Allahabad High Court
Managing Director, U.P. State Bridge ... vs Prabhat Kumar Jha on 19 April, 2023
Author: Pritinker Diwaker
Bench: Pritinker Diwaker
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.64 Reserved A.F.R. Case :- SPECIAL APPEAL No. - 225 of 2023 Appellant :- Managing Director, U.P. State Bridge Corporation Limited And 5 Others Respondent :- Prabhat Kumar Jha Counsel for Appellant :- Pranjal Mehrotra Counsel for Respondent :- Binod Kumar Tripathi,Ashish Kumar Singh,Binod Kumar Tripathi Hon'ble Pritinker Diwaker,Chief Justice Hon'ble J.J. Munir,J.
(Delivered by Hon'ble J.J. Munir, J.)
1. This is a respondent's appeal, arising out of a judgment and order of the learned Single Judge dated 31.03.2022, allowing Writ-A No.1920 of 2015.
2. The writ petitioner-respondent, Prabhat Kumar Jha, who shall hereinafter be referred to as 'the writ petitioner', is an ex-employee of the Uttar Pradesh State Bridge Corporation Limited (for short, 'the Bridge Corporation'). He was in their employ since the year 1977. He retired from service upon attaining the age of superannuation on 31.12.2013. The Manager Personnel-I of the Bridge Corporation forwarded the writ petitioner's claim for payment of gratuity to the General Manager, Headquarters. The writ petitioner's claim for leave encashment was similarly recommended. There was inaction in the payment of the writ petitioner's gratuity, leave encashment, family pension and group insurance, aggregating a sum of Rs.25 lacs. The writ petitioner pursued his claim with the various officials of the Bridge Corporation, but to no avail.
3. The writ petitioner preferred a writ petition before this Court being Writ-A No.35132 of 2014, which was heard and disposed of vide order dated 10.07.2014, relegating the writ petitioner to represent his case before the competent authority of the Bridge Corporation, who was directed to pass a speaking order within the shortest possible period of time, preferably within two months of the date of receipt of his representation. The writ petitioner faced continued inaction and filed a contempt application before this Court being Contempt Application (Civil) No.5762 of 2014, which was disposed of vide order dated 15.10.2014, directing the officers of the Bridge Corporation that in case a decision on the writ petitioner's representation is not taken within two months of the receipt of Contempt Court's order, without reasonable cause, the Court would have no option but to proceed against the officers in contempt.
4. At this juncture, the Bridge Corporation issued a charge-sheet dated 02.12.2014 framing two charges against the writ petitioner. The charge-sheet was issued approximately a year after the writ petitioner's retirement. Accordingly, the writ petitioner instituted the writ petition, giving rise to this appeal, where he prayed that the charge-sheet be quashed as one without jurisdiction. He further sought a mandamus against the Bridge Corporation and its various authorities ordering them to pay his entire post retiral dues. The writ petition, after exchange of affidavits, was heard by the learned Single Judge, who has allowed it by the judgment and order impugned. The learned Judge has quashed the charge-sheet and further ordered the Bridge Corporation and its various authorities to release the entire post retiral dues payable to the writ petitioner, along with 8% interest from the date of his retirement, until realization.
5. Aggrieved, the Bridge Corporation and five of its officers have preferred this appeal under Chapter VIII Rule 5 of the Rules of Court.
6. Heard Mr. Pranjal Mehrotra, learned Counsel for the Bridge Corporation and Mr. Ashish Kumar Singh, learned Counsel appearing for the writ petitioner.
7. The question involved in this appeal is whether departmental proceedings could be initiated against the writ petitioner after he had retired from service and if those proceedings are ultra vires. The general principle is that once an employee retires or the relationship of employer and employee otherwise comes to a terminus, the employer loses all disciplinary jurisdiction over the employee. The corollary is that generally speaking once an employee retires from service, disciplinary proceedings cannot be initiated against him; also, pending disciplinary proceedings cannot be continued after his superannuation. This general principle is, however, subject to the reputed exception that where by statutory service conditions or statutory service rules, a provision is made for initiation of disciplinary proceedings post retirement or the continuance of disciplinary proceedings pending on the date retirement, disciplinary proceedings can be validly initiated or continued, as the case may be.
8. The two situations, above mentioned, are different in law and are definitive exceptions to the rule that post retirement, there can be no initiation of disciplinary proceedings or continuance of pending disciplinary proceedings. These two situations are different, in the sense that continuance of disciplinary proceedings pending on the date of retirement is one thing, and the initiation of disciplinary proceedings post retirement another. A statutory rule has to be specifically there to permit the employer in one case to continue disciplinary proceedings pending on the date of retirement, post retirement, and, in the other, initiate disciplinary proceedings, that were never there during service, after the employee's retirement. Sanction of the right to continue disciplinary proceedings, pending on the date of retirement under the statutory service rules, would not invest the employer with jurisdiction to initiate or institute disciplinary proceedings against a retired employee. The right to initiate disciplinary proceedings post retirement, like the right to continue pending disciplinary proceedings, would have to flow from a definitive statutory provision and the statutory service rules empowering the employer in this regard.
9. It is also to be remembered that the right to initiate disciplinary proceedings in cases where the statutory service rules confer that kind of a jurisdiction upon the employer may be hedged in with restrictions in the statute itself. As for example, in the case of government servants in the State of Uttar Pradesh, proceedings against a retired government servant cannot be initiated by the Government or the competent Disciplinary Authority, except with the sanction of the Governor, as envisaged by the proviso to Regulation 351-A of the Civil Services Regulations. There could be further restrictions, such as the period of time when the event about which disciplinary proceedings against a retired government servant are initiated took place. In the case of Civil Service Regulations for a retired government servant in the State of Uttar Pradesh, the event inviting action should not have taken place more than four years before the initiation of disciplinary proceedings. Again, there can be restrictions about the kind of punishment that may be imposed, once disciplinary proceedings are initiated against a retired government servant. Statutory Service Rules can provide for punishment of dismissal or removal from service, even if the government servant has retired, but all these rights come to the employer sourced from statutory service rules. Else, the employer has no jurisdiction or right to proceed against a retired employee in their disciplinary jurisdiction.
10. This issue was considered by the Supreme Court in Bhagirathi Jena v. Board of Directors, O.S.F.C., and others, (1999) 3 SCC 666 in the context of the right to proceed against an employee of Orissa State Financial Corporation, whose conditions of service were government by the Orissa Financial State Corporation Staff Regulations, 1975. The regulations in that case did not provide for continuance of pending disciplinary proceedings against an employee who had superannuated. In Bhagirathi Jena (supra), proceedings against the employee were initiated by the issue of a charge-sheet while he was in service, but could not be concluded until his retirement. The question was whether proceedings could be continued after retirement. It was in that context that it was held by their Lordships in Bhagirathi Jena thus:
"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 appellant had retired from service on 30-6-1995, 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 an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.
8. Learned Senior Counsel for the respondent placed reliance on the judgment of this Court in Takhatray Shivadattray Mankad v. State of Gujarat [1989 Supp (2) SCC 110 : 1991 SCC (L&S) 927 : (1990) 12 ATC 692] . It is true that that was a case of imposing a reduction in the pension and gratuity on account of unsatisfactory service of the employee as determined in an enquiry which was extended beyond the date of superannuation. But the above decision cannot help the respondent inasmuch as in that case there was a specific rule namely Rule 241-A of the Junagadh State Pension and Parwashi Allowance Rules, 1932 which enabled the imposition of a reduction in the pension or gratuity of a person after retirement. Further, there were rules in that case which enabled the continuance of the departmental enquiry even after superannuation for the purpose of finding out whether any misconduct was established which could be taken into account for the purpose of Rule 241-A. In the absence of a similar provision with the regulations of the respondent-Corporation, the above judgment of Mankad case [1989 Supp (2) SCC 110 : 1991 SCC (L&S) 927 : (1990) 12 ATC 692] cannot help the respondent.
(emphasis by Court)
11. The question again fell for consideration of the Supreme Court in Dev Prakash Tewari v. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and others, (2014) 7 SCC 260, where the employee concerned was governed by the Uttar Pradesh Cooperative Societies Employees' Service Regulations, 1975. Disciplinary proceedings were initiated while the employee was still in service, but on account of a plea of denial of opportunity, the order of dismissal from service was quashed by this Court on the ground of violation of principles of natural justice. Liberty was given to the employer to proceed afresh. While disciplinary proceedings were resumed and pending, the employee retired. The question was whether proceedings against him could continue in the absence of a provision in the statutory service rules enabling the employer in this behalf. It was in that context that their Lordships held in Dev Prakash Tewari (supra):
"5. We have carefully considered the rival submissions. The facts are not in dispute. The High Court while quashing the earlier disciplinary proceedings on the ground of violation of principles of natural justice in its order dated 10-1-2006 [D.P. Tewari v. U.P. Coop. Institutional Service Board, Writ Petition (S/B) No. 4328 of 1988, order dated 10-1-2006 (All)] 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 Cooperative Societies Employees' Service Regulations, 1975, for initiation or continuation of disciplinary proceeding after retirement of the appellant nor is there any provision stating that in case misconduct is established a deduction could be made from his retiral benefits.
7. In a subsequent decision of this Court in U.P. Coop. Federation case [U.P. Coop. Federation Ltd. v. L.P. Rai, (2007) 7 SCC 81 : (2007) 2 SCC (L&S) 598] 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. While dealing with the above case, the earlier decision in Bhagirathi Jena case [Bhagirathi Jena v. Orissa State Financial Corpn., (1999) 3 SCC 666 : 1999 SCC (L&S) 804] 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.
8. 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."
(emphasis by Court)
12. Here, it is not in dispute that the rules, as these stood at the time when the writ petitioner retired, had no provision for the continuation of disciplinary proceedings against an employee of the Bridge Corporation, or initiation of proceedings against a retired employee. The power to do so was introduced through an amendment by the Bridge Corporation w.e.f. 27.10.2018 to the Model Conduct Discipline and Appeal Rules for Service of U.P. State Enterprises, that govern the service conditions of the writ petitioner.
13. The Bridge Corporation has raised an issue that the amended Rules have retrospective operation and would apply to govern the writ petitioner's case. This contention will be dealt with shortly. For the present, we assume that on the date disciplinary proceedings were initiated against the writ petitioner, that is to say, 02.12.2014, he was a retired employee and out of the employer's jurisdiction for eleven months past. Learned Counsel for the Bridge Corporation has taken us through the charge-sheet dated 02.12.2014 and pointed out that it was approved by the Managing Director in the month of February, 2012 whilst the writ petitioner retired from service on 31.12.2013. He submits that the charge-sheet having been approved by the Managing Director in the month of February, 2012, while the writ petitioner was in service, the proceedings must be held to have been initiated against the writ petitioner while in service. We notice the oddity that the Managing Director's endorsement on the charge-sheet approving it, does not mention the date below his signatures, but merely mentions the month and the year. This kind of an endorsement in someway derogates from the sanctity of something as solemn as the approval of a charge-sheet.
14. Assuming that the charge-sheet was approved by the Managing Director in the month of February, 2012, the Inquiry Officer issued the charge-sheet on 02.12.2014, a fact about which the parties are ad idem. It is almost impossible to accept the contention of the learned Counsel for the Bridge Corporation that the charge-sheet having been approved in the month of February, 2012, while the writ petitioner was still in service, disciplinary proceedings ought to be regarded as initiated against him in the year 2012. It is an acknowledged principle in service jurisprudence that disciplinary proceedings commence on the date when the charge-sheet is issued and not earlier. All other transactions in contemplation of disciplinary proceedings, such as the preliminary inquiry, a show cause and the like, do not constitute initiation of disciplinary proceedings. In this connection, reference may be made to the guidance of the Supreme Court in UCO Bank and another v. Rajinder Lal Capoor, (2007) 6 SCC 694, where the position of the law has been stated thus:
"21. The aforementioned Regulation, however, could be invoked only when the disciplinary proceedings had clearly been initiated prior to the respondent's ceasing to be in service. The terminologies used therein are of seminal importance. Only when a disciplinary proceeding has been initiated against an officer of the bank despite his attaining the age of superannuation, can the disciplinary proceeding be allowed on the basis of the legal fiction created thereunder i.e. continue "as if he was in service". Thus, only when a valid departmental proceeding is initiated by reason of the legal fiction raised in terms of the said provision, the delinquent officer would be deemed to be in service although he has reached his age of superannuation. The departmental proceeding, it is trite law, is not initiated merely by issuance of a show-cause notice. It is initiated only when a charge-sheet is issued (see Union of India v. K.V. Jankiraman [(1991) 4 SCC 109 : 1991 SCC (L&S) 387 : (1993) 23 ATC 322 : AIR 1991 SC 2010] ). This aspect of the matter has also been considered by this Court recently in Coal India Ltd. v. Saroj Kumar Mishra [(2007) 9 SCC 625 : (2007) 5 Scale 724] wherein it was held that date of application of mind on the allegations levelled against an officer by the competent authority as a result whereof a charge-sheet is issued would be the date on which the disciplinary proceedings are said to have been initiated and not prior thereto. Pendency of a preliminary enquiry, therefore, by itself cannot be a ground for invoking Clause 20 of the Regulations. Albeit in a different fact situation but involving a similar question of law in Coal India Ltd.[(2007) 9 SCC 625 : (2007) 5 Scale 724] this Court held : (SCC p. 631, paras 12-13) "12[13]. It is not the case of the appellants that pursuant to or in furtherance of the complaint received by the Vigilance Department, the competent authority had arrived at a satisfaction as is required in terms of the said circulars that a charge-sheet was likely to be issued on the basis of a preliminary enquiry held in that behalf or otherwise.
13[14]. The circular letters issued by the appellants put restrictions on a valuable right of an employee. They, therefore, are required to be construed strictly. So construed, there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard."
It was furthermore observed that : (SCC p. 632, para 18) "18[20]. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued."
(See also Union of India v. Sangram Keshari Nayak [(2007) 6 SCC 704 : (2007) 6 Scale 348] .)"
15. It has, therefore, to be held in this case that disciplinary proceedings were initiated against the writ petitioner on 02.12.2014 and not in the month of February, 2012, while the writ petitioner was still in service. The position of the law, that we have noticed above, leaves us in no manner of doubt about the fact that the date on which the charge-sheet was issued to the writ petitioner, he had superannuated and the disciplinary proceedings were initiated against him while he was a superannuated employee of the Bridge Corporation, distanced by eleven months of rupture of the employer-employee relationship. Nothing has been shown to us on the existing state of rules, either when the writ petitioner retired or the time when the impugned charge-sheet was issued, that may have empowered the Bridge Corporation to initiate disciplinary proceedings against a retired employee of theirs. In our considered opinion, therefore, on this state of rules, the Bridge Corporation would have no jurisdiction to initiate disciplinary proceedings against the writ petitioner by means of the impugned charge-sheet.
16. Now, the only question that remains to be addressed, which Mr. Mehrotra has pressed with much vehemence is whether the amended Rules introduced w.e.f. 27.10.2018, have retrospective operation allowing them to govern the Bridge Corporation's rights to take disciplinary action against the writ petitioner. The rules that have been brought in by amendment through a resolution of the Board of Directors passed in their 177th Meeting and notified by the Managing Director of the Bridge Corporation through his memo dated 27.10.2018, read:
"निदेशक मण्डल की दिनांक 03/10-2018 को सम्पन्न हुई 177वीं बैठक में शासकीय सेवकों के संबंध में शासनादेश संख्या-01/2015/13/9/98/सा-1-2015 दि0 22-04-2015 के पैरा 19 एवं 20 लागू व्यवस्था के अनुसार सेतु निगम में लागू आदर्श आचरण, अनुशासन एवं अपील नियमावली के अन्तिम नियम 49 के उपरान्त 2 नये नियमों का निम्नानुसार प्राविधान नियम 50 एवं 51 को जोड़े जाने की स्वीकृति प्रदान की गयी है:-
सेतु निगम के कार्मिकों के द्वारा सेवाकाल में की गयी अनियमितता/कदाचार के लिए उनकी सेवानिवृत्ति के उपरान्त अनुशासनिक कार्यवाही के सम्बन्ध में।
50-यदि विभागीय जॉच की कार्यवाही लम्बित रहते हुए आरोपित कार्मिक अधिवर्षता आयु प्राप्त कर सेवानिवृत्त हो जाता है को लम्बित जॉब को इस नियमावली के तहत उसके सेवानिवृत्त देयकों से वित्तीय क्षति की वसूली के लिए जारी रखा जा सकता है, परन्तु सेवानिवृत्त कार्मिक को दण्ड नहीं दिया जा सकता और न ही उक्त दण्ड के उद्देश्य से कार्यवाही प्रारम्भ/ जारी रखी जा सकती है।
51- यदि सेवानिवृत्ति के उपरान्त कोई तथ्य सामने आये तो सेवानिवृत्ति के पश्चात् भी इस नियमावली के तहत कार्यवाही की जा सकती है बशर्ते कि जिस घटना के संबंध में जॉच प्रारम्भ की जाय, जाँच करने की तिथि को उस घटना को 4 वर्ष से अधिक समय न बीत चुका हो।"
17. The writ petitioner retired from service on 31.12.2013 and the charge-sheet was issued on 02.12.2014. There is nothing in the amended rules notified on 27.10.2018 and framed in the meeting of the Board of Directors of the Bridge Corporation to show that these rules would have retrospective operation. There is no hint about it in the amended Rule 50 or 51 added to the Model Conduct Discipline and Appeal Rules for the Service of U.P. State Enterprises. The well established cannon of statutory interpretation is that all laws affecting substantive rights are prospective in operation unless expressly made retrospective. The amended Rules confer a substantive right on the Bridge Corporation to initiate disciplinary proceedings against a retired employee about matters that fall within four years when disciplinary proceedings are initiated. It likewise affects the substantive right of an employee to be insulated from initiation of departmental proceedings once he has retired and no longer in the employ of the Bridge Corporation. Therefore, there is no basis to hold that the amended Rules that have come into effect from 27.10.2018, would have retrospective operation and govern the rights of the Bridge Corporation, vis-a-vis the writ petitioner.
18. In the circumstances, we are of opinion that disciplinary proceedings initiated against the writ petitioner by the Bridge Corporation on the basis of the impugned charge-sheet are without jurisdiction.
19. For reasons added and slightly different from those that have weighed with the learned Single Judge, we concur in the conclusions.
20. In the result, this appeal fails and is dismissed. Costs easy.
Order Date :- 19.4.2023 Anoop (J.J. Munir) (Pritinker Diwaker) Judge Chief Justice
The judgment and order has been pronounced under Chapter VII Rule 1(2) of Allahabad High Court Rules, 1952.
(J.J. Munir) Judge