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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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