Heard Sri B.R. Singh, learned counsel for the petitioner. Notice for opposite party no.1 has been accepted by the office of learned CSC.
Sri Anurag Vikram has filed Vakalatnama on behalf of opposite party no.2, the same is taken on record.
By means of this petition, the petitioner has assailed the punishment order dated 11.9.2020 (Annexure No.1), orders dated 13.10.2020 and 23.12.2020 (Annexures No.2 & 3). By means of order dated 23.12.2020, recovery to the tune of Rs.50,12,631.59 has been directed. The petitioner has also assailed the order dated 8.7.2020 whereby opposite party no.2 has denied payment of due salary of the petitioner from January, 2014 to December, 2019.
The precise submission of learned counsel for the petitioner is that the petitioner retired from service on 31.12.2019 after attaining the age of superannuation. Prior to his retirement, charge sheet dated 26.10.2019 has been served upon the petitioner. Till retirement of the petitioner, enquiry could not be concluded. However, after nine months from the retirement, the impugned order dated 11.9.2020 has been issued whereby recovery for an amount of Rs.36,31,735.25 has been directed by opposite party no.2 from the retiral dues of the petitioner. Subsequent impugned orders dated 13.10.2020 and 23.12.2020 have been issued for making recovery to the tune of Rs.50,12,631.59.
Learned counsel for the petitioner has drawn attention of this Court towards the decision of the Hon'ble Apex Court in re; Bhagirathi Jena v. Board of Directors, O.S.F.C. and others, (1999) 3 SCC 666, referring paras 6 & 7, which are as under:-
"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 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 30-6-1995, 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."
The Hon'ble Apex Court has held that if there are no provision, rules or regulation authorizing the competent authority to make deduction of any amount or to punish employee after retirement on any of the misconduct, no such order can be passed after the retirement of the employee. Sri B.R. Singh has submitted that in the present case, admittedly, the impugned orders have been issued after retirement of the petitioner as the petitioner retired from service on 31.12.2019 whereas the punishment orders/ recovery orders have been passed on 11.9.2020, 13.10.2020 and 23.12.2020. Therefore, in view of the dictum of the Hon'ble Apex Court in re; Bhagirathi Jena (supra), those impugned orders are not sustainable in the eyes of law.
He has also drawn attention of this Court towards the decision of this Court in re; Chandra Prakash Verma Vs. Chairman, U.P. Govt. Employees Welfare Corpn. and another, [2018 (36) LCD 82], whereby the Division Bench, while dealing the identical issue, has referred the dictum of Hon'ble Apex Court in re; Bhagirathi Jena (supra) and allowed the writ petition after quashing the charge sheet.
Therefore, Sri B.R. Singh has submitted that he is raising the legal ground at the admission stage by submitting that when there are no rules with the opposite parties to punish the employee after his/ her retirement, the impugned orders passed against the petitioner after his retirement are illegal and non-est in the eyes of law, therefore, the writ petition may be decided at the admission stage.
Learned counsel for opposite party no.2 has, however, submitted that serious anomalies have been noticed by the opposite party against the petitioner, therefore, charge sheet has been issued prior to two months from the retirement of the petitioner but such enquiry could not be concluded till retirement of the petitioner. He has further submitted that so far as the relevant rules/ regulation authorizing the opposite party to continue the departmental enquiry after retirement of the petitioner, he has fairly submitted that by now, there are no such provision.
Considering the aforesaid submission of learned counsel for the respective parties, I am also of the considered opinion that if there is no specific provision for passing the impugned orders after retirement of an employee and no rules or regulation have yet been adopted by the Corporation for passing orders against its employee after his retirement, the impugned orders dated 11.9.2020, 13.10.2020, 23.12.2020 & 8.7.2020 (Annexures No.1, 2, 3 & 4) are nullity in the eyes of law as the same have been issued without jurisdiction. The law is trite that unless and until the authority concerned has got any colour of authority to pass any punitive order/ punishment order, no order can be passed and if such order is passed, the same shall not sustain in the eyes of law. Therefore, the present case is not being tested on further merits but on the aforesaid legal point, the present writ petition is liable to be allowed.
Accordingly, the impugned orders dated 11.9.2020, 13.10.2020, 23.12.2020 and 8.7.2020 (Annexure No.1 to 4) are hereby quashed being illegal, arbitrary and without jurisdiction. A writ in the nature of mandamus is issued commanding the opposite parties to make payment of all admissible retiral dues of the petitioner including arrears of salary.
Since learned counsel for opposite party no.2 has informed the Court that opposite party no.2 is in serious financial crunch, therefore, it may be directed that the aforesaid dues be paid in six equal quarterly installments.
Therefore, bonafide submission of learned counsel for opposite party no.2 is worth considerable. Therefore, the opposite parties are directed to make payment of aforesaid dues to the petitioner in six equal quarterly installments. Payment of first installment shall be given to the petitioner within a month.
The writ petition is accordingly allowed.
Order Date :- 18.1.2021 RBS/-
[Rajesh Singh Chauhan,J.]