Heard Sri Anurag Kumar Singh, learned counsel for the petitioner and Sri Ram Pratap Singh Chauhan, learned counsel for the respondents.
The petitioner in this writ petition is seeking quashing of the departmental proceedings continuing against the petitioner as well as the chargesheet dated 24.05.2014 and is also praying for arrears of salary from 12.12.2013 to 31.01.2014.
The petitioner was working as Cane Development Inspector in the Uttar Pradesh, Cooperative Sugar Factories Federation Ltd. and had retired from service on 31.01.2014 on attaining the age of superannuation. He was placed under suspension by an order dated 12.12.2013 which was challenged in the Writ Petition No.7866 (S/S) of 2013 and the Court had been pleased to stay the order of suspension. In the meantime the petitioner has retired from service on 31.01.2014. Admittedly, a chargesheet was issued to the petitioner on 24.05.2014, copy of which has been filed as Annexure-6 at page 36 of the writ petition.
It has been submitted by the learned counsel for the petitioner that there is no provision in the Uttar Pradesh, Cooperative Sugar Factories Federation Employees Service Regulation, 1988 (hereinafter referred to as the Regulation, 1988) equivalent to or pari materia to Article 351 -A of the Civil Service Regulations, for initiating or continuing departmental proceedings against the employees after their attaining the age of superannuation.
A short counter affidavit has been filed by Sri Ram Pratap Singh Chauhan, learned counsel for the respondent no.2, wherein, it has been stated that the writ petition is not maintainable as the petitioner has the remedy of approaching the Arbitrator under Section 70 of the U.P. Cooperative Societies Act, 1965 (hereinafter referred to as the Act, 1965). In support of his submission he has placed reliance upon the decision of the Supreme Court reported in (2007) 11 SCC 756, Ghaziabad Sahkari Bank Ltd Vs Additional Labour Commissioner and Others. From a bare reading of the provisions of Section 70 of Act, 1965 it would be seen that only disputes relating to the constitution, management or the business of a co-operative society would be referable to arbitration proceedings and the same would not include any dispute regarding disciplinary action taken against a paid servant of a society. Section 70 sub section-1 of the Act, 1965 reads as follows:
"70. Disputes which may be referred to arbitration. (1) Notwithstanding anything contained in any law for the time being in force, if any dispute relating to the constitution, management or the business of a co-operative society other than a dispute regarding disciplinary action taken against a paid servant of a society arises--
(a) among members, past members and person claiming through members, past members and deceased members; or
(b) between a member, past member or any person claiming through a member, past member or deceased member, and the society, its committee of management or any officer, agent or employee of the society, including any past officer, agent or employee; or
(c) between the society or its committee and any past committee, any officer, agent or employee or any past officer, past agent or past employee or the nominee, heir or legal representative of any deceased officer, deceased agent, or deceased employee of the society; or
(d) between a co-operative society and any other co-operative society or societies;
Such dispute shall be referred to the Registrar for action in accordance with the provisions of this Act and the rules and no court shall have jurisdiction to entertain any suit or other proceeding in respect of any such dispute.
[Provided that a dispute relating to an election under the provisions of this Act or rules made thereunder shall not be referred to the Registrar until after the declaration of the result of such election.]"
It is thus clear from the statutory provisions of the Act, 1965 that Section 70 has no application to any dispute with regard to departmental/disciplinary proceedings and therefore the question of relegating the petitioner to an arbitrator does not arise.
The next submission of the learned counsel for the petitioner is that there is no provision under the Regulation, 1988 where departmental proceedings would be initiated or continued after the employee has already retired from service on attaining the age of superannuation.
Learned counsel for the petitioner has drawn attention of the Court to 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, in which the Supreme Court has 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. Co-operative Sugar Factories Federation Employees Service Regulations 1988 have 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. In Dev Prakash Tiwari (supra), 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 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 proceedings against the employee. 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."
The judgment in Dev Prakash Tiwari (supra) squarely applies to the facts of the present case. In the U.P. Cooperative Sugar Factories Federation Employees Service Regulations, 1988 there is no provision for continuing departmental proceedings against a retired employees. Thus, in view of the law laid down by the Supreme Court in Dev Prakash Tiwari (supra) no departmental proceedings can be initiated or continued against the petitioner after his retirement and therefore the chargesheet dated 24.05.2014 has absolutely without jurisdiction and is accordingly quashed.
The writ petition is allowed.
The petitioner will be entitled to arrears of salary and all other retiral benefits such as leave enchashment, gratuity, provident fund, insurance etc. which shall be paid to the petitioner within two months from the date of receipt of certified copy of this order.
Order Date :- 1.9.2014 N Tiwari