Heard learned counsel for the parties.
This Court has passed the order dated 13.08.2021 as under:-
"Heard Sri M.P. Singh, learned counsel for the petitioner and Sri Devak Vardhan, Advocate holding brief of Sri Shree Prakash Singh, learned counsel for the opposite parties.
By means of this writ petition, the petitioner has submitted that he was retired from service on 31.12.2015, however, at that point of time one departmental enquiry against the petitioner was pending wherein the charge-sheet dated 02.07.20215 was served upon the petitioner on 08.09.2015.
Sri M.P. Singh, learned counsel for the petitioner has submitted that that due to compelling circumstances the petitioner could not submit the defency reply to the charge-sheet before his retirement. After his retirement, the petitioner requested the authorities concerned to make payment of his post retiral dues but no payment of post retiral dues of the petitioner except the amount of P.F. has been paid to the petitioner.
Sri M.P. Singh, learned counsel for the petitioner has drawn attention of this Court towards the judgment and order dated 18.01.2021 passed by this Court in Writ Petition No.1106 (S/S) of 2021; Shriprakash Upadhyaya vs. State of U.P. & others of the same department, whereby the legal question was decided as to whether after retirement of an employee, the departmental enquiry can be initiated if such prescription is not provided under the statutory rules etc. This Court considering the dictum of Hon'ble Apex Court in re: Bhagirathi Jena vs. Board of Directors, O.S.F.C. and other (1999) 3 SCC 666, has clearly held that if there is no provision, rule or regulation authorizing the Competent Authority to conduct the departmental enquiry after retirement, no such departmental enqiry can be conducted and in that case no prejudice may be caused to an employee. In the judgment of Shriprakash Upadhyaya (supra), another judgment of this Court in re: Chandra Prakash Verma vs. Chairman, U.P. Govt. Employees Welfare Corpn. and another [2018 (36) LCD 82] has been considered whereby the dictum of Hon'ble Apex Court in re: Bhagirathi Jena (supra) has been considered.
On being confronted learned counsel for the opposite parties as to how the departmental proceeding against the petitioner can be conducted and concluded when there is no statutory prescription to that effect and in that case as to how the retiral dues of the petitioner can be withheld, learned counsel for the opposite parties has prayed that two days' time may be granted to seek complete instructions in the matter.
The time prayed for is granted.
List / put up this case on 18.08.2021 as fresh in the additional cause list."
In compliance of the aforesaid order, Sri Devak Vardhan, Advocate holding brief of Sri Shree Prakash Singh, learned counsel for the opposite parties has submitted that the present petitioner had committed misconduct during his service period. Therefore, the departmental proceeding was initiated against him but the same could not be concluded for the reason of non-cooperation of the petitioner with the enquiry proceedings. As per him, the department has suffered huge loss on account of misconduct of the petitioner. So far as the dictum of Hon'ble Apex Court in re: Bhagirathi Jena vs. Board of Directors, O.S.F.C. and others, (1999) 3 SCC 666 and subsequent judgments relying upon the judgment of Bhagirathi Jena (supra) by the Hon'ble Apex Court, he has nothing to say.
Sri M.P. Singh, learned counsel for the petitioner has drawn attention of this Court towards Annexure No.6 of the writ petition, which is the dictum of Hon'ble Apex Court rendered in re: Dev Prakash Tewari vs. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and others reported in (2014) 7 SCC 260 whereby the Hon'ble Apex Court considering the dictum of Bhagirathi Jena (supra), issued positive directions against the opposite parties vide paras-8 and 9 of such judgment. For convenience, paras-8 & 9 are being reproduced here-in-below:-
"8. Once the appellant had retired from service on 31.03.2009, 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."
Sri Singh has also drawn attention of this Court towards judgment and order dated 18.01.2021 passed by this Court in Writ Petition No.1106 (S/S) of 2021; Shri Prakash Upadhyaya vs. State of U.P. & others, whereby while considering the identical facts and circumstances and legal position, this Court allowed the said writ petition directing the opposite parties to make payment of admissible dues to that writ petitioner. As per Sri Singh, the aforesaid order was assailed before the Appellate Court but later on such appeal was withdrawn, therefore, the decision of this Court rendered in re:Shri Prakash Upadhyaya (supra) has attained finality for all practical purposes.
The sole question before this Court to adjudicate is that if there is no provision, rules or regulations authorizing the Competent Authority to make deduction of any amount or to punish employee after retirement on any of the misconduct, as to whether such employee may be compelled to face the departmental trial after retirement and whether any punishment order may be awarded against him after his retirement.
Admittedly, the aforesaid question is no more res integra after the dictum of Bhagirathi Jena (supra) and it has been held by the Hon'ble Apex Court that if there is no such statutory prescription to make deduction of any amount from the employee or to punish him/ her after his/ her retirement for any misconduct, no such order can be passed against such employee after his/ her retirement. Even the Hon'ble Apex Court in re: Dev Prakash Tewari (supra) has held that not only such departmental enquiry would lapse after retirement of such employee, he/ she shall be entitled for the emoluments payment to him/ her.
In view of the above, the writ petition succeeds and is allowed.
A writ in the nature of certiorari is issued quashing the charge-sheet dated 02.07.2015 and the disciplinary proceedings in pursuance thereto, which is contained as Annexure No.1 to the writ petition. A writ in the nature of mandamus is also issued commanding the opposite parties to pay all the post retiral benefits to the petitioner as well as arrears of subsistence allowance, if the same has not been paid till date, with expedition, preferably within a period of three months, failing which, the petitioner may claim the admissible interest on delayed payment at the rate of 6% per annum.
No order as to costs.
Order Date :- 18.8.2021 Suresh/ [Rajesh Singh Chauhan,J.]