Court No. - 28
Case :- WRIT - A No. - 14080 of 2016 Petitioner :- Saroj Singh Tomar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ashok Kumar Lal Counsel for Respondent :- C.S.C.,Sanjay Singh
Hon'ble Siddharth,J.
Heard learned counsel for the petitioner and Shri Sanjay Kumar Mishra holding brief of Shri Sanjay Singh, learned counsel for the respondents.
Petitioner has challenged the order dated 14.1.2016 passed by the respondent no.2, Secretary/General Manager, District Co-operative Bank Ltd. Moradabad whereby he has been directed to deposit the amount of Rs. 14,29,986/- along with 13.50 % interest as a precondition for release of post retiral dues of Rs. 23,93,400.13.
Case of the petitioner is that he was appointed on the post of Cashier/Accountant in Co-operative Bank Ltd., Moradabad and he was suspended from service on the charge of misappropriation by the respondent no.2 on 29.7.2008. The Deputy General Manager(Administration) District Co- operative Bank was appointed as Enquiry Officer.He was served with charge sheet dated 28.2.2009 by respondent no.2 and he submitted reply on 29.3.2009 to the same. The First Information Report was also lodged regarding embezzlement against six persons wherein the name of the petitioner was not there and charge sheet was submitted against three persons after investigation by the police which also did not contained the name of the petitioner.
After submission of the reply to the charge sheet in disciplinary proceedings by the petitioner, the charge no.1 was found partly proved. The charge nos. 2 and 3 were found fully proved.The inquiry was found to be illegal and therefore an inquiry committee of two persons was constituted by the employer to conduct inquiry against the petitioner and the petitioner was reinstated in service on 16.11.2009 . Thereafter inquiry committee of two persons did not proceed with the inquiry and petitioner was superannuated from service on 30.6.2014. Since his post retiral dues were not being paid, he represented before the respondent no.2 and then approached this court by way of filing Writ-A No. 66109 of 2015 on the ground that there is no provisions in the service rule of the petitioner which permit the disciplinary proceedings to be continued against the retired employees and therefore respondents are not justified in withholding his post retiral dues.
This court by order dated 7.12.2015 disposed of the above writ petition directing the respondent no.2 to examine the grievance of the petitioner in accordance with law and also examine the claim of the petitioner for payment of interest on his post retiral dues withheld by the respondent after his retirement.
Respondent no.2 has passed the order dated 14.1.2016 impugned in the writ petition whereby he has not recorded any justification in proceedings of inquiry against the petitioner or justifying his order for directing the amount of Rs. 14,29,986/-from the post retiral dues of the petitioner rather by impugned order recovery of aforesaid amount from the post retiral dues of the petitioner along with 13.50 percent interest has been directed.
Learned counsel for the respondent has referred to the confidential report dated 28.6.2011 issued by the Deputy General Manager of the Bank wherein ex-parte allegations have been considered and liability of the petitioner has been fixed. It has not been stated anywhere that this confidential report was ever served on the petitioner during the period he was in service.
Perusal of this report shows that charges against the petitioner have been found proved without proceeding with inquiry in accordance with law. Neither any oral evidence has been led nor any documents have proved in the inquiry by the executor of the documents relied upon in the inquiry therefore inquiry report was also not in accordance with law whereby respondents have tried to justify their act. Even after this inquiry report no second show cause notice was served upon the petitioner to show cause.This report relied upon by the respondent cannot be accepted in accordance with law.
The Apex Court in the case of Dev Prakash Tiwari Vs. U.P. Cooperative Institutional Service Board, Lucknow and otheres , 2014 (7) SCC 260 has examined that the U.P. Cooperative Employees Service Regulations, 1975, which does not contains any provision regarding conducting a disciplinary enquiry after retirement of the appellant, 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 30.06.2013, there was no authority vested in the Co-operative Bank for conducting the departmental enquiry against the petitioner, even for the purpose of making any deduction in the post retiral benefits payable to the petitioner. In the absence of such an authority, it must be held that the right to hold enquiry had lapsed and the petitioner is entitled to full retiral benefits on retirement.
In the case of Dev Prakash Tiwari (supra), the Apex Court held, "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 26.04.2006 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 31.03.2009. 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. As occasion came before this Court to consider the continuance of disciplinary inquiry in similar circumstances in Bhagirathi Jena Vs. Board of Directors, O.S.F.C & others, (1993, 3 SCC 666) 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 Staf 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 above said 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 30.06.95 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 Ltd., & others Vs. L.P.Rai, (2007) 7 SCC 81, case 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 leveled 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 as 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 can not held the respondents herein.
9. 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."
in view of the above legal position the order dated 14.1.2016 passed by the respondent no.2 is quashed. The writ petition is allowed. The respondent no.2 is directed to release the post retiral dues of the petitioner within six weeks from today along with 7 % interest from the date of his retirement i.e. 30.6.2014.
Order Date :- 28.2.2018 Atul kr. sri.