Murari Lal Rathore @ Murari Lal vs State Of U.P. And 3 Others
2021 Latest Caselaw 11190 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 33
 

 
Case :- WRIT - A No. - 5389 of 2017
 

 
Petitioner :- Murari Lal Rathore @ Murari Lal
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Vishnu Gupta,Shiv Om Vikram Singh Chauhan,Siddhartha Srivastava,Virendra Kumar Gupta
 
Counsel for Respondent :- C.S.C.,Ramesh Chandra Singh
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. Petitioner substantively held the post of Assistant Development Officer, Panchayat and was posted at Agra. An order of dismissal came to be passed against him on account of his conviction in Sessions Trial No.455 of 2008 (State Vs. Murari Lal Rathore), vide judgment dated 31.10.2015. This order has been affirmed in departmental Appeal and Revision and is assailed in this writ petition primarily on the ground that there is no conscious application of mind on part of the disciplinary authority to the conduct of petitioner which led to his conviction.

2. Learned counsel for the petitioner places reliance upon the judgment of the Supreme Court in the case of Union of India Vs. Tulsiram Patel, AIR 1985 SC 1416, as also judgment of this Court in Service Single No. 5907 of 2009. Reliance is also placed upon the judgment of Supreme Court in Divisional Personal Officer, Southern Railway Vs. Chillappa, 1976(3) SCC 190 to submit that the impugned orders are wholly unsustainable.

3. On behalf of respondents, reliance is placed upon Para-11 of a Division Bench Judgment of this Court in State of U.P. and others Vs. Prem Milan Tiwari Constable, 2015 (3) ADJ 407 which is reproduced hereinafter:-

"We are of the view that the principle of law which has been laid down by the Supreme Court in the decision in S. Nagoor Meera and recently in B. Jagjeevan Rao's case, (supra) must govern the facts of the present case. The respondent was a constable in the police and was convicted of a heinous crime punishable under Section 302 of the Penal Code read with Sections 120B and 149. Can the State be compelled or required to take back in service such a person, pending the disposal of the appeal ? Plainly not. The learned counsel appearing on behalf of the respondent sought to distinguish those two decisions on the ground that the employee had been convicted of offences under the Prevention of Corruption Act 1988 where the conduct had a direct bearing on the service of the employee as an officer of the State. In our view, this would not make any difference to the construction of clause (a) of the second proviso to Article 311. What clause (a) of the second proviso does is to stipulate that the requirement of clause (2) of holding an inquiry consistent with the principles of natural justice would not apply where a person is dismissed, removed or reduced in rank on the ground of conduct which had led to his conviction on a criminal charge. In the present case, the respondent was a constable in the police. He was found guilty after a session's trial of an offence punishable under Section 302 read with Section 120B of the Penal Code. In such a case, clause (a) of the second proviso to Article 311 (2) would clearly stand attracted. The State cannot be regarded as having acted with perversity in dismissing a person who has been convicted of a serious offence of the nature involved in pursuance of the provisions of the second proviso to Article 311 (2) and, as in the present case, under Rule 8(2)(a) which is pari materia. The learned Single Judge, with respect, was in error in holding that there was no application of mind to the conduct which has led to the conviction. The conduct of the respondent which has led to the conviction of a charge under Section 302 cannot, by any circumstance, be regarded as warranting any treatment other than the punishment of dismissal under clause (a) of the second proviso to Article 311 (2) or under Rule 8(2)(a). Ultimately, as has been held by the Supreme Court until the conviction is set aside by an appellate or higher court, it would not be advisable to retain such a person in service. If he succeeds in the appeal or in any other proceeding, the matter can always be reviewed in such a manner that he would not suffer any prejudice."

4. Reliance is also placed by the learned Standing Counsel upon the judgment of this Court in Writ Petition No. 27271 of 2014 (Mahendra Kumar Vs. Union of India and others) decided on 12.9.2018.

5. Learned counsel for the petitioner, in reply, submits that the Division Bench judgment in the case of Prem Milan Tiwari (supra) is distinguishable on facts and has no applicability in this case since the petitioner therein was a constable punished of an offence under Section 302 read with 120-B I.P.C., which is not the case here. It is also stated that the judgment in the case of Mahendra Kumar (supra) merely examined as to whether suspension of sentence during the pendency of appeal would entitle the dismissed employee to reinstatement in service. It is further urged that as the petitioner has attained the age of superannuation on 31.12.2018, therefore, the authorities ought not be permitted to even revisit the issue now and the petitioner be held entitled to all service and retiral benefits.

6. Learned counsel for the petitioner has placed before the Court the conviction order to submit that cross first information reports were lodged in respect of the incident in question wherein the place of occurrence was the house of petitioner Murari Lal Rathore. In his defence it is pointed out that petitioner's son was attacked at his house and he sustained gun shot injuries. Contention is that petitioner and other family members only acted in self defence and that the implication of petitioner in criminal case is wholly false and concocted.

7. I have heard Sri Siddharth Srivastava, learned counsel for the petitioner and Sri Sharad Chandra Upadhyay, learned State counsel for the respondents and have perused the materials on record.

8. The order of conviction passed in S.T. No. 455 of 2008, dated 31.10.2015, is on record of the petition as Annexure-5. From its perusal it transpires that Case Crime No. 152 of 2006 under Sections 307 and 504 I.P.C. was lodged against the petitioner in which he has been convicted with life imprisonment together with penalty of Rs. 20,000/-. A Criminal Appeal No. 4975 of 2015 is instituted against the order of conviction in which the petitioner has been enlarged on bail. Cross cases were registered from both the sides and the Sessions Court has clearly recorded that the place of alleged occurrence of offence is the residential house of the petitioner Murari Lal Rathore. A further finding is returned that on some issue the parties entered into an altercation which converted into a free fight. Petitioner's defence that he was not the aggressor and was was attacked by the other faction is yet to be examined in pending criminal appeal although the petitioner's plea that his actions were all in self defence has not been accepted by the trial judge. Since the appeal is pending consideration before this Court therefore this court is not required to make any observation in respect of the petitioner's defence or the merits of the conclusion drawn by the trial judge as the issues are yet to be examined in appeal.

9. What is required to be seen in the facts of the present case is as to whether dismissal from service would be a necessary consequence of petitioner's conviction in the aforesaid case or requires a conscious application of mind on part of the disciplinary authority to the conduct of the petitioner which led to his conviction?

10. The order of dismissal merely records that petitioner has been convicted to imprisonment of life in S.T. No. 455 of 208 and is incarcerated in jail therefore in view of the Government Order dated 12.10.1979, the petitioner is being dismissed from service from the date of his incarceration in jail i.e. 31.10.2015.

11. The issue as to whether conviction in a criminal case would automatically lead to dismissal of the employee from service has been examined in the case of Tulsiram Patel (supra) while interpreting clause (a) to the second proviso of Article 311 (2) of the Constitution of India in following words:-

"127. Not much remains to be said about clause (a) of the second proviso to Article 311(2). To recapitulate briefly, where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case and the various factors set out in Challappan case [(1976) 3 SCC 190 : 1976 SCC (L&S) 398 : (1976) 1 SCR 783] . This, however, has to be done by it ex parte and by itself. Once the disciplinary authority reaches the conclusion that the government servant's conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the concerned government servant by reason of the exclusionary effect of the second proviso. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been in fact convicted, he can also agitate this question in appeal, revision or review. If he fails in the departmental remedies and still wants to pursue the matter, he can invoke the court's power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the court will also strike down the impugned order. Thus, in Shankar Dass v. Union of India [(1985) 2 SCC 358 : 1985 SCC (L&S) 444] this Court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the court should always order reinstatement. The court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case."

(emphasis supplied)

12. Even before it, the Supreme Court in Divisional Personal Officer, Southern Railway (supra) observed as under in para-9:-

"9. In the instant case we are concerned only with clause (i) of Rule 14 of the Rules of 1968 which runs thus:

"Notwithstanding anything contained in Rules 9 to 13:

(1) where any penalty is imposed on a railway servant on the ground of conduct which has led to his conviction on a criminal charge, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit."

The word ''penalty' imposed on a railway servant, in our opinion, does not refer to a sentence awarded by the court to the accused on his conviction, but though not happily worded it merely indicates the nature of the penalty imposable by the disciplinary authority if the delinquent employee has been found guilty of conduct which has led to his conviction on a criminal charge. Rule 14 of the Rules of 1968 appears in Part IV which expressly contains the procedure for imposing penalties. Furthermore, Rule 14 itself refers to Rules 9 to 13 which contain the entire procedure for holding a departmental inquiry. Rule 6 of Part III gives the details regarding the major and minor penalties. Finally Rule 14(i) merely seeks to incorporate the principle contained in proviso (a) to Article 311(2) of the Constitution which runs thus:

"(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inqury in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry:

Provided that this clause shall not apply--

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge."

An analysis of the provisions of Article 311(2)(a) extracted above would clearly show that this constitutional guarantee contemplates three stages of departmental inquiry before an order of dismissal, removal or reduction can be passed, namely, (i) that on receipt of a complaint against a delinquent employee charges should be framed against him and a departmental inquiry should be held against him in his presence; (ii) that after the report of the departmental inquiry is received, the appointing authority must come to a tentative conclusion regarding the penalty to be imposed on the delinquent employee; and (iii) that before actually imposing the penalty a final notice to the delinquent employee should be given to show cause why the penalty proposed against him be not imposed on him. Proviso (a) to Article 311(2), however, completely dispenses with all the three stages of departmental inquiry when an employee is convicted on a criminal charge. The reason for the proviso is that in a criminal trial the employee has already had a full and complete opportunity to contest the allegations against him and to make out his defence. In the criminal trial charges are framed to give clear notice regarding the allegations made against the accused, secondly, the witnesses are examined and cross-examined in his presence and by him; and thirdly, the accused is given full opportunity to produce his defence and it is only after hearing the arguments that the Court passes the final order of conviction or acquittal. In these circumstances, therefore, if after conviction by the Court a fresh departmental inquiry is not dispensed with, it will lead to unnecessary waste of time and expense and a fruitless duplication of the same proceedings all over again. It was for this reason that the founders of the Constitution thought that where once a delinquent employee has been convicted of a criminal offence that should be treated as a sufficient proof of his misconduct and the disciplinary authority may be given the discretion to impose the penalties referred to in Article 311(3), namely, dismissal, removal or reduction in rank. It appears to us that proviso (a) to Article 311(2) is merely an enabling provision and it does not enjoin or confer a mandatory duty on the disciplinary authority to pass an order of dismissal, removal or reduction in rank the moment an employee is convicted. This matter is left completely to the discretion of the disciplinary authority and the only reservation made is that departmental inquiry contemplated by this provision as also by the Departmental Rules is dispensed with. In these circumstances, therefore, we think that Rule 14(i) of the Rules of 1968 only incorporates the principles, enshrined in proviso (a) to Article 311(2) of the Constitution. The words "where any penalty is imposed" in Rule 14(i) should actually be read as "where any penalty is imposable", because so far as the disciplinary authority is concerned it cannot impose a sentence. It could only impose a penalty on the basis of the conviction and sentence passed against the delinquent employee by a competent court. Furthermore the rule empowering the disciplinary authority to consider circumstances of the case and make such orders as it deems fit clearly indicates that it is open to the disciplinary authority to impose any penalty as it likes. In this sense, therefore, the word "penalty" used in Rule 14(i) of the Rules of 1968 is relatable to the penalties to be imposed under the Rules rather than a penalty given by a criminal court."

13. Respondents have invoked first proviso to Rule-7 (xii) of the U.P. Government Servant (Discipline & Appeal) Rules, 1991 which is similar to clause (a) to the second proviso to Article 311 (2) of the Constitution of India. Relevant portion of rule of the Rules of 1991 is reproduced:-

"7. Procedure for imposing major penalties. -

(xi) The disciplinary authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge.

(xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner of the disciplinary authority having regard to the circumstances of the case so permits :

Provided that this rule shall not apply in following cases :

(i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or

(ii) Where the disciplinary authority is satisfied that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or

(iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules."

14. The authoritative pronouncement of law by Supreme Court in Tulsi Ram Patel (supra) is consistently followed and it is by now well settled that mere conviction in a criminal case would not lead to automatic dismissal from service of the government servant. Since clause (a) to the second proviso to Article 311(2) of the Constitution of India as also first proviso to rule-7 (xii) of the Rules of 1991 are exception to the normal rule of holding inquiry against the government servant and even opportunity of hearing is not required to be given to him, therefore, the disciplinary authority has to scrupulously examine the conduct of the government servant which led to his conviction before exercising such jurisdiction. The nature of guilt established as also the possible defence available to the government servant are aspects which requires consideration at the level of the disciplinary authority. In the event these aspects are omitted from consideration, the order of dismissal itself would be rendered without jurisdiction.

15. Sri Shadra Chandra Upadhyay, learned State Counsel has however placed reliance upon the judgment of Division Bench of this Court in Prem Milan Tiwari (supra) to submit that where offence is so glaring and admits of no second opinion, the dismissal of employee from service would clearly be justified.

16. The Division Bench in Prem Milan Tiwari (supra) was confronted with a case where the dismissed employee was a constable and was convicted of an offence under Section 302 I.P.C. It was in that context that the court observed that clause (a) to the second proviso to Article 311(2) of the Constitution of India would be attracted and unless the conviction is reversed in appeal, the relief of reinstatement in service would be impermissible.

17. The judgment in Prem Milan Tiwari (supra) is on the facts of its own and does not lay down any proposition of law distinct from what is laid down by the Supreme Court in the case of Tulsiram Patel (supra). The facts of the present case are moreover not similar to the facts of the case in Prem Milan Tiwari (supra).

18. Since the conduct of the petitioner leading to his conviction has not been examined by the disciplinary authority within the laid down parameter as such the order of dismissal, as affirmed in appeal and revision cannot be sustained. Orders impugned dated 1.12.2016, 21.12.2016 and 18.3.2016 accordingly are liable to be quashed.

19. Ordinarily, when such orders are quashed a liberty ought to be granted to the disciplinary authority to pass a fresh order while considering relevant factors i.e. conduct of the employee, gravity of charges and the materials available against him etc. This course, however, would not be desirable or even permissible in the facts of the present case since the petitioner has attained the age of superannuation on 31.12.2018 and the contract of employment has come to an end.

20. Sri Siddharth Srivastava, learned counsel for the petitioner has placed reliance upon the judgment of Supreme Court in Bhagirathi Jena Vs. Board of Directors, O.S.F.C. And others, (199) 3 SCC 666 wherein the Supreme Court has observed as under in paras 6 & 7:-

"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 provisions 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 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."

21. Again in Dev Prakash Tewari Vs. Uttar Pradesh Cooperative Institutional Service Board Lucknow and others, (2014) 7 SCC 260, the Supreme court has observed as under in para Nos. 6 to 9:-

"6. An occasion came before this Court to consider the continuance of disciplinary inquiry in similar circumstance in Bhagirathi Jena case [Bhagirathi Jena v. Orissa State Financial Corpn., (1999) 3 SCC 666 : 1999 SCC (L&S) 804] 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 case [U.P. Coop. Federation Ltd. v. L.P. Rai, (2007) 7 SCC 81 : (2007) 2 SCC (L&S) 598] 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 [Bhagirathi Jena v. Orissa State Financial Corpn., (1999) 3 SCC 666 : 1999 SCC (L&S) 804] 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."

22. In State Bank of Patiala and another Vs. Ram Niwas Bansal (dead) through legal representatives (2014) 12 SCC 106, the Supreme Court has observed in Para Nos. 14, 15 and 31 as under:-

"14. The three issues that eminently emerge for consideration are:

(i) whether the employer Bank could have, in law, passed an order of dismissal with retrospective effect;

(ii) whether the delinquent officer stood superannuated after completion of thirty years, as provided under the Regulations, on 25-2-1992; and

(iii) whether the legal heirs of the deceased employee are entitled to get the entire salary computed till the actual passing of the order of dismissal, that is, 22-11-2001 or for that matter till the date of superannuation, that is, 25-2-1992.

15. Regard being had to the nature of controversy, we shall proceed to deal with the first point first, that is, whether the order of removal could have been made with retrospective effect. Mr Patwalia, learned Senior Counsel appearing for the employee, has submitted that the disciplinary authority could not have passed an order of removal by making it operational from a retrospective date. He has commended us to a three-Judge Bench decision in R. Jeevaratnam v. State of Madras [R. Jeevaratnam v. State of Madras, AIR 1966 SC 951] . In the said case, the appellant therein instituted a suit for a declaration that the order of dismissal from service was illegal and void. The trial court dismissed the suit and the said decree was affirmed in appeal by the High Court. One of the contentions raised before this Court was that the order of dismissal dated 17-10-1950 having been passed with retrospective effect i.e. 29-5-1949, was illegal and inoperative. This Court opined that an order of dismissal with retrospective effect is, in substance, an order of dismissal as from the date of the order with the superadded direction that the order should operate retrospectively as from an anterior date. The two parts of the order are clearly severable. Assuming that the second part of the order is invalid, there is no reason why the first part of the order should not be given the fullest effect. The said principle has been followed in Gujarat Mineral Development Corpn. v. P.H. Brahmbhatt [(1974) 3 SCC 601 : 1974 SCC (L&S) 102] .

31. In the case at hand, the said stage is over. The Full Bench on the earlier occasion had already rendered a verdict that serious prejudice had been caused and, accordingly, had directed for reinstatement. The said direction, if understood and appreciated on the principles stated in B. Karunakar [ECIL v. B. Karunakar, (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] , is a direction for reinstatement for the purpose of holding a fresh enquiry from the stage of furnishing the report and no more. In the case at hand, the direction for reinstatement was stayed by this Court. The Bank proceeded to comply with the order of the High Court from the stage of reply of enquiry. The High Court by the impugned order [Ram Niwas Bansal v. State Bank of Patiala, (2002) 2 SLR 375 (P&H)] had directed payment of back wages to the delinquent officer from the date of dismissal till passing of the appropriate order in the disciplinary proceeding/superannuation of the petitioner therein whichever is earlier. The Bank has passed an order of dismissal on 22-11-2001 with effect from 23-4-1985. The said order, as we perceive, is not in accord with the principle laid down by the Constitution Bench decision in B. Karunakar [ECIL v. B. Karunakar, (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] , for it has been stated there that in case of non-furnishing of an enquiry report the court can deal with it and pass an appropriate order or set aside the punishment and direct reinstatement for continuance of the departmental proceedings from that stage. In the case at hand, in the earlier round the punishment was set aside and direction for reinstatement was passed. Thus, on the face of the said order it is absolutely inexplicable and unacceptable that the Bank in 2001 can pass an order with effect from 23-4-1985 which would amount to annulment of the judgment [Ram Niwas Bansal v. State Bank of Patiala, (1998) 4 SLR 711 : (1998) 119 PLR 768] of the earlier Full Bench. As has been held by the High Court in the impugned judgment [Ram Niwas Bansal v. State Bank of Patiala, (2002) 2 SLR 375 (P&H)] that when on the date of non-furnishing of the enquiry report the delinquent officer was admittedly not under suspension, but was in service and, therefore, he would continue in service till he is dismissed from service in accordance with law or superannuated in conformity with the Regulations. How far the said direction is justified or not or how that should be construed, we shall deal with while addressing the other points but as far as the order of removal being made retrospectively operational, there can be no trace of doubt that it cannot be made retrospective."

23. In State of Assam and others Vs. Padma Ram Borah, AIR 1965 S.C. 473, the Constitution Bench of Supreme Court has observed as under in Para-7:-

"7. Let us proceed on the footing, as urged by learned counsel for the appellant, that the order dated December 22, 1960 itself amounts to an order retaining the respondent in service till departmental proceedings to be drawn up against him are finalised. We shall also assume that the finalisation of the departmental proceedings mentioned in the order is a public ground on which the respondent could be retained in service. As the order was passed by the State Government itself, no. question of taking its sanction arises and we think that the High Court was wrong in holding that the absence of sanction from the state Government made the order bad. Therefore, the effect of the order dated December 22, 1960 was two-fold : firstly, it placed the respondent under suspension and secondly, it retained the respondent in service all departmental proceedings against him were finalised. We treat the order as an order under Fundamental Rule 56 which order having been made before January 1, 1961, the date of respondent's retirement, cannot be bad on the ground of retrospectivity. Then, we come to the order dated January 6, 1961. That order obviously modified the earlier order of December 22, 1960 inasmuch as it fixed a period of three months from January 1, 1961 or till the disposal of the departmental proceedings, whichever is earlier, for retaining the respondent in service. The period of three months fixed by this order expired on March 31, 1961. Thus the effect of the order of January 6, 1961 was that the service of the respondent would come to an end on March 31, 1961 unless the departmental proceedings were disposed of at a date earlier than March 31, 1961. It is admitted that the departmental proceedings were not concluded before March 31, 1961. The clear effect of the order of January 6, 1961 therefore was that the service of the respondent came to an end on March 31, 1961. This was so not because retirement was automatic but because the State Government had itself fixed the date up to which the service of the respondent would be retained. The State Government made no. further order before March 31, 1961, but about a month on so after passed an order on May 9, 1961 extending the service of the respondent for a further period of three months with effect from April 1, 1961. We do not think that the State Government had any jurisdiction to pass such an order on May 9, 1961. According to the earlier order of the State Government itself, the service of the respondent had come to an end on March 31, 1961. The State Government could not by unilateral action create a fresh contract of service to take effect from April 1, 1961. If the State Government wished to continue the service of the respondent for a further period, the State Government should have issued a notification before March 31, 1961. In R. T. Rangachari v. Secretary of State 64 Ind App 40 : 1937 AIR(PC) 27 ) their Lord- ships of the Privy Council were dealing with a case in which a Sub-Inspector of Police was charged with certain irregular and improper conduct in the execution of his duties. After the Sub-Inspector had retired on invalid pension and his pension had been paid for three months, the matter was re-opened and an order was made removing the Sub-Inspector from service as from the date on which he was invalided. Lord Roche speaking for the Board said :

"It seems to require no. demonstration that an order purporting to remove the appellant from the service at a time when, as their Lordships hold, he had for some months duly and properly ceased to be in the service, was a mere nullity and cannot be sustained."

The position is the same here. The respondent had ceased to be in service on March 31, 1961 by the very order of the State Government. Art. order of retention in service passed more than a month thereafter, was a mere nullity and cannot be sustained."

24. A conspectus of above observations made by the Supreme Court would clearly reveal that unless there exists an enabling provision either in the applicable service rules or any other provision of law it would not be open for the disciplinary authority to pass an order in respect of contract of service after the employee has attained the age of superannuation.

25. This Court in Bhagirathi Singh Vs. State of U.P. and others, 2018 (8) ADJ 538 has also observed as under in Para-18:-

" 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. "

26. From the above discussions, it is apparent that since the petitioner has attained the age of superannuation and no provision in law is shown which permits the disciplinary authority to examine the conduct of an employee, now, so as to pass an order of punishment, there would be no purpose in remitting back the matter to the disciplinary authority for a fresh consideration of petitioner's conduct leading to his conviction. Such a course would be legally impermissible.

27. The relief to be granted to the petitioner in such circumstances will have to be determined by this Court in view of what has been observed in para-127 of the Constitution Bench judgment in Tulsiram Patel (supra). The Court will have the jurisdiction to pass necessary order in respect of the penalty, which in its opinion would be just and proper in the circumstances of the case.

28. In the facts of the present case the petitioner has been dismissed from service on 18.3.2016 and has attained the age of superannuation on 31.12.2018. He has admittedly not worked during this period. The proceedings against the petitioner, consequent upon his conviction in an offence under Section 307 I.P.C. cannot be said to be without jurisdiction or arbitrary, on facts. The order of dismissal has been found wanting on account of non-consideration of petitioner's conduct leading to his conviction and has been set aside, for such reasons. The petitioner would be entitled to all service and retiral benefits including continuity excluding salary between 18.3.2016 to 31.12.2018 by applying the principles of 'no work no pay'. It is however reiterated that the period between 18.3.2016 to 31.12.2018 shall be counted for payment of retiral benefits.

29. Writ petition accordingly succeeds and is allowed in terms of the above orders/ directions. Orders dated 1.12.2016, 21.12.2016 and 18.3.2016 stands quashed.

30. No order is passed as to costs.

Order Date :- 06.10.2021

n.u.