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Judgment
Petitioner has preferred instant writ petition assailing order
dated 12/02/2016 whereby he has been removed from service by
upholding the punishment order passed earlier dt.18/04/1996
after he had already attained superannuation.
Brief facts to be noted are that the petitioner was holding the
post of Junior Sales Assistant in the Rajasthan Small Industries
Corporation (hereinafter referred as ''RSIC''). He was served with a
charge sheet on 30/06/1995 under Rule 8 of the RSIC Service
(Discipline & Appeal) Rules, 1974. Four charges were levelled
against him. He denied the charges and enquiry was conducted.
The enquiry officer submitted enquiry report on 11/04/1996 and
punishment order was passed on 18/04/1996 removing the
petitioner from service after holding him guilty of the charges.
The petitioner assailed the punishment order dated
18/04/1996 and the order passed in departmental appeal dated
19/09/1998 by preferring SB Civil Writ Petition No.2672/1999
which was allowed vide judgment dated 08/08/2008 and following
order was passed:-
"In the result, the writ petition succeeds and the order of penalty and removal of the petitioner from service dated 18.4.96 is set aside and the order by which the appeal of the petitioner was dismissed dated 19.9.1998 is also set aside. Since the petitioner was removed a decade ago and this matter has remained pending for more than nine years, owing to which the petitioner was not required to discharge his duties, all this time, he would therefore be only entitled to notional benefits for the intervening period. In so far however other benefits are concerned such as increments, revision of pay, seniority and consideration of promotion etc., the petitioner would be deemed to be continuous in service and this period of service would held valid for the purpose of all these benefits."
DB Special Appeal (Writ) No.2028/2008 was preferred before
the Division Bench. The appeal was dismissed vide judgment
dated 04/05/2012 upholding order of the learned Single Judge
with observations as under:-
"We find that order of termination of services of the respondent has rightly been set aside by learned Single Judge in the facts and circumstances of the instant case. However, the appellant-employer is granted a liberty, as prayed for, to pass the order in accordance with law after removing the defects in the course of departmental enquiry, as pointed by the Single Judge."
The petitioner was reinstated by the respondents vide order
dated 14/05/2012 and posted in the office. Vide order dated
09/07/2014 the petitioner was retired on attaining superannuation
in terms of Rule 36 of RSIC Service Rules of 1972.
While the aforesaid was done, in view of the observations
made by the Division Bench (supra), a new enquiry officer was
appointed and the enquiry was continued after retirement and the
petitioner was served with enquiry report vide letter dated
19/10/2015. It appears that there was another memorandum
issued to the petitioner on 21/03/1996 for which also the enquiry
was conducted and a joint enquiry report was prepared by the
enquiry officer relating to both the charge-sheets and on the basis
of the said enquiry report, the impugned order dated 12/02/2016
was passed whereby the earlier order passed of removal from
service was kept as it is and the petitioner was treated as having
been removed from service w.e.f. 18/04/1996.
Learned counsel for the petitioner has mainly challenged the
order impugned on two counts. Firstly, the RSIC Service
(Discipline & Appeal) Rules, 1974 do not provide for continuation
of departmental enquiry after retirement. It also does not provide
for passing punishment of removal from service after retirement.
The second submission raised by learned counsel for the petitioner
is that the order impugned is ex-facie illegal and unjustified. The
enquiry officer has conducted the enquiry beyond his jurisdiction.
A joint enquiry regarding two charge-sheets could not have been
conducted afresh as there is no such direction issued by the
Division Bench while deciding the appeal. The only leverage given
to the respondents was to pass order in accordance with law after
removing the defects in the course of the departmental enquiry
which had already been conducted. However, the respondents
have conducted a fresh enquiry and prepared another report.
Further, they have passed an order of punishment retrospectively
w.e.f. 1996 although the said order dated 18/04/1996 stood
already quashed & set aside by the orders passed by the learned
Single Judge which was upheld by the Division Bench. It is
submitted that no punishment order could have been passed with
retrospective effect.
Learned counsel for the respondents submits that as the
respondents were given liberty, in order to do complete justice,
the enquiry was conducted afresh and there is no bar under the
Rules for continuing enquiry even after retirement. Learned
counsel for the respondents supports the punishment order on the
ground that once liberty was granted by the Division Bench, the
only requirement for the authority was to examine whether the
earlier order of the respondents was correct or not and would
relate back to the earlier order of 1996.
Heard learned counsel for the parties and examined the
material available on record.
A look at the judgments passed earlier by this Court and
upheld by the Division Bench goes to show that the punishment
order dated 18/04/1996 stood quashed and set aside and
therefore, it had become non-existent in law. The respondents
have, however, revived the same while passing the impugned
order dated 12/02/2016. which could not have been done as the
order of the learned Single Judge has been upheld by the Division
Bench. The respondents were given liberty to pass fresh orders
after removing the defects in the enquiry which they had already
conducted, meaning thereby, the respondents were required to
give the petitioner necessary documents which they they had
relied upon the earlier enquiry and also give him a copy of the
enquiry report and take his objection and pass the order. The
Division Bench or the learned Single Judge did not allow the
respondents to conduct a fresh enquiry with regard to the charge
sheet of 1995. The proceedings conducted by the new enquiry
officer, therefore, are vitiated in law and are liable to be set aside.
Apart from above, this Court accepts contention of learned
counsel of the petitioner that the RSIC Service (Discipline &
Appeal) Rules, 1974 do not provide for continuation of
departmental enquiry after retirement. In absence of any power
available under the Rules, the respondents could not have
conducted the enquiry after retirement as the petitioner had
already retired and his employer employee relation with the
respondents had come to an end. The law regarding continuation
of enquiry after retirement is settled in the case of Bhagirathi Jena
Vs. Board of Directors, O.S.F.C. and others: (1999) 3 SCC 666
wherein it was held in Para 6 & 7 as under:-
"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 the departmental enquiry after superannuation.
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. "
Thus, the enquiry proceedings stand vitiated on this Court
also.
In the case of Dev Prakash Tewari Vs. Uttar Pradesh
Cooperative Institutional Service Board, Lucknow and others:
(2014) 7 SCC 260, which was almost on similar facts, it was
observed by the Supreme Court in Para 7 & 8 as under:-
"7. In a subsequent decision of this Court in U.P. Coop. Federation case 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 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.
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."
The contention of learned counsel of retrospectivity of
punishment order is also tenable. If retrospective punishment is
upheld, it would mean that post-decisional hearing can be allowed
in the departmental proceedings. Principally, it wold be amounting
to put the cart before the horse. The action of the respondents in
punishing with effect from anterior date is liable to be set aside.
In view of what has been discussed herein above, the order
impugned passed by the respondents dated 12/02/2016 is quashed and set aside and the respondents are directed to pay
arrears of salary and allowance payable to the petitioner and also
pay him all retiral benefits in accordance with Rules and
Regulations as if their had been no disciplinary proceedings
initiated and no punishment order passed against him therein.
Compliance of this order shall be made by the respondents within
three months of receipt of certified copy of this order.
The writ petition stands allowed with the
observations/directions as indicated above. No costs.