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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

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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

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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,

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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

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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 :

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"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

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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.

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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

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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