1. Heard Sri R.C. Tewari, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Sri Vinod Kumar Singh, learned counsel for the opposite party Nos.2 and 3.
2. With the consent of learned counsel for the parties, the instant writ petition is being heard and decided finally at the admission stage.
3. By means of this writ petition, the petitioner has prayed the following relief:-
(i) Issue a writ, order or direction in the nature of mandamus commanding / directing the opposite parties to pay the petitioner the Leave Encashment, Security Deposits, Arrears of Salary for the period of suspension w.e.f. 10.07.2009 to 31.08.2010, benefit of Assured Career Progression Scheme and bonus, with interest at the rate of 12% per annum.
4. Learned counsel for the petitioner has submitted that the petitioner was placed under suspension vide order dated 10.07.2009 and thereafter the charge-sheet dated 14.12.2009 was served upon the petitioner containing a solitary charge that one Bank Draft of amounting to Rs.50,00,000/- (fifty lakhs) issued by the State Bank of Patiala, Lucknow was missing when the petitioner was discharging the duties of Assistant Manager (Accounts) and such information was not given to the superior authority nor any serious efforts have been taken by the petitioner to stop the payment of the aforesaid Bank Draft.
5. As per learned counsel for the petitioner, the petitioner has filed his reply on 30.12.2009 submitting his bonafide denying the charge levelled against him. The petitioner has categorically submitted in his reply that it was not his duty to receive the Bank Draft and, therefore, he was not responsible for the charge in question. It has also been submitted that the Competent Authority has reinstated the petitioner in service on 01.09.2010 subject to final outcome of the inquiry proceedings.
6. Learned counsel for the petitioner has also submitted that before issuing the aforesaid reinstatement order, the Disciplinary Authority had directed the Enquiry Officer to make re-inquiry in the issue assigning reasons for doing so. However, as per learned counsel for the petitioner, no enquiry proceedings were held after 01.09.2010, but show cause notice dated 02.06.2012 has been issued to the petitioner on the basis of earlier enquiry report dated 07.04.2010.
7. Learned counsel for the petitioner has vehemently submitted that the Disciplinary Authority, after receiving the enquiry report dated 07.04.2010, had directed the Enquiry Officer to make re-enquiry, therefore, he submitted that till then a show cause notice should have not been issued on the basis of enquiry report dated 07.04.2010 and, hence, the show cause notice dated 02.06.2012 is unwarranted and has been issued in violation of principles of natural justice. However, after receiving the aforesaid show cause notice dated 02.06.2012 the petitioner has submitted his explanation dated 18.06.2012 submitting therein that the show cause notice has not properly been issued inasmuch as the show cause notice in question is placing reliance on enquiry report dated 07.04.2010, for that the Disciplinary Authority had already directed the Enquiry Officer to make re-enquiry in the issue, which was not done.
8. It has also been submitted by learned counsel for the petitioner that the Disciplinary Authority has not passed any order after 18.06.2012 when the petitioner submitted his explanation to the show cause notice and the petitioner has not been intimated any order being issued by the Disciplinary Authority till the date of his superannuation i.e. 28.02.2014. Therefore, as per learned counsel for the petitioner, the petitioner retired from service on 28.02.2014 with clean service records as no adverse order / punishment order has been intimated to him till the date of retirement. Accordingly the master and servant relationship of the petitioner with Provincial Cooperative Federation (here-in-after referred to as the "P.C.F.") came to an end on 28.02.2014.
9. On the strength of aforesaid submission, learned counsel for the petitioner has submitted that since no punishment order against the petitioner has been passed by the Disciplinary Authority till his retirement and there is no provision in the P.C.F. akin to Article 351-A of the Civil Service Regulation, therefore, he should have been paid his all retiral benefits.
10. Learned counsel for the petitioner has drawn attention of this Court towards the judgment of Hon'ble Apex Court in re: Dev Prakash Tewari vs. U.P. Co-operative Institutional Service Board, Lucknow & others; Civil Appeal No.(s) 5848-49 of 2014 decided on 30.06.2014 whereby the Hon'ble Apex Court has held that since there is no provision for conducting disciplinary enquiry after retirement of incumbent nor is there any provision in the service rules, therefore, the retiral benefits of the employee cannot be withheld. Para-6 of the aforesaid judgment is being reproduced here-in-below:-
"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 vs. Board of Directors, O.S.F.C. and others (1999) 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 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."
11. Therefore, the issue in question is no more res-integra in the light of the aforesaid judgment of Hon'ble Apex Court. Further, the aforesaid judgment has been followed by this Court in couple of cases, out of which, the petitioner has enclosed one judgment and order dated 26.11.2015 passed in Writ Petition No.6740 (S/S) of 2015; Balwant vs. Provincial Co-operative Federation of U.P. & another. The relevant para of the aforesaid judgment is being reproduced here-in-below:-
"Appreciating the submissions of the learned counsel for the parties, this Court is of the view that since controversy involved in the present case is purely legal, which has been settled by the Hon'ble Supreme Court and further there is no quarrel between the parties that there is no provision in the Service Regulation, 1980 for continuity of disciplinary proceedings against the superannuated employee, therefore, the action of the opposite parties are illegal and against the Regulation."
12. Learned counsel for the P.C.F. does not dispute the aforesaid contention and legal proposition so raised by the learned counsel for the petitioner. Further, no cogent reply to the point as to why re-enquiry has not been conducted in the matter of the petitioner despite the specific direction having been issued by the Disciplinary Authority and also as to why no final order has been passed by the Disciplinary Authority after 18.06.2012 when the petitioner had submitted his explanation to the show cause notice till 28.02.2014 when the petitioner has reached the age of superannuation.
13. Since the departmental enquiry is presumed to be concluded finally when the final order is passed by the Disciplinary Authority, therefore, in the case in hand, it cannot be said, legally, that the departmental enquiry was concluded before the date of superannuation of the petitioner.
14. For the facts and circumstances mentioned above, I am of the view that the instant writ petition deserves to be allowed and, therefore, is hereby allowed.
15. The opposite parties are, therefore, restrained from the further departmental proceedings against the petitioner. However, the aforesaid restrained order will not preclude the respondents/ authorities from taking any legal action as permissible under law.
16. So far as retiral dues of the petitioner are concerned, the opposite parties are directed to release the same in favour of the petitioner with expedition. Since there is delay in making payment of post retiral benefits, so the petitioner is also entitled for interest at the rate of 6% per annum.
17. There shall be no order as to cost.