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2001 DIGILAW 330 (GAU)

Prasanna Kumar Hazarika v. Oil India Ltd.

2001-12-20

P.G.AGARWAL

body2001
P.G. AGARWAL, J. — Heard Mr N.M. Lahiri, learned senior counsel for the petitioner and Mr S.N. Sarma, learned counsel for the respondent Oil India Limited. 2 The case of the petitioner is that the petitioner retired from Oil India Limited on 31.12.1996 and on the date of retirement the petitioner was served with Annexure-3 letter dated 31.12.1996 which reads as follows:- "Pending enquiry and finalisation against your alleged involvement in a vigilance case, it has been decided to with-hold payment/ release of your final settlement (Gratuity and Pension) from the company, upon your attaining the age of superannuation, after the close of working hours on 31st December, 1996." Thereafter, vide Annexure-5, letter dated 24.5.1997, a show cause notice was issued to the petitioner informing him that the employer proposes to hold an enquiry against him under Rule 25 of OIL Executives' Conduct, Discipline and Appeal Rules, 1982. Petitioner has, therefore, filed the present application challenging the said show cause notice stating inter alia that as no disciplinary proceeding was initiated against him while he was in service, respondents are not entitled to initiate disciplinary proceeding after his retirement. Petitioner has also prayed that withholding of payment in respect of gratuity and pension receivable by the petitioner is unwarranted and illegal. 3. There is no dispute at the Bar that the petitioner retired from service on 31.12.1996 and on that date no disciplinary proceeding was pending against him. However, the respondents informed him about contemplation of disciplinary proceeding. From the show cause notice it is seen that the same has been issued in view of Rule 25 of the Company's Rules, 1982. The question that arises for consideration is whether the said rule provides for contemplation/initiation of disciplinary proceeding after the retirement of an employee of the Oil India Limited. Admittedly, there was no such provision under the rules, at the relevant time. Rule 30B was brought on record with effect from 5.11.99 and it reads as follows:- "Rule 30B: Disciplinary proceedings after retirement. (Approved by OIL Board in its 313th Board Meeting held on 24.09.1999 to be effective from 05.11.1999. Inserted vide circular No. PERS/01/07/4003 dated 05.11.99) 30B(i) Disciplinary proceedings instituted while in service before retirement or during re-employment but not concluded will be continued and concluded even after the retirement of the employee concerned in the same manner as if the employee had continued in service. Inserted vide circular No. PERS/01/07/4003 dated 05.11.99) 30B(i) Disciplinary proceedings instituted while in service before retirement or during re-employment but not concluded will be continued and concluded even after the retirement of the employee concerned in the same manner as if the employee had continued in service. If in such proceedings the disciplinary authority comes to the conclusion that action under the rule is not justified, the said authority may drop the proceedings initiated by him. 30B(ii) Disciplinary proceedings may be instituted against an employee after his/her retirement in respect of grave misconduct with reference to an event or the cause of action which took place not more than 4 years before (the date of institution of the proceedings)*'. 4. Mr S.N. Sarma, learned counsel for the respondent submits that the rules are made effective from 5.11.99 and as such Rule 30B was not applicable in case of the petitioner who had retired from service on 31.12.1996. 5. Learned counsel for the writ petitioner has placed reliance on a decision of the Apex Court in the case of Bhagirathi Jena-Vs-Board of Director, O.S.F.C. & others, reported in (1999) 3 SCC 666 . The Apex Court held that in the absence of specific provision for initiation/ contemplation of disciplinary proceeding after retirement, the employer can not continue it for the purpose of effecting recovery. 6. In view of the above and considering the fact that the rule as applicable at the relevant time did not provide for initiation of disciplinary proceeding after retirement the present show cause notice is not maintainable and hence, the same stands quashed. 7. As regards the withholding of pensionary benefits and gratuity is concerned, the same is admitted by the respondents Oil India Limited. So far the pension rules are concerned, there is no dispute at the Bar that the rule nowhere provided that on the basis of contemplated disciplinary proceeding, pensionary benefits are to be withheld. Learned counsel for the respondent submits that except the pension and gratuity, other pensionary benefits have since been paid to the petitioner. Learned counsel has placed reliance on Rule 12 of the Company's Gratuity Rules applicable to the executive staff which reads as follows:- “3) Notwithstanding anything contained in Rule 12(c), an employee who is not covered by payment of Gratuity Act, 1972 against whom disciplinary action/proceedings is/are contemplated or pending at the time of resignation/retirement etc. Learned counsel has placed reliance on Rule 12 of the Company's Gratuity Rules applicable to the executive staff which reads as follows:- “3) Notwithstanding anything contained in Rule 12(c), an employee who is not covered by payment of Gratuity Act, 1972 against whom disciplinary action/proceedings is/are contemplated or pending at the time of resignation/retirement etc. will not be paid gratuity unless the action/proceedings against him have finalised. On finalisation of disciplinary/proceedings, the release of gratuity will depend on the final outcome of the discplinary proceedings and keeping in view of the orders of the disciplinary authority. Gratuity will also not be admissible to an employee whose services are terminated for misconduct, insolvency or inefficiency." 8. Although the said Rule provided that payment of gratuity may be withheld when a disciplinary proceeding rs contemplated or pending at the time of resignation or retirement etc. We find that said rule however cannot empower the employer to withhold the gratuity in view of our finding above. As the proposed disciplinary proceeding has been quashed by this Court and unless the disciplinary proceeding is pending against the petitioner in view of the settled proposition of law, gratuity can not be withheld.9. In view of the above, the writ petition is allowed. iThe show cause notice stands quashed and the respondents are directed to release the gratuity and pensionary benefits to the petitioner within a period of three months from today failing which the respondents shall be liable to pay interest at the rate of 9% on the above amount. 10. Learned counsel for the respondents submits that the respondents may be allowed to recover the loss sustained by the Company due to negligence/inaction of the petitioner. No such direction can between in this writ petition. However, the Company will be at liberty to proceed with the same in accordance with the rules and regulations governing such matters, if any.