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.
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.
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.
REPORTABLE
IN THE SUPREME
COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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
-vs‑
U.P. Cooperative Institutional
Service Board, Lucknow & Ors.
Date of Order- June 30,
2014
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.
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.
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) thejight 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.
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.
