Hon'ble S.C. Chaurasia,J.
Affidavits have been exchanged between the parties. With the consent of the parties' counsel, we decide the writ petition finally at admission stage.
Heard Mr. R.K. Chaudhary, learned counsel for the petitioner and Mr. R.K. Upadhyay, learned counsel for the respondents and perused the record.
The claimant respondent was posted as Assistant Regional Manager in the U.P. State Ware Housing Corporation (in short, corporation). He was served with a charge-sheet on 29.8.2006. Disciplinary proceedings were initiated against the claimant respondent vide order dated 19.4.2004 with regard to certain negligence and carelessness committed by the respondent No.1 during the course of employment causing loss to the corporation. The respondent No.1 retired from service on 31.7.2004. Thereafter, on 2.5.2006, a show cause notice was served calling upon him to submit a reply with regard to certain loss caused to the corporation. The respondent No.1 submitted a reply on 16.6.2006 and after considering the reply submitted by the respondent, a charge-sheet dated 29.8.2006 was served, in response to which the petitioner submitted a response. However, it has been stated by the petitioner's counsel that no reply was submitted by the claimant respondent.
The disciplinary proceedings were subject matter of dispute before the tribunal. The claimant respondent assailed the initiation of the disciplinary proceedings against him on the ground that it is violative of the provisions of Regulation 351-A of Civil Services Regulations. It was stated before the tribunal by the claimant respondent that no permission was accorded to initiate disciplinary proceedings by the Managing Director in terms of Regulation 351-A of Civil Services Regulations. The tribunal has allowed the claim petition and set aside the disciplinary proceedings with a further direction to pay cost.
While assailing the impugned order, it is submitted by the learned counsel appearing for the petitioner that Regulation 351-A of Civil Services Regulations is not applicable with regard to employees of corporation since the corporation has not adopted the government rules or regulations and it is covered by independent service rules. However, it has been admitted by the petitioner's counsel that in service rules, no such provision has been made to initiate enquiry against a retired employee. He submits that the provision as given in Regulation 351-A of Civil Services Regulations has been followed while holding the enquiry.
In response to the argument, the learned counsel for the private respondent submits that in absence of any provision as contained in Regulation 351-A of Civil Services Regulations, the petitioner lacks jurisdiction to initiate enquiry against the retired employee. He further submits that action against a retired employee may be taken in accordance with existing rules or regulations and not otherwise. He relied upon the cases reported in AIR 1990 SC 463 C.L. Verma versus State of M.P and another and AIR 1999 SC 1841 Bhagirathi Jena versus Board of Directors, O.S.F.C and others.
During the course of argument, learned counsel for the petitioner admitted that the Service Rules and Regulations of the corporation do not contain any provision to initiate disciplinary proceedings against the retired employee. It has also been admitted that the Board of the corporation has not adopted the provisions contained in Regulation 351-A of Civil Services Regulations to regulate the service conditions of the employees.
Keeping in view the admitted facts, the argument advanced by the learned counsel for the respondents seems to be correct that in absence of any provision, the petitioner has got no right to initiate or continue with the disciplinary proceedings against a retired employee. The case of C.L. Verma(supra) also relates to alike controversy. Their Lordships of Hon'ble Supreme Court held that in absence of any specific provision, no disciplinary proceeding may be initiated against the retired employee because after retirement, relationship between master and servant comes to an end. Relevant portion from the judgment of C.L. Verma(supra) is reproduced as under :
"6. The question which arose for consideration in the writ petition before the High Court at the instance of the appellant was whether in the face of the mandate in R. 29 the administrative order could operate. It is not the stand of the State Government that the order dated 15th of May, 1981, is one under the proviso to R. 29. In fact, the tenor of the proviso clearly indicates that it is intended to cover specific cases and individual employee. An administrative instruction cannot compete with a statutory rule and if there be contrary provisions in the rule the administrative instructions must give way and the rule shall prevail. We are, therefore, of the view that the appellant, in terms of R.29, ceased to be a Government employee on his attaining the age of 58 years, two days prior to the order of dismissal. In view of the fact that he had already superannuated, Government had no right to deal with him in its disciplinary jurisdiction available in regard to employees. The ratio of the decision in R.T. Rangachari v. Secretary of State for India in Privy Council, 64 Ind. App. 40 : (AIR 1937 PC 27) supports the position."
In the case reported in AIR 1999 SC 1841 Bhagirathi Jena versus Board of Directors, O.S.F.C and others, their Lordships of Hon'ble Supreme Court have reiterated the aforesaid proposition of law and held that the disciplinary proceedings cannot continue after superannuation unless it is provided under the Service Rules or Regulation. Relevant portion from the judgment of Bhagirathi Jena (supra) is reproduced as under :
"6. In view of the absence of such 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 30.6.95, 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 authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.
8.The question has also been raised in the appeal in regard to the payment of arrears of salary and other allowances payable to the appellant during the period he was kept under suspension and up to the date of superannuation. Inasmuch as the enquiry had lapsed, it is, in our opinion, obvious that the appellant would have to get the balance of the emoluments payable to him after deducting the suspension allowance that was paid to him during the abovesaid period.
9.The appeal is therefore allowed directing the respondent to pay arrears of salary and allowances payable to him during the period of suspension up to the date of superannuation after deducting the suspension allowance paid to him for the said period and also to pay the appellant, all the retiral benefits otherwise payable to him in accordance with rules and regulations applicable, as if there had been no disciplinary enquiry or order passed therein."
In one other case reported in (2007)9 SCC 698 State of U.P and others versus R.C. Mishra, Hon'ble Supreme Court while interpreting the provisions contained in Regulation 351-A of the Civil Services Regulations held that in case an enquiry is initiated before the age of superannuation, then, in such a situation, it shall not be necessary to receive fresh approval from the competent authority under Regulation 351-A read with Regulation 470 of the Civil Services Regulations. Relevant portion from the judgment of R.C. Mishra(supra) is reproduced as under :
"10. A combined reading of the proviso and the Explanation would show that there is no fetter or limitation of any kind for instituting departmental proceedings against an officer if he has not attained the age of superannuation and has not retired from service. If an officer is either placed under suspension or charges are issued to him prior to his attaining the age of superannuation, the departmental proceedings so instituted can validly continue even after he has attained the age of superannuation and has retired and the limitation imposed by sub-clause (I) or sub-clause (ii) of Clause (a) of proviso to Regulation 351-A will not apply. It is only where an officer is not placed under suspension or charges are not issued to him while he is in service and departmental proceedings are instituted against him under Regulation 351-A after he has attained the age of superannuation and has retired from service and is not under re-employment, that the limitations imposed by sub-clauses (I) and (ii) of Proviso (a) shall come into play."
However, the case of R.C. Mishra(supra) seems to be not applicable under the facts and circumstances of the present case for two reasons. The case of R.C. Mishra (supra) relates to a situation where the service condition was governed by Regulation 351-A of the Civil Services Regulations whereas in the present case, there is no such rule regulating the service conditions of the retired employee of the corporation and secondly, in the present case, the charge sheet was served after retirement.
Now, it is settled law that the enquiry shall be deemed to be initiated from the date when the charge-sheet is served on an employee.
In view of above, present writ petition lacks merit. It is accordingly dismissed. The order passed by the tribunal is confirmed.
Order Date :- 20.5.2011 kkb/