1. Heard, Shri Ram Ji Trivedi, learned counsel for the petitioner and Shri Ratnesh Chandra, learned counsel for the respondents.
2. The petitioner has approached this Court challenging the order dated 16.11.2012 passed by respondent no.2 contained in Annexure No.1 to the writ petition by which the entire salary of the petitioner for the period of suspension has been forfeited as a measure of punishment. He has further prayed for a direction to release the entire amount of salary alongwith interest thereon in favour of the petitioner.
3. The brief facts of the case for adjudication of the present controversy are that the petitioner was posted as Sahayak Koshadhyaksh in Hardoi Depot, Hardoi. On 12.10.1998 he had fallen ill so he had sent the key of cash chest through his daughter which was handed over to one Shri Ambrish Kumar Shukla, who was senior centre in-charge at Hardoi Depot, Hardoi under whom the petitioner was posted. The petitioner was suspended by means of the order dated 14.10.1998 on the ground that the cash amount was found less on 12.10.1998. Thereafter, after preliminary enquiry, a charge-sheet dated 27.02.1999 was issued and served on the petitioner. The petitioner submitted his reply on 11.11.1999 in which charges levelled against him have been categorically denied. The petitioner was reinstated on the post by means of the order dated 13.04.2000, pending departmental enquiry. After conducting enquiry, the enquiry report was submitted, in pursuance of which a show cause notice dated 29.06.2000 was issued to the petitioner. The petitioner submitted his reply on 17.07.2000. Thereafter the order dated 23.09.2000 was passed by means of which the petitioner was dismissed from service and the direction was issued to recover a sum of Rs. 98,905.11/- from the petitioner.
4. The petitioner had challenged the said order in Writ Petition No.5463 (S/S) of 2000 filed before this Court. The said writ petition was allowed on 22.03.2012 as the material witness Shri Ambrish Kumar Shukla was not examined by the Inquiry Officer during the enquiry proceeding which was in contravention of the principles of natural justice and the order of dismissal dated 23.09.2000 was set-aside. However, the liberty was granted to the respondents to hold a fresh enquiry in the matter in question in accordance with law from the stage of submitting the reply by the petitioner to the charge-sheet, if so advised. It was further provided that if the same is done then enquiry proceedings shall be completed expeditiously and preferably within a period of three months from the date of receipt of certified copy of the order but the petitioner was directed to be reinstated forthwith. The salary / allowances of the intervening period and consequential benefits, payable to the petitioner were made dependent upon the result / decision taken by the competent authority in view of the fact stated in the order.
5. The said order was not complied therefore the petitioner preferred a contempt petition vide Cri. Misc. Case No.1483 (C) of 2012 in which the notices were issued to the regional manager. He preferred an application vide C.M. Application No.78333 of 2012 in Writ Petition No.5463 (S/S) of 2000 for extension of time to complete the enquiry and vide order dated 07.09.2012 one month time was allowed to comply the direction given in Writ Petition No.5463 (S/S) of 2000.
6. Being aggrieved, the petitioner preferred a Special Appeal Defective No.649 of 2012 challenging the order dated 22.03.2012 by which liberty was granted to hold an enquiry a fresh, if so advised and the order dated 07.09.2012 by which one month time was extended. However, the said special appeal has been dismissed as withdrawn by means of the order dated 18.02.2019 on an application moved by the petitioner.
7. It appears that in the meantime in pursuance of the liberty granted by this court, the respondent no.3 was appointed as Inquiry Officer. He completed the enquiry and submitted his report dated 28.09.2012 mentioning therein that the irregularities and mistake done by the petitioner does not come in the category of embezzlement and exonerated the petitioner from the charge of embezzlement but recorded that the petitioner has not properly exhausted his duties in proper manner. A show cause notice dated 06.10.2012, annexing a copy of enquiry report, was issued against the petitioner proposing the punishment as under:-
"सेवा से बाहर रहने की तिथि से कोई भी धनराशि देय न होने, सेवा काल के देयको का नियमानुसार देय होने एवं निलंबन अवधि का अवशेष वेतन जब्त किये जाने"
8. The petitioner submitted his reply dated 15.10.2012 against the show cause notice. Thereafter the punishment order dated 16.11.2012 has been passed by means of which the salary for the period, the petitioner was out of job on account of dismissal and the remaining salary for the period of suspension, has been forfeited. However taking a lenient view, the order has been passed to make the payment of remaining service period in accordance with law. Being aggrieved the petitioner has approached this court by means of the present writ petition challenging the same.
9. Submission of learned counsel for the petitioner is that the enquiry was held against the petitioner in violation of principles of natural justice for the allegation of embezzlement and the petitioner was dismissed from service by means of the order dated 23.09.2000. The petitioner had challenged the same by means of the Writ Petition No.5463 (S/S) of 2000 which was allowed by means of the order dated 22.03.2012 granting liberty to the respondents to hold enquiry a fresh in accordance with law, if so advised from the stage of submission of reply to the charge-sheet.
10. Learned counsel for the petitioner submitted that there is no provision of enquiry after retirement in respondent-Corporation therefore the enquiry could not have been held and salary of petitioner forfeited. This court had granted liberty to hold enquiry a fresh in accordance with law, if so advised by means of the order dated 22.03.2012 (Supra). Therefore enquiry could have been held only if permissible in accordance with law after retirement. The petitioner had retired after attaining the age of superannuation in the year 2005. Therefore, no enquiry could have been held or continued thereafter so the impugned punishment order is liable to be set-aside merely on this ground as the enquiry was held after retirement of the petitioner.
11. He further submitted that the inquiry was again held and the impugned order has again been passed in violation of principles of natural justice. The charge of embezzlement was not found proved against the petitioner and merely the petitioner has been found to have been negligent in discharging his duties and violation of the rules / directions of the department without any finding. The petitioner has been awarded the punishment which is not provided under the rules. Since the petitioner has been exonerated of the charge of embezzlement levelled in the charge-sheet, the petitioner is entitled for the salary and other allowances of the period in which the petitioner was out of service and the period of suspension alongwith interest and accordingly he prayed for allowing the writ petition and quashing the impugned order dated 16.11.2012.
12. Per contra, learned counsel for the respondents submitted that the inquiry was conducted as per the liberty granted by this court in which the petitioner was afforded sufficient opportunity. But despite repeated date fixed by the Inquiry Officer the petitioner had neither appeared nor cross-examined any witness. Therefore the Inquiry Officer submitted the enquiry report dated 28.09.2012 in which the petitioner has been found guilty of negligent in discharging the duties and liabilities of the post and violation of conduct code and the departmental rules / directions. Therefore the show cause notice dated 06.10.2012 was rightly issued and after considering the reply submitted by the petitioner the impugned order has been passed forfeiting the salary of the period in which the petitioner was out of service and the remaining salary of the period of suspension as he had not worked during that period. However the dues of the remaining service period has been paid to the petitioner in accordance with law. There is no illegality or infirmity in the order passed by this court. The punishment order has rightly been passed looking to the gravity of the charges levelled and proved against the petitioner.
13. I have considered the submissions of learned counsel for the parties and perused the material available on record.
14. The petitioner who was working as Sahayak Koshadhyaksh, at Hardoi Depot, Hordoi was dismissed from service by means of order dated 23.09.2000 and a direction was issued to recover a sum of Rs. 98,905.11/- from the petitioner. The petitioner had challenged the same in Writ Petition No.5463 (S/S) of 2000. The writ petition was allowed on 22.03.2012 as the material witness Shri Ambrish Kumar Shukla was not examined by the Inquiry Officer during the enquiry proceedings and violation of principles of natural justice. However, the liberty was granted to respondents to hold a fresh enquiry in accordance with law, if so advised. In pursuance thereof the enquiry was held and the punishment of forfeiture of the salary of the period the petitioner was out of service and the remaining salary of the suspension period has been awarded however the dues of remaining service period are payable in accordance with law.
15. It is not in dispute that there is no provision of enquiry in the respondent-corporation after retirement of the employee so the enquiry could not have been held or continued in view of law laid down by the Hon'ble Supreme Court in the case of Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and others;1999(3) SCC 666 and Dev Prakash Tiwari Vs. Uttar Pradesh Cooperative Institutional Service Board,Lucknow and others; (2014) 7 SCC 260 and a Division Bench judgment and order dated 05.07.2011 passed in writ petition Service Single no.989 of 2010;P.P.Pandey Versus State of U.P. & others by this Court. However, learned counsel for the respondents submitted that since the liberty was granted by this court and on application made by the respondent-corporation the time was also extended for holding the enquiry, there was no illegality or infirmity in the enquiry held against the petitioner, as it was as per mandate of this court and the appeal filed by the petitioner in this regard has also been withdrawn by him. Therefore the question which falls for consideration is as to whether the enquiry could have been held if the liberty was granted by this court or not even if there is no such provision.
16. This court while allowing the Writ Petition No.5463 (S/S) of 2000 filed by the petitioner, challenging the punishment order of dismissal, had provided that the respondents if so advised may hold a fresh enquiry in the matter in question in accordance with law from the stage submitting the reply by the petitioner to the charge-sheet. Therefore, it is apparent that this court had provided that if so advised, the respondents may hold enquiry a fresh in the matter in accordance with law i.e if it is advised the enquiry may be held if permissible in accordance with law as per procedure prescribed. But admittedly in the respondent-corporation there is no provision to hold or continue the enquiry after retirement so the enquiry could not have been held or continued in accordance with law as the petitioner had already retired. It has also not been brought on record as to whether any advise was given in this regard. This court is of the view that if there was no such provision, no advise could also have been given for holding enquiry a fresh. Therefore, the contention of the learned counsel for the respondent is misconceived and not tenable. The liberty granted by this court can not be treated as a mandate to hold the enquiry a fresh. It was only a liberty to hold the enquiry a fresh if the law permits and if so advised. Therefore this court is of the view that enquiry has been held against the petitioner without authority of law.
17. The Hon'ble Supreme Court, in the case of Dev Prakash Tiwari Vs. Uttar Pradesh Cooperative Institutional Service Board,Lucknow and others; (2014) 7 SCC 260, in which the punishment order was quashed by the High Court on the ground of violation of principles of natural justice and liberty was granted to initiate the enquiry in accordance with the regulations and the petitioner had attained the age of superannuation and retired during pendency of enquiry has held that in absence of provision of conducting a disciplinary enquiry after retirement there was no authority vested in the Corporation for continuing the departmental enquiry. The relevant paragraphs 5 to 8 are reproduced as under:-
5. 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 [D.P. Tewari v. U.P. Coop. Institutional Service Board, Writ Petition (S/B) No. 4328 of 1988, order dated 10-1-2006 (All)] 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 Cooperative Societies Employees' Service Regulations, 1975, for initiation or continuation of disciplinary proceeding after retirement of the appellant nor is there 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 case [Bhagirathi Jenav. Orissa State Financial Corpn., (1999) 3 SCC 666 : 1999 SCC (L&S) 804] and it was laid down as follows: (SCC pp. 668-69, paras 5-7) "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 30-6-1995, 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."
6. In a subsequent decision of this Court in U.P. Coop. Federation case [U.P. Coop. Federation Ltd. v. L.P. Rai, (2007) 7 SCC 81 : (2007) 2 SCC (L&S) 598] 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.
7.While dealing with the above case, the earlier decision in Bhagirathi Jena case [Bhagirathi Jena v. Orissa State Financial Corpn., (1999) 3 SCC 666 : 1999 SCC (L&S) 804] 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.
8. Once the appellant had retired from service on 31.03.2009, there was no authority vested with respondents for continuing the disciplinary proceedings even for the purpose of imposing reduction in the retiral benefits payable to the appellant. In the absence of such an authority it be held that the enquiry had lapsed and the appellant was entitled to get full retiral benefits."
18. This court in the case of V.K. Jaisawal Vs. U.P. State Road Transport Corporation and Others; (2017) 1 UPLBEC 823 has held in paragraph 10 as under:-
"10. That leaves this Court to deal with the last submission of Sri Mishra that the judgment and order of this Court dated 2.11.1995 conferred authority upon the Corporation to continue and conclude the enquiry despite the superannuation of the petitioner. It becomes pertinent to point out here that the judgment and order of the Court dated 2.11.1995 required the Corporation to conclude the proceedings within a period of eight weeks therefrom. Admittedly, this period of eight weeks had expired long before the passing of the orders impugned. This Court has not been referred to any material or circumstance which may have constrained or injuncted the Corporation from proceeding ex parte and concluding the enquiry in case it was its contention that the petitioner was deliberately not permitting the conclusion of the enquiry and adopting a procedure of non cooperation. From the facts notices herein above it appears that the Corporation fell into deep slumber post 30.041996 till it issued a notice on 3.021998. Even otherwise this Court finds itself unable to view or read the order dated 2.11.1995 as conferring or clothing the Corporation with jurisdiction to continue with a departmental enquiry against a delinquent employee post his retirement in the absence of any statutory provision, rules or regulation conferring such authority upon the Corporation."
19. This court has also examined the impugned order of punishment and found that the enquiry was held in view of liberty granted by this court as the order was quashed on account of not producing Shri Ambrish Kumar Shukla, a material witness in the enquiry in violation of principles of natural justice. This court finds from the material available on records that again the enquiry has been held in violation of principles of natural justice. and recording evidence of Shri Ambrish Kumar Shukla. Therefore, this court is of the view that fundamental flaws in the enquiry on account of which the earlier writ petition was allowed and the punishment order was quashed have also not been rectified which clearly establishes failure on the part of the respondent-corporation to follow the due process of law.
20. It is also pertinent to note that no punishment has been awarded to the petitioner and the salary has been withheld by way of punishment on the ground that the petitioner has not worked during the periods mentioned therein. It is not a punishment provided under rules therefore the said punishment could also not have been awarded.
21. In view of above, this court is of the considered opinion that the entire proceeding culminating in the passing of the impugned order as well as the impugned order apart from being without authority of law is in flagrant violation of the principles of natural justice, law and the observations of this court in earlier round of litigation. Therefore it has no legs to stand at all and the writ petition is liable to be allowed.
22. Accordingly, the writ petition is allowed and the impugned order dated 16.11.2012 is hereby quashed with all consequential benefits of service, which shall be provided to the petitioner within three months. No order as to costs.