Allahabad High Court
Dr.Ashok Kumar vs State Of ... on 14 March, 2019
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?A.F.R.
Court No. - 23
Case :- SERVICE SINGLE No. - 22781 of 2018
Petitioner :- Dr.Ashok Kumar
Respondent :- State Of U.P.Thru.Prin.Secy.Cooperative,Lucknow & Ors.
Counsel for Petitioner :- Rakesh Chandra Tewari,Gyan Prakash Srivastava,Vinod Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Rajesh Singh Chauhan,J.
Heard Sri R.C. Tewari, learned counsel for the petitioner, Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondent and Sri Vinod Kumar Singh, learned counsel for opposite party Nos.2 and 3.
By means of this writ petition, the petitioner has prayed that the opposite parties be directed to pay the petitioner earned leave encashment, security deposits along with interest on the delayed payment of the aforesaid dues and also interest on the delayed payment of the gratuity.
The submission of learned counsel for the petitioner is that the petitioner retired from service on 31.07.2016 and till date of his retirement no departmental proceedings or criminal proceedings of any kind whatsoever were pending against the petitioner. As a matter of fact, the petitioner was retired from service without having any stigma on the service record of the petitioner. After retirement of the petitioner, he was paid the amount of gratuity but not well in time and beyond the statutory period and no interest has been paid to the petitioner on the delayed payment of gratuity which has been prescribed in the Act itself. Further submission of learned counsel for the petitioner is that the petitioner has not been paid his retiral benefits e.g. earned leave encashment and gratuity deposits for no cogent reasons, therefore, the said amount be also paid to the petitioner with interest.
Learned counsel for the opposite party Nos.2 and 3 has filed counter affidavit and as per the counter affidavit, the stand taken by the opposite parties is that the petitioner has allegedly committee irregularity in the year 2012-13 when he was serving at Sonbhadra and the said financial irregularity is consisting a huge amount of Rs.98,27,154.42.
Learned counsel for the opposite party Nos.2 and 3 has also submitted that since the amendment has been made in Uttar Pradesh Co-operative Societies Employees Service (Twenty Second Amendment) Regulations, 2018, whereby the departmental enquiry may be initiated against the retired employee of the Co-operative Society like the employees of the State Government. The said amended rules have been enclosed with the counter affidavit as Annexure No.CA-2. The date of notification of the aforesaid amendment is August 27, 2018.
I have perused the said amendment and the relevant portion thereof is being reproduced here-in-below:-
"XI. Rules regarding disciplinary proceedings after retirement applicable for the employees of the State Government, shall also be applicable for the employees of the Co-operative Society with due modification from time to time.
Explanation- For for purpose of this sub rules, the word "Governor" has been used under the rules of the State Government, the word "Registrar" shall be deemed to be substituted.
(XII) If an employee retires from the serve while disciplinary proceeding against him is already in operation, the disciplinary proceedings will continue after his retirement."
The perusal of the aforesaid amendment reveals that clause-XI provides that the employees retired from the Co-operative Society may also be subjected to the departmental proceedings and clause-XII categorically provides about the category of employee against whom the departmental proceedings can be initiated. Clause-XII clearly mandates that if an employee retires from service while disciplinary proceedings against whom is already in operation, meaning thereby the departmental enquiry may be initiated against those employees against whom the departmental enquiry was pending before his/ her retirement.
In the present case, the petitioner retired from service on 31.07.2016 having unblemished service record and the amendment has been notified on 27.08.2018, therefore, the present petitioner may not be subjected for the departmental proceedings invoking the amended provision.
Learned counsel for the opposite parties has submitted that since clause-XI provides that the enquiry against the retired employees may be initiated, like the employees of the State Government, therefore, the provisions of Article 351-A of C.S.R. may be invoked.
I have perused the provisions of Article 351-A of the C.S.R. and its first proviso categorically reads as under:-
"(a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment-
(i) shall no be instituted save with the sanction of the Governor.
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceeding; and
(iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made."
Sub-clause (ii) of the aforesaid proviso categorically provides that enquiry against the retired employee may be initiated for the event which took place not more than four years before institution of such proceedings.
In the case in hand, the event in question is of the year 2012-13 and now the period of six years have already been expired, therefore, even invoking the provisions of Article 351-A of the C.S.R., the enquiry against the present petitioner cannot be initiated.
It is to be noted here that if there was any audit objection against the petitioner in the year 2012-13, any appropriate action should have been initiated against the petitioner with promptness but no such action can be taken against the petitioner after six years from the instance in question, if any, and after one and half years from the date of retirement of the petitioner.
Therefore, I am of the considered view that the present petitioner may not be denied the payment of earned leave encashment and security deposits along with interest thereon and also the interest on delayed payment of gratuity may also not be denied as the payment of gratuity should be paid within a prescribed period as indicated in the Act and there is specific provision in the act that if the authority concerned makes delayed payment, the incumbent shall be entitled for interest thereon.
Accordingly, the writ in the nature of mandamus is issued commanding the opposite parties to pay the petitioner earned leave encashment, security deposits along with interest and the petitioner shall also be entitled for interest on delayed payment of gratuity as per the act itself. The opposite parties shall make compliance of this order within a period of four months from the date of presentation of a certified copy of this order.
The writ petition is, therefore, allowed.
No order as to cost.
However, liberty is given to the opposite parties to initiate proceedings under Section 68 of U.P. Co-operative Societies Act, 1965 against the petitioner, if need be.
Order Date :- 14.3.2019
Suresh/
[Rajesh Singh Chauhan,J.]
