Vidya Ram Sharma Vs Provincial Co-Operative Federation U.P. Thru M.D. and Anr.

Neutral Citation No. - 2024:AHC-LKO:34561

Court No. - 20

Case :- WRIT - A No. - 11166 of 2020

Petitioner :- Vidya Ram Sharma Respondent :- Provincial Co-Operative Federation U.P. Thru M.D. And Anr. Counsel for Petitioner :- Shishir Chandra Counsel for Respondent :- Shireesh Kumar

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Hon'ble Shree Prakash Singh,J.

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Heard Shri Shishir Chandra, learned Counsel for the petitioner and Shri Mustafa Khan, Advocate holding brief for Shri Shireesh Kumar, learned Counsel for the opposite parties.

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Under challenge is the charge sheet dated 21/23.06.2017, inquiry report dated 09.01.2019, show cause notice dated 11.03.2020 and 12.06.2020 and further the impugned order dated 26.05.2017, by virtue of which an amount of Rs. 3,01,918/- has been recovered from the gratuity and further an amount of Rs. 2,09,262/- has been withheld in contemplation of an inquiry in the matter of loss caused to the Federation in disposal of unsold Arahar & Urad during the Kharif season 2010-11.

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The contention of learned Counsel for the petitioner is that the petitioner was initially appointed in the year 1979 as Assistant Accountant and he kept on working to the satisfaction of superior and his work and conduct was always above board and after completing his successful service in the department, he retired on 31.10.2015 and thereafter, an inquiry was instituted on 25.01.2016 against the petitioner and the charge sheet was issued, though, the same was never served upon the petitioner. Further contention of Counsel for the petitioner is that the inquiry officer submitted an ex-parte inquiry report on 09.01.2019 and thereafter, show cause notice was issued by the disciplinary authority on 11.03.2020 whereof the petitioner has replied wherein, he indicated that he never received the charge sheet and has also controverted the ex-parte inquiry report but ignoring the aforesaid, the disciplinary authority has passed the order on 25.09.2020 whereby the certain recovery were imposed on the petitioner.

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He further argued that so far as the issue with respect to application of the provision of Civil Services Regulation is concerned that was adopted on 27.08.2018 which is an

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undisputed fact, though the petitioner retired much prior on 31.10.2015, and therefore, in absence of any regulation, governing the service condition of employees of the PCF, including the petitioner, do not enable the department to initiate or execute any departmental proceedings after the retirement of an employee and therefore the alleged inquiry vitiates in the eyes of law. He also added that the plea taken by the petitioner in the writ petition is not controverted parawise and only short counter affidavit has been filed, thus most of the pleas remain uncontroverted which has certain implication.

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In support of his contention, he has placed reliance on the judgment and order reported in (2014) 7 SCC 260, Dev Prakash Tewari Vs. Uttar Pradesh Cooperative Institutional Service Board, Lucknow & Others, and has referred paragraph 8 to 10 which are extracted as under:-

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".......(8.) Once the appellant had retired from service on 31.03.2009, there was no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction int he 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.

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(9.) The question has also been raised in the appeal with regard to arrears of salary and allowances payable to the appellant during the period of his dismissal and up to the date of reinstatement. Inasmuch as the inquiry had lapsed, it is, in our opinion, obvious that the appellant would have to get the balance of the emoluments payable to him.

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(10.) The appeals are, therefore, allowed and the judgment and order of the High Court are set aside and the respondents are directed to pay arrears of salary and allowances payable to the appellant and also to pay him his all the retiral benefits in accordance with the rules and regulations as if there had been no disciplinary proceeding or order passed therein. No costs."

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Placing reliance on the aforesaid, he submits that it has been held by the Apex Court that in absence of an authority to initiate the disciplinary proceeding, any proceeding initiated by the department would have no strength and in such an event, an employee would be entitled for the retiral benefits. Concluding his arguments, he submits that in aforesaid circumstances, the orders impugned do not sustain in the eyes of law and are liable to be quashed. Further prayer is made that the opposite parties may be directed to make payment of retiral dues to the petitioner with the interest payable as per rules.

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On the other hand, learned Counsel appearing for the opposite parties has submitted that an inquiry was instituted and that was concluded wherein punishment order was also passed while imposing recovery upon the petitioner. He further added that the Civil Services Regulation is adopted on 27.08.2018 and that is applicable but he could not dispute the fact that the petition has been retired on 31.10.2015.

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He also added that once it was found that the amount aforesaid which is imposed as a recovery, is found misappropriated, then the authority concerned has passed the order for recovery, therefore, there is no erroneousness in the order impugned with the writ petition.

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Having heard learned Counsel for the parties and on perusal of the material placed on record, it transpires that though the disciplinary proceeding is instituted against the petitioner but charge sheet was never served upon the petitioner and this fact has not been refuted by the department while filing short counter affidavit. Further, so far as the rules with respect to instituting the disciplinary proceedings after retirement of an employee of the department is concerned, admittedly, there was no rule or regulation that the department will initiate any inquiry proceeding or a disciplinary proceeding after retirement of an employee and the Civil Services Regulation was accepted / adopted in the department on 27.08.2018 i.e. much after the retirement of the petitioner i.e. on 31.10.2015, when the Civil Services Regulation Rules were not applicable in the department, though the right of grant of pension accrued on the date of retirement.

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In view of the aforesaid submissions and discussions, this is a case of no inquiry or rather it alleged inquiry is there & the same is arbitrary, void and unlawful as that is done in the absence of any rule or regulation, and therefore, the charge sheet dated 21/23.06.2017, inquiry report dated 09.01.2019, show cause notice dated 11.03.2020 and 12.06.2020 and further the impugned order dated 26.05.2017 are hereby quashed.

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It is provided that no recovery shall be made from the petitioner and the amount recovered, if any, shall be reimbursed to the petitioner within a period of eight weeks from the date of this order.

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Needless to say that the petitioner may be paid the interest on the amount which was recovered by the department if it is permissible under the rules of the department.

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With the aforesaid observations, the instant petition is hereby allowed.

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Order Date :- 2.5.2024 Lokesh Kumar

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Digitally signed by :- LOKESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Vidya Ram Sharma v. Provincial Co-Operative Federation U.P. Thru M.D. and Anr.

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Vidya Ram Sharma v. Provincial Co-Operative Federation U.P. Thru M.D. and Anr.

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