Counter affidavit filed today is taken on record.
The petitioner is aggrieved by the order of penalty dated 22.10.2013 and the appellate order dated 27.05.2014.
According to the petitioner he was working as Senior Assistant. He was placed under suspension by order dated 30.06.2006. Aggrieved the petitioner filed Writ Petition No.5971 (S/S/) of 2006 and the Court by order dated 14.07.2006 was pleased to stay the operation of the order of suspension as being without jurisdiction. The petitioner thereafter was reinstated in service. A chargesheet was issued to him on 30.04.2003, to which the petitioner submitted his reply on 07.08.2003. An Enquiry Officer was appointed and departmental enquiry was held. Subsequently by the order dated 28.12.2006 the petitioner was dismissed from service and a recovery of Rs.1,28,184.31 was ordered from him. The petitioner challenged the order of dismissal by filing Writ Petition No.715 (S/S) of 2007. The same was allowed by order dated 22.07.2013 and the order of dismissal dated 28.12.2006 was quashed. However, in the meantime since the petitioner had attained the age of superannuation on 28.02.2011, liberty was granted to the respondents to initiate departmental proceedings from the stage which has been found to be initiated in that judgment with a further direction that the petitioner shall be given copy of the enquiry report and also be given an opportunity of hearing. It is in pursuance thereof that the impugned order dated 22.10.2013 has been passed and recovery of certain amounts were ordered against the petitioner. Aggrieved, the petitioner preferred a departmental appeal which was also rejected vide order dated 27.05.2014.
I have heard Sri O.P. Srivastava, learned Senior Counsel assisted by Sri V.K. Dubey, for the petitioner, Sri K.S. Pawar, learned counsel for the respondents no.1 & 4 and the learned Additional Chief Standing Counsel for the respondents no.2 & 3.
The principal ground for attacking the impugned order taken by the learned senior counsel for the petitioner is that after the petitioner had already retired from service the departmental proceedings could not have been proceeded against him inasmuch as the provisions of Article 351 (A) of the Civil Service Regulation are not applicable to the U.P. Cane Co-operative Federation and in any case no Rules or Regulations or any other provision of law pari materia to the provisions of Article 351 (A) of the CSR are available in the U.P. Cane Co-operative Service Regulation, 1975. It is submitted that in the circumstances the entire proceedings after the petitioner had already retired from service were ab initio void.
Sri K.S. Pawar, on the other hand, submitted that the proceedings were continued against the petitioner in view of the liberty granted by this Court in Writ Petition No.715 (S/S) of 2007 in its judgment and order dated 22.07.2013. A counter affidavit has been filed and in paragraph 38 thereof it has been stated that the impugned order dated 22.10.2013 has been passed in purported compliance of judgment of the Court dated 22.07.2013. The averments in paragraph 38 of the counter affidavit are in reply to the averments made in para 44 of the writ petition, wherein the petitioner has taken a specific stand that there is no provision in the 1975 Regulations under which the disciplinary proceedings could be continued against a retired employee.
Sri O.P. Srivastava, learned Senior Counsel has placed reliance upon a recent decision of the Supreme Court in Civil Appeal (S) No.5848-49 of 2014 arising out of Special Leave Petition (Civil) Nos.29550-29551 of 2010, Dev Prakash Tiwari Vs. U.P. Co-operative Institutional Service Board, Lucknow and Ors. it is submitted that in the case before the Supreme Court, the Supreme Court considered the provisions of U.P. Co-operative Employees Service Regulations, 1975. It is submitted that these Rules have been framed by virtue of powers conferred under Section 122 of the U.P. Co-operative Societies Act, 1965 and it is submitted that the U.P. Cane Co-operative Employees Service Regulations 1975 has also been framed in exercise of powers under Section 122 of the Act, 1965 and in both the Regulations there is no power conferred by the Regulations upon the authorities to proceed against a retired employee. The Supreme Court was also considering its earlier judgment in the U.P. Co-operative Federation Ltd. and Others Vs. L.P. Rai, reported in (2007) 7 SCC 81, wherein the disciplinary proceeding against the employee was quashed by the High Court since no opportunity of hearing was given to him and the Management in its appeal before the Supreme Court sought for grant of liberty to hold a fresh enquiry and the Supreme Court has held that the charges levelled against the employee were not minor in nature and therefore it would not be proper to foreclose the right of the employer to hold fresh inquiry only on the ground that the employee has since retired from service and accordingly liberty was granted to the Management to proceed with the disciplinary proceeding against the employee. The facts of U.P. Co-operative Federation are identical to that in the case of the present petitioner. However, the Supreme Court has held that while deciding the case of L.P. Rai (supra) the earlier judgment of the Supreme Court in the case of Bhagirathi Jena Vs. OSFC (1999) 3 SCC 666 had not been brought to the notice of the Court wherein the Court had held that in the absence of a provision to that effect in the Regulations, departmental proceedings could not have been continued after the employee had retired from service. The Supreme Court therefore, held that once the employee had retired from service, there is no authority vested with the respondents for continuing the disciplinary proceeding even for purposes of imposing any reduction in the retiral benefits payable to the appellant. In the absence of any authority it must be held that the enquiry had lapsed and the appellant was entitled to get full retiral benefits.
Paragraphs 6 to 11 of the judgment of the Supreme Court read as follows:
"6. We have carefully considered the rival submissions. The facts are not in dispute. The High Court while quashing the earlier disciplinary proceedings on the ground of violation of principles of natural justice in its order dated 10.1.2006 granted liberty to initiate the fresh inquiry in accordance with the Regulations. The appellant who was reinstated in service on 26.4.2006 and fresh disciplinary proceeding was initiated on 7.7.2006 and while that was pending, the appellant attained the age of superannuation and retired on 31.3.2009. There is no provision in the Uttar Pradesh Co-operative Employees Service Regulations, 1975, for initiation or continuation of disciplinary proceeding after retirement of the appellant nor there is any provision stating that in case misconduct is established a deduction could be made from his retiral benefits. An occasion came before this Court to consider the continuance of disciplinary inquiry in similar circumstance in Bhagirathi Jena's case (supra) and it was laid down as follows:
" 5. Learned Senior Counsel for the respondents also relied upon Clause (3) (c) of Regulation-44 of the Orissa State Financial Corporation Staff Regulations, 1975. It reads thus : "When the employee who has been dismissed, removed or suspended is reinstated, the Board shall consider and make a specific order :-
(i) Regarding the pay and allowances to be paid to the employee for the period of his absence from duty, and (ii) Whether or not the said period shall be treated as a period on duty."
6. It will be noticed from the abovesaid regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of the departmental enquiry after superannuation.
7. In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.6.95 there was no authority vested in the Corporation for continuing the departmental enquiry 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 full retiral benefits on retirement."
7. In the subsequent decision of this Court in U.P. Coop. Federation case (supra) on facts, the disciplinary proceeding against employee was quashed by the High Court since no opportunity of hearing was given to him in the inquiry and the management in its appeal before this Court sought for grant of liberty to hold a fresh inquiry and this Court held that charges levelled against the employee were not minor in nature, and therefore, it would not be proper to foreclose the right of the employer to hold a fresh inquiry only on the ground that the employee has since retired from the service and accordingly granted the liberty sought for by the management.
8. While dealing with the above case, the earlier decision in Bhagirathi Jena's case (supra) was not brought to the notice of this Court and no contention was raised pertaining to the provisions under which the disciplinary proceeding was initiated and as such no ratio came to be laid down. In our view the said decision cannot help the respondents herein.
9. Once the appellant had retired from service on 31.3.2009, 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.
10. 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 upto 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.
11. The appeals are, therefore, allowed and the judgment and order of the High Court are set aside and the respondents are directed to pay arrears of salary and allowances payable to the appellant and also to pay him his all the retiral benefits in accordance with the rules and regulations as if there had been no disciplinary proceeding or order passed therein."
In the present case also the U.P. Cane Co-operative Federation Employees Service Regulations, 1975 have been framed in exercise of powers under Section 122 of the U.P. Co-operative Societies Act, 1965. Regulation 69 of the U.P. Cane Co-operative Service Regulation, 1975 reads as follows:
"69. At the conclusion of the disciplinary proceedings, the competent authority may impose any or more of the following punishment according to the nature and gravity of the offence:
(a) Censure.
(b) Withholding the increment or increments including stoppage in efficiency bar or promotion.
(c) Reduction to a lower post or time-scale or to a lower stage in time-scale.
(d) Fine.
(e) Recovery from the pay of the whole or part of the pecuniary loss caused to the institution or institutions placed under his charge by his negligence or breach of orders.
(f) Removal from service.
(g) Dismissal from service.
Note-Dismissal disqualifies an employee from re-employment in the service."
From a perusal of the U.P. Cane Cooperative Service Regulations, 1975 it is noticed that there is no provision similar to or pari materia with Article 351 (A) of the Civil Service Regulations, which may permit the respondent authorities to proceed with the disciplinary proceeding against a retired employee. Therefore, the only conclusion that can be drawn in the absence of any such provision is that, once the employee has retired and the disciplinary proceeding have not been concluded, for whatever reason, such disciplinary proceedings shall automatically lapse with the retirement of the employee.
In this view of the matter the impugned orders dated 22.10.2013 and 27.05.2014 cannot survive being illegal and without jurisdiction and the same are accordingly quashed.
The writ petition is allowed.
The respondents are directed to pay the entire arrears of salary and allowances payable to the petitioner and also to pay him all his retirement benefits in accordance with Rules and Regulations as if there had been no disciplinary proceedings or order passed therein.
Order Date :- 27.8.2014 N Tiwari