitioner on 27.8.2018, both dates are undoubtedly falling after the date of retirement of the petitioner i.e. 30.11.2015.

This judgement has been followed by this Court in the case of Onkar Singh Verma Vs. State of U.P. and others; (2018) 2 UPLBEC 1280. For reference, relevant paragraph 10 of the said judgement is being quoted herein below;

"10. It is clear from the material on record that the petitioner, neither prior to retirement nor after retirement nor after the filing of the Writ-A No.32175 of 2016 nor upto the passing of the impugned order dated 21.09.2016 was ever given any notice to show cause against the allegations made against him in the impugned order dated 21.09.2016 and he has died on 14.03.2017. Therefore, it is crystal clear that the petitioner has been condemned unheard by the impugned order dated 21.09.2016, which is in gross violation of Article 14 of the Constitution of India. Secondly, there was no power vested in the respondent no.2 to initiate disciplinary enquiry against the petitioner under U.P. Co-operative Employees Service Regulation, 1975, after his superannuation as held by the Apex Court in the case of Dev Prakash Tiwari (supra). Finally, the petitioner has died on 14.03.2017, during the pendency of this writ petition and therefore, even if, there had been any power in the rules vested in respondent no.2 to conduct enquiry against the petitioner after superannuation, now it would not have been possible for him to conduct any enquiry. Therefore, the impugned order dated 21.09.2016, passed by respondent no.2, Secretary/General Manager, District Co-operative Bank Ltd., Etah, whereby, recovery of certain amounts have been directed against the petitioner from his gratuity, after his retirement from service is hereby quashed. The respondent no.2 is directed to release the amount of gratuity of the petitioner, by applying new pay scale, along with 7% simple interest for inordinate delay in making payment of the same to the petitioner from the date of his superannuation on 30.06.2013."

The same issue has been followed by this Court in the case of Bhagirathi Singh Vs. State of U.P. and others; 2018 (8) ADJ 538. For reference, relevant paragraph 20 of the said judgement is being quoted herein below;

"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."

Similar matter was also for consideration before Division Bench of this Court in the case of R.B. Agnihotri Vs. State of U.P.; 2000 Law Suit (All) 186 and Court has held that in absence of any express provision, departmental enquiry cannot have continued after superannuation of petitioner. For reference, relevant paragraphs 4,5,6 and 7 of the said judgement are being quoted herein below;

"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."

In light of facts discussed herein above as well as law laid down by the Apex Court and this Court, the impugned order dated 27.8.2018 passed by respondent no. 3 (Secretary and Chief Executive Officer District Cooperative Bank Ltd., Etawah) is bad in law and hereby quashed . Respondent no. 3 is directed to release the gratuity amount of Rs. 6,55,608/-, leave encashment of 90 days and arrears of salary of two increments from 1.1.2012 to 1.1.2013 and 1.1.2013 to 1.1.2014 along with 6% interest from the date it was due in favour of the petitioner within a period of one month from the date of production of certified copy of the order.

With the aforesaid observation, the writ petition is allowed.

No order as to costs.

Order Date :-8.10.2018

Arvind