Court No. - 34
Case :- WRIT - A No. - 59103 of 2009 Petitioner :- Gulab Chandra Sonkar Respondent :- State of U.P. and Others Counsel for Petitioner :- S.P. Sharma,Amit Kumar,Ashish Kumar,Rajesh Kumar Counsel for Respondent :- A.L. Yadav,A.I. Yadav,Manoj Nigam,R. Kumar,SC
Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner and Sri Manoj Nigam, who appeared for the respondent Bank. The Court notes that the respondents have failed to file a reply on this petition which has remained pending since 2009. The respondents have chosen not to respond even after the petition was restored to the board of the Court. In view of the aforesaid, the prayer for grant of further time is refused.
The challenge in the instant writ petition is to an order of 08 October 2009, pursuant to which the respondents have held the petitioner liable to pay 50% of the total loan amount of Rs.9,61,397/- which was disbursed to a borrower. The order for recovery itself is based upon a finding that the loan was sanctioned and disbursed on the basis of forged and fabricated documents.
The petitioner admittedly retired from service on 31 July 2001. It was only thereafter and for the first time on 04 November 2008 that an order of recovery came to be made by the Managing Director of the respondent Bank. That order was assailed by the petitioner by way of Civil Misc. Writ Petition No. 32539 of 20091. That writ petition was ultimately disposed of by a Division Bench of the Court on 08 July 2009 in the following terms:
"The case of the petitioner is that after four years of his retirement the concerned respondent wanted to recover the amount from him.
He relied upon the judgment of a Division Bench of this Court dated 19.9.2008 pased in C.M.W.P. No.27322 of 2009 Janardan Singh Vs
1 [Gulab Chandra Sonkar Vs. State of U.P. and Others, decided on 08 July 2009] State of UP and others which has been upheld by the Supreme Court. Said order reads as follows:-
"It is submitted by the petitioner's counsel that the petitioner has retired on 31-7-2001 and the order of recovery passed by the Managing Director, Uttar Pradesh Sahkari Gram Vikas Bank, Lucknow dated 4.11.2008 is without jurisdiction as there is no service rule under which the disciplnary proceedings could continue after the period of retirement. Sri Alok Mishra holding brief of Sri K.N. Mishra, learned counsel for the respondents could not point out any service rule under which the proceedings could continue beyond the retirement. Reliance has been placed by the petitioner upon an order dated 19.9.2008 of the Division Bench of this court passed in writ petition No. 48963 of 2008 (Ram Raj Prasad Pandey vs. State of U.P. and others).
The respondents are granted three weeks time to file a counter affidavit. List in the 1st week of August, 2009.
Until next date of listing the recovery in pursuance of the order dated 4.11.2008 passed by the Managing Director, Uttar Pradesh Sahkari Gram Vikas Bank Lucknow shall remain stayed."
Upon hearing the learned Counsel appearing for the parties, we direct the respondent authorities concerned to consider the representation of the petitioner pending before them upon giving fullest opportunity of hearing and by passing a reasoned order thereon within a period of one month from the date of production of certified copy of this order. For the purpose of effective adjudication a copy of the writ petition along with its annexures can also be treated as part and parcel of the representation.
However, in future, if any order is passed for recovery, which is not permissible under the law, the petitioner will be at liberty to approach this court for challenging the same.
Accordingly, the writ petition is disposed of. No order is passed as to costs."
Pursuant to the directions of the Court and the liberty reserved, the respondents have proceeded to pass the impugned order.
The order of 08 October 2009 is challenged principally on the ground that no provision stands engrafted in the relevant Act or the service rules which apply which may empower the respondents to effect recovery after the retirement of an employee. The aforesaid position which flows from a reading of the relevant rules has not been controverted on behalf of the respondents. The respondents also do not rest the action impugned on any other statutory provision which may empower them to effect recovery from an employee post his retirement. Dealing with the right of an employer to draw proceedings for alleged acts of misconduct committed by any employee post his retirement, this Court in Ram Deo Sharma Vs. State of U.P. and Others 2 noticing the judgment of the Supreme Court right from Bhagirathi Jena Vs. Board of Directors, O.S.F.C. And Others 3 has held thus:
“To a pointed query of the Court, Sri Mishra admitted that there existed no statutory provision or rule under which the petitioner could have been continued in service notionally for the purposes of concluding the departmental enquiry. It is trite law that the authority of an employer to proceed against an employee departmentally continues to exist while there is a relationship of master and servant between them. The attainment of the age of superannuation and retirement of an employee results in cessation of the said relationship. A disciplinary enquiry, even if for the sake of argument accepted to have been initiated prior to retirement of a delinquent employee, can be continued only if there be statutory sanction for such action and the employer be empowered by statute or law to continue the enquiry for the purposes of concluding the same and inflicting punishment. This issue stands dealt with in the judgment of this Court in V.K. Jaiswal Vs. U.P.S.R.T.C and others [2017 (2) ADJ 699] in the following words:
"As noted above, no statutory provision, rule or regulation prevalent in the Corporation was referred to or relied upon to sustain the continuance of the disciplinary proceedings after the retirement of the petitioner on 31 January 1998. Once the petitioner had retired from service no authority vested in the Corporation to continue with the disciplinary proceedings which had been initiated against the petitioner. Retirement of an employee cuts the cord which connects the two entities and severs all relationship of master and servant or employer and employee. The retirement of an employee brings the curtain down upon the relationship of employer and employee. Once this event occurs, no further jurisdiction or authority vests in the employer to inflict any punishment upon the employee thereafter. The only exception to this position is where a statutory rule enables the employer to continue the employee in service for the purposes of concluding an enquiry already initiated and inflicting punishment even after retirement or a special provision to make good the loss suffered by the employer even after the superannuation of the employee. The position in law on this aspect is no longer res integra and stands authoritatively answered in favour of the petitioner by the Supreme Court in Bhagirathi Jena. The principles elucidated in the said judgment have been reiterated in Dev Prakash Tewari. This Court, therefore, must record that the Corporation had no authority to continue with the disciplinary proceedings post the superannuation of the petitioner on 31 January 1998."
Further this Court in the case of Banda District Cooperative Bank Limited and others Vs. State of U.P. And others [Special Appeal Defective No. 31 of 2016] held as under:
2 [Writ -A No. 30148 of 2016, decided on 17 July 2017]
3 [(1999) 3 SCC 666] "On a pointed query of the Court, the learned counsel for the appellant candidly admitted that there was no provision under the U.P. Cooperative Service Regulation 1975, which may authorize continuance of the proceedings from the stage at which the defect has been noticed nor is there any provision in terms of which the proceedings may be continued and taken to their logical conclusion even after the retirement of the petitioner. We may in this connection refer to the law as laid down by the Supreme Court in Bhagirathi Jena Vs. Board of Directors, O.S.F.C. & others (1993)3 SCC 666 as reiterated by the Supreme Court in Deo Prakash Tewari Vs. U.P. Cooperative Institutional Service Board (2014) 7 SCC 260 which clearly hold that once an employee has retired from service, in the absence of any authority vesting in the employer the right to continue disciplinary proceedings thereafter, the enquiry proceedings would be deemed to have lapsed and the employee would be entitled to all retiral benefits. In light of the above law laid down by the Supreme Court, we are unable to accede to the submission of the learned counsel for the appellant for a remit of the proceedings."
In view of the settled law that there can be no continuance of an enquiry proceeding after the superannuation of the petitioner in the absence of an enabling statutory provision and the admitted fact that there exists no statutory sanction for such continuance the impugned order is clearly unsustainable.”
Following the aforesaid, it is manifest that the impugned order would not sustain.
Accordingly, the writ petition is allowed . The impugned order dated 08 October 2009 shall stand quashed and set aside. Any recoveries that may have been affected from the petitioner shall stand reversed. The respondents shall also consequently attend to the second relief which is claimed namely of release of retiral dues and benefits to the petitioner.
Order Date :- 22.9.2021 Arun K. Singh