Allahabad High Court
Brahamnad Tyagi vs State Of U.P. And 3 Others on 15 July, 2022
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 34
Case :- WRIT - A No. - 6237 of 2022
Petitioner :- Brahamnad Tyagi
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Kunal Shah,Suvansit Kumar Jaiswal
Counsel for Respondent :- C.S.C.,Rajesh Kumar Yadav,Suresh C. Dwivedi
Hon'ble Neeraj Tiwari,J.
Heard Sri Kunal Shah, learned counsel for the petitioner, learned Standing Counsel for the respondent no. 1 and Sri S.C. Dwivedi, learned counsel for the respondent nos. 2, 3 and 4.
Present petition has been filed for following reliefs:-
"I. Issue a Writ, order or direction in the nature of Certiorari quashing the impugned order dated 07.07.2021, issued by Respondent No. 3, being wholly without jurisdiction.
II. Issue a Writ, order or direction in the nature of Certiorari quashing the impugned charge sheet dated 07.07.2022, issued by enquiry officer."
Learned counsel for the petitioner submitted that petitioner was employed in the establishment of respondent no. 3 on 01.04.1999 on the post of Head Clerk and he was retired on 30.04.2018. He further submitted that a charge sheet has been served upon petitioner on 07.04.2022, against which, petitioner filed present petition. He next submitted that service of the petitioner is governed by U. P. Agricultural Produce Market Committees (Centralized) Services Regulations, 1984 (hereinafter referred to as the Regulations, 1984) and Regulations, 1984 is having no provision to empower the respondent nos. 2 and 3 to initiate disciplinary proceeding against a retired employee. Therefore, disciplinary proceeding so initiated as well as impugned charge sheet dated 07.04.2022 is bad in law, without jurisdiction and liable to be quashed.
He further submitted that under Regulation 43 of Regulations, 1984 rules relating to disciplinary proceedings, appeals and representations against punishment, applicable to the employees of the State Government shall apply to the members of the Centralized Service. It is undisputed that as per Regulation 47 of the Regulations, 1984, service of the petitioner is not pensionable. Once the service of the petitioner is not pensionable, Article 351-A of U.P. Civil Service Regulations (hereinafter referred to as CSR) shall not be applicable in the case of petitioner and disciplinary proceeding cannot be initiated against him after retirement. He next submitted that assuming it to be correct that Article 351-A of CSR is applicable, even though no disciplinary proceeding can be initiated against the petitioner for the reason that charge sheet was issued after four years from the date of his retirement. He lastly submitted that the very same issue was challenged before this Court in the case of Rajya Krishi Utpadan Mandi Parishad and another Vs. Public Services Tribunal U.P. and others, 2008 (2) ADJ 11 (DB), in which this Court has framed four questions, which were answered. Relevant question was as to whether in absence of any rule or regulation, disciplinary proceeding can continue, after a charged employee attains the age of superannuation. The Court answered and held that under Regulations, 1984 there is no provision for disciplinary proceeding against a retired employee, therefore, no such proceeding can be initiated against a retired employee. Even if proceeding so initiated before retirement shall not continue and be dropped. In the matter of S.P.S. Raghav Vs. State of U.P. and others, 2018(6) ADJ 193 (DB), the Court has taken the same view and held that in absence of any rule, no disciplinary proceeding can be initiated against the retired employee. Similar issue was again came up before this Court in the case of Rajendra Prasad Singh Vs. State of U.P. and 4 others passed in Writ-A No. 7517 of 2016 decided on 29.02.2016 in which this Court has taken the same view.
Lastly, he submitted that under such facts and circumstances of the case as well as law laid down by this Court, the impugned order dated 07.07.2021 for initiating inquiry and subsequent charge sheet dated 07.04.2022 may be set aside.
Sri S.C. Dwivedi, learned counsel for the respondent nos. 2, 3 and 4 relying upon paragraph 14 of the counter affidavit submitted that as misconduct was traced out first time in the year 2016, therefore, disciplinary proceeding has been initiated against the petitioner, but could not dispute the legal submission made by learned counsel for the petitioner based upon Regulations 1984 as well as judgments of this Court.
I have considered the submissions made by learned counsels for the parties and perused the Regulations 1984 as well as judgment relied upon by learned counsel for the petitioner. The facts of the case are undisputed and only question before the Court is as to whether any disciplinary proceeding may be initiated against a retired employee under Regulations 1984 or not.
This legal issue first time came up before this Court in the matter of Rajya Krishi Utpadan Mandi Parishad (supra) in which Court has framed five questions to answer. Question No. 4 is relevant for deciding the present controversy, which is quoted below:-
"(iv) The contesting respondent reached the age of superannuation on 31.1.1994. In these circumstances, where at this stage any disciplinary inquiry can continue against the contesting respondent."
This Court after detailed discussions replied the same in paragraphs 24 to 36, which are being quoted below:-
"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 centralized 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 v. Managing Director and another. 2000(1) UPLBEC 541 (paragraph 9); Babu Lal v. State of UP and Others. 2002 LabIC 3595 (paragraph 15); UP Cooperative Federation Ltd. v. 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 Ors. v. Shri B. Dev JT 1998 (5) SC 480 and Krishna Kumar (dead.) through L.Rs. v. State of UP and Ors. 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 v. UP Cooperative Sugar Factories Federation Ltd. 2003 (1) ESC 427 Town Area Committee, Jalalabad, v. Jagdish Prasad and Ors. 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 v. State of MP and Ors. 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 v. State of Gujrat and Ors. AIR 1978 SC 1109 (10) Union of India and Ors. v. Sayed Muzaffar Mir (1995) 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 v. Board of Directors OSFC and Ors. (1999) AIR 1999 SC 1841 (the BhagirathiJena case); and the two other decisions of our court reported in Dr. RB Agnihotri v. State of UP and other 2000(2) ESC 915 and Ravindra Singh Rathor v. District Inspector of Schools Etawah and Ors. 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)."
This issue was again came up before this Court in the case of S.P.S. Raghav (Supra). Paragraphs 9 to 14 of the said judgment are quoted below:-
"9. Here in this case, it is not clear that as to when Hon'ble Governor has accorded sanction for initiating the disciplinary proceeding but it is apparent that the date, on which sanction was accorded, is prior to commencement of Rules of 2011 for the reasons that the charge-sheet was served upon the petitioner through letter dated 3.3.2011 whereas Rule 2011 came into force in November 2011 i.e. on 11.11.2011. Therefore, it is clear that whenever sanction was accorded by Hon'ble Governor, the post of Chief Engineer was not pensionable.
10. Here the question would be as to whether the Rules of 2011 can be applied with retrospective effect for grant of sanction for initiating the disciplinary proceedings against a retired employee.
11. We have gone through the Rules of 2011 covering the field, in our view, the competence of an authority for exercising the power vested in, him is to be seen on the date when the power has been exercised and not on a subsequent date. Here, in this case, on factual matrix, it is not in dispute that the sanction was accorded, for initiating the disciplinary proceeding by Hon'ble the Governor, prior to the commencement of the Rules of 2011 and at that time, the post, which was held by the petitioner, was not pensionable whereas under Regulation 351-A, the Hon'ble Governor can withhold or withdraw a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave mis-conduct, or to have caused pecuniary loss to Government by misconduct or Negligence, during his service, including service rendered on re-employment after retirement.
12. Learned counsel for the other side submitted that since the Rules of 2011 has been made applicable with retrospective effect, therefore there was no illegality in granting sanction, in our considered view, the argument advanced by learned counsel for the respondents is superfluous and does not carry any weight as relevant date for exercising the power will be the date on which it was exercised as discussed, herein, above and the same cannot be validated taking advantage of subsequent enactment. In our view, since on the date when Hon'ble Governor has accorded the sanction for initiating disciplinary proceeding was not having power as the post in question was not pensionable, therefore he could not accord the sanction.
13. The view taken by us, find support from paragraphs 28 and 30 of the judgement rendered by Division Bench of this Court in case of Rajya Krishi Utpadan Mandi Parishad (supra), in which one of us (Justice Ran Vijai Singh) was a member. For ready reference, para 28 and 30 of the judgement are being quoted herein below;
"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.
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."
14. It is well-settled law that any order without jurisdiction is a nullity and no legal consequence can flow from such order. Reference may be made to the decisions of the Apex Court in Managing Director, Army Welfare Housing Organization v. Sumangal Services Pvt. Ltd., (2004) 9 SCC 619, Sarup Singh and another v. Union of India and another, (2011) 11 SCC 198, Division Bench decision of this Court in the case of Committee of Management Shri Jawahar Inter College and another v. State of U.P. and others in Special Appeal No. 164 of 2012 decided on 25.1.2012, Rajesh Kumar Shukla v. State of U.P. and others, 2017(7) ADJ 601 and Mithai Lal v. State of U.P. and others (Writ-A No. 24586 of 2014, decided on 12.10.2017).
Similar issue was again came up before this Court for consideration in the case of Rajendra Prasad Singh (supra). After considering the judgments of Apex Court as well of this High Court, this Court has taken the same view. Relevant portion of the said judgment is quoted below:-
"Counter affidavit has been filed by the respondent nos. 2 to 5, in which it is contended that since departmental enquiry has been initiated prior to the petitioner's superannuation, as such, it is legal for the respondents to conclude such proceedings, and order under challenge does not suffer from any illegality. Learned counsel for the respondents however, fairly states that on the legal position, there exists no provision in Service Rules, 1981 whereunder enquiry initiated against an employee could be continued or concluded even after an employee has attained the age of superannuation. Continuance of departmental enquiry, after superannuation, in the absence of enabling provision, has been considered in the case of Dev Prakash Tiwari Vs. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and others, (2014), 7 SCC 260. Hon'ble Supreme Court has been pleased to observe that in the absence of provision existing in the Service Rules, disciplinary proceedings cannot be allowed after attaining superannuation and action of respondents in continuing with such enquiry would be without jurisdiction. Following the aforesaid view, this Court in Special Appeal Defective no. 31 of 2016, Banda District Cooperative Bank Limited and 2 others Vs. State of U.P. and 2 others, decided on 3.2.2016, has been pleased to hold as under :-
"On a pointed query of the Court, the learned counsel for the appellant candidly admitted that there was no provision under the U.P. Cooperative Service Regulation 1975, which may authorize continuance of the proceedings from the stage at which the defect has been noticed nor is there any provision in terms of which the proceedings may be continued and taken to their logical conclusion even after the retirement of the petitioner. We may in this connection refer to the law as laid down by the Supreme Court in Bhagirathi Jena Vs. Board of Directors, O.S.F.C. & others as reiterated by the Supreme Court in Deo Prakash Tewari Vs. U.P. Cooperative Institutional Service Board which clearly hold that once an employee has retired from service, in the absence of any authority vesting in the employer the right to continue disciplinary proceedings thereafter, the enquiry proceedings would be deemed to have lapsed and the employee would be entitled to all retiral benefits. In light of the above law laid down by the Supreme Court, we are unable to accede to the submission of the learned counsel for the appellant for a remit of the proceedings.
For the aforesaid reasons, we find no ground warranting interference with the judgement of the learned Single Judge. The special appeal is consequently dismissed."
In view of the law settled, it is not open for the respondents to proceed pursuant to show cause notice dated 21.1.2016 for the purpose of passing any order against the petitioner."
From perusal of the judgments of the Apex Court as well as this Court, it is very much clear that once there is no rule occupying the field for disciplinary proceeding against an employee after retirement, proceeding so initiated or continued after retirement, is not sustainable as it de-hors the rules and liable to be set aside.
In the present case too, petitioner was retired on 30.04.2018 thereafter disciplinary proceeding was initiated vide order dated 07.07.2021 and charge sheet was served upon him on 07.04.2022 i.e. undisputedly disciplinary proceeding was initiated after retirement of the petitioner whereas Regulations 1984 does not provide any disciplinary proceeding against a retired employee. Even in case of adoption of rules applicable to the State Government employees under Regulation 43 of Regulations 1984, once the service is not pensionable under Regulation 47 of Regulations 1984, no action can be taken against him under Article 351-A of CSR or any other rule adopted by respondents under Regulation 43 of Regulations 1984. Therefore, impugned order dated 07.07.2021 and subsequent charge sheet dated 07.07.2022 are bad in law and liable to be set aside.
Accordingly, the writ petition is allowed. The impugned order dated 07.07.2021 passed by respondent no. 3 and charge sheet dated 07.04.2022 are hereby quashed.
No order as to costs.
Order Date :- 15.7.2022 Rmk.