Shyam Om Kinker vs U.P. Provincial Co-operative Federation Ltd.

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Amreshwar Pratap Sahi and Mahendra Dayal, JJ.—This petition has a peculiar background and the nature of the dispute about the petitioner who was a Law Officer in the respondent Cooperative Federation Limited. He had been called upon to show cause by way of a charge-sheet alongwith a report dated 1.7.2005 to give a reply as to why he should not be dismissed from his services. A preliminary objection has been raised by Sri A.K. Bajpai on behalf of the respondents that such a writ petition was not maintainable to which the reply of Dr. L.P. Mishra, learned Counsel for the petitioner is that the entire proceedings are without jurisdiction, inasmuch as, the appointing authority of the petitioner as provided under Regulation 2(iii) of the U.P. Cooperative Societies Services Rules, 1975 read with Rule 2(c) of the U.P. Cooperative Federation Limited Employees Service Rules, 1980 is the Committee of Management of the Provincial Cooperative Federation and not the Managing Director. In such circumstances, the show cause notice given to the petitioner is without authority in law. He submits that this allegation as contained in Paragraph 36-A to 36-F of the writ petition has not been controverted by the respondents.

There is yet another development which requires to be noted that the petitioner has retired and attained the age of superannuation on 31.7.2013.

When this writ petition was filed, an interim order was initially passed that was continued, and as a consequence whereof the petitioner remained in service and was also receiving his financial benefits. Some of his financial benefits were curtailed and after his retirement the post terminal benefits are now sought to be realized in view of the facts stated in the amendment application that has been allowed by this Court on 24.7.2014. Certain deductions have also been made and the petitioner seeks to challenge the same with a prayer that he should be paid his entire emoluments as mentioned therein and the order dated 2.4.2012 be also quashed.

What appears is that on account of the interim orders passed in this petition the inquiry could not be admittedly concluded or final orders passed. The petition therefore on account of its mere pendency has brought about this situation.

In our considered opinion after an employee has retired the proceedings can continue only if there is any relevant rule that may allow the authority to proceed to take action for fixing any liability or disciplinary action against the petitioner. In this regard, we are of the considered opinion that there is no rule pari materia to Regulation 351-A of the Civil Services Regulation to allow the respondents to continue the disciplinary proceedings against the petitioner. It is unfortunate that the petition remained pending with an interim order allowing the petitioner to retire from his services on 31.7.2013.

Learned Counsel for both sides have relied on judgments to contend that no petition lies against a show cause but where the notice is absolutely without jurisdiction then in such an event the show cause can be challenged.

In this regard, it would be relevant to mention that a show cause notice can be challenged only if it is absolutely without jurisdiction. This is also apparent from the judgment which has been relied upon by the learned Counsel for the respondents The Special Director and Another Vs. Mohd. Ghulam Ghouse and Another, and AIR India Ltd. Vs. M. Yogeshwar Raj, . There cannot be any dispute with regard to that proposition but in the instant case this issue becomes redundant with the retirement of the petitioner on 31.7.2013.

Apart from this, in the absence of any rules allowing the disciplinary proceedings to continue after retirement it will not be possible for the respondents to take further steps as has been held by the Apex Court in the case of Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and Others, and a division bench judgment of this Court in the case of U.P. State Ware Housing Corporation, Lucknow v. Sri Brisk Bhan Singh and another, 2011 (29) LCD 1348 Paras 8 and 9.

The question is therefore as to whether such deductions of emoluments which has been made from the petitioner''s post retiral benefits or otherwise can now be permitted to be made in the wake of the aforesaid facts.

There are two separate issues, one is with regard to the continuance of any disciplinary proceedings that in our opinion stands foreclosed as no rules could be shown by Sri Bajpai to establish that the disciplinary proceedings can be continued against the petitioner after his retirement.

So far as the realization of any other dues including surcharge is concerned from the service benefits of the petitioner, the same would also be dependent upon the outcome of the directions issued by us in connected writ petition No. 950 of 2003. Consequently, so far as the emoluments of the petitioner are concerned, they can be realized subject to any such deductions which may be dependent upon the outcome of the directions as mentioned hereinabove.

Accordingly, we hold that the disciplinary proceedings and the main relief as claimed in the writ petition are rendered infructuous against the show cause notice as the petitioner has already retired on 31.7.2013. So far as his payment of salary, arrears, allowances and deductions are concerned, the same would be dependent upon the outcome of the decision taken as per the directions contained in Writ Petition No. 950 of 2003.

Consequently, the prayer for quashing the recovery and deductions as brought through the amendment application are disposed off subject to the aforesaid conditions and with liberty to the respondents to pass a fresh order after a decision is taken as indicated above. In the event it is ultimately held that no liability can be fixed on the petitioner, the amount due or any amount recovered would become payable to the petitioner. The writ petition is accordingly stands disposed of with the aforesaid directions.