The Jodhpur Central Cooperative ... vs Prabhu Lal Choudhary
2022 Latest Caselaw 12188 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 756/2022

1. The Jodhpur Central Cooperative Bank Limited, Through Its Managing Director, Jodhpur Central Cooperative Bank Ltd., Manji Ka Hatha, Paota, Jodhpur.

2. Collector-Cum-Admn., Jodhpur Central Cooperative Bank Ltd., Manji Ka Hatha, Paota, Jodhpur.

----Appellants Versus Prabhu Lal Choudhary S/o Shri Jora Ramji Choudhary, C/o Choudhary Traders, Near Telephone Exchange, Bilara.

                                                                 ----Respondent


For Appellant(s)          :     Mr. K.K. Dave
For Respondent(s)         :     Mr. Harshit Bhurani



           HON'BLE MR. JUSTICE SANDEEP MEHTA
          HON'BLE MR. JUSTICE KULDEEP MATHUR

                                 Judgment

11/10/2022

By way of present special appeal, the appellants are assailing

the validity and correctness of the order dated 26.05.2022 passed

by the learned Single Bench whereby the disciplinary proceedings

conducted against the respondent (writ petitioner) were declared

to be without any authority of law. Further, a direction was issued

to disburse the amount of gratuity withheld as a consequence of

punishment of 'dismissal from services' imposed upon the

respondent, with interest payable in terms of Section 7(3A) of the

Payment of Gratuity Act, 1972.

Briefly stated facts of the case are that the respondent while

holding the post of Branch Manager, Jodhpur Central Cooperative

(2 of 6) [SAW-756/2022]

Bank Ltd., Bilara (hereinafter referred as 'appellant-bank') stood

retired from the services w.e.f. 31.07.2004, on attaining the age

of superannuation. The Managing Director of the appellant-bank,

in contemplation of disciplinary proceedings, exercising powers

conferred under Rule 13 of the Rajasthan Civil Services

(Classification, Control and Appeal) Rules, 1958 (hereinafter

referred to as the 'CC&A Rules of 1958') vide order dated

26.07.2004 placed respondent under suspension, just 5 days

before his retirement.

A charge-sheet dated 18.03.2006 was served upon the

respondent under Rule 16 of CC&A Rules of 1958 wherein two

charges were levelled against him: firstly, it was alleged that the

respondent had acted in violation of orders and instructions of the

appellant-bank culminating into embezzlement by way of

distribution of loans to about 40 dead persons amounting to

₹8,78,071/-; secondly, it was alleged that the respondent

negligently issued forged passbooks and related documents

resulting into irreugular payments to agriculturist loanees to the

tune of ₹34,87,545/-. In the inquiry report dated 03.01.2011, the

respondent was found guilty of supervisory negligence qua charge

No.1 while he was exonerated qua charge No.2. The disciplinary

authority on receiving the inquiry report, vide order dated

16.05.2011 inflicted penalty of dismissal from services upon the

respondent.

A challenge was laid to the dismissal order dated 16.05.2011

before the learned Single Bench on multiple grounds. The learned

Single Bench after hearing the parties held that CC&A Rules of

1958 applicable upon the government servants of the State of

(3 of 6) [SAW-756/2022]

Rajasthan have been adopted by the appellant-bank to follow the

procedure for conducting disciplinary proceedings against its

employees. However, there is no provision under CC&A Rules of

1958 which covers disciplinary proceedings against retired

employees. The learned Single Bench also found the punishment

of dismissal from services imposed upon the respondent for

supervisory negligence to be disproportionate to the charges

levelled in the charge sheet dated 18.03.2006. The learned Single

Bench vide order dated 26.05.2022, quashed and set aside the

impugned order of dismissal dated 16.05.2011 and directed the

respondents to release amount of gratuity in favour of the

respondent along with interest in terms of the provision of

Payment of Gratuity Act, 1972. Aggrieved by the order dated

26.05.2022, present intra court appeal has been filed.

Learned counsel for the appellant-bank submitted that the

charge-sheet dated 18.03.2006 issued against respondent had

culminated into an order being passed proving charge No.1

regarding embezzlement and misuse of post causing financial loss

to the Bank of quantified sum of ₹8,78,071/-. Therefore, for an

employee working in the Bank, the punishment of dismissal from

service cannot be considered disproportionate to the allegations

levelled. Counsel further submitted that Section 4(6) of Payment

of Gratuity Act, 1972 provides that gratuity of an employee whose

services have been terminated for any act, wilful omission or

negligence, causing any damages or loss to the employer shall be

forfeited to the extent of damage or loss so caused. Counsel

argued that in the present case, since the financial loss occasioned

to the Bank had been quantified at ₹8,78,071/-, the gratuity of

(4 of 6) [SAW-756/2022]

respondent ought not to have been ordered to be released. Lastly,

it was submitted that the order of suspension dated 26.04.2007

was issued against the respondent prior to superannuation clearly

indicating that the charge-sheet was to be served separately upon

the respondent. The disciplinary inquiry therefore should be

treated as initiated prior to respondent's superannuation from

services.

Heard learned counsel for the appellants and perused the

material available on the record.

Hon'ble the Supreme Court in the case of State of

Jharkhand & Ors. vs. Jitendra Kumar Srivastava & Anr.

reported in (2013) 0 AIR (SCW) 4749, while dealing with a

question whether the State Government can withhold a part of

pension and/or gratuity during the pendency of

departmental/criminal proceedings in the absence of any provision

in the pension rules, held as under:-

"14. Article 300 A of the Constitution of India reads as under: "300A Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law."

Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.

15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of aforesaid Article 300A. On

(5 of 6) [SAW-756/2022]

the basis of such a circular, which is not having force of law, the appellant cannot withhold - even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different."

The learned counsel for the appellant-bank failed to point out

any statutory rule/provision, which gives legal sanction to

appellant-bank to initiate/conduct disciplinary proceedings against

a retired employee. Undisputably, the CC&A Rules of 1958 have

been adopted by the appellant-bank to adhere to the procedure

for conducting disciplinary proceedings against its employees,

which otherwise, is applicable upon the employees working in

connection with the affairs of the State of Rajasthan. The CC&A

Rules of 1958 only deals with the procedure to be followed during

disciplinary proceedings and the penalties which may be imposed

upon an employee. The legal authority to conduct disciplinary

proceedings against retired government employees of the State of

Rajasthan flows from Rajasthan Civil Services (Pension) Rules,

1996. The Rules of 1996 do not apply upon the employees

working in the appellant-bank.

The argument raised by learned counsel for the appellants

that disciplinary proceedings should be treated to have initiated

against the respondent from the date of issuance of the

suspension order dated 26.07.2004, is not acceptable for the

reason that unless provided otherwise by a statute, the

disciplinary proceedings commence only after issuance of the

charge sheet against a delinquent employee.

(6 of 6) [SAW-756/2022]

In the absence of any statutory rule/provision for initiation of

departmental proceedings against a retired employee, the

issuance of charge-sheet dated 18.03.2006 and all subsequent

proceedings conducted pursuant thereto by the appellant-bank

lacks legal authority/sanction. In the considered opinion of this

Court, no legal authority vested with the Bank to proceed against

the respondent, after his superannuation from the services, by

initiating disciplinary proceedings and imposing penalty of

dismissal against the respondent-writ petitioner. The entire

disciplinary proceedings till its culmination conducted against

respondent, pursuant to the charge sheet 18.03.2006 is declared

to be without jurisdiction.

In the result, this Court finds that the order dated

26.05.2022 passed by learned Single Bench does not suffer from

any infirmity warranting interference.

The special appeal is accordingly dismissed.

No order as to costs.

                                   (KULDEEP MATHUR),J                                       (SANDEEP MEHTA),J
                                    40-skm/-









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