DEV PRAKASH TEWARI Vs U P COOPERATIVE INSTITUTAIONL SERV.&ORS
Bench: T.S. THAKUR,C NAGAPPAN
Case number: C.A. No.-005848-005849 / 2014
Diary number: 20012 / 2010
Advocates: T. MAHIPAL Vs
SUNIL KUMAR JAIN
Page 1
1
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
Page 2
2
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
Page 3
3
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,
Page 4
4
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
Page 5
5
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 :
Page 6
6
"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
Page 7
7
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.
Page 8
8
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
Page 9
9
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