Dismissed

Managing Director U.P. Upbhokta Sahakari Sangh Ltd. Lko. v. Malti Devi

Allahabad HC17 Sept 2024SPLAD/501/2024

Case brief

AI extract

What is this about?

This appeal, filed by a cooperative society against a High Court order mandating release of post-retirement benefits to the wife of a deceased employee, was dismissed. The Court allowed condonation of delay, held no final penalty order existed, and refused to treat non-disclosure of internal orders as suppression.

What did the court decide?

The appeal was dismissed.

Managing Director U.P. Upbhokta Sahakari… — Pension and Retirement Benefits | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:64089-DB

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Chief Justice's Court

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Case :- SPECIAL APPEAL DEFECTIVE No. - 501 of 2024

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Appellant :- Managing Director, U.P. Upbhokta Sahakari Sangh Ltd. Lko. Respondent :- Malti Devi Counsel for Appellant :- Ayush Chaudhary,Rakesh Kumar Chaudhary Counsel for Respondent :- Man Mohan Bose, Ms. Shriyangi Bose

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Hon'ble Arun Bhansali, Chief Justice Hon'ble Jaspreet Singh, J.

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This appeal is directed against the order dated 11.03.2024 passed in Writ – A No. 1409 of 2024 whereby the writ petition filed by the respondent has been allowed and the appellant has been directed to release all post retiral benefits due to respondent’s late husband as well as due to her upon his demise within a period of four months from the date certified copy of the order is produced before the authority.

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Writ petition was filed with the averments that respondent’s husband, who passed away on 12.11.2020, had superannuated from the service on 30.09.2016 from the post of Manager with the Consumer Cooperative Society. Husband of the respondent, it was claimed, had made several representations for payment of his retiral benefits and filed Writ Petition No. 8345 (S/S) of 2018 for the said benefits. The petition was disposed of on 22.03.2018, granting liberty to the appellant to consider the grievance within a period of two months. It was claimed that post retiral benefits have not been paid to her.

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The appellant filed short counter affidavit inter-alia indicating that pursuant to the order dated 22.03.2018, order was passed on 04.06.2018. Whereafter another order dated 19.02.2024 was passed, which was addressed to the respondent herself. However, both the orders have not been challenged and no reference thereto has been made in the writ petition, which amounts to concealment of fact.

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Submissions were made that during life time of respondent’s husband, disciplinary proceedings were initiated against him on 16.09.2016, chargesheet was issued to him on 28.03.2017 to which he submitted his reply on 26.01.2018 and in the inquiry report dated 28.5.2018, he was found guilty of causing financial loss to the appellant, a show cause notice was issued to him on 01.06.2018. However, due to uncooperative attitude of the husband of the respondent, the same could not be concluded.

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The plea raised by the appellant was countered by the respondent with the submissions that admittedly no order has been passed by the disciplinary authority against her husband before his death and therefore, there has been no penalty against him and she was entitled to all the reliefs as claimed in the writ petition.

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Learned Single Judge by the order impugned came to the conclusion that as the orders dated 04.06.2018 and 19.02.2024 were not passed on merit, the same were not required to be challenged. Learned Single Judge further noticing the judgement of Hon’ble Supreme Court in Dev Prakash

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Tiwari v. U.P. Cooperative Institutional Service Board & others : Civil Appeal No. 5848-49 of 2014 , came to the conclusion that there was no provision in the Service Rules whereby any final order can be passed in the disciplinary proceedings after retirement/demise of the delinquent employee and consequently, passed the order impugned.

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Office has reported the appeal as barred by 153 days and an application under Section 5 of the Limitation Act along with affidavit has been filed seeking condonation of delay in filing the appeal.

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For the reasons indicated in the application, the same is allowed.

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Delay in filing the appeal is condoned.

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It is submitted by counsel for the appellant that learned Single Judge was not justified in allowing the writ petition. Submission has been made that the petition was barred by principles of res-judicata and in any case, the same was liable to be dismissed for suppression of facts and therefore, the order impugned deserves to be quashed and set aside.

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It is submitted that husband of the respondent had filed writ petition seeking similar relief, which was decided by this Court and filing of the subsequent writ petition claiming similar relief was, therefore, barred by principles of res-judicata.

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Counsel for the appellant further submitted that pursuant to the directions issued in the earlier writ petition, order was passed and when the respondent herself again approached the appellant, again an order was passed rejecting the claim. However, the said orders were not produced in the writ petition and their validity was not questioned and on that count, the petition was liable to be dismissed. However, learned Single Judge did not deal with the said aspect and therefore, the order deserves to be quashed and set aside.

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Learned counsel for the respondent supported the order impugned.

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We have considered the submissions made by counsel for the parties and have perused the material available on record.

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The facts are not in dispute that husband of the respondent was issued a charge-sheet, was found guilty by the inquiry officer and was issued show cause notice by the disciplinary authority, whereafter no order was passed by the disciplinary authority either exonerating the respondent’s husband or imposing any punishment. Respondent’s husband superannuated from the service on 30.09.2016 and died on 12.11.2020.

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Once the respondent’s husband was superannuated without imposing any punishment and later on died and till that time also, no punishment was imposed, the action of the appellant in not according retiral benefits to respondent’s husband and to her, cannot be countenanced under any circumstance.

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The plea raised pertaining to res-judicata apparently has no substance as res-judicata would only apply in case the previous writ petition was decided on merits, wherein the only order passed was to decide the representation, which cannot be taken as a decision on merits so as to operate as res-judicata .

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The fact that pursuant to the directions given by this Court the representation was decided and even the representation made by respondent herself also came to be decided on 19.02.2024 and the same was not placed on record, by itself, cannot be termed as sufficient so as to seek dismissal of the writ petition as it is well settled that to enable the Court to refuse to exercise its discretionary jurisdiction suppression must be of a material fact as laid down in Arunima Barua v. Union of India & others : (2007) 6 SCC 120 .

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The appellant while deciding the representation made by the respondent on 29.02.2024 inter-alia came to the following conclusion:

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“ek0 U;k;ky; ds fjV ;kfpdk la0 8345@2018 ds vkns'k fnukad 22-032018 ds vuqikyu esa eq[;ky; vkns'k la0 820&22 fnukad 04-06-2018 ds }kjk izse ukjk;.k izcU/kd ¼ls0fu0½ dk izR;kosnu fuEuor~ fuLrkj.k fd;k x;k&

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ÞJh izse ukjk;.k ds dk;Zdky ds nkSjku muds }kjk dkfjr dR;ksa ls la?k dks #0 86-89 yk[k dh foRrh; {kfr ls lEcaf/kr izdj.k ds vUrXkZr vuq'kklukRed dk;Zokgh yfEcr jgus ds nf"Vxr Lo0 izse ukjk;.k izcU/kd ds vo'ks"k lsokfuo`fRrd ikouksa xzsP;qVh] uxnhdj.k ,oa tekur vkfn dk Hkqxrku fd;k tkuk mfpr ugha ik;k x;kA”

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A perusal of the above would reveal that indications made is that on account of the fact that disciplinary proceedings pertaining to causing financial loss remained pending against the deceased, it was not found reasonable to accord retiral benefits to her husband. The said determination being ex-facie against law cannot be termed as having any bearing on the outcome of the present writ petition so as to term non filing of the order as suppression.

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In view of the above discussions, there is no substance in the appeal and the same is, therefore, dismissed .

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Order Date :- 17.9.2024 nd

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(Jaspreet Singh, J) (Arun Bhansali, CJ)

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Digitally signed by :- NISITH DEY High Court of Judicature at Allahabad, Lucknow Bench

Managing Director U.P. Upbhokta Sahakari Sangh Ltd. Lko. v. Malti Devi

Case brief

What is this about?

What did the court decide?

Managing Director U.P. Upbhokta Sahakari Sangh Ltd. Lko. v. Malti Devi

Case brief

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What did the court decide?

What the court decided

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