Madhya Pradesh High Court
Radheshyam Khichrolia And Anr. vs Madhya Pradesh Co-Operative Marketing ... on 1 February, 2002
Equivalent citations: [2003(96)FLR699], (2002)IIILLJ513MP
Author: Arun Mishra
Bench: Arun Mishra
ORDER Arun Mishra, J.
1. Common question is involved in both the writ petitions. The petitioners assail the validity of continuance of departmental enquiry after the date of superannuation in the absence of service rules providing for continuance of disciplinary proceedings after retirement.
2. In W.P. No 3350/1997 petitioner Radheshyam Khichrolia submits that he retired from the service of Madhya Pradesh State Cooperative Marketing Federation (for short "the Federation") on December 30, 1995; a departmental enquiry was instituted against him in the year 1992 in which the final order was passed on March 5, 1998 as contained in Annexure R/20; a recovery of Rs. 43,000 was imposed which amount was found to be misappropriated by the petitioner Radheshyam Khichrolia. This order of recovery was imposed during pendency of the present writ petition. The writ petition has been amended thereafter seeking the relief of quashment of impugned order inflicting punishment and imposing recovery. The retiral dues of the petitioner were withheld even after his retirement and he was not paid the retiral dues owing to pendency of the said departmental enquiry.
3. In W.P. No. 4738/1998 petitioner K.B. Shrivastava retired from the service of the Federation on January 31, 1998; charge sheet was issued to him on January 6, 1998; petitioner is seeking the relief of payment of all retiral dues and quashment of charge sheet.
4. In the return filed by the respondents, it is not disputed that petitioner Radheshyam was retired on completion of age of superannuation. The order, of inflicting the punishment is proper since the departmental enquiry was instituted when the petitioner was in service and as a matter of fact the loss which was caused by the petitioner was ordered to be recovered and the penalty of dismissal was itself reviewed as the petitioner was allowed to retire on attaining the age of superannuation. Rule 23 is relied upon by the respondents which enables for inflictment of minor punishment of recovery from salary of delinquent employee.
5. In the case of K.B. Shrivastava, similar stand is taken and it is contended that enquiry can continue even after retirement and dues have been rightly withheld. Charge sheet was issued before the retirement.
6. Learned counsel for petitioners submit that there is no provision in M.P. State Co-operative Marketing Federation Ltd. Employees' Service Rules providing for continuance of departmental enquiry even after superannuation. Thus, learned counsel submits that continuance of departmental enquiry and consequent punishment is wholly unauthorised and illegal act. Learned counsel placed reliance on a decision of Supreme Court in Bhagirathi Jena v. Board of Directors, OSFC and Ors., AIR 1999 SC 1841 : 1999 (3) SCC 666 : 1999-I-LLJ-1236.
7. Learned counsel Shri Greeshm Jain appearing for the respondents submits that since the enquiry was instituted and Rule 23 enables recovery of the pecuniary loss caused; thus, the enquiry can be continued. For that purpose, however, the learned counsel is unable to point out any specific provision authorising the respondents specifically to continue with the departmental enquiry once the employee has been allowed to retire.
8. The question whether the departmental enquiry can be continued even after retirement in the absence of statutory provision providing specifically for that purpose came to be considered in Bhagirathi Jena (supra) wherein their Lordships considered the question of continuance of departmental enquiry in the similar set of.
facts and statutory rules. Charge sheet was issued to the delinquent employee on July 22, 1992 in respect of various items of alleged misconduct, the appellant was suspended;
disciplinary enquiry was not concluded before the date of appellant's superannuation which took place on June 30, 1995. In para 6 and 7 of Bhagirathi Jena (supra), the Apex Court held as under 1999-I-LLJ-1236 at p.
1238:
"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 departmental enquiry after superannuation.
7. 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 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 June 30, 1995, 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."
9. What follows from the Apex Court decision is that in view of absence of any provision made, for continuance of departmental enquiry after superannuation, it must be held that respondents had no legal authority to continue with the disciplinary enquiry. In the absence of such a provision the order of punishment and imposition of the recovery is held to be bad in law.
10. In S. Pratap Singh v. State of Punjab AIR 1964 SC 72 : 1966-I-LLJ-458, it was laid down by the Supreme Court that there has to be a Specific provision under the law to take action against the person who has ceased to be in service.
12. Learned counsel for respondents relied on the provision of Payment of Gratuity Act, 1972, Sub-section (6) of Section 4. No doubt under this provision of Payment of Gratuity Act, gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused. It can also be forfeited in the circumstances enumerated in Clause (b) of Sub-section (6) of Section 4 of Payment of Gratuity Act. But for such an eventuality, there should be a valid order of dismissal or imposition of punishment. Here in the instant case, imposition of the punishment was itself impermissible. Once the employee had attained the age of superannuation and had retired, after retirement punishment of dismissal cannot be imposed. Thus, Sub- section (6) of Section 4 of Payment of Gratuity Act is not invokable.
13. Resultantly, W.P. No. 3350/1997 is allowed. The impugned order of punishment dated March 5, 1998 (Annexure R/20) is quashed. The respondents are directed to make the payment of all the retiral dues within a period of four months from today; failing which the amount shall carry the interest at the rate of 6% per annum for the delay which may occasion thereafter.
14. W.P. No. 4738/1998 is also allowed. The charge sheet is quashed. The respondents are directed to make the payment of all the retiral dues within a period of four months from today; failing which the amount shall carry the interest at the rate of 6% per annum for the delay which may occasion thereafter.
15. Cost on parties.