Allowed

Asha Devi v. Public Service Tribunal and Another

Uttarakhand HC9 May 2019WPSS/1955/2014

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed by a widow seeking withheld pay and allowances. The court held that since the Tribunal quashed her husband's removal orders and no law permits de-novo enquiries post-retirement or post-death, the service relationship stood restored, making the withholding of benefits arbitrary and unlawful.

What did the court decide?

Directed Respondent to release arrears of salary, allowances, and other terminal benefits within six weeks of this order.

Asha Devi Vs Public Service Tribunal and… — Pension and Retirement Benefits | Uttarakhand HC (2019)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1955 (S/S) of 2014

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Asha Devi ….Petitioner

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Versus

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Public Service Tribunal, Uttarakhand & another ….Respondents

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Mr. A.N. Sharma & Mohd. Matloob, Advocates for the petitioner. Mr. Manish Lohani, Advocate, holding brief of Mr. Ashish Joshi, Advocate for respondent no. 2.

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Dated: 09.05.2019

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Hon’ble Manoj K. Tiwari, J. (Oral)

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Heard learned counsel for the parties.

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Petitioner is widow of late Mahesh Mitra, who was a regular employee serving on the post of Conductor in Uttarakhand Transport Corporation. Husband of the petitioner was removed from service vide order dated 13.06.2008 on the charge of unauthorized absence from duty for 43 days.

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Petitioner’s husband filed Department Appeal against the said order before General Manager (Administration), which was dismissed vide order dated 24.05.2010. Petitioner’s husband thereafter filed Revision Petition before the Chairman, Uttarakhand Transport Corporation, which too was dismissed vide order dated 29.07.2011. 4. Petitioner’s husband thereafter, approached Public Services Tribunal by filing Claim Petition No. 06 of 2012 (N/B). Learned Tribunal allowed the claim petition vide judgment & order dated 26.09.2013 and quashed the orders passed by the Disciplinary Authority, Appellate Authority as well as Revisional Authority.

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Uttarakhand Transport Corporation was directed to reinstate petitioner’s husband, if not retired from service, by placing him under suspension. However, liberty was given to the employer to hold enquiry afresh. Relevant extract of the judgment rendered by learned Tribunal is reproduced below:-

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“10. In view of the above, we hold that the petitioner not been given proper opportunity to defend himself; as such, entire enquiry proceedings are liable to be vitiated from the stage of the enquiry. The departmental authority had also based his finding against the delinquent on the enquiry report and evidence taken by the enquiry officer. As such entire proceedings before the enquiry officer to remove the petitioner are liable to be quashed. The impugned order dated 13.06.2018 passed by the Divisional Manager, Uttarakhand Transport Corporation, Nainital, the appellate order dated 24.05.2010 passed by the General Manager (Administration) Uttarakhand transport Corporation, Dehradun and the order of revision dated 29.07.2011 passed by the Revisional Authority, Chairman, Uttarakhand Transport Corporation, Dehradun are liable to be quashed. The matter is liable to be sent back to the departmental authority to proceed further, if he desires so against the petitioner on the basis of charge-sheet from the stage, when the delegated the matter to the enquiry officer. The respondent is directed to reinstate the petitioner if not retired with the liberty to respondent to proceed, by placing employee under suspension or otherwise. The question whether the petitioner would be entitled to the back wages and other benefits from the date of his removal to the date of his reinstatement or retirement it would be decided by the departmental authority after the completion of the departmental enquiry according to law.”

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Petitioner’s husband sought review of the said judgment on the ground that since he has attained age of superannuation on 31.01.2012, therefore, departmental enquiry cannot be initiated against him, especially when there is no enabling provision in the service rules to hold enquiry after retirement of an employee.

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During pendency of the review application, petitioner’s husband died on 29.05.2014. The review application was subsequently rejected by learned Tribunal vide order dated 24.06.2014. After death of Mahesh Mitra, his wife has filed this writ petition claiming pay, allowances etc. which were withheld from her husband and she is also claiming other terminal dues which are payable to employees of Uttarakhand Transport Corporation.

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According to learned counsel for the petitioner, not a single penny has been paid to the petitioner even though the order of removal passed against her husband was quashed by learned Tribunal. He further submits that petitioner’s husband was not reinstated in terms of judgment of the Tribunal.

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A counter affidavit has been filed on behalf of Uttarakhand Transport Corporation. Paragraph No. 5 of the said counter affidavit is extracted below:-

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“5. That the contents of para 12 to 15 of the writ petition are not admitted as stated hence denied. It is state here that the punishment orders has been set aside on the ground that the opportunity of hearing was not given to the husband of the petitioner and the Tribunal Directed for de-novo enquiry. The husband of the petitioner instate of participating in de-novo enquiry proceeding challenged in review petition no. 10/R/NB/DB/2013 with the prayer to reinstate him in service. The review petition has been rejected by the detail order passed by the Hon’ble Court dated 24.06.2014. The judgment passed by the Tribunal itself revealed that the charges labeled against the petitioner has not been interfered by the tribunal and now the present petitioner can’t take the benefit the technicality as after the death of her husband the de-nova proceeding can’t be initiated and as the impugned orders of punishment already been set-aside by the tribunal she is not entitled for the benefits of pay and allowances from the date of the order of removal till the date of death of her husband.”

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Thus, the only defence, which has been taken by Uttarakhand Transport Corporation, is that since learned Tribunal had permitted the Corporation to hold de-novo enquiry and, after death of petitioner’s husband, de-novo enquiry cannot be held, therefore, petitioner is not entitled for any benefits. The stand taken by Uttarakhand Transport Corporation cannot be sustained in the eyes of law.

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As a matter of fact, the punishment of removal from service passed against petitioner’s husband and also orders passed by the Appellate Authority & Revisional Authority, have been set aside by the learned Tribunal. Thus, the relationship of master and servant was re-established between petitioner’s husband and Uttarakhand Transport Corporation by virtue of judgment of learned Tribunal, which has attained finality.

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Learned counsel for the respondent could not point out any provision, which enables the corporation to hold a disciplinary enquiry de-novo against a retired employee.

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Hon’ble Supreme Court in the case of Dev Prakash Tiwari Vs. U.P. Coop. Institutional Service Board, reported in (2014) 7 SCC 260 has held as under.

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“5. We have carefully considered the rival submissions. The facts are not in dispute. The High Court while quashing the earlier disciplinary proceedings on the ground of violation of principles of natural justice in its order dated 101-200 6¹ granted liberty to initiate the fresh inquiry in accordance with the Regulations. The appellant who was reinstated in service on 26-42006 and fresh disciplinary proceeding was initiated on 7-7-2006 and while that was pending, the appellant attained the age of superannuation

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and retired on 31-3-2009. There is no provision in the Uttar Pradesh Cooperative Societies Employees’ Service Regulations, 1975, for initiation or continuation of disciplinary proceeding after retirement of the appellant nor is there any provision stating that in case misconduct is established a deduction could be made from his retiral benefits.

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6. An occasion came before this Court to consider the continuance of disciplinary inquiry in similar circumstance in Bhagirathi Jena case^{and it was} laid down as follows: “ 5 . Learned Senior Counsel for the respondents also relied upon clause (3)( c ) of Regulation 44 of the Orissa State Financial Corporation Staff Regulations, 1975. It reads thus: ‘ 44. (3)( c ) When the employee who has been dismissed, removed or suspended is reinstated, the Board shall consider and make a specific order:

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( i ) Regarding the pay and allowances to be paid to the employee for the period of his absence from duty, and

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( ii ) Whether or not the said period shall be treated as a period on duty.’

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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 the departmental enquiry after superannuation.

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7 . In view of the absence of such a 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 30-6-1995, there was no authority vested in the Corporation for 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 an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.”

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7. In a subsequent decision of this Court in U.P. Coop. Federation case^{on facts, the disciplinary} proceeding against employee was quashed by the High Court since no opportunity of hearing was given to him in the inquiry and the management in its appeal before this Court sought for grant of liberty to hold a fresh inquiry and this Court held that charges levelled against the employee were not minor in nature, and therefore, it would not be proper to foreclose the right of the employer to hold a fresh inquiry only on the ground that the employee has since retired from the service and accordingly granted the liberty sought for by the management. While dealing with the above case, the earlier decision in Bhagirathi Jena case 5 was not brought to the notice of this Court and no contention was raised pertaining to the provisions under which the disciplinary proceeding was initiated and as such no ratio came to be laid down. In our view the said decision cannot help the respondents herein.

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8. Once the appellant had retired from service on 31-3-2009, there was no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the 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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Since the punishment of removal from service imposed upon petitioner’s husband does not exist anymore in view of the judgment rendered by learned Tribunal, therefore, the act of respondent Corporation of withholding monetary benefits from the petitioner is arbitrary and unjust. The respondent-corporation is liable to release all monetary benefits, including arrears of salary and allowances, to the petitioner.

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Accordingly, the writ petition is allowed. Respondents no. 2 is directed to release arrears of salary, allowances and other terminal benefits to the petitioner as early as possible but, not later than six weeks from the date of production of certified copy of this order.

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(Manoj K. Tiwari, J) 09.05.2019

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Asha Devi v. Public Service Tribunal and Another

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Asha Devi v. Public Service Tribunal and Another

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