No disciplinary proceeding after superannuation unless there


Court :
Allahabad High Court

Brief :

Citation :

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).
HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved
Civil Misc. Writ Petition No. 13986 of 1996

Rajya Krishi Utpadan Mandi Parishad and another ... Petitioners
Verses
Public Services Tribunal UP and others ... Respondents

Hon'ble Yatindra Singh, J
Hon'ble Ran Vijai Singh, J
(Delivered by Hon'ble Yatindra Singh, J)
1. The main question involved in this writ petition is, whether--in absence of any rule or regulation--disciplinary proceedings can continue after a charged employee attains the age of superannuation.

THE FACTS
2. Respondent no.2 (the contesting respondent) was the Secretary of Krishi Utpadan Mandi Samiti, Agra. It is a class-III post. He was earlier a government employee but was absorbed in the service of the State Agricultural Produce Market Board (the Board). His services are governed by the UP Agriculture Produce Market Committees (Centralised) Services Regulations, 1984 (the Service Regulations).

3. The contesting respondent was given a charge-sheet on 12.12.1985 that included ten charges. He was also suspended on 25.1.1988. He was given second charge-sheet on 3.8.1988. The second charge sheet included five charges.

4. The inquiry officer submitted his report on 29.8.1988. The inquiry officer held that:
First charge sheet-- Charge no. 4 and charge no. 10 partly proved.
Second charge sheet--Charge nos. 3 to 5 proved.

5. The disciplinary authority partly disagreed with the findings of the inquiry officer in respect of some of the charges that were held to be not proved. He recorded the following findings:
(a) First charge-sheet:
(i)Charges nos. 1 to 3 and 6 were held to be not proved by the inquiry officer. This finding was accepted.
(ii)Charge no. 4 was held to be proved by the inquiry officer. This finding was also accepted.
(iii)Charge no. 5 was held to be not proved by the inquiry officer. This was not accepted and it was held to be partly proved.
(iv)Charge nos. 7 to 9 were held to be not proved by the inquiry officer. This finding was not accepted. They were held to be proved.
(v)Charge no. 10 was held to be partly proved by the inquiry officer. This finding was accepted.
(b) Second charge-sheet:
(i)Charge no. 1 was held to be not proved by the inquiry officer. This finding was not accepted and it was held to be partly proved.
(ii)Charge no.2 was held to be not proved by the inquiry officer. This finding was accepted.
(iii)Charge nos. 3 to 5 were held to be proved by the inquiry officer. This finding was accepted.
On the basis of these findings, the disciplinary authority passed an order of removal on 9.12.1988.

6. The contesting respondent filed an appeal. It was dismissed by non-speaking order on 3.2.1990.

7. The contesting respondent filed an application before the UP Public Services Tribunal Lucknow (the Tribunal). It was allowed on 27.1.1996 holding that:
(i)No reasonable opportunity was given to the contesting respondent.
(ii) During pendency of the proceeding before the Tribunal, the contesting respondent reached the age of superannuation on 30.1.1994;
(iii)The contesting respondent had continued in service till the age of superannuation and is entitled to arrears of salary and other service benefits alongwith 18% interest.

8. The present writ petition has been filed by the Board against the aforesaid order of the Tribunal.

POINT FOR DETERMINATION
9. We have heard Sri BD Madhyanh, Senior Advocate, Sri Udai Chandani for the petitioners and Sri RK Awasthi counsel for the contesting respondent (See Endnote-1). The following points arise for determination in this case:
(i)Whether the contesting respondent was given reasonable opportunity to defend himself in the inquiry.
(ii)Whether any prejudice has been caused to the contesting respondent, due to non observance of principles of natural of justice.
(iii)Whether it is a fit case where the disciplinary proceedings should be dropped against the contesting respondent.
(iv)The contesting respondent reached the age of superannuation on 31.1.1994. In these circumstances, whether at this stage any disciplinary inquiry can continue against the contesting respondent.
(v)Whether the award of 18% interest on salary and other service benefit is correct.


POINT NO. 1: NO OPPORTUNITY
10. The Tribunal has recorded a finding in paragraph 7 and 8 of its judgement that the inquiry officer had not fixed any date for recording evidence of the contesting respondent: he has been denied of reasonable opportunity to lead his evidence in rebuttal. In the writ petition it is not asserted that this finding is wrong. It is also not asserted that any date was fixed for evidence of the contesting respondent. In view of the same, this finding cannot be set aside.

11. The counsel for the petitioners submitted:
That the evidence against the contesting respondent was documentary;
No oral evidence was to be recorded; and
If the contesting respondent wanted, he could have requested for affording opportunity to produce his evidence.

12. In the disciplinary proceedings, it is necessary to fix a date for the evidence of the charged employee or in case the charged employee does not want to lead any evidence then this fact has to be recorded in the disciplinary proceedings. This has not been done. At least, we have not been pointed out any order or noting to this effect. In view of the same, there was violation of principles of natural justice.

POINT NO. 2 : PREJUDICE WAS CAUSED
13. The counsel for the petitioners submitted that the removal order can not be set aside unless prejudice is caused due to violation of principles of natural justice. In support of this submission, the counsel for the petitioner has placed reliance on the following decisions:
(i)Syndicate Bank and other vs. Venkatesh Guru Rao Kurati: (2006) 3 SCC 150 (The VenkateshKurati case)
(ii)State of T.N. vs. Thiru KV Perumal and others: (1996) 5 SCC 474 (The ThiruPeruMal case)
(iii)Suresh Pathrella vs. Oriental Bank of Commerce: (2206) 10 SCC 572 (The SureshPathrella case)
(iv)State of UP vs. Harendra Arora and another: (2001) 6 SCC 392 ( The HarendraArora Case).

14. The aforesaid cases are not applicable to the facts of the present case. The reasons are as follows:
(i)In the VenkateshKurati case some documents were not supplied to the charged employee. These documents were not relied upon by the Inquiry Officer. It is in this light that the Court held (paragraph 18) that unless prejudice is caused by non supply of documents the order cannot be set aside.
(ii)In the ThiruPiruMal case, the charged employee had asked for some documents. The department had called upon him to explain the relevance of those documents. There was nothing to show that the charged employee ever explained the relevancy of the same. The Tribunal also did not go into the question whether the documents asked for were relevant or not. It is in this light that the court held (paragraph 4) that the charged employee has to explain whether non supply of documents caused prejudice or not.
(iii)In the SureshPatharella case, the charged employee was working in a bank. A new account was opened in the Bank in the name of one Mr. GC Luthra; payment was received in the same; and the money was taken out. In the disciplinary proceeding, Mr. GC Luthara had stated that he never received Rs.10 lakhs and also denied to have issued any receipt for Rs. 10 lakhs. His statement was accepted by the charged employee. There was no allegation of bias or denial of principles of natural justice. It is in this light the court held (paragraph 3) that no prejudice has been caused to the charged employee if the copy of the handwriting expert confirming the statement of Mr. GC Luthra in the cross-examination is not furnished to him.
(iv) In the HarendraArora case, the inquiry report was not supplied to the charged officer. It is in light of this that the court held (paragraph 12) that, apart from violation of natural justice, prejudice is required to be proved.

15. The facts of the present case are different. In this case, the findings recorded by the Tribunal (which are upheld by us) are that no date was fixed for evidence of the contesting respondent. This is prejudice by itself. No other prejudice is required to be proved. In view of this the removal order dated 9.12.1988 and appellate order dated 3.2.1990 were rightly quashed by the Tribunal.

16. The counsel for the petitioners submitted that:
Entire case depends on the documentary evidence;
The contesting respondent has neither pleaded before the Tribunal nor stated in the counter affidavit here as to what evidence he wanted to lead; and
In absence of the same, it cannot be said that any prejudice was caused.

17. This is not correct. The contesting respondent in his reply dated 18.1.1986 to the first charge-sheet (last paragraph), reply dated 24.8.1988 to the second charge-sheet (third last paragraph), and appeal (ground no. 10) had specifically requested that opportunity be given so that he may show documents and explain the circumstances. In any case, it was the duty of the enquiry officer to fix the date for evidence of the contesting respondent and hear him.

18. The Enquiry officer had also exonerated the contesting respondent on most of the charges. These finding have been reversed by the disciplinary authority without any opportunity. In all fairness, the disciplinary authority before reversing those finding ought to have heard the contesting respondent. This was not done. In these circumstances it cannot be said that no prejudice was caused.

POINTS NO. 3: NOT A FIT CASE TO DROP INQUIRY
19. The quashing of the punishment and appellate order on the ground of violation of principles of natural justice does not mean that disciplinary proceedings have been quashed. Whenever an order is quashed on the ground of violation of natural justice, the original proceedings revive unless,
The proceedings are also quashed; or
The permission to conduct the fresh proceedings is refused; or
Under the law, the proceeding can not continue.

20. In the present case the punishment order as well as appellate order are being quashed on the ground of violation of natural justice. The result is that the disciplinary proceedings revive; they will be deemed to be pending: they have to be proceeded with and concluded unless,
We refuse to grant permission to continue them; or
They can not continue under law.
Let's consider whether on the fact of this case the disciplinary proceedings should be dropped.

21. The counsel for the contesting respondent submitted that the petitioner should not be permitted to continue with disciplinary proceeding in view of the following decisions:
(i)Kashinath Dikshita vs. Union of India and others: AIR 1986 SC 2118 (paragraph 13);
(ii)R. Prarangusam vs. Chief Electrical Inspector and another: 1996 (10) SCC 55 (paragraph 3);
(iii)Prafulla Chandra Mohapatra vs. State of Orissa: AIR 1992 SC 2209 (paragraph 9).

22. In the above mentioned cases, the court quashed the punishment order (essentially on the grounds of violation of natural justice) and then considering the facts and circumstances of those cases held that:
The employer should not be permitted to continue with the disciplinary proceeding; or
It was not proper to start the disciplinary proceeding.
These cases are not an authority for the proposition that in every case permission is to be refused. This has to be considered according to the facts of each case.

23. It is correct that much time has passed. However--considering that the contesting respondent was charged with financial irregularity and the vigilance report-- it is not a fit case where permission to continue the disciplinary proceeding should be refused. Nevertheless, the disciplinary proceeding can go on only if it is permitted under the law. This depends upon the answer to the fourth point.

POINT NO. 4: NO DISCIPLINARY PROCEEDING UNLESS THERE IS PROVISION

24. The Board, with prior approval of the State Government, has framed the Service Regulations. Regulation 43 relates to disciplinary proceeding. It is as follows:
43. The rules relating to disciplinary proceeding, appeals and representations against punishment, applicable to the employees of the State Government shall mutatis mutandis apply to the members of the centralised service.

25. This regulation applies the rules relating to disciplinary proceeding, appeal and representations against punishment, applicable to the employees of the State Government, to the employees of the Board with appropriate changes that should be made in respect to the employees of the Board.

26. The following rules were applicable to the government servant at the time of disciplinary inquiry:
The Civil Services (Classification, Control, and Appeal) Rules, 1930 (as notified in the State of UP) (the 1930 Rules);
The Punishment and Appeal Rules for Subordinate Services Uttar Pradesh, 1932 (the 1932 Rules); and
Civil Services Regulation 351-A.

27. At present, UP Government Servant (Discipline and Appeal) Rules, 1999 (the 1999 Rules) are in force and the 1930 Rules and the 1932 Rules have been rescinded. The inquiry, if it is to be conducted then, has to be done in the light of the 1999 Rules {see Rule 17(2) of the 1999 Rules} and Civil Services Regulation 351-A. However, it is not material whether the 1930 and 1932 Rules or the 1999 Rules are applicable because there is no difference in them on the question whether disciplinary proceeding can continue after age of superannuation.

28. The counsel for the contesting respondent submitted that:
The contesting respondent reached the age of superannuation during pendency of the case before the Tribunal on 31.1.1994;
The disciplinary proceeding after date of superannuation can continue only if article 351-A of the Civil Services Regulations is applicable;
Article 351-A is applicable only to pensionable posts;
The post of the petitioner is not pensionable and as such article 351-A is not applicable;
There is no other provision under which disciplinary proceeding can continue after superannuation.
The entire disciplinary proceeding has become infructuous after superannuation and are to be dropped.

Article 351-A of Civil Services Regulations--Not Applicable
29. Article 351-A of the Civil Services Regulation empowers the Governor to,
Withhold or withdraw pension or any part of it permanently or for the specified period; or
Order for recovery from the pension for any pecuniary loss caused to the government.

30. In case any post is not pensionable then Article 351-A is not be applicable as there is no question of any recovery from the pension of that person. The post of the petitioner is not pensionable and as such it is not applicable.

No Other Provision
31. No other rule or regulation has been pointed out to show that any deduction can be made from the post retirement benefits or disciplinary proceeding can continue after superannuation. The question is--in absence of any such provision--can disciplinary proceeding go on?

32. In this regard, the following cases were cited before us. In our opinion, they do not help in deciding the controversy: the reasons are as follows:
(a) Subhash Chandra Sharma vs. Managing Director and another: 2000(1) UPLBEC 541 (paragraph 9); Babu Lal vs. State of UP and others: 2002 Lab IC 3595 (paragraph 15); UP Cooperative Federation Ltd. Vs. LP Rai: 2007(7) SCC 81 (paragraph 5). These are the cases, where departmental inquiry was quashed and the court also held that the fresh inquiry can be done. There is no discussion on the question whether the disciplinary proceeding can continue after superannuation or not.
(b) Union of India and others vs. Shri B. Dev: JT 1998(5) SC 480 and Krishna Kumar (decd.) through L.Rs. vs. State of UP and others: 1998 (4) AWC 595. In these cases, the disciplinary proceeding was permitted to continue after superannuation. However, there was provision to continue the proceeding and deduction from pension could be made. It appears that posts were pensionable.
(c) Radhey Kant Khare vs. UP Cooperative Sugar Factories Federation Ltd.: 2003 (1) ESC 427; Town Area Committee, Jalalabad, vs. Jagdish Prasad and others: AIR 1978 SC 1407. In these cases, the punishment order was quashed and further disciplinary proceedings were not held. However, no argument was advanced before the court whether disciplinary proceeding should be permitted to continue. There is no discussion on the question whether the disciplinary proceeding can proceed after age of superannuation or not.
(d) CL Verma vs. State of MP and others: 1989 (59) FLR 786. This was the case, where disciplinary proceeding was started after retirement. The court held that as there is no provision for starting disciplinary proceeding after retirement, the charged employee can not be proceeded with. This case is not applicable here as in the present case not only the disciplinary proceedings were started at the time when the contesting respondent was in service but they were completed and the removal as well as appellate orders were passed when the contesting respondent was in service.
(e) BJ Shelat vs. State of Gujrat and others: AIR 1978 SC 1109 (10); Union of India and others vs. Sayed Muzaffar Mir: AIR 1995 SC 176 (4). In these cases, the employee had sought voluntary retirement. The government has option to refuse it on specific grounds and the fact that disciplinary proceedings are contemplated is one such ground. The government did not exercise the option to withhold the voluntary retirement within time. It is in this light that the court held that once an employee has voluntarily retired the disciplinary proceeding can not be started.

33. The counsel for the contesting responded has cited Bhagirathi Jena vs. Board of Directors OSFC and others: AIR 1999 SC 1841 (the BhagirathiJena case); and the two other decisions of our court reported in Dr. RB Agnihotri vs. State of UP and other; 2000(2) ESC 915 and Ravindra Singh Rathor vs. District Inspector of Schools Etawah and others: 2004 (1) AWC 310. The decisions of our court rely upon the BhagirathiJena case. These cases are relevant for deciding the issue involved in the present case.

34. In the BhagirathiJena case, the charged employee was suspended and disciplinary inquiry was started before his superannuation. However the inquiry could not finish before his superannuation. The charged employee was relieved after superannuation without prejudice to the claim of the employer. The disciplinary proceeding were continued after his superannuation. The charged employee filed a writ petition, which was dismissed by the High Court. The charged employee took the matter to the Supreme Court.

35. The Supreme Court, after noticing that there was neither any specific provision to deduct the amount from the provident fund nor any provision to continue disciplinary proceeding, held:
'In view of the absence of such provision in the above said 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 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 authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.'

36. The position in this case is similar. The effect of quashing of punishment order is that the disciplinary proceedings revive and are pending. No provision has been pointed out for continuing the departmental enquiry or making deduction from post retiral benefits (apart from Article 351-A, which we have held is not applicable). In view of the same, the disciplinary proceeding cannot go on: the petitioner is entitled to the salary and post retiral benefits (minus the subsistence allowance that he has already received)

37. The counsel for the petitioners submitted that:
(i) Depending on the finding of the inquiry, the disciplinary authority is required to pass an order for the period for which the charged employee is kept under suspension. This order determines,
(a)whether the charged employee is to be treated on duty or not; and
(b)Whether any amount other than subsistence allowance is to be paid.
Unless the disciplinary proceeding are concluded, this order can not be passed. This order can not be automatically in favour of the charged employee without there being finding in the disciplinary proceeding. Even if no punishment can be given these orders are to be passed. The inquiry does not lapse.
(ii) If the disciplinary proceeding cannot be continued after the age of superannuation then it has other consequences. Often disciplinary proceedings take some time. In case they are conducted at the late stage of career then they may not conclude. This may happen for many reasons, including manipulation of the charged employee. Should such employees be given benefit of their own fault.
(iii) Often the delay does not take place because of the employer. It is because of the charged employees who wishes the proceeding may not end. The delay may also occasion due to pendency of the proceeding in the law court (as in the present case). The act of the court prejudices no one: should it prejudice the employer.
(iv) The effect of not conducting disciplinary inquiry is that an employee (who might have embezzled) may go scot free.

38. There is some force in the submissions of the counsel for the petitioners but the BhagirathiJena case is binding upon us and we hold that the disciplinary proceeding has lapsed; it can not continue after superannuation.

POINT NO. 5: NO INTEREST SHOULD BE AWARDED
39. The Tribunal has awarded 18% interest on the amount to be paid to the contesting respondent. Is it correct?

40. The contesting respondent was charged with the financial irregularity. His services were removed on that ground. Under point no.3 we have held that it is not a fit case to refuse permission to conduct disciplinary proceedings. However, the disciplinary proceeding can not be taken to the logical end under the law, as it now stands. In these circumstances there is no justification to grant any interest.

41. The petitioner may be given and post retiral benefits and arrears of salary (minus the subsistence allowance) within three months. In case the amount is not paid within three months from the date of judgement then the contesting respondent shall be entitled to six percent simple interest on the amount after three months from the date of this judgement.

SOME OBSERVATIONS
42. We have held that once the age of superannuation is reached then disciplinary proceeding cannot go in absence of any specific rule/regulation. The petitioners may consider framing appropriate Rule/Regulation in this regard.

CONCLUSION
43. Our conclusions are as follows:
(a) The inquiry is vitiated due to non observance of principle of natural justice and prejudice was caused to the contesting respondent.
(b) The post of contesting respondent is non-pensionable. Article 351-A of Civil Services Regulation is not applicable. After the age of superannuation, the disciplinary proceeding can not go on in absence of any specific provision.
(c) The contesting respondent is entitled to post retiral benefit as well as arrears of salary (minus the subsistence allowance paid to him). However, he is not entitled to any interest on the amount payable to him.

44. In view of our conclusions, the writ petition is partly allowed. The interest part of the order of the Tribunal is quashed. The amount be paid within three months. However, if the amount is not paid then the contesting respondent shall be entitled to 6% simple interest on the amount after expiry of three months from the date of this judgement. The parties shall bear their own cost.
Date: 18.1.2008
BBL


Endnote: We are thankful to the counsel for the parties for looking into part of the judgement (under heading THE FACTS AND POINTS FOR DETERMINATION) for mistakes. Even then, mistakes, if any, are ours.


 

Kalpana.S
on 07 March 2008
Published in Labour & Service Law
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