U.P. Avas Evam Vikas Parishad vs State Public Services Tribunal Indira Bhawan Lucknow and Others

Aditya Nath Mittal, J.—Heard learned counsel for the parties and perused the record.

This petition under Article 226 of the Constitution of India has been filed with the prayer to issue a writ of certiorari quashing the judgment and order dated 27.08.2014, passed by the opposite party No. 1 in Claim Petition No. 1899 of 2012, Ganesh Singh v. State of U.P.& others.

By the judgment and order dated 27.08.2014, the State Public Services Tribunal, Lucknow has allowed the claim petition by setting aside the punishment order dated 27.07.2012 and has further directed to release the retiral benefits if the same have been withheld.

The opposite party No. 2 had filed the aforesaid claim petition on the ground that the opposite party No. 2 has retired on 30.06.2004 and till that date he was not served with any charge-sheet. The enquiry was conducted against Sri Dinesh Chandra and Sri Dinesh Chandra was found guilty in that enquiry along with the opposite party No. 2. Although the show cause notice was issued to the opposite party No. 2 on 17.02.2004, which he has replied on 01.04.2004, but even after four years of retirement, no proceedings were conducted and on 12.09.2008 another show cause notice was issued for showing cause on the basis of enquiry report against Sri Dinesh Chandra. The opposite party No. 2 had submitted his written explanation on 28.01.2009 stating that there is no provision in the Rules of U.P. Avas Evam Vikas Parishad (here-in-after referred to as the "Board") to pass the punishment order after retirement. The proceedings have also not been conducted under Rule 351-A of Civil Services Rules (here-in-after referred to as the "CSR").

The said claim petition was contested by the petitioner who had submitted that regarding the tender, which was opened on 31.10.2001, the departmental enquiry was instituted against Sri Dinesh Chandra, the then Executive Engineer, in which the opposite party No. 2 was also found guilty partially, regarding which the notice was issued to the opposite party No. 2. On 28.06.2010 the notice for recovery of Rs. 4,99,000/- was issued to him, which was replied on 23.03.2011. After that the notice for personal appearance was issued and the opposite party No. 2 had appeared on 07.12.2011. After considering the explanation, the meeting of Joint Commissioner, Finance Controller and the Chief Legal Adviser was convened and the opposite party No. 2 was also found guilty for the said loss. Because the notice was issued during the service period of the opposite party No. 2, therefore, it was held that the provisions of CSR 351-A are not applicable.

After considering the rival submissions of both the parties, the learned Tribunal came to the conclusion that Rule 28 relates to the deduction from the salary but there is no provision to make deduction after retirement. The learned Tribunal also came to the conclusion that no enquiry was conducted against the opposite party No. 2 and he was also not served with any charge-sheet, but the enquiry was conducted against the Executive Engineer Sri Dinesh Chandra. Despite of procuring time to show the provisions, the Board could not show any provision regarding punishment after retirement. It was also not shown as to whether the CSR 351-A has been adopted by the Board or not. Accordingly, the punishment was not found lawful and the petition was allowed.

Learned counsel for the petitioner has submitted that because the notice was already served on 01.04.2004 i.e. prior to the date of retirement on 30.06.2004, therefore, the Board was competent to recover the said loss of Rs. 4,99,000/-. It has also been submitted that the total loss occurred to the Board was of Rs. 9,98,000/- and Sri Dinesh Chandra as well as the opposite party No. 2 were liable to make good the loss to the Board. It has also been submitted that after receipt of the enquiry report against Sri Dinesh Chandra, again a show cause notice was issued to the opposite party No. 2 on 12.09.2008 which was in continuity of previous notice dated 01.04.2004. Therefore, it makes no difference that the opposite party No. 2 has retired. It has also been submitted that in view of Regulation 6 of the Board, the general terms and conditions of the service of the officers and employees of the Board shall be governed mutatis mutandis by the Fundamental Subsidiary Rules applicable to the employees of the State Government. It has also been submitted that because the minor punishment was proposed, therefore, no charge-sheet was served upon the opposite party No. 2. There is no illegality in the recovery notice, but the learned Tribunal has committed illegality in allowing the claim petition. It has also been submitted that in view of the Government Order dated 28.07.1989, the recovery from the gratuity of the government servant after his retirement may be made.

During the course of argument, the learned counsel for the petitioner has submitted that the notification dated 19.05.2009, by which the Civil Service Regulations, as applicable in U.P., have been adopted by the U.P. Avas Evam Vikas Parishad, Lucknow, therefore, the U.P. Avas Evam Vikas Parishad has right to recover the said amount.

On the other hand, learned counsel for the opposite party No. 2 has submitted that the said adoption of the Civil Services Regulation, as applicable in U.P., was not produced before the Tribunal and new case cannot be taken in the writ jurisdiction. It has also been submitted that the said CSR have been adopted by the notification dated May 19, 2009 for the limited purpose of implementation of pension/family pension and gratuity as is evident from the language of the notification. Therefore, it cannot be presumed that the said CSR have been adopted for the purposes of the disciplinary proceedings also. It has also been submitted that CSR cannot be adopted with retrospective effect regarding punishment. It has also been submitted that no departmental enquiry was conducted against the opposite party No. 2 and the opposite party No. 2 cannot be punished on the basis of departmental enquiry conducted against Sri Dinesh Chandra. Moreover, the show cause notices were properly replied and for conducting the departmental enquiry under Regulation 351-A of CSR, the sanction of the Governor is required, but in the present case, no such sanction was obtained. As far as Rule 39 of U.P. Avas Evam Vikas Parishad Contributory Provident Fund Regulation, 1973 is concerned, it is also not applicable because the conditions mentioned in Rule 39 are not fulfilled. It has also been submitted that till the date of retirement i.e. 30.06.2004, no enquiry was instituted against the opposite party No. 2. Therefore, after lapse of more than four years, the said recovery cannot be made from the opposite party No. 2. It has also been submitted that the Joint Commissioner, Finance Controller and the Chief Legal Adviser were not the appointing authority of the opposite party No. 2, therefore, they cannot take decision of recovery against the opposite party No. 2.

Learned counsel for the petitioner has relied upon the judgment passed by the Division Bench of this Court in Writ Petition No. 582 (S/B) of 2000, Preetam Singh and others v. State of U.P. & others, in which, it has been held that the Parishad under the provisions of Section 95(1)(f)(i) and (n) of the Act has framed pension regulations regarding the payment of pensions to its employees. The Division Bench has held as under:-

"It is undisputed that the Parishad under the provisions of Section 95(1)(f)(i) & (n) of the Adhiniyam has framed pension regulations regarding the payment of pensions to its employees. Section 95(1)(f) of the Adhiniyam deals with conditions of service and since payment of pension/family pension and gratuity is a condition of service, the Parishad itself was competent to implement the pension/family pension and gratuity scheme from its own funds. In the light of the above mentioned legal provision, the Parishad possess power to frame its own regulations for conditions of service of officers and servants of the Parishad. The Parishad in its wisdom has framed the scheme regarding the payment of pension/family pension and gratuity to its employees without taking any financial assistance from the State Government."

Learned counsel for the petitioner has further relied upon the case State of U.P. v. Preetam Singh and others reported in 2014 Legal Eagle (SC) 723, in which the above judgment dated 16.01.2009 was challenged, but Hon''ble Apex Court held that Avas Vikas Parishad has extended the pensionary benefits and better retiral benefits by the said notification dated 19.05.2009.

On the other hand, learned counsel for the opposite party No. 2 has relied upon the Division Bench judgment of this Court rendered in Raj Kishore Dubey v. U.P. State Ware Housing Corp. and another reported in [2014 (32) LCD 746], in which, one of us (Justice Satyendra Singh Chauhan) has held that in the absence of specific provision in the service rules applicable to an employee, the disciplinary proceedings cannot be initiated after the retirement.

The following paras are relevant, which are as under:-

"6. Learned counsel for the petitioner has placed reliance upon two judgments rendered in the case of U.P. State Ware Housing Corp. Vs. Brish Bhan Singh and Another, and Ravindra Pal Singh Vs. State of U.P. and Others, . Learned counsel has submitted that in identical situation, this Court has taken a view that power to initiate disciplinary proceedings is not vested with the opposite parties after retirement of the petitioner. Regulation 351-A of the Civil Services Regulations has not been adopted and Service Rules also do not permit initiation of disciplinary proceedings after retirement. Submission, therefore, is that once this Court has settled the legal position, the action of the opposite parties is wholly illegal and without authority of law and initiation of disciplinary proceedings after retirement cannot be sustained in law.

Having heard learned counsel for the parties, We find that the power to initiate disciplinary proceedings under the Service Rules is not vested with the Corporation. Regulation 351-A of the Civil Services Regulations has also not been adopted by the Corporation. In these circumstances, if the very source of power is lacking, then initiation of disciplinary proceedings after retirement is without authority of law. Reliance has been placed by the learned counsel for the petitioner upon the case of U.P. State Warehousing Corp, Lucknow (supra), wherein the Division Bench of this Court has held as under:-

"7. During the course of argument, learned counsel for the petitioner admitted that the Service Rules and Regulations of the corporation do not contain any provision to initiate disciplinary proceedings against the retired employee. It has also been admitted that the Board of the corporation has not adopted the provisions contained in Regulation 351-A of Civil Services Regulations to regulate the service conditions of the employees.

Keeping in view the admitted facts, the argument advanced by the learned counsel for the respondents seems to be correct that in absence of any provision, the petitioner has got no right to initiate or continue with the disciplinary proceedings against a retired employee....... "

In the case of Ravindra Pal Singh (Supra) this Court has held as under:-

"13. The petitioner was a technician and he retired in the year 2005. After three years of his retirement the memorandum of charge has been issued to him wherein some of the allegations with regard to the alleged loss pertaining to the year 1998-2000, 2002, 2003 & 2004. The respondent Nos. 2 and 3 have initiated disciplinary proceeding even after three years of his retirement. There is no explanation in the counter affidavit that the disciplinary proceeding was not initiated when the petitioner was in service particularly when the charges were pertaining to the year 1998-2000. There is no explanation also initiating the disciplinary proceeding after a lapse of three years of his retirement. A meagre amount has been paid to the petitioner after his retirement. In the counter affidavit there is no reference that the petitioner''s service record was unsatisfactory and in past he was awarded any adverse entry in respect of negligence or misconduct. The charge sheet also indicates that along with the petitioner, names of some other employees have been mentioned for causing the peculiar loss with the Corporation. It is not clear whether those employees also retired or in the service.

Likewise in the case of Lal Babu v. State of U.P. and Another, Writ A No. 24752 of 2012 decided on 22.5.2012, the petitioner was employee of the same corporation and in the said case also after his retirement in the year 2010 the alleged loss caused by him and which was intended to be recovered by the Corporation. A Division Bench of this Court has observed as under:

"In our opinion, after the retirement of the petitioner on 31.12.2010 he cannot be proceeded with or held liable for the alleged loss caused to the Corporation more than six years prior to his retirement. The respondents are thus not justified in withholding the amount of leave encashment, contributory provident fund and security."

Learned counsel for the Corporation was unable to point out any provision under the U.P. Warehousing Corporation Staff Regulation which empowers the Management to initiate the disciplinary proceeding after three years of the retirement.

For the reasons given here in above, the disciplinary proceeding in pursuance of the charge memo 26.04.2008, which relates to the petitioner is quashed.

Respondents are directed to pay the entire outstanding dues payable to the petitioner as expeditiously as possible preferably within a period of three months from the date of communication of this order."

Case of the petitioner is squarely covered by the aforesaid decisions. Therefore, in these circumstances, we do not find any reason to disallow the prayer made by the petitioner."

Learned counsel for the opposite party No. 2 has further relied upon the judgment of Keshav Deo Pandey Vs. Chairman and Managing Director, Uttar Pradesh Power Corporation Ltd. and Others, , in which, one of us (Justice Aditya Nath Mittal) in paras 13 & 18 has held as under:-

"13. Art. 351A of CSR as amended on January 6th 1981 provides the departmental proceedings, if not instituted while the officer was on duty either before retirement or during reemployment shall not be instituted, saved with the sanction of the Governor of the State, in respect of an event, which took place not more than 4 years before the institution of such proceedings. This Rule saves the powers of the provincial government to order the recovery from the pension of an officer, who entered into service on or after 7th August, 1940 of any action on account of loss found in judicial or departmental proceedings, to have been caused to the government by negligence or fraud of such officer during his service. If chargesheet is served during service, the departmental enquiry may continue against the employee in pursuance to which if the employee found guilty of misconduct causing loss to the government, the government reserves the powers to recover from the pension any amount on account of such loss after holding judicial or departmental proceedings. Regulation 351A of the Civil Services Regulations bars the initiation of the departmental proceedings for an event, which took place not more than 4 years before the institution of such proceedings except with the sanction of the Governor of the State. The punishment, however, in either case whether the enquiry was initiated before or after the retirement has to be awarded with the sanction of the Governor, if such employee is found in such departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to government by misconduct or negligence during his service including service rendered on reemployment.

The disciplinary powers come to an end with the cessation of employer-employee relationship, unless the statutory rules expressly confer the power to punish the employee or to forfeit the pension, or to recover from the pension the loss caused to the employer, the employer cannot withheld or forfeit the pension. The pension is not bounty but valuable right given to an employee. In the absence of any statutory rule the pension cannot be withheld, forfeited or reduced. The service regulations may provide for deduction from pension, when an employee, who retires from service, before the completion of departmental proceedings, initiated prior to such department is found guilty of misconduct. Art. 351A of the CSR authorises the appointing authority to recover from pension the pecuniary loss caused, on account of gross misconduct or negligence of the government servant."

We have considered the rival submissions of learned counsel for both the parties.

It is not disputed that the opposite party No. 2 had retired on 30.06.2004 and it is also admitted that till 30.06.2004 or even thereafter no disciplinary proceedings were conducted against the opposite party No. 2. The alleged recovery is sought to be made on the basis of enquiry conducted against the then Executive Engineer Sri Dinesh Chandra, in which any opportunity of hearing to the opposite party No. 2 was not given. Although the petitioners have taken a case that show cause notice was issued to the opposite party No. 2 on 17.02.2004, therefore, the proceedings have started before the retirement of the opposite party No. 2. In our opinion, mere issuance of show cause notice cannot be said that the disciplinary proceedings have been initiated. The disciplinary proceedings have to be initiated by coming to a conclusion that the departmental proceedings are necessary and accordingly after appointing the Inquiry Officer, the charge should be approved by the Appointing Authority and the enquiry must be constituted. Therefore, mere issuance of show cause notice before retirement does not fall within the category of proceedings of initiation of disciplinary proceedings.

As far as the case of Preetam Singh (supra) relied upon by learned counsel for the petitioners is concerned, it appears that it was a case of grant of better family pension by the Board to its employees, who were in service on 01.01.1996. The said pensionary benefit was not available to the employee who had joined the service on 01.04.2005 or onwards.

Learned counsel for the petitioners has placed much emphasis on the point that by notification dated 19.05.2009, the Avas Vikas Parishad had adopted the Civil Service Regulations as applicable in U.P., therefore, it also covers the disciplinary proceedings. To appreciate the submission of learned counsel for the petitioners, the relevant extract of the aforesaid notification is being reproduced hereunder:-

"Now therefore, the U.P. Avas Evam Vikas Parishad, in exercise of the power under clause (f), (i) & (n) of Sub-section (1) of Section 95 of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 (U.P. Act 1 of 1996) has decided that the Pension/Family Pension and Gratuity admissible to the officers and employees of State Government, which is governed by the following rules, schemes and Government orders shall also be admissible (excluding Pension commutation) to the officers and employees of the U.P. Avas Evam Vikas Parishad:

Civil Service Regulations as applicable in U.P. as amended.

Uttar Pradesh Liberalized Pension Rules, 1961 -do-

U.P. Retirement Benefit Rules, 1961 -do-

New Family Pension Scheme, 1965 -do-

All orders of finance department of U.P. Government as related to Pension/Family Pension/Gratuity -do-

Newly defined Contributory rules according to notification No. Sa.3-379/das-2005-301(9)/2003 dated March 28, 2005 applicable to officers and employees of Stage Govt., who have joined services on April 01, 2005 or onwards -do-

The orders with respect tot he Pension/Family Pension/Gratuity issued time to time by the State Govt. shall also be applicable to the officers and employees of U.P. Avas Evam Vikas Parishad."

The Hon''ble Apex Court in Preetam Singh (supra) has held about the aforesaid notification as under:-

"It would be pertinent to mention, that the aforesaid notification was expressly extended to such employees of the Vikas Parishad, who were in service on 01.01.1996. The Pension/family Pension and Gratuity Scheme in terms of the aforesaid notification, would be applicable only till the introduction of the newly defined Contributory Fund Rules framed by the State Government, as were applicable to employees of the Vikas Parishad who had entered its service i.e. 01.05.2005."

The language of the aforesaid notification is clear that Parishad has decided to provide better pension/family pension and gratuity to the officers and employees of U.P. Avas Evam Vikas Parishad. Therefore, the said provision of CSR along with U.P. Liberalized of Pension Rules, U.P. Retirement Benefit Rules, New Family Pension Scheme, 1965 and the Relevant Orders of the Finance Department of the Government of U.P. have been adopted. From the language of the notification, it is clear that the said CCA Rules have only been adopted for the purpose of grant of pension/family pension and the gratuity. The reference and context of the said notification is clear that the intention of the Parishad to adopt CSR Rules was regarding grant of pension and not for any other purpose including the disciplinary proceedings. Therefore, the submission of learned counsel for the petitioners cannot be sustained that the said notification will also apply for the disciplinary proceedings.

By the aforesaid notification, it is also clear that the said rules have been adopted for the purposes of payment of pension with retrospective effect i.e. 01.01.1996 and as is apparent from whole of the language of the notification, the benefit has been extended to the officers and employees, who have retired on or after 01.01.1996. It has further been clarified that newly defined contributory pension rules shall be applicable on 01.04.2005 or onwards.

The law is settled on the point that any benefit can be extended to an employee or the officer with retrospective effect but if the legislation or the subordinate legislation provides for any tax, levy, punishment, liability or otherwise, cannot be implemented retrospectively. Certainly, the disciplinary proceedings are punitive in nature, therefore, adoption of any such rules, which provides for the punishment, cannot be adopted retrospectively.

Admittedly, except the aforesaid notification dated 19.05.2009, there is no other adoption order of the CSR Rules prior to the retirement of the opposite party No. 2. Admittedly, there is no provision in the service rules of opposite party No. 2 that the disciplinary proceedings can be initiated even after retirement. Therefore, the case of the opposite party No. 2 is squarely covered by the case of Raj Kishore Dubey (supra) and Keshav Deo Pandey (supra).

We are of the opinion that the said recovery could not have been made by the opposite party No. 2 on the basis of the departmental enquiry conducted against Sri Dinesh Chandra, the then Executive Engineer because in that enquiry neither the opposite party No. 2 was a party nor he was afforded any opportunity of hearing during pendency of the said enquiry.

As far as the recovery under Rule 28 is concerned, we are in agreement with the findings of the learned Tribunal that there is no provision to make deduction from the salary after retirement. As far as the provisions of Rule 39 are concerned, that also debars any deduction except the amount of any contribution by the Board with interest to the fund. Moreover, such deduction can only be made if the subscriber has been dismissed from service for the grave misconduct or subscriber resigns his employment within five years from the commencement of service otherwise than by reasons of superannuation or general retrenchment or dissolution of Board or declaration by a competent medical authority that he is unfit for further service. In the present case, these conditions are also not satisfied.

For the facts and reasons mentioned above, we are of the view that there are no provision in U.P. Avas Evam Vikas Parishad Rules to initiate disciplinary proceedings after retirement. Specifically Rule 351-A of CSR has not yet been adopted by the Parishad to conduct the disciplinary proceedings against its employees or officers. It is needless to mention that CCA Rules 351-A provides for sanction of the Governor for initiating the disciplinary proceedings and in the case in hand no such sanction has been obtained.

Learned Tribunal has dealt with each and every aspect of the matter in detail and we do not find any ground to interfere in the findings recorded by the learned Tribunal.

For the aforesaid reasons, the writ petition is liable to be dismissed.

The writ petition is, therefore, dismissed.