Vijay Singh Yadav vs State Of U.P. And 2 Others
2022 Latest Caselaw 2145 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 35
 
Case :- WRIT - A No. - 384 of 2019
 
Petitioner :- Vijay Singh Yadav
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Sujit Kumar Rai
 
Counsel for Respondent :- C.S.C.,Kartikeya Saran
 

 
Hon'ble Ajit Kumar,J.

Heard Sri Sujit Kumar Rai, learned counsel for the petitioner, Sri Ujjawal Satsangi, learned Advocate holding brief of Sri Kartikeya Saran, learned counsel appearing for respondents no.2 & 4 and learned Standing Counsel for the State respondents.

By means of this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for a writ of certiorari seeking quashing of order dated 05.12.2018 whereby the claim of the petitioner of gratuity, leave encashment and other post retirement dues including the revision of pay as per 6th Pay Commission and also paying increment on a post for having worked for more than 10 years has come to be denied on the ground that the petitioner while working in the branch on the post of Branch Manager, had committed financial irregularity by permitting/issuing over draft to some account holders which resulted in huge financial loss to the bank.

The argument advanced by the learned counsel for the petitioner for assailing the order impugned is that the petitioner having retired from the establishment on 31.10.2016 and he having not been issued with a charge sheet prior to his retirement to subject him to a disciplinary proceeding by the bank, if subsequently initiated. He submits that bank did not have any special rules or regulations at the time petitioner retired.

Besides above, petitioner also submits that one Narendra Singh Yadav who was working as Clerk-cum-Cashier along with petitioner in the same branch had also been charged with the same offence and had been held liable for the loss caused to the bank of the same amount for which the liability has been fastened upon the petitioner, filed a writ petition bearing Writ A No.17745 of 2018 against similar order and the said writ petition has come to be allowed by this Court vide judgment and order dated 08.10.2018, operative portion of which is reproduced hereunder:

"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."

Learned counsel appearing for the respondent-bank submits that though the issue of financial loss caused to the bank is relating to the same subject matter of investigation/inquiry by the bank but the issue with regard to the institution of departmental proceeding came to be incorporated by way of amendment in the year 2018, had not been considered in the said judgment. Otherwise he submits that in similar set of charges and in similar facts and circumstances, the writ petition of Narendra Singh Yadav has come to be allowed by this Court.

I have gone through the Amendment which has been pressed by the learned counsel for the respondent for the purposes of justification for the order impugned and distinguishing the above judgment. The said Amendment namely U.P. Co-operative Societies Employees Services (22nd Amendment) Rules, 2018 stipulates that the provisions as are applicable to the government employees of the State Government for the purposes of continuity of disciplinary inquiry after retirement and institution of the same after retirement shall also be followed and applied to the employees of the Co-operative Societies and in place of Governor, the permission is to be accorded by the Registrar. Relevant provisions of the Amendment are quoted herein below:

"In pursuance of the provisions of Clause (3) of Article 348 of the Constitution, the Governor is pleased to order the publication of the following English Translation of notification no.1425/XLIX-2-2018-5(419)-2007, dated August 27, 2018:

No.1425/XLIX-2-2018-5(419)-2007

Dated Lucknow, August 27, 2018

The following regulations governing recruitment and conditions of service of the employees of the Co-operative Societies in Uttar Pradeesh falling within the purview of Uttar Pradesh Co-operative Institutional Service Board, framed under sub-section (1) of section 122 of the Uttar Pradesh Co-operative Societies Act, 1965 (U.P. Act No.XI of 1966) by the said Board and approved by the Governor are hereby published as required by sub-section (2) of section 122 of the said Act.

The Uttar Pradesh Co-operative Societies Employees Service (Twenty Second Amendment) Regulations, 2018

1.(a) These regulations may be called the Uttar Pradesh Co-operative Societies Employees Service (Twenty Second Amendment) Regulations, 2018.

(b) They shall come into force with effect from the date of their publication in the Gazette.

2. In the Uttar Pradesh Co-operative Societies Employees Service Regulations, 1975 in regulation 85, after sub-regulation (X) the following sub-regulation shall be inserted namely

(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 the purposes 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 service while disciplinary proceeding against him is already in operation, the disciplinary proceedings will continue after his retirement.

By order,

M.V.S. RAMI REDDY

Pramukh Sachiv"

(emphasis added)

Upon bare reading of the amendments as have come to be enforced, I find that Clause-1 of the amending rules clearly stipulates that these rules would come into force w.e.f. from the date of its publication in the Gazette and all these amending rules have been published in the Gazette on 27th August 2018 that is much after retirement of the petitioner from the establishment-bank, inasmuch as, counsel for the respondent could not point out any permission accorded by the Registrar to initiate disciplinary proceeding or to continue any disciplinary proceeding after retirement of the petitioner pursuant to the amending provisions.

Besides that, the Court is also of the view that institution of disciplinary proceeding is with the issuance of a charge sheet. Since, in this case, it is admitted position that at no point of time any charge sheet was issued to the petitioner so it cannot be said that any disciplinary proceeding as such was instituted or as a consequence thereof, any disciplinary inquiry as such was held. In the absence of any disciplinary inquiry or formal inquiry being held against a retired employee, the penalty of recovery for an amount to make good the loss to the bank, as a consequence of charge levelled against the retired employee, cannot be approved of.

It is also an admitted position that the order of the Single Judge in Narendra Singh Yadav case has not been appealed and the dues have come to be paid to that petitioner. Accordingly, since by the judgment of Co-ordinate Bench of this Court in the case of Narendra Singh Yadav (supra) of the same bank who was charged with the same offence, writ petition was allowed with consequential benefits along with interest upon the same, this petition also stands allowed in terms of the relief granted therein.

The order dated 05.12.2018 impugned herein in this petition is, therefore, quashed.

With the aforesaid observations and directions, petition stands allowed.

Order Date :- 6.5.2022

P Kesari