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2008 DIGILAW 417 (JK)

Mohd. Shafi Khan v. State Of J. &K.

2008-11-05

MANSOOR AHMAD MIR

body2008
1. Petitioner has questioned show cause notice/charge sheet and enquiry proceedings drawn by the respondents against him and has also prayed for mandamus commanding the respondents to release the service benefits in his favour, on the grounds taken in the writ petition. 2. In order to understand the controversy involved in writ petition, mention of brief facts of the case is required. 3. It appears that the writ petitioner was placed under suspension vide order dated 22-11-1969, without framing charges or without reading the articles of charge. The petitioner was constrained to file a suit for declaration and mandatory injunction, declaring him to be in service and for releasing of service benefits. The suit came to be dismissed by the trial court twice. Ultimately an appeal was taken before the District Judge, Srinagar. The 1st appellate court allowed the appeal and set aside the judgment and decree passed by the trial court, by holding that the petitioner has not resigned from his post and thus he being in service, there was no need to grant the relief of reinstatement. The 1st appellate court has further observed that no articles of charge was framed against him and liberty was granted to the defendants/department to follow the procedure laid down by service rules in this behalf. It is apt to reproduce operative portion of the judgment hereunder: - In view of my finding on above issues and the nature of circumstances of the case, this suit is decreed to the following extent and in the following form: 1. It is declared that the plaintiff has not resigned from his post. 2. Since the plaintiff has not resigned nor has termination order been pleaded or proved there is no need to grant the relief for reinstatement. Any employee who is in service need not be reinstated at all. The plaintiff has placed under suspension on 22-11-1969, but no articles of charge was framed against him. Let the defendants follow the procedure laid down by the service rules in this behalf. 4. Feeling aggrieved, the respondents preferred civil second appeal No. 17/2004 which came to be dismissed Vide judgment and order dated 14-10-2004. Respondents filed Special Leave Petition before the apex court which also came to be dismissed on the ground of delay and on merits, vide judgment and order dated 14-7-2005. 4. Feeling aggrieved, the respondents preferred civil second appeal No. 17/2004 which came to be dismissed Vide judgment and order dated 14-10-2004. Respondents filed Special Leave Petition before the apex court which also came to be dismissed on the ground of delay and on merits, vide judgment and order dated 14-7-2005. There-after writ petitioner filed execution petition before the trial court in which directions came to be passed from time to time, but respondents questioned few orders by the medium of appeals which also came to be dismissed. The executing court was constrained to direct the personal appearance of respondent no.3 and ultimately respondents got published in the local news papers the impugned show cause notice and charge sheet dated 28-3-2006. 5. It is averred in the writ petition that the petitioner has retired from service in the year 2000 which was disclosed by the respondents before the executing court, during pendency of the executing proceedings. Issuance of show cause notice, framing of charges and conducting of proceedings/enquiry is unwarranted. It is also averred in the petition that the show cause notice is after-thought and is aimed at to give a slip to law and to deprive the petitioner from reaping the fruits of the judgment and decrees earned by him from the appellate court, upheld by the High Court and the Honble Apex court. Further it is averred that no departmental enquiry will lie after retirement of the Government employee. 6. Respondents have filed the counter and resisted the writ petition. The main ground taken in the court is that respondents have started proceedings in terms of the judgment and decree passed by the 1st appellate court and up-held by this court as well as by the apex court. They have admitted in para 14 of the counter that petitioner has retired from service in the year 2000. It is further averred that the petitioner was not entitled to any subsistence allowance because he has already retired in the year 2000 and issuance of show cause notice is in accordance with the service rules and regulations occupying the field. 7. Heard learned counsel for the parties at length. Writ petition is admitted to hearing and with consensus of learned counsel for the parties, it is taken up for final disposal. 8. 7. Heard learned counsel for the parties at length. Writ petition is admitted to hearing and with consensus of learned counsel for the parties, it is taken up for final disposal. 8. The core question which calls for determination in the petition is whether departmental enquiry can be initiated and drawn after the retirement of an employee? 9. It is beaten law of the land that after retirement, relationship of the employer and the employee comes to an end and no departmental enquiry can be drawn against an employee who is not in service and after retirement, neither minor nor major penalties can be imposed on the employee. No-doubt, enquiry can be initiated even on the last date of retirement and departmental proceedings can be concluded at his back for purposes of effecting recovery. Apex court in a case titled UCO Bank Vs. Rajinder Lal Capoor, 2007 (4) Supreme 474, while dealing with a similar case has held that no departmental enquiry can be initiated after retirement and no order of dismissal or termination can be passed after retirement. It is apt to reproduce paras 23 and 24 of the judgment hereunder: - 23. An order of dismissal or removal from service can be passed only when an employee is in service. If a person is not in employment, the question of terminating his services ordinarily would not arise unless there exists a specific rule in that behalf. As Regulation 20 is not applicable in the case of the respondent, we have no other option but to hold that the entire proceeding initiated against the respondent became vitiated in law. 24. We are not oblivious of the peculiar legal position obtaining in this case. A gross illegality has been committed by the appellant in initiating a departmental proceeding against the respondent but he did not question the same. The learned Single Judge of the High Court held him guilty of commission of some irregularities. He did not question the correctness or otherwise of the said order also. 10. In the instant case, respondents have not taken the stand either before the trial court, 1st Appellate court, 2nd appellate court, apex court or before the executing court that the petitioner/plaintiff had retired from service. Once they have not taken such a stand before any court, how can, after losing the legal battle, respondents take a U turn now. 10. In the instant case, respondents have not taken the stand either before the trial court, 1st Appellate court, 2nd appellate court, apex court or before the executing court that the petitioner/plaintiff had retired from service. Once they have not taken such a stand before any court, how can, after losing the legal battle, respondents take a U turn now. The parties were in lis right from 11-6-1993 and why they have not taken the ground of retirement before the courts below or before the apex court or before this court. Had they taken such a ground, perhaps the 1st appellate court would not have granted liberty to the respondents to go ahead with the departmental enquiry. 11. The question, which arises is, whether in terms of the judgment of the 1st appellate court, respondents are within powers and competence to issue show cause notice, frame charges and conduct enquiry against the petitioner. No-doubt it can be done, provided the employee is in service. It can also be drawn even on last date of service of the delinquent employee. Here in this case, the petitioner had retired from service in 2000. How can now the respondents issue a notice, even though there is a direction contained in the judgment dated 8-7-2004 passed by the 1st Appellate court. In the said judgment, it has been observed that respondents have to follow the procedure laid down in the Service Rules. 12. By giving liberty to the respondents to follow the procedure, does mean that the respondents have to follow Jammu and Kashmir Civil Service Regulations applicable to all the Government employees including the petitioner. Civil Service Regulations nowhere contemplates conducting of enquiry against an employee after his retirement. Apex court had an occasion to deal with an identical case titled U.P. State Surgar Corpn. Ltd. Vs. Swarrop Tondon, 2008 AIR SCW 1241 wherein it has been held that even on the last date of service, enquiry can be initiated that can be continued even after retirement, if the employee has caused financial loss so as to enable the department to make recovery from his retiral benefits. There is no such allegation against the writ petitioner. Therefore there is no question of initiating any enquiry against the petitioner after his retirement. There is no such allegation against the writ petitioner. Therefore there is no question of initiating any enquiry against the petitioner after his retirement. It is apt to reproduce relevant portion of the judgment (para 31) hereunder: It is, therefore, clear that so far as minor penalty is concerned, it is not necessary for the Corporation to follow detailed and lengthy procedure laid down for imposition of major penalties. In the instant case, the proceedings had been initiated by the appellant-Corporation against the respondent-employee for recovery of pecuniary loss caused to the Corporation by negligence on his part. The proceedings, hence, could be instituted by issuing notice which was done on January 13, 2000 the said action, therefore, could not have been held bad or without power, authority or jurisdiction on the part of the Corporation. As we already observed earlier, even regular show cause notice was served on January 31, 2000 which was also during the employment of respondent. The High Court, in our view, was wrong in quashing the proceedings and setting aside orders dated March 24, 2001 and April 26, 2005. The impugned order of the High Court, therefore, deserves to be set aside. 13. Mr. Magray, Additional Advocate General, appearing for the respondents vehemently argued that the show cause notice came to be issued on 22nd November, 1969, thus enquiry was initiated when the petitioner was very much in service. This argument is devoid of any force and appears to be unreasonable. If at all it can be said that the respondents have initiated departmental enquiry vide order dated 22-11-1969, whey it was not concluded from that date till issuance of the show cause notice, but no charge was framed against the petitioner. It is beaten law of the land that departmental enquiry can be withdrawn from the date of charge sheet and not from the date of issuance of the show cause notice, I am fortified in my view by the apex court judgment report in case 2007(4) Supreme 474 (supra). It is profitable to reproduce relevant portion of para 21 of the aforesaid judgment of the apex court hereunder: The aforementioned Regulation, however, could be invoked only when the Disciplinary Proceedings had clearly been initiated prior to the respondents ceases to be in service. The terminologies used therein are of seminal importance. It is profitable to reproduce relevant portion of para 21 of the aforesaid judgment of the apex court hereunder: The aforementioned Regulation, however, could be invoked only when the Disciplinary Proceedings had clearly been initiated prior to the respondents ceases to be in service. The terminologies used therein are of seminal importance. Only when a disciplinary proceeding has been initiated against an officer of the bank despite his attaining the age of superannuation, can the disciplinary proceeding be allowed on the basis of the legal fiction crated there under i.e. continue as if he was in service. Thus, only when a valid departmental proceeding is initiated by reason of the legal fiction raised in terms of the said provision, the delinquent officer would be deemed to be in service although he has reached his age of superannuation. The departmental proceeding, it is-------- law, is not initiated merely by issuance of a show cause notice. It is initiated only when a charge sheet is issued (see Union of India etc. Vs. K.V. Jankiraman, etc. reported in AIR 1991 SC 2010). This aspect of the matter has also been considered by this court recently in Coal India Limited & others V. Seroj Kumar Mishra, (2007 (5) SCALE 724), wherein it was held that date of application of mind on the allegations leveled against an officer by the Competent Authority as a result whereof a charge sheet is issued would be the date on which the disciplinary proceedings said to have been initiated and not prior thereto...... 14. The appellate court while allowing the 1st appeal of the writ petitioner, as discussed hereinabove, has held as under:- In these circumstances, I find that the findings of the trial court on this issue cannot stand. The same are set aside and it is held that no articles of charge were framed against the plaintiff nor was any such charge sheet served upon the plaintiff. This issue is decided against the defendants and in favour of the plaintiff. 15. The respondents challenged the judgment and order of the 1st appellate court by way of civil Second appeal. The Civil Second Appeal also came to be dismissed by this court by holding that respondents have not taken steps like servicing charge memo, holding departmental proceeding against the petitioner. 15. The respondents challenged the judgment and order of the 1st appellate court by way of civil Second appeal. The Civil Second Appeal also came to be dismissed by this court by holding that respondents have not taken steps like servicing charge memo, holding departmental proceeding against the petitioner. It is apt to reproduce relevant para of the judgment hereunder:- ........There is no dispute that the plaintiff held substantive employment under the State, The defendants admittedly after placing him under suspension did not take any follow up steps like serving charge memo, holding departmental proceeding against him. Admittedly no order of removal, dismissal or the like was even passed. As holder of a substantive appointment, neither unauthorized absence, howsoever long, nor prolonged suspension, could result in automatic cessation of employment. Order of suspension merely prevents the employee from working. The relationship of employee and the employer does not come to an end. Thus notwithstanding that he had been placed under suspension, howsoever long, it cannot be said that his employment came to an end. After placing the plaintiff under suspension, defendants were required to take the matter to its logical end. Nothing of the kind was done. The defendants plea of resignation having been disbelieved, it would follow that the plaintiff continued to be in the employment of the State government. In the circumstances finding of the lower appellate court cannot be said to be erroneous. It is to be kept in mind that after recording the finding, the appellate court commanded the defendants to follow the procedure laid down by service rules in that behalf. 16. The findings of the 1st appellate court and 2nd appellate court came to be upheld by the apex court. In the given circumstances of the case, it can safely be said and held that no charge sheet was framed and served and thus no departmental enquiry was in place. 17. Admittedly, no subsistence allowance was paid to the writ petitioner from the date of his suspension viz. 22nd November, 1969, but was engaged in legal battle for the last more than 15 years. 17. Admittedly, no subsistence allowance was paid to the writ petitioner from the date of his suspension viz. 22nd November, 1969, but was engaged in legal battle for the last more than 15 years. After taking the said proceedings to its logical end and the judgment and decree passed in the said proceedings have attained finality after apex court dismissed the Special Leave Petition filed by the respondents and in the given circumstances, issuance of show cause notice is aimed at to avoid service benefits and deprive the petitioner from reaping the fruits of the findings returned in his favour and as such, merits to be quashed. 18. In case reported as Ghanshyam Das Shrivastava Vs. State of M.P., AIR 1973 SC 1183, the apex court has held that when the employer fails to pay subsistence allowance during the pendency of enquiry, is to be quashed. It is apt to reproduce relevant para of the judgment hereunder: .....The enquiry proceedings during those days are vitiated accordingly. The report of the Enquiry Officer based on that evidence is infected with same defect. Accordingly the order of the Government dismissing him from service cannot stand. It was passed in violation of the provisions of Art.311 (2) of the Constitution for the appellant did not receive a reasonable opportunity of defending himself in the enquiry proceedings. 19. In the given circumstances of the case, this writ petition merits to be allowed and the show cause notice and the enquiry proceedings merit to be quashed. 20. At this stage, I deem it proper to pass some direction while keeping in view the facts of the case and the fact that the parties are litigating right from 1993 and the fact that the respondents have not drawn any proceedings right from 26-11-1969, the date when the petitioner came to be placed under suspension. The question is that as the petitioner has not worked right from Feb. 1969 and as would appear, has not approached the concerned authorities or invoked jurisdiction of any court till 1993, is he entitled to pay and salary right from the date of suspension till his retirement, when he has not worked. 21. The question is that as the petitioner has not worked right from Feb. 1969 and as would appear, has not approached the concerned authorities or invoked jurisdiction of any court till 1993, is he entitled to pay and salary right from the date of suspension till his retirement, when he has not worked. 21. Keeping in view the facts of the case coupled with the law laid down by the apex court as also by this court, petitioner is held not entitled to any salary right from 22nd November 1969 till his retirement, but the said period shall qualify for all service and retiral/pensionary benefits and shall not be treated as break in service. 22. Having glance over the above discussions, the writ petition is allowed and the show cause notice, framing of charge sheet and imitating of departmental proceedings are quashed. The respondents are directed to pay all service benefits/retiral benefits to the petitioner within a period of three months and report compliance. The period of three months shall commence from the date, copy of the judgment is served by the petitioner on the respondents. There shall, however, be no order as to costs.