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Sunday, July 6, 2014

Service matter - Apex court held that Once the appellant had retired from service on 31.3.2009, 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.= Dev Prakash Tewari .. Appellant(s) -vs- U.P. Cooperative Institutional Service Board, Lucknow & Ors... Respondent(s) = 2014 - July Part - http://judis.nic.in/supremecourt/filename=41705

 Service matter - Apex court held that Once the appellant had retired from service on  31.3.2009,  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.=

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.=

  While dealing with the above case, the earlier decision in  Bhagirathi
Jena’s case (supra) 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.

9.    Once the appellant had retired from service on  31.3.2009,  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.

10.   The question has also  been  raised  in  the  appeal  with  regard  to
arrears of salary and allowances payable to the appellant during the  period
of his dismissal and upto  the  date  of  reinstatement.   Inasmuch  as  the
inquiry had lapsed, it is,  in  our  opinion,  obvious  that  the  appellant
would have to get the balance of the emoluments payable to him.

11.   The appeals are, therefore, allowed and the judgment and order of  the
High Court are set aside  and the respondents are directed  to  pay  arrears
of salary and allowances payable to the appellant and also to  pay  him  his
all the retiral benefits in accordance with the rules and regulations as  if
there had been no disciplinary  proceeding  or  order  passed  therein.   No
costs.
2014 - July Part - http://judis.nic.in/supremecourt/filename=41705

                                                                REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NO(s).5848-49  OF 2014
   [Arising out of Special Leave Petition (Civil) Nos.29550-29551 of 2010]



Dev Prakash Tewari                ..                Appellant(s)

                                    -vs-

U.P. Cooperative Institutional
Service Board, Lucknow & Ors...             Respondent(s)





                               J U D G M E N T



C. NAGAPPAN, J.

1.    Leave granted.



2.    These appeals are preferred  by  the  appellant  who  was  working  as
Assistant Engineer with  respondent  No.2.  A  disciplinary  proceeding  was
initiated under Rule 85 of the Uttar Pradesh Co-operative Employees  Service
Regulations, 1975, against him by serving a charge-sheet and  after  inquiry
he was dismissed from  service  by  order  dated  27.4.1988.  The  appellant
sought for quashing the said  order  by  filing  a  writ  petition  in  Writ
Petition No.4328(S/B) of 1988 on the file of the High  Court  of  Judicature
at Allahabad and the High Court held that the inquiry was not  conducted  in
accordance with the procedure stipulated  in  the  Regulation  85  since  no
opportunity was given to cross-examine the witness and  there  is  violation
of principles of natural justice and quashed the disciplinary proceeding  by
allowing the Writ Petition on 10.1.2006.    The  order  also  directed   for
reinstatement and payment of  back  wages  in  accordance  with  the  Rules.
Liberty was  also  granted  to  conduct  a  fresh  disciplinary  inquiry  in
accordance with the  Regulations.   Pursuant  to  the  order  the  appellant
joined duty on 26.4.2006.  Fresh disciplinary proceeding  was  initiated  by
order dated 7.7.2006, appointing Shri  G.S.  Srivastava,   Mukhya  Abhiyanta
as Inquiry Officer and it was pending.  Meanwhile the appellant reached  the
age of superannuation and retired from  service  as  Assistant  Engineer  on
31.3.2009.



3.    The appellant challenged the continuance  of  disciplinary  proceeding
after his retirement by filing Writ Petition  No.1919(SB)  of  2009  on  the
file of High Court of Judicature at  Allahabad,  Lucknow  Bench.   The  High
Court relying on the decision of this Court in  U.P. Cooperative  Federation
Ltd. and Others Vs. L.P.Rai [(2007) 7 SCC 81] held that there is  no  ground
to interfere with the disciplinary proceeding and directed  to  complete  it
within four months by the impugned order dated  18.12.2009.   The  appellant
filed Review Petition No.139 of 2010 and the High Court dismissed  the  same
by order dated 29.3.2010.  Challenging both the  orders  the  appellant  has
preferred  the present appeals.



4.    The learned counsel for the appellant contended that the  disciplinary
proceeding was not completed for more than three years and  in  the  absence
of  any  provision  in  the  Regulations   providing  for  continuation   of
disciplinary proceedings after retirement of the employee,  the  respondents
could not continue the disciplinary proceeding against the  appellant  after
his superannuation.  It is his further contention that  the High  Court  has
failed  to  appreciate  the  law  laid  down  by  this  Court   in   similar
circumstances in the decision reported  in  Bhagirathi  Jena  vs.  Board  of
Directors, O.S.F.C. and Others [(1999) 3 SCC 666] and for  the  said  reason
the impugned order is liable to be set aside.



5.     Per  contra  the  learned  counsel  appearing  for  the   respondents
contended that pursuant to the liberty given by the High Court in its  order
dated 10.1.2006 fresh disciplinary proceeding was initiated and as  held  by
this Court in its decision rendered  in  U.P.  Coop.  Federation  Ltd.  case
(supra) the right of the employer to hold a fresh inquiry cannot  be  denied
on the ground that the employee has  since  retired  from  service  and  the
impugned order is sustainable.



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’s case  (supra)  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.

7.    In the subsequent decision of this  Court  in  U.P.  Coop.  Federation
case (supra) 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.

8.    While dealing with the above case, the earlier decision in  Bhagirathi
Jena’s case (supra) 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.

9.    Once the appellant had retired from service on  31.3.2009,  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.

10.   The question has also  been  raised  in  the  appeal  with  regard  to
arrears of salary and allowances payable to the appellant during the  period
of his dismissal and upto  the  date  of  reinstatement.   Inasmuch  as  the
inquiry had lapsed, it is,  in  our  opinion,  obvious  that  the  appellant
would have to get the balance of the emoluments payable to him.

11.   The appeals are, therefore, allowed and the judgment and order of  the
High Court are set aside  and the respondents are directed  to  pay  arrears
of salary and allowances payable to the appellant and also to  pay  him  his
all the retiral benefits in accordance with the rules and regulations as  if
there had been no disciplinary  proceeding  or  order  passed  therein.   No
costs.



                                                               ……………………………J.
                                                               (T.S. Thakur)


                                                               ……………………………J.
                                                               (C. Nagappan)
New Delhi;
June 30, 2014


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