JUDGMENT 1. - This is second round of litigation. The petitioner - Lekhraj Shrichandani (now dead) through his Legal Heirs (hereafter referred to as 'the employee', for the convenience), was removed from service vide order dated 28.1.1986. The order of removal was challenged by maintaining SBCWP No. 439/1989. Aforesaid writ petition was allowed vide judgment dated 9.8.1999. The order of removal dated 28.1.1986 was set aside, however, disciplinary authority was given liberty to pass fresh order after providing opportunity of hearing to the employee. Prior to the date of judgment, the employee attained the age of superannuation on 31.7.1997. The respondent Bank, accordingly, filed a review petition followed by special appeal showing their difficulty to hold departmental proceedings against an employee already attained the age of superannuation. The appeal so preferred by the respondent Bank was decided vide order dated 17.1.2001 with liberty to proceed with the inquiry and pass appropriate order after affording opportunity of hearing to the employee concerned. The respondent Bank then passed another order of removal on 22.10.2001. The appeal against the said order of punishment was also dismissed by the respondents. 2. Learned counsel submits that challenge to the order of removal is mainly on two grounds. First ground is that order of punishment dated 22.10.2001 is given retrospective effect, thereby employee is removed w.e.f. 28.1.1986 whereas order of removal cannot be from retrospective date. This is more so when earlier order of removal was set aside by this Court. The second ground of the challenge is that employee had attained the age of superannuation on 31.7.1997, thus order of removal could not have been passed against a person, already retired from service. 3. To support his arguments, he has relied upon the judgment of this Court in the case of Moti Lal v. State of Rajasthan and others reported in 1994(2) WLC (Raj.) 730 . Therein, it was held that termination of an employee after retirement is not legal. Still, in the instant case, order of removal has been passed against the employee after his retirement from the service. Another judgment in the case of Jeevaratnam (R.) v. State of Madras Civil Appeal No. 232 of 1965 decided on 13th October, 1965 has been referred wherein it was held that an order of dismissal cannot be passed from retrospective date. 4. Another judgment in the case of Jeevaratnam (R.) v. State of Madras Civil Appeal No. 232 of 1965 decided on 13th October, 1965 has been referred wherein it was held that an order of dismissal cannot be passed from retrospective date. 4. According to learned counsel for petitioner, both the issues are supported by the judgments referred to above. 5. Learned counsel for respondents, on the other hand, submits that so far as the facts given by petitioner are concerned, there is no dispute, however, grounds raised for challenge to the order of removal are not sustainable. The earlier writ petition was allowed, however, respondent Bank was given liberty to pass fresh order after providing an opportunity of hearing. Before the judgment, the employee stood retired from the service, thus a review petition was filed by respondent Bank followed by special appeal to show that disciplinary proceedings cannot be initiated against a retired employee, but Division Bench permitted to do so. The respondent Bank accordingly passed order of removal after providing opportunity of hearing to employee concerned. While passing the order of removal afresh, it was given effect from the date when initial order was passed as earlier order of punishment was set aside by this Court on technical grounds. Thus, there is nothing wrong if the order of removal has been given retrospective effect and an order of punishment can be passed against retired employee and specifically in the present matter when liberty was given to respondent Bank to do so. Accordingly, there is no illegality in the impugned order of punishment. A reference of Rule 49(g) of the State Bank of India (Supervising Staff) Service Rules (for short 'the Service Rules') has been given to indicate that order of removal is provided as one of the major punishment and the same has been imposed in the present matter. Thus, there is nothing illegal in the impugned order, hence, the writ petition may be dismissed. 6. I have considered the rival submissions made by both the parties and scanned the matter carefully. 7. It is a case where initially order of removal was passed against the employee on 28.1.1986. Thus, there is nothing illegal in the impugned order, hence, the writ petition may be dismissed. 6. I have considered the rival submissions made by both the parties and scanned the matter carefully. 7. It is a case where initially order of removal was passed against the employee on 28.1.1986. Challenge to aforesaid order remains successful, hence, said order was set aside by this Court vide judgment dated 9.8.1999 in earlier writ petition though with liberty to respondent Bank to pass fresh order after providing opportunity of hearing to petitioner though he had already attained the age of superannuation on 31.7.1997. The respondent Bank preferred a review petition and special appeal showing their inability to proceed with the departmental inquiry against a retired person as is narrated in Para 7 of reply to present writ petition. Thereby, respondent Bank was knowing it well that disciplinary proceedings against the retired employee cannot be proceeded, however, in view of the clarification given by the Division Bench, respondent Bank proceeded with the matter and after giving opportunity of hearing, passed fresh order of punishment on 22.10.2001 effecting it from 28.1.1986. 8. Two issues have been raised before me to challenge the order of punishment. First issue is as to whether punishment order can be given retrospective effect and second is as to whether order of removal can be passed against a retired person. 9. So far as first issue is concerned, law is well settled inasmuch as order of punishment cannot be passed retrospectively. The view aforesaid has been expressed by the Hon'ble Apex Court in the case of Jeevaratnam (supra). Therein also, the order of dismissal was passed from retrospective date. The High Court set aside the order and before the Hon'ble Supreme Court, order of punishment was considered in two parts. The first part pertains to retrospective effect of the order, which is held to be invalid. The Hon'ble Supreme Court accepted second part holding punishment from the date of passing of the order to be legal. If the analogy aforesaid is applied to the present matter, then order of removal can be effected from the date it was issued i.e. 22.10.2001. Accordingly, answer to first question is that an order of punishment cannot be passed retrospectively. 10. The another issue raised is as to whether order of removal can be passed against a retired employee. If the analogy aforesaid is applied to the present matter, then order of removal can be effected from the date it was issued i.e. 22.10.2001. Accordingly, answer to first question is that an order of punishment cannot be passed retrospectively. 10. The another issue raised is as to whether order of removal can be passed against a retired employee. The said issue was not raised before the Hon'ble Supreme Court in the case of Jeevaratam (supra), however, it was specifically raised and answered by this Court in the case of Moti Lal (supra). 11. Para 5 of the aforesaid judgment is quoted hereunder for ready reference:- "5. In reply, the respondents have pleaded that the petitioner will fully absented from duty from 14.2.1979 after committing embezzlement of Rs. 7,322.24. It has been stated by them that the order of retirement of the petitioner was revoked by another order issued on 27.6.1980 and the order of removal from service was passed for the will full absence from service. It has also been stated by the respondents that in the disciplinary inquiry held against the petitioner, the petitioner was found guilty of misappropriation of Rs. 10,486.64 and that there was no illegality in the action taken by the respondents. According to the respondents, the petitioner was not proceeded against departmentally because of the pendency of the criminal case which was registered on the basis of First Information Report dated 3.5.1979. He has been acquitted by the Court of Chief Judicial Magistrate by being given benefit of doubt, and in such type of cases, the departmental authorities are not precluded from holding inquiry merely because of petitioner's acquittal. From the record of the inquiry proceedings which has been placed before the Court, it can be reasonably said that the departmental authorities have dealt with the case of the petitioner in a most casual fashion. Admittedly, the petitioner was placed under suspension in February, 1979 and he was alleged to be not traceable in service till he attained the age of superannuation on 31.1.1980. However, no final order was passed in the departmental inquiry initiated against the petitioner in the year 1979 and the departmental authorities allowed him to attain the age of superannuation. Admittedly, the petitioner was placed under suspension in February, 1979 and he was alleged to be not traceable in service till he attained the age of superannuation on 31.1.1980. However, no final order was passed in the departmental inquiry initiated against the petitioner in the year 1979 and the departmental authorities allowed him to attain the age of superannuation. The one who issued the order of retirement of the petitioner with effect from 31.1.1980 woke up from slumber after passing of the order of retirement and then issued the order of termination under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. That was simply impermissible. No order of termination from service of a Government servant can legally be passed after his retirement. The only action which can be taken against a Government servant after his retirement is by way of passing an order under Rule 170 of the Rajasthan Service Rules, 1951. That the disciplinary authorities did not undertaken. Subsequently, the order of termination from service was set aside on 27.6.1980 and that order itself was revoked on 28.8.1980 and at the same time the order of retirement was also revoked. The action of the Executive Engineer in passing the order dated 28.8.1980 cancelling the order of retirement of the petitioner was also wholly without jurisdiction. Once the petitioner has reached the age of superannuation i.e. 55 years, he was bound to be retired. Even in the absence of a written order passed by competent authority, the petitioner was bound to retire on the date he attained the age of superannuation. He could neither continue in service nor was he entitled to be paid salary after attaining the age of superannuation. Therefore, the action of the Executive Engineer in cancelling the order of his retirement was not only contrary to law, but was infructuous." 12. Perusal of the above quoted para reveals that no order of termination can be passed after retirement of employee. Judgment aforesaid is in reference of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. However, the principle evolved therein applies to the present matter. It is, however, urged that Rule 49 of the Service Rules provides removal from service as one of major penalty, thus rightly applied in the present matter. Judgment aforesaid is in reference of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. However, the principle evolved therein applies to the present matter. It is, however, urged that Rule 49 of the Service Rules provides removal from service as one of major penalty, thus rightly applied in the present matter. To appreciate the argument, it would be gainful to quote Rule 49 of the Service Rules, which is quoted thus:- 49. Without prejudice to any other provisions contained in these rules, any one of more of the following penalties may be imposed on an employee, for an act of misconduct or for any other good and sufficient reason:- Minor Penalties: (a) censure; (b) withholding of increments of pay with or without cumulative effect; (c) withholding of promotion; (d) recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the Bank by negligence or breach of orders. Major Penalties: (e) reduction to a lower grade or post, or to a lower stage in a time scale; (f) compulsory retirement; (g) removal from service; (h) dismissal." 13. Perusal of above quoted para reveals that penalties may be imposed on an employee for an act of misconduct. Meaning thereby imposition of penalties can be against 'employee'. The word 'employee' has been defined under Rule 3(u) of the Service Rules, which is quoted hereunder for ready reference:- "3(u) "Employee" means a Senior Staff Officer, a Staff Officer, an Officer or a person to whom these rules are applied by rule 2(2)." 14. Perusal of the definition quoted above shows that a Senior Staff Officer, a Staff Officer, an Officer or a person to whom these rules applied can fall in the definition of 'employee' A reference of Rule 2(2) has also been given, thus same is also quoted hereunder for ready reference:- "2(2) They shall also apply to persons in the service of the Bank in any other capacity to such extent and subject to such conditions as the Appointing Authority may fro time to time decide." 15. Perusal of above quoted rule reveals that Service Rules applies to the person in service of the Bank in any capacity, subject to certain conditions, meaning thereby one will fall in the definition of 'employee', if he is in the service of Bank in any capacity, which includes posts referred in the definition of 'employee'. One ceased to be employee within the definition referred to above on the day of his superannuation. Thus, question of application of Service Rules does not arise so as to impose punishment of removal. The argument in reference to Rule 49 of the Service Rules, thus cannot be accepted as it applies to employee only. Aforesaid argument is also scrutinised from other angle, which is by making difference between superannuated employee and existing employee. A person already superannuated can never be removed from service as he ceased to be employee on superannuation, thus non-existing employee cannot be removed from service. 16. In view of the above discussion, I am unable to accept any of the contentions raised by learned counsel for respondents. In fact, an order of punishment cannot be passed with retrospective effect and order of removal cannot be issued against an employee already superannuated. In view of the answer of both the questions in favour of petitioner, impugned order of punishment so as the order passed in the departmental appeal are set aside. The employee Lekhraj Shrichandani (since no more) has not worked with respondent Bank from the date of first order of removal, thus would not be entitled to actual benefit of wages till the date of superannuation but entitled to notional benefit for retrial benefits. Accordingly, outcome of setting aside order of removal would now be for retrial benefits by treating Lekhraj Shrichandani in service till the date of superannuation but with notional benefit of fixation. The writ petition is accordingly allowed. This disposes of stay application also.Writ petition allowed. *******