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Judgment
K. Ravichandrabaabu, J.—Aggrieved against the show-cause notice, dated 08.04.2008 issued by the second respondent, the present writ
petition is filed by the petitioner. The following of the facts and circumstances, which warranted the petitioner to file this writ petition:--
The petitioner was working as Manager in the second respondent Society between 11.02.1997 and 20.04.2003 at the Edimalayanpatti Puddur
Branch. The petitioner sanctioned gas connection loan to the needy persons as per the scheme of the Government, strictly by following the rules
and procedures. The petitioner was transferred from the said branch on 22.04.2003. Thereafter, it was the responsibility of the Branch Manager to
collect money from the persons, who have availed the loan for the cooking gas connection. On 27.08.2005, a charge memo was issued to the
petitioner in connection with the non-recovery of the loan amount. The petitioner gave an explanation on 10.07.2006 denying the charges. From
30.05.2007, he was on leave on loss of pay. A second charge memo was issued to the petitioner on 06.07.2007 for not joining duty in spite of the
orders from the superior. The petitioner gave his explanation on 28.07.2007. Not satisfied with the explanation given by the petitioner, a domestic
enquiry was conducted and the same was completed on 05.05.2007. Thereafter, the second respondent issued an order, dated 30.08.2007
directing the petitioner to handover all the charges to the Assistant Manager, since the petitioner was attaining the age of superannuation on the next
date, namely, 31.08.2007. The second respondent being the appointing authority, is therefore, a competent person to relieve the petitioner.
Accordingly, the petitioner handed over the charges on 31.08.2007 and retired from service. Thereafter, an order of termination was served on the
petitioner on 01.09.2007, by anti-dating as 31.08.2007. The petitioner filed a writ petition in W.P. (MD) No. 10238 of 2007, challenging the said
order of termination. By an order, dated 07.12.2007, this Court directed the first respondent to dispose of the appeal filed by the petitioner against
the order of termination. Accordingly, the first respondent through his order, dated 13.03.2008, set aside the order of termination and however,
permitted the second respondent to continue the disciplinary proceedings. Consequently, the impugned show-cause notice. dated 08.04.2008,
came to be issued. Aggrieved against the same, the present writ petition is filed before this Court.
The above writ petition was admitted by this Court on 22.05.2008. I find no counter-affidavit is filed in this writ petition by the respondents. On
the other hand, the learned counsel appearing for the respondents contested the matter, by filing a typed set of papers, dated 03.08.2012.
The learned counsel appearing for the petitioner submitted that when the petitioner had already retired from service on 31.08.2007, the order of
dismissal served on him on 01.09.2007, cannot be sustained. Moreover, when the appellate authority had set aside the said order of termination,
he has no jurisdiction to direct the second respondent to continue the disciplinary proceeding against the petitioner, in view of the fact that such
setting aside the order of termination results in automatic confirmation of the retirement of the petitioner from service on 31.08.2007.
Consequently, the second respondent has got no jurisdiction to issue show-cause notice. It is also contended by the learned counsel appearing for
the petitioner that when the petitioner attained the age of superannuation, unless any order or proceedings are issued retaining his service till the
departmental proceedings are over, his retirement become automatic and there need not be any separate relieving order to be issued to the
petitioner. There is no enabling provision in the service rules empowering the employer to retain the petitioner in service and continue the
disciplinary proceedings. In the absence of such enabling provision, continuation of disciplinary proceedings against the petitioner after his
retirement is not valid and without jurisdiction.
The learned counsel appearing for the petitioner further submitted that reliance placed by the first respondent on the decision of the Hon''ble
Supreme Court, reported in 2007(4) LLN 132 : (AIR 2007 SC (Supp) 756) in the case of U.P. Co-op Federation Ltd. v. L.P. Rai cannot be
applied to the facts and circumstances of this case and therefore, the appellate authority was not justified in relying the said judgment. At any event,
since the appellate authority had set aside the order of termination, the petitioner thought fit not to challenge the said order and only challenged the
further direction issued therein for continuing the disciplinary proceeding, as the said direction was without jurisdiction. The second respondent
himself through his communication, dated 30.08.2007, had directed the petitioner to handover the charge, since he attained the age of
superannuation and pursuant to such communication, the petitioner had also handed over the charge on 31.08.2007. In all effect, the petitioner was
relieved from duty and was permitted to retire from service on 31.08.2007. Therefore, the present impugned proceedings cannot be issued when
the respondents are totally not having jurisdiction or control over the petitioner any more.
In support of his contention, the learned counsel for the petitioner relied on the following decisions:--
(1) Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and Others,
(2) N. Kunnai Gowder Vs. The Coimbatore District Co-op. Milk Producers'' Union Ltd.,
(3) State Bank of India Vs. Ram Lal Bhaskar and Another,
(4) UCO Bank and Another Vs. Rajinder Lal Capoor,
(5) State Bank of India Vs. A.N. Gupta and Others,
(6) Siemens Ltd. Vs. State of Maharashtra and Others,
Per contra, the learned counsel appearing for the respondents submitted that the petitioner was not relieved by the second respondent, by
issuing any relieving order and the communication, dated 30.08.2007, issued by the Special Officer to the petitioner cannot be termed as a
relieving order. When the petitioner was not relieved, he was permitted to be in service continuously and therefore, the appellate authority though
set aside the order of termination had rightly directed the disciplinary proceedings to continue and consequently, the impugned show-cause notice
issued is within the jurisdiction of the second respondent. It is also contended by the learned counsel for the second respondent that the petitioner
had not challenged the order of the appellate authority and therefore, he cannot be permitted to canvass the correctness of the said order in this
writ petition.
In support of his submissions that the disciplinary proceedings can go on even after retirement, he relied on a decision of the Hon''ble Supreme
Court, reported in 2007(4) LLN 132 : (AIR 2007 SC (Supp) 756) (cited supra), which in fact relied by the appellate authority for remitting the
matter for fresh enquiry.
Heard the learned counsel for the respective parties.
The point for consideration in this case are as follows:--
(1) Whether the termination order passed against the petitioner was well within the jurisdiction of the second respondent?
(2) Whether the appellate authority having set aside the order of termination, has got jurisdiction to direct the continuation of the disciplinary
proceedings against the petitioner when he had already attained the age of superannuation?
(3) Whether the show-cause notice, impugned in this writ petition, is within the jurisdiction of the second respondent and if so, whether the
petitioner is entitled to challenge the said show-cause notice alone without challenging the order of appellate authority where the second respondent
was directed to proceed with the disciplinary proceedings?
Before considering the above said issues, the admitted facts are to be reiterated. The petitioner was working as Manager in Edimalayanpatti
Puddur Branch between 11.02.1997 and 20.04.2003. He was transferred from the said place to another place on 20.04.2003. A charge memo,
dated 27.06.2005, came to be issued against the petitioner in connection with the non-recovery of the loan amount, which was disbursed during
his tenure as Manager at Edimalayanpatti Puddur Branch between 11.02.1997 and 20.04.2003. A domestic enquiry was conducted and that was
also completed on 05.05.2007 itself. On 30.08.2007, the Special Officer of the second respondent bank issued an order directing the petitioner to
handover the charge to one R. Dhayanithi and get relieved on 31.08.2007. The petitioner accordingly, handed over the charge on 31.08.2007.
Thereafter, the order of termination, dated 31.08.2007, came to be served on the petitioner only on 01.09.2007. The petitioner challenged the
said order before the first respondent by way of an appeal and by an order dated 13.03.2008, the first respondent set aside the order of
termination, on the ground of violation of principles of natural justice and consequently, permitted the second respondent to continue the
disciplinary proceedings from the stage where the violation of the procedures was found.
From the above facts, which are not disputed by the respondents by filing any counter-affidavit, it is to be seen as to whether the petitioner on
attaining the age of superannuation on 31.08.2007, got retired and whether he was relieved by the second respondent from his post without
retaining him into service so as to enable the department to continue the disciplinary proceedings.
At this juncture it is useful to note the proceedings of the Special Officer of the second respondent bank, dated 30.08.2007, which is extracted
as hereunder:--
(Vernacular matter omitted... Ed.)
A perusal of the said proceedings shows that the petitioner was directed to handover the charge to one R. Dhayanithi on 31.08.2007 and also
to get relieved thereafter. The words (Vernacular matter omitted) found in the said proceedings undoubtedly lead to a conclusion that it was not a
simple direction to handover the charge, but it was also an order relieving the petitioner on 31.08.2007. Further, when we refer to the subject-
matter of the said proceedings, it also indicates that the petitioner was to retire on 31.08.2007 and consequently, the order came to be passed for
relieving him from the service. It is also to be noted that nowhere in the said proceedings, the second respondent had reserved his right to continue
the disciplinary proceedings against the petitioner or it is not stated therein that the petitioner''s service was retained with the respondent''s
department. Therefore, the said proceedings dated 30.08.2007 was a pure and simple relieving order issued to the petitioner thereby directing him
to handover the charge to the other person on 31.08.2007 and consequently, to get relieved himself. Further, the fact remains that as per the
order, dated 30.08.2007, the petitioner handed over the charge to the other person on 31.08.2007. Therefore, when the petitioner had complied
with the direction issued by the second respondent on 31.08.2007, by handing over the charge to other person and got relieved from the service, it
has to be held that the petitioner was no more in the service of the respondents after 31.08.2007.
When that being the position, the order of termination, dated 31.08.2007, came to be served on the petitioner only on 01.09.2007. No doubt,
the reason for not serving the same on 31.08.2007 itself had been discussed by the appellate authority in his order. But at the same time, it has to
be seen that if any such order was sought to be served on the petitioner on 31.08.2007 itself, there should have been no occasion for the petitioner
to handover the charge to the other person on 31.08.2007 as directed by the second respondent in his proceedings, dated 30.08.2007, and the
other person should have also not accepted the charge from the petitioner on the same day, without making any reference about the order of
termination, passed against the petitioner. Therefore, I am of the view that an order of termination, though was made on 31.08.2007, having been
served on the petitioner only on 01.09.2007, cannot be held to be made before the retirement of the petitioner i.e.. 31.08.2007.
At this juncture, it is useful to refer to the decision of the Hon''ble Supreme Court, reported in State of West Bengal etc. Vs. M.R. Mondal and
Another, in the case of State Bank of West Bengal v. Mondal at paragraph 16 which reads as follows:--
16.....An order passed but retained in file without being communicated to the plaintiff can have no force or authority whatsoever and the same has
no valid existence in the eye of the law or claim to have come into operation and effect. No reliance can be placed on the same to even assert a
claim based on its contents....
Thus from the reading of the above said judgment of the Hon''ble Supreme Court, it is clear that mere passing of an order is not sufficient to
claim its legality without getting it served on the person against whom it was passed in time or within time, especially, when the order sought to be
made on the eve of the retirement. Therefore, in my considered view, the order of termination passed by the second respondent cannot have any
legal force. Even otherwise, further facts show that the petitioner cannot be proceeded with by the second respondent any more. When the said
order of termination was challenged before the first respondent, he had set aside the same through his order, dated 30.09.2008, on the ground of
violation of principles of natural justice. Consequently, he further directed the second respondent to continue the disciplinary proceedings by
granting opportunity to the petitioner. At this juncture, it has to be seen as to whether the first respondent, after setting aside the order of
termination, has got jurisdiction to direct the continuation of the proceedings afresh, especially under the circumstances, the petitioner in the
meantime had attained the age of superannuation and also got relieved and retired from the post. The effect of setting aside the order of termination
by the first respondent would undoubtedly lead to the conclusion that it should date back to the order of termination on which date the petitioner
was already relieved from the post and got retired. In other words, it has to be construed that there was no order of termination at all on
31.08.2007. It is also further to be noted that the respondents have not retained his service by passing any proceedings. No rule empowering the
respondents to retain the service of the employee even after retirement for the purpose of conducting the disciplinary proceedings, is also produced
before this Court. Thus in effect, when the petitioner got retired on 31.08.2007 there was nothing available empowering the respondents to
proceed further against the petitioner.
No doubt, the learned counsel for the respondents relied on a decision of the Hon''ble Supreme Court, reported in 2007(4) LLN 132 : (AIR
2007 SC (Supp) 756) in the case of U.P. Co-op. Federation Ltd., v. L.P. Raj to contend that the respondents are entitled to continue the
disciplinary proceeding even after retirement. I perused the above judgment of the Hon''ble Supreme Court.
In that case, entire disciplinary proceedings were initiated during the service period of the delinquent therein and he was also punished before
his retirement. When the said order of punishment was challenged, the same was set aside by the High Court on the ground of certain procedural
irregularities. Against which, further the appeal was taken before the Hon''ble Supreme Court and during the pendency of the proceedings, it
appears that the delinquent therein retired and therefore, by taking note of the gravity of the charges levelled against the said employee, the
Hon''ble Supreme Court granted liberty to hold fresh enquiry against the said person by observing that foreclosing the right of the employer to hold
a fresh enquiry will not be proper only on the ground that the employee had since retired from the service.
Therefore, the facts of that case are totally different and distinguishable while considering the facts on hand. Consequently, the reliance placed
on the said judgment by the learned counsel for the respondent is not correct. On the other hand, the learned counsel for the petitioner relied on a
decision, reported in Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and Others, wherein at paragraphs 6 and 7, the Hon''ble Supreme Court
has held as follows:--
It will be noticed from the above said 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.
In view of the absence of such a provision in the above said regulations, it must be held that the Corporation had no legal authority to make any
reduction in the retrial 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.
In UCO Bank and Another Vs. Rajinder Lal Capoor, the Hon''ble Supreme Court has held at paragraph Nos. 29 to 31 are as follows:--
We have noticed in para 15 of our judgment that ordinarily no disciplinary proceedings can be continued in absence of any rule after an
employee reaches his age of superannuation. A rule which would enable the disciplinary authority to continue a disciplinary proceeding despite the
officers reaching the age of superannuation must be a statutory rule. A fortiori it must be a rule applicable to disciplinary proceedings.
There cannot be any doubt whatsoever that the employer may take resort to a preliminary inquiry, but it will bear repetition to state that the
same has a limited role to play. But, in absence of the statutory rules operating in the field, resorting to a preliminary enquiry would not by itself be
enough to hold that a departmental proceeding has been initiated.
Initiation of a disciplinary proceeding may lead to an evil or civil consequence. Thus, in absence of clear words, the Court must lean in favour
of an interpretation which has been applied by this Court in the main judgment.
In the above said judgment, the Hon''ble Supreme Court rejected the claim for reconsideration of its earlier judgment in the same case in,
UCO Bank and Another Vs. Rajinder Lal Capoor, , wherein, the Hon''ble Apex Court has held that the disciplinary proceedings initiated after the
retirement of the employee is not proper.
In State Bank of India Vs. A.N. Gupta and Others, the Hon''ble Apex Court at paragraphs 14 and 16 held as follows:--
14....The Court noted that there was no provision in the Service Rules of the Bank providing for extension of service of an employee to enable the
authorities to complete the disciplinary enquiry against him which power was available under the Government Service, Rules. The Court said even
if an enquiry was pending against an employee there was nothing to stop him from retiring on his attaining the age of superannuation. The enquiry
could not continue after his retirement....
16.... We cannot agree with the plea of the Bank that sanctioning of retirement must be understood as sanctioning of service which in terms must
be understood as approval of service. Proceeding in the garb of disciplinary proceedings cannot be permitted after an employee has ceased to be
in the service of the Bank as Service Rules do not provide for continuation of disciplinary proceedings after the date of superannuation....
The Hon''ble Division Bench of this Court, reported decision in N. Kunnai Gowder Vs. The Coimbatore District Co-op. Milk Producers''
Union Ltd., at paragraph 6 held as follows:--
A departmental proceeding can continue so long as the employee is in service. In the event, a disciplinary proceeding is kept pending by the
employer, the employee cannot be made to retire. In the instant case, no rule has been brought to our notice providing for continuation of such
proceeding despite permitting the employee concerned to retire. There has to be a specific provision of law or regulation or a bye-law governing
the service conditions of the person in question for continuing a departmental enquiry, initiated before the date of superannuation, even after the
employee had retired from service. Without such a provision being available, there cannot be an employer-employee relationship surviving after the
employee retires from service. Therefore, continuing the enquiry proceedings or conducting an action against the person after his retirement from
service cannot be sustained in the eye of law.
Thus from the reading of all these case laws of the Hon''ble Apex Court as well as by this Hon''ble Court, the reasonable conclusion that can
be arrived at in this case is that the respondents 1 and 2 are not justified in continuing the proceedings against the petitioner, even after his
retirement and therefore, the said action of issuing the show-cause notice, impugned in this writ petition, is totally without jurisdiction.
Then, we come to the next question as to whether the petitioner is entitled to challenge the show-cause notice alone without challenging the
order of the appellate authority. As I have already pointed out that when the order of the appellate authority in directing the second respondent to
continue the disciplinary proceedings is solely without jurisdiction when he has chosen to set aside the order of termination, in my considered view,
the said portion of the order of the appellate authority is to be held as non-est one without any legality and jurisdiction, since once the order of
termination is set aside, it should date back to such order of termination. Consequently, on 31.08.2007, when the fact remains that the petitioner
had already attained the age of superannuation on that day and also got relieved and retired from the post on the very same date, he was no more
in service and consequently. continuation of the disciplinary proceedings without retaining him in service is not legal as the same is without
jurisdiction.
At this juncture, it is useful to refer to the decision of the Hon''ble Supreme Court, reported in Deepak Agro Foods Vs. State of Rajasthan and
Others, wherein, it was held that a decree or order passed without jurisdiction is nullity and the same can be challenged at any stage even in a
collateral proceedings. Therefore, the petitioner can very well canvass the correctness or otherwise of the order passed by the appellate authority
even while challenging the subsequent show-cause notice issued by the second respondent.
Thus, the last question as to whether the petitioner is entitled to challenge the show-cause notice is also to be answered in favour of the
petitioner, especially, under the facts and circumstances of the present case, and in view of my finding that the second respondent is not having any
jurisdiction to issue the said show-cause notice on the petitioner.
At this juncture, it is useful to refer to the decision of the Hon''ble Supreme Court, reported in Siemens Ltd. Vs. State of Maharashtra and
Others, wherein, at paragraph 10, it is held as follows:--
Although ordinarily a writ Court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show-cause
unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar
Pradesh Vs. Brahm Datt Sharma and Another, The Special Director and Another Vs. Mohd. Ghulam Ghouse and Another, and Union of India
(UOI) and Another Vs. Kunisetty Satyanarayana,
In another decision, reported in Union of India (UOI) and Another Vs. Kunisetty Satyanarayana, the Hon''ble Supreme Court has held as
follows:--
Writ Jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a
show-cause notice or charge-sheet.
No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly
without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere, in such a matter.
The reading of the above decision of the Hon''ble Supreme Court, only shows that the impugned show-cause notice issued by the second
respondent without jurisdiction can be challenged by the petitioner.
In the result, by considering the all facts and circumstances of the case as well as the case laws cited supra, I am of the view that the petitioner
is entitled to succeed in this writ petition. Accordingly, the writ petition is allowed and impugned show-cause notice is set aside and consequently,
the respondents are directed to pay all the terminal benefits to the petitioner within a period of eight weeks from the date of receipt of a copy of
this order. No costs.