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Judgment
Heard Shri Prashant Kumar Singh, learned counsel for the petitioner, Shri Ratnesh Chandra, learned counsel appearing for opposite party nos.2, 3 & 4 and learned Standing Counsel for opposite party no.1.
The petitioner has approached to this Court challenging the order dated 12.7.2016 passed by the opposite party no.3 by which the opposite party no.3 has allowed the continuance of proceedings against the petitioner after his retirement, punishment order dated 28.01.2016 for recovery passed by the opposite party no.4 and show cause notice dated 20.9.2016 issued by the opposite party no.4.
The petitioner has further prayed for a direction to the opposite parties to pay the pension, retirement gratuity and other retiral dues to the petitioner.
The writ petition has been filed stating therein that the petitioner was initially appointed as Steno in the U.P. State Road Transport Corporation (hereinafter referred to as the UPSRTC) with effect from 18.02.1977 at Lucknow and subsequently he was posted in various Depots of the UPSRTC.
The petitioner was promoted to the post of P.A Grade-1 and further promoted to the post of Assistant Regional Manager in the month of March 1998 in Grade Pay of Rs.6600.00. The work and conduct of the petitioner has all along been satisfactory and keeping in view the performance and work of the petitioner, the petitioner had been posted as In-charge Regional Manager, Etawah, UP in the month of November 2013 and till his retirement he was working as In-charge Regional Manager at Etawah.
While the petitioner was posted at Etawah, on the basis of some complaint made by one Shri Praveen Kumar, the opposite party no. 4 issued a show cause notice dated 29.12.2016 to the petitioner calling his explanation/reply. In response thereto, the petitioner submitted his reply dated 02.01.2016 and denied the allegations against him with all the relevant documents. Thereafter, the opposite party no. 4 without issuing any charge sheet or without holding any inquiry passed the order dated 28.1.2016 for recovery. The impugned order dated 28.1.2016 has been passed without affording any opportunity of hearing to the petitioner and even the copy of complaint has not been provided to the petitioner.
After attaining the age of superannuation, the petitioner retired from service and he relinquished his charge on 31.01.2016 (afternoon).
Being aggrieved by the order dated 28.01.2016, the petitioner had preferred an appeal dated 02.03.2016 before the opposite party no.3 with a prayer to set aside the order dated 28.01.2016 on the ground of violation of principal of natural justice and other grounds as no opportunity of hearing was provided to the petitioner and when nothing was done on his appeal, he approached to this Court by filing Writ Petition No.9609 (S/B) of 2016 challenging the order 28.01.2016 which was finally disposed of vide judgment and order dated 04.05.2016 with a direction to the opposite party no. 3 to decide the appeal of the petitioner within one month. In compliance thereof the opposite party no. 3 has decided the appeal of the petitioner vide order dated 12.07.2016 after finding that no opportunity of hearing was provided to the petitioner and directed to the opposite party no. 4 to issue show cause notice to the petitioner and thereafter decide the same following the principles of natural justice and after giving opportunity of hearing to the petitioner.
The petitioner submitted a representation dated 31.08.2016 to the opposite party no.4 that despite lapse of sufficient time nothing has been done in the matter of retiral dues and also submitted a copy of the judgment and order dated 08.08.2011 passed in Writ Petition No.1368(S/B) of 2011 in the matter of Shri A.K.Srivastava in which the Hon''ble High Court has held that disciplinary proceedings cannot continue after superannuation if not specifically provided in the rules and requested that disciplinary proceedings be dropped. However, without considering the same, the opposite party no.4 issued a show cause notice dated 20.09.2016 in pursuance of the order dated 12.07.2016 passed by the opposite party no.3 proposing the same punishment as was awarded to the petitioner vide order dated 28.1.2016.
It has further been averred that service condition of the petitioner was governed by the provisions of the UPSRTC Officers Service (Gen.) Regulations, 1998 and there is no provision for proceeding with the disciplinary action against an officer of UPSRTC who has ceased to be in service. Since the petitioner has retired from service of the UPSRTC on 31.01.2016 (afternoon) and the employer employee relationship has ceased to exist and as such no disciplinary proceeding can continue against him.
The opposite party nos. 2 to 4 has filed a counter affidavit denying the averments made in the writ petition. It has been stated in the counter affidavit that a complaint dated 13.07.2015 and 21.07.2015 was lodged by Shri Pravin Kumar, the then Assistant Regional Manager (Finance), Aligarh region against the petitioner who was then posted as In-charge, Regional Manager, Etawah to the effect that the petitioner in defiance to the instructions dated 26.06.2014 of the headquarters is not taking the prescribed work from the regular conductors/drivers as instead of assigning the duties of driver and conductor to regular and competent drivers namely Shri Awadhesh Yadav, Shri Sarvesh Yadav, Shri O.P Yadav and Shri Ram Swaroop, the petitioner deployed them for driving contractual Staff Car No.588 and 9595. Not only this the petitioner had also shown the presence of these drivers fraudulently sometimes in the office of Regional Manager and sometimes at car section in order to get himself as well as the owner of contractual staff car illegally benefited and thereby has caused loss to the UPSRTC and has acted against the direction and circulars of the corporation. The petitioner himself, misusing the authority, had deputed the aforesaid competent driver/conductors except Shri O.P Yadav in the office of Regional Manager for taking personal work from them while on the contrary 26 regular but disabled conductors/drivers were already posted there. Hence, the action was taken against the petitioner in accordance with law and without affording opportunity, the punishment order dated 28.01.2016 was passed.
Against the Punishment Order, dated 28.01.2016, the petitioner had preferred an appeal dated 05.02.2016 which was finally disposed of on 12.07.2016 and the matter was remanded to the disciplinary authority. In compliance thereof show cause notice dated 20.9.2016 has been issued to the petitioner.
The petitioner has filed a rejoinder affidavit reiterating the averments made in the writ petition. It has further been submitted in the rejoinder affidavit that Shri Praveen Kumar was tainted with malice due to the fact that the petitioner had issued show cause notice on 02.07.2014 to Shri Praveen Kumar and the copy of the complaint of Shri Praveen Kumar was also never provided to the petitioner.
The petitioner has mainly assailed the impugned orders on the ground that the service conditions of the petitioner was governed by the provisions of the UPSRTC Officers Service (Gen.) Regulations, 1998 (hereinafter referred to as the Regulations of 1998), which was made in exercise of the powers conferred by clause(c) of sub-section (2) of Section 45 of the Road Transport Corporation Act, 1950 (Act No.64 of 1950) with the previous sanction of the State Government and there is no provisions under the said Regulations for proceeding with the disciplinary action against an officer of UPSRTC who has ceased to be in service. Since the petitioner has retired from service of the UPSRTC on 31.01.2016 (afternoon) and the employer employee relationship has ceased to exist and as such no disciplinary proceeding can continue against him in the absence of any specific provision under the Regulations of 1998.
It has been further submitted that Regulation 81 of the Regulations of 1998 provides for the various penalties, which may be imposed for good and sufficient reason upon an Officer and since the petitioner has retired from service and ceased to be an officer of the UPSRTC with effect from 01.03.2016, none of the penalties mentioned in Regulation 81 can be imposed upon him and as such the part of the order dated 16.07.2016 by which the appellate authority has directed the opposite party no.4 to again issue show cause notice and proceed accordingly in disciplinary proceedings and also the show cause notice dated 20.09.2016 is nothing but a futile exercise aimed at harassing the petitioner after retirement.
He further submitted that there is no provision for continuance of disciplinary proceedings against retired officials of the UPSRTC, but on the pretext of pendency of the disciplinary proceedings, no action is being initiated for payment of post retiral dues to the petitioner and even provisional pension is not being paid to the petitioner.
In support of his submissions, learned counsel for the petitioner has relied on the decision rendered in the case of Hon''ble Supreme Court in the case of Bhagirathi Jena versus Board of Directors, O.S.F.C and others reported in (1999) 3 SCC 666, and the decisions of this Court in the cases of Dr.R.B.Agnihotri versus State of U.P and others, reported in 2000(2) HVD 161, and in S.S.L Verma versus U.P Co-operative Bank Limited and others, reported in 2004(22) LCD 659.
The counsel for the petitioner has also relied on the judgment and order dated 05.07.2011 passed in Writ Petition No.989(S/B) of 2010 (P.P. Pandey versus State of U.P and others) in respect of an employee of U.P.S.R.T.C. in similar circumstances.
In view of the aforesaid submissions, the learned counsel for the petitioner submitted that the impugned orders are wholly illegal, unjust, unfair, arbitrary, violative of Article 14 and 16 of the Constitution of India and amounts to abuse of the power with a view to harass the petitioner. Accordingly, the same are liable to be quashed and opposite parties may be directed to make the payment of all retiral dues with interest without any further delay.
Learned counsel for the opposite party nos.2 to 4 has vehemently opposed the submissions of the learned counsel for the petitioner. He submitted that the petitioner was awarded minor punishment of recovery as provided in Regulation 81 of Regulations 1998 after following the procedure as provided under the Regulations for the minor penalties, after calling his explanation in response to the show cause notice issued to him against which the petitioner had submitted his reply and after considering the same, the punishment order dated 28.01.2016 was passed in accordance with law and there is no illegality or infirmity in it.
In this regard he had relied on a judgment of the Hon''ble Apex Court reported in (2007) 8 SCC 108 State of Punjab versus Nirmal Singh in which it has specifically been held that no personal hearing is required for minor penalty in respect of an identical rule as such in the present case also since the show cause notice was issued to the petitioner and after considering his reply the Punishment Order has been passed by a reasoned and speaking order, the same is legal and justified. He has in this regard, relied on paragraph 6 of the judgment, on reproduction, which reads as under:
"6. Rule 21 of the Punjab Civil Service (Punishment & Appeal) Rules, 1970 deals with the review. A perusal of the aforesaid rule shows that there is no provision of personal hearing in regard to inflicting minor penalties. The Rule contemplates a personal hearing only when the Disciplinary Authority proposes to impose any of the major penalties specified in clauses (v) to (ix) of R. 5 or to enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in those clauses. Admittedly, by an order dated 20.10.2003, the respondent was inflicted punishment of stoppage of two increments with cumulative effect, which is a minor punishment. The High Court, in our view, was clearly in error in setting aside the order dated 24.6.2004 passed by the Competent Authority on the ground of violation of principles of natural justice. The High Court was also of the view that the order passed by the Competent Authority dated 24.6.2004 is not a speaking order. This finding of the High Court was not based on the material on record. We have gone through the order dated 24.6.2004 passed by the Competent Authority. In our view the order is supported with reasons."
He further submitted that the petitioner had preferred an appeal on 05.02.2016 i.e after his retirement on 31.01.2016. When the appeal was not decided, the petitioner himself approached to this Court and this Hon''ble Court had directed to the Appellate Authority to consider and decide the petitioner''s appeal expeditiously within one month from the date of communication of the order. The appeal of the petitioner was considered by the Appellate Authority and the Appellate Authority remanded the case to the Punishing Authority with a direction to hold the inquiry after applying the principle of natural justice and issuing show cause notice to the petitioner and affording him opportunity of hearing within a period of one month. While remanding the matter, the Appellate Authority provided that the effect and implementation of the order dated 28.01.2016 passed by the Punishing Authority would remain stayed till the passing of the final order by the Punishing Authority. In compliance thereof the Punishing Authority issued the show cause notice dated 20.09.2016 to the petitioner calling his explanation within 15 days as such there is no illegality or infirmity in it.
The opposite party nos. 2 to 4 submits that the judgments relied by the learned counsel for the petitioner are not applicable on the facts and circumstances of the present case.
He submits that though the inquiry cannot be held against the employee of the department as the same has not been provided under the Rules which has been held by this Court as well as the Hon''ble Apex Court also but in the present case, the inquiry was already completed and the punishment order was passed on 28.01.2016 prior to the retirement of the petitioner on 31.01.2016 after attaining the age of superannuation and as being challenged in the appeal, the matter has been remanded to the Punishing Authority for a fresh consideration with a direction to dispose of the matter after issuing show cause notice and affording opportunity to the petitioner on the appeal of the petitioner and till then the effect and operation of the Punishment Order dated 28.01.2016 has only been stayed and it has not been quashed. As such, there is no illegality or infirmity in the show cause notice issued on 20.09.2016 also. However, he submitted that in case the enquiry cannot be held, the punishment order dated 28.01.2016 revives and the same has been passed in accordance with law. He also submitted that the judgments relied by the petitioner are not applicable on the facts and circumstances of the present case.
In view of his submissions, the learned counsel for the opposite party nos. 2 to 4 submits that the writ petition is totally misconceived and devoid of merits and is liable to be dismissed with cost.
We have considered the submissions of the parties and gone through the records.
It is now well settled that the departmental inquiry cannot be held against the retired employees, if it is not specifically provided in the Rules or Regulations. It has been held by the Hon''ble Supreme Court in the case of Bhagirathi Jena versus Board of Directors, O.S.F.C and others reported in (1999) 3 SCC 666 that in view of absence of such a specific provision in the Regulations, the Corporation has no legal authority to make any reduction in the retiral benefits of the appellant. The paragraphs 6 & 7 of the judgment, on reproduction, reads 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 departmental enquiry after superannuation.
In view of the absence of such 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 30.6.95. there was no authority vested in the Corporation or 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."
Relying on the aforesaid, judgment and the order has been passed by this Court in the case of S.S.L Verma versus U.P Cooperative Bank Ltd. and others 2004 (22) LCD 659 and Dr. R.B. Agnihotri Versus State of U.P. & others 2000(2) A.W.C 1242 and Writ Petition No.989 of 2010 (P.P Pandey versus State of U.P & others) which is in respect of an employee of UPSRTC has also been allowed.
Relying on several judgments in this regard, similar view has been taken by Hon''ble Supreme Court in Anant R. Kulkarni vs. Y.P. Education Society and others (2013) 6 SCC 515. The relevant paragraph no.34 of the judgment is reproduced hereunder:-
"We may add that the Court has not been apprised of any rule that may confer any statutory power on the management to hold a fresh enquiry after the retirement of an employee. In the absence of any such authority, the Division Bench has erred in creating a post-retirement forum that may not be permissible under law."
However, the case of the petitioner is different as in all the above cases, the inquiry was initiated either at the time when the employee was in service and not concluded by the time he retired or it was not started even after his retirement but in the present case, the inquiry was initiated during the period of service of the petitioner and after completion of the inquiry, the punishment order was passed on 28.01.2016 prior to retirement of petitioner on attaining the age of superannuation on 31.01.2016.
Thereafter, the petitioner had preferred the departmental appeal which has been remanded without setting aside the Punishment Order and the effect and implementation of Punishment Order has been stayed till finalization of the proceeding in the second round.
In view of above, the plea regarding inquiry taken by the petitioner may not be available to him. Otherwise also, since the inquiry cannot be held as it has not been provided under the Regulation and also in view of the judgments of the Hon''ble Apex Court as well as this Court, the Punishment Order has not since been set aside, it automatically revives as it was passed during service period of the petitioner.
We have also examined the appellate order and found that the matter has been remanded on the ground that the Punishing Authority should have afforded an opportunity of hearing to the petitioner after issuing show cause notice in accordance with the Service Regulation and the letter dated 05.07.2006 before passing the Punishment Order.
The findings, recorded by the Appellate Authority for remanding the matter are perverse and against the record. As indicated in the Punishment Order itself and material available on record, a show cause notice dated 29.12.2005 was issued to the petitioner calling his explanation and in response thereof, the petitioner had submitted his reply through letter dated 02.01.2016 and after considering the same, the Punishment Order dated 28.01.2016 was passed by a reasoned and speaking order. Since the Appellate Order is not based on correct facts and it is with perverse findings hence, it is not sustainable and is liable to be quashed.
We have also examined the relevant provision regarding appeal in the UPSRTC Officers (Journal) Regulation 1998. Regulation 90 (1) regarding appeal provides that an Officer may appeal against the order imposing upon him in all the penalties, the petitioner could not have filed the appeal also as he ceases to be an Officer of the department after retirement as such order passed on appeal is of no consequence. Regulation 90(1), on reproduction, reads as under:-
"90. Appeals. -(1) An officer may appeal against an order imposting upon him any of the penalties specified in Regulation 81 or against the order of suspension referred to in Regulation 78. The appeal shall lie to the authority specified in the schedule."
Considering the submission of parties, we are of the considered opinion that the Punishment Order dated 28.01.2016 has been passed in accordance with law after affording opportunity to the petitioner. Since the Punishment Order was only stayed till taking a fresh decision in the matter by the appellate authority and no inquiry can be held after retirement of petitioner, the same revives. Even otherwise, since we have held that the appellate order is not sustainable, the punishment order revives which is a perfectly valid order. The appellate order dated 12.07.2016 and show cause notice dated 20.9.2016 are not sustainable and liable to be quashed.
In view of the aforesaid facts and circumstances, there is no justification for the opposite parties to withhold the admissible pension, retirement gratuity and other retiral dues of the petitioner in accordance with law.
Accordingly, the writ petition is partly allowed and the appellate order dated 12.07.2016 and show cause notice dated 20.09.2016 are quashed and the Punishment Order dated 28.01.2016 is upheld.
The opposite parties are directed to make the payment of admissible dues of the petitioner including pension, retirement, gratuity and other retiral dues with admissible interest in accordance with law within a period of two months from the date of production of certified copy of this order.
No order as to costs.