JUDGMENT M. Katju, J.
1. This writ petition has been filed for quashing the impugned notice dated 29.4.2002 Annexure-1 to the writ petition.
2. Heard learned counsel for the parties.
3. The petitioner retired on 30.4.2002 from the post of Senior Engineer in Bharat Pumps and Compressors Ltd., Naini, Allahabad. He was served a notice dated 2.5.2002 that is two days after the retirement, copy of which is Annexure-1 to the writ petition. In this notice it was mentioned that disciplinary proceedings against the petitioner are pending and have not been concluded and the management has decided to continue the said proceedings and the petitioner should personally appear before the disciplinary authority on 28.5.2002 at 10 a.m. in respect of the charge-sheet dated 24.11.1988.
4. It appears that a charge-sheet was issued to the petitioner on 24.11.1988 but the enquiry was not concluded up to the date of retirement till 30.4.2002. It is alleged that the letter dated 2.5.2002 has been issued by an incompetent authority and has been issued only to harass the petitioner as the petitioner has been making complaints. It is alleged that the impugned notice is mala fide and to deny him his dues.
5. In paragraph 8 of the writ petition, it is stated that the charge-sheet was issued to the petitioner on 24.11.1988 and thereafter his service was terminated by order dated 1.7.1991 on various allegations which have been referred to in paragraph 8 of the writ petition. The petitioner challenged that termination order by Writ Petition No. 32154 of 1991 which was allowed by a learned single Judge on 12.8.1992 in which the termination order was set aside. The judgment of the learned single Judge was challenged in Special Appeal No. 412 of 1992 which was dismissed on 3.11.1992. The S.L.P. and review were also dismissed by the Supreme Court. It is alleged in paragraph 15 of the writ petition that the petitioner's salary and back wages was not given to him and hence he filed a contempt petition in which notice was issued to the respondents.
6. A short counter-affidavit has been filed by the respondents. In paragraph 4 of the same it has been mentioned that on 16.12.1999 the Government of India issued an office memorandum and directed that the Bharat Pumps and Compressors Ltd. to insert Rule 30A(i) and (ii) in the Conduct, Discipline and Appeal Rules of the Company. True copy of the said office memorandum is Annexure-C.A. 1. In pursuance to this direction of the Government of India, the Board of Directors approved incorporation of the above rule in its meeting held on 30.5.2000. True copy of the minutes of the meeting dated 30.5.2000 is Annexure-C.A. 2. After approval from the Board of Directors, the company issued a circular dated 4.7.2000 and amended the Conduct, Discipline and Appeal Rules, by incorporating Rule 30A as follows :
"(i) Disciplinary proceedings, if instituted while the employee was in service, whether before his retirement or during his re-employment, shall after the final retirement of the employee, be deemed to be proceeding and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee continued in service.
(ii) During the pendency of disciplinary proceeding, the disciplinary authority may withhold payment of Gratuity for ordering the recovery from Gratuity of the whole or part of any pecuniary loss caused to the company if the employee is found in a disciplinary proceeding or judicial proceeding to have been guilty of offence/misconduct as mentioned in Sub-section (6) of Section 4 of the Payment of Gratuity Act, 1972 or to have caused pecuniary loss to the company by misconduct or negligence during his service including service rendered on deputation or on re-employment after retirement.
However, the provisions of Section 7(3) and 7(3A) of the Payment of Gratuity Act, 1972 should be kept in view in the event of delayed payment, in case the employee is fully exonerated."
True copy of the circular dated 4.7.2000 is Annexure-C.A. 3 to the counter-affidavit.
7. It is alleged in paragraph 7 of the counter-affidavit that the petitioner was charge-sheeted by charge-sheet dated 24.9.1988 for committing theft of the company's property. Thereafter a domestic enquiry was held in which he was found guilty and was dismissed by order dated 1.7.1991. He filed Writ Petition No. 32154 of 1991 which was allowed and he was reinstated with 75% of his back wages. The Company filed Special Appeal No. 412 of 1992 which was dismissed on the ground that copy of the enquiry report had not been furnished to the petitioner before passing the dismissal order. However, the Court directed that the enquiry may proceed against the petitioner after supplying him copy of the enquiry report. True copy of the judgment dated 3.11.1992 in the aforesaid special appeal is Annexure-C.A. 4. After the S.L.P. was dismissed by the Apex Court the Company paid a sum of Rs. 4,51,000 to the petitioner and reinstated him. The petitioner again filed Writ Petition No. 16972 of 2001 which was disposed of by this Court by judgment dated 26.2.2002 and the company was directed to decide his representation which was decided on 27.4,2002. As per the judgment of the High Court dated 3.11.1992 the company supplied copy of the enquiry report to the petitioner and directed him to file reply if any against the enquiry report. In the meantime the petitioner retired but in view of the amendment to the Conduct, Discipline and Appeal Rules the disciplinary proceedings continued. It is stated in paragraph 17 of the counter-affidavit that Sri S. K. Gupta, D.G.M. (W) exercising powers of General Manager as per office order dated 11.12.2000 issued by the competent authority is the disciplinary authority in respect of the petitioner and at present there is no General Manager. True copy of the office order dated 11.2.2000 is Annexure-C.A. 5.
8. A rejoinder-affidavit has been filed and we have perused the same. It is alleged in paragraph 4 of the rejoinder-affidavit that the amendment to the rules dated 16.12.1999 will not apply to the proceedings which have started ten years earlier and had been disposed of. The petitioner retired on 30.4.2002 and hence the effect of the memorandum could not amend the service Rules retrospectively.
9. In our opinion this writ petition deserves to be allowed on the short point that the respondent has acted arbitrarily in restarting the enquiry after such a long delay. It is well-settled that arbitrariness violates Article 14 of the Constitution vide Maneka Gandhi v. Union of India, AIR 1978 SC 597. It may be noted that the petitioner's Writ Petition No. 32154 of 1991 had been allowed by the learned single Judge on 12.8.1992. Against that judgment the respondent filed Special Appeal No. 412 of 1992 which was dismissed on 3.11.1992. In that judgment it was observed that the decision would not preclude the disciplinary authority if it so desires from continuing with the proceedings from the stage of supplying the report of the enquiry. Against that decision S.L.P. was filed in the Supreme Court which was also dismissed on 25.9.1997 and the review was also dismissed on 10.12.1997.
10. The petitioner retired on 30.4.2002. After the dismissal of the S.L.P. by the Supreme Court on 25.9.1997 it appears that the respondents issued a show cause notice letter dated 9.1.1999 to the petitioner to which the petitioner replied by letter dated 4.2.1999, as stated in Annexure-1 to the writ petition. Thus, the respondent took no steps for recommencing the enquiry from the date of dismissal of the S.L.P. i.e., from 25.9.1997 till 9.1.1999. Thereafter also on receiving the petitioner's reply dated 4.2.1999 to the show cause notice dated 9.1.1999 again the respondents sat over the matter and did nothing until the eve of the petitioner's retirement on 30.4.2002 when they suddenly issued the letter dated 29.4.2002 Annexure-1 to the writ petition. Thus, it appears that the respondent took no steps in connection with the enquiry from 4.2.1999 till 29.4.2002 and suddenly woke up when the petitioner was about to retire. No doubt in view of the judgment in the Special Appeal No. 412 of 1992, the respondent could have recommenced the enquiry, but it is not open to them to recommence the enquiry whenever they wish. It appears that it was only when the petitioner was about to retire that the respondents realized that the petitioner would claim his gratuity and other dues and only then they suddenly issued the impugned notice dated 29.4.2002. Even assuming that Rule 30(1) applies in the present case, yet in our opinion, the authority concerned is not entitled to act arbitrarily as that would violate Article 14 of the Constitution as held in Maneka Gandhi's case (supra). In our opinion, the delay in holding or recommencing the enquiry itself amounts to arbitrariness. In this case there has been unexplained delay as already stated above.
11. In State of M.P. v. Bani Singh, 1990 LIC 1488, the Supreme Court observed that where there was inordinate delay in issuing the charge-sheet, the disciplinary proceedings are liable to be quashed. No doubt in the present case, there is no inordinate delay in issuing the charge-sheet but, in our opinion the principle of the decision will still apply in this case because there has been inordinate delay in recommencing and/or concluding the enquiry after the dismissal of the S.L.P. by the Supreme Court on 25.9.1997.
12. In R. D. Desai v. Municipal Corporation, 1993 (67) FLR 440, the Bombay High Court held that where there is no explanation for commencing the enquiry after a long interval, it will be illegal as the management was not free to decide to hold the enquiry whenever it is suitable or convenient to it. In Chief Secretary v. R. Veerabhadram, 1992 Supp (2) SCC 486, the Supreme Court refused to interfere with the judgment of the Andhra Pradesh Administrative Tribunal, which quashed the enquiry proceedings because they were prolonged by a decade. The facts of the present case are similar to those in the aforesaid cases.
13. Since, in our opinion, there has been undue and unexplained delay by the respondents in recommencing or concluding the enquiry after the dismissal of the S.L.P. by the Supreme Court on 25.9.1997 and since the impugned notice dated 29.4.2002 was issued only on the eve of petitioner's retirement on 30.4.2002 we are constrained to take the view that the respondents have not acted in a fair and non-arbitrary manner. It is evident that they suddenly woke up and issued the Impugned notice dated 29.4.2002 only when they realised that on his retirement on 30.4.2002, the petitioner will claim his gratuity. It seems that the impugned notice was issued only to deny gratuity to the petitioner. It is settled law that the gratuity, like pension, is a right and not merely a bounty vide D. V. Kapoor v. Union of India, AIR 1990 SC 1923 ; F.R. Jesuratnam v. Union of India, 1990 (Supp) SCC 640 etc.
14. The petition is, therefore, allowed. The impugned notice dated 29.4.2002 is held to be arbitrary and it is hereby quashed. No order as to costs.