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2017 DIGILAW 391 (ALL)

V. K. JAISWAL v. U. P. S. R. T. C.

2017-02-02

YASHWANT VARMA

body2017
JUDGMENT Hon’ble Yashwant Varma, J.—Heard Sri Neeraj Tripathi, learned counsel for the petitioner and Sri S.K. Mishra, learned counsel who has appeared for the contesting respondent, the U.P. State Road Transport Corporation (Corporation). The challenge in the present writ petition is to the orders dated 24 April 1998 and 13 August 1999. The petitioner has sought the further relief of the respondents being commanded to release the entire arrears of salary with due increments as due and payable to him from time to time. The third relief is for release of pension, provident fund and gratuity together with other post retiral benefits. Insofar as the third prayer is concerned, learned counsel for the petitioner concedes that the post held by the petitioner was not pensionable and he, therefore, does not press this relief insofar as payment of pension is concerned. 2. The order dated 24 April 1998 came to be passed upon the culmination of disciplinary proceedings initiated against the petitioner and noted that the petitioner who had been found guilty of the charges levelled against him would be entitled to all post retiral benefits. The order further provides that no increments would stand granted to the petitioner. It lastly held that the payment of dues, other than subsistence allowance already released and paid to the petitioner, for the period 8 June 1987 to 31 July 1998 would be considered later. By the subsequent order dated 13 August 1999, the decision taken by the Corporation on 24 April 1998 was reiterated and it was further provided that the petitioner would not be entitled to any benefits including salary and other emoluments for the period during which he remained under suspension apart from what had been paid to him during the said period. 3. The primary contentions advanced in support of the challenge to the aforementioned two orders was that the entire proceedings were taken ex parte against the petitioner and that despite the directions of this Court passed upon an earlier writ petition which came to be disposed of inter partes, the principles of fair play were not adhered to by the Corporation while inflicting punishment upon the petitioner. It was contended that the entire enquiry proceedings came to be concluded without any intimation or notice to the petitioner. It was contended that the entire enquiry proceedings came to be concluded without any intimation or notice to the petitioner. The more fundamental objection which is taken to the orders impugned revolves around the fact that although the petitioner had retired from service on 31 January 1998, the impugned orders came to be passed post the superannuation of the petitioner. Sri Tripathi submitted that the service rules which govern the conditions of service of the petitioner do not provide for a continuance of enquiry proceedings initiated against the delinquent employee post his retirement. He submits that once the petitioner had retired from service, no authority vested in the respondents either to continue the disciplinary proceedings or to inflict the orders of punishments which stand impugned herein. In support of his above submission, Sri Tripathi placed reliance upon the decisions of the Supreme Court in Bhagirathi Jena v. Board of Directors, O.S.F.C. and others, (1999) 3 SCC 666 and the reiteration of the principles enunciated therein in Dev Prakash Tewari v. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and others, (2014) 7 SCC 260 . 4. Countering the submissions advanced by Sri Tripathi, Sri Mishra appearing for the Corporation contends that the enquiry report as also the order of punishment dated 24 April 1998 shows and establishes that all efforts were made by the Corporation to comply with the principles of natural justice and to afford an opportunity of hearing to the petitioner. Taking the Court through the contents of the enquiry report as also the order dated 24 April 1998, Sri Mishra has submitted that although numerous dates had been fixed, the petitioner deliberately chose not to participate in the enquiry proceedings and, therefore, it is not open to him now to assert that the principles of natural justice were violated. Insofar as the submission of Sri Tripathi with respect to continuance of enquiry after his retirement is concerned, although Sri Mishra concedes that there is no statutory rule which empowers the Corporation to continue an enquiry after the retirement of an employee, he submits that this principle would, in the facts and circumstances of this case, not be applicable in light of the directions issued by this Court on the earlier writ petition. He submits that the direction to conclude the enquiry within a period of eight weeks as provided for in the earlier order of this Court clearly conferred jurisdiction and authority upon the Corporation to proceed with and conclude the disciplinary proceedings which had admittedly been initiated at a time when the petitioner was still in service. Before dealing with the afore noted rival submissions, it would be apposite to notice the following facts. The petitioner was a Senior Traffic Inspector employed in the Corporation. He was placed under suspension on 8 June 1987 and consequent to disciplinary proceedings being initiated a charge-sheet came to be issued against him levelling as many as seven charges. This charge-sheet dated 7 September 1987 alleged that the petitioner had failed to carry out checking of buses, had not undertaken inspection during night time and that despite various checking reports having been submitted by him, no instances of wrong doing or corruption were evidenced by him. On 1 October 1991 the petitioner came to be removed from service. This order of removal was challenged by him by instituting Writ Petition No. 1975 of 1992. This writ petition came to be allowed by a learned Single Judge of the Court on the ground that the entire proceedings had been held and concluded against the petitioner in violation of the principles of natural justice. The writ petition was consequently allowed and disposed of on 2 November 1995 with the following operative directions: “In the aforesaid circumstances, the writ petition succeeds and is allowed. The impugned order dated 1.10.1991 at Annexure 30 to the writ petition removing the petitioner from service is hereby quashed. The respondents are at liberty to complete the disciplinary proceeding by giving petitioner full opportunity to defend his case. As the matter is pending for quite some time, The respondents are required to complete the disciplinary proceeding within a period of eight weeks from the date of production of a certified copy of this order after giving the petitioner opportunity to defend his case in accordance with law.” 5. Since the judgment and order of the Court granted liberty to the respondents to continue the disciplinary proceedings afresh, an Enquiry Officer is stated to have been appointed and he is said to have issued various notices to the petitioner to participate in the enquiry proceedings. Since the judgment and order of the Court granted liberty to the respondents to continue the disciplinary proceedings afresh, an Enquiry Officer is stated to have been appointed and he is said to have issued various notices to the petitioner to participate in the enquiry proceedings. From the record it appears that the last of such notices was issued on 30 April 1996. The record further establishes that on 17 February 1997, the Enquiry Officer was changed. The order dated 24 April 1998 notes that this Enquiry Officer appointed in 1997 fixed various dates for conducting the disciplinary proceedings but the petitioner failed to participate in the same. It becomes pertinent to note here that although this recital in the order dated 24 April 1998 refers to various dates having been fixed by the second Enquiry Officer, no material in support of the said recital has been appended either with the counter-affidavit filed on behalf of the the Corporation nor has learned counsel produced or referred to any material in support of the same. Having perused the Counter-affidavit itself, this Court finds that even in the affidavit the Corporation has not disclosed any details of dates fixed post 30 April 1996 till 3 February 1998 when admittedly a notice was issued to the petitioner requiring him to appear before the Enquiry Officer on 9 February 1998. The Corporation on 17 February, 1998 issued an order noting that the petitioner had attained the age of superannuation and he would therefore be treated to have retired from service with effect from 31 January 1998. The Enquiry Officer submitted a report on 19 February 1998. On 22 April 1998, the Corporation issued a show-cause notice to the petitioner calling upon him to submit his explanation within a period of fifteen days from the said notice and explain why the punishment proposed, be not imposed upon him. Although this notice granting fifteen days’ time to the petitioner to furnish his reply to the said show-cause notice, on 24 April 1998 itself the impugned order came to be passed. On 13 August 1999, the Corporation took a decision to forfeit the entire salary and other emoluments payable to the petitioner. He consequently became disentitled to receive any emoluments apart from what had been paid to him by way of subsistence allowance for the period during which he remained under suspension. 6. On 13 August 1999, the Corporation took a decision to forfeit the entire salary and other emoluments payable to the petitioner. He consequently became disentitled to receive any emoluments apart from what had been paid to him by way of subsistence allowance for the period during which he remained under suspension. 6. It becomes relevant to note here that during the pendency of the disciplinary proceedings, the petitioner alleged that no subsistence allowance had been paid to him. This was despite what was observed by the learned Single Judge while disposing of the writ petition. On 22 December 1995, the Corporation passed an order stating that he would continue to remain under suspension and that the fifth respondent would conduct the disciplinary proceedings. This order had been challenged in Writ Petition No. 3131 of 1996 which came to be dismissed on 17 December 2013. Aggrieved by the non-payment of his subsistence allowance and alleging violation of the judgment and order dated 2 November 1995, the petitioner initiated contempt proceedings on which notices came to be issued against the officers of the Corporation on 14 March 1996. During the pendency of the contempt proceedings, the petitioner is stated to have been paid a sum of Rs. 62,000/- approximately as representing subsistence allowance payable to him. Sri Mishra has also drawn the attention of the Court to an application made in Writ Petition 1975 of 1992 seeking extension of time to conclude the departmental proceedings consequent to the period of eight weeks as fixed under the judgment and order of this Court having elapsed. This application though styled as a review application in fact seeks further 4 months time to enable the respondents to conclude the enquiry. 7. Having noticed the salient fact on which there is not much dispute, this Court is firstly constrained to observe that there is no material or evidence to indicate what steps the Corporation took between 30 April 1996 to 3 February 1998. There is not one shred of evidence to indicate as to whether any notice was issued to the petitioner during this period to participate in the disciplinary proceedings. There is not one shred of evidence to indicate as to whether any notice was issued to the petitioner during this period to participate in the disciplinary proceedings. As noticed above, although the order dated 24 April 1998 asserts that various dates had been fixed by the Enquiry Officer appointed on 17 February 1997, no such notice has been placed on the record nor have details of any such notice been alluded to or disclosed in the affidavit filed in these proceedings on behalf of the Corporation. Even the order sheet which stands appended alongwith the counter-affidavit of the Corporation refers to dates which were fixed in 1996. On the above state of the record, the submission of the learned counsel for the petitioner that the disciplinary proceedings were revived only in 1998 after a long spell of unexplained silence and inaction appears to have force. On 17 February 1998, the Corporation although being fully aware of the pendency of the disciplinary proceedings, proceeded to pass an order holding that the petitioner would be treated to have retired from service with effect from 31 January 1998. If the petitioner was permitted to retire with effect from 31 January 1998, this Court fails to comprehend what authority inhered in the Corporation to proceed with or continue the disciplinary proceedings or to inflict any punishment upon the petitioner. As noted above, no statutory provision, rule or regulation prevalent in the Corporation was referred to or relied upon to sustain the continuance of the disciplinary proceedings after the retirement of the petitioner on 31 January 1998. Once the petitioner had retired from service no authority vested in the Corporation to continue with the disciplinary proceedings which had been initiated against the petitioner. Retirement of an employee cuts the cord which connects the two entities and severs all relationship of master and servant or employer and employee. The retirement of an employee brings the curtain down upon the relationship of employer and employee. Once this event occurs, no further jurisdiction or authority vests in the employer to inflict any punishment upon the employee thereafter. The retirement of an employee brings the curtain down upon the relationship of employer and employee. Once this event occurs, no further jurisdiction or authority vests in the employer to inflict any punishment upon the employee thereafter. The only exception to this position is where a statutory rule enables the employer to continue the employee in service for the purposes of concluding an enquiry already initiated and inflicting punishment even after retirement or a special provision to make good the loss suffered by the employer even after the superannuation of the employee. The position in law on this aspect is no longer res integra and stands authoritatively answered in favour of the petitioner by the Supreme Court in Bhagirathi Jena. The principles elucidated in the said judgment have been reiterated in Dev Prakash Tewari. This Court, therefore, must record that the Corporation had no authority to continue with the disciplinary proceedings post the superannuation of the petitioner on 31 January 1998. Even otherwise the following facts also need to be highlighted. Admittedly the enquiry report was submitted on 19 February 1998. A reading of the said report which stands appended as Annexure-14 clearly shows that the Enquiry Officer has not recorded his satisfaction in respect of the guilt of the petitioner on the basis of any material or evidence on record. 8. The only conclusion recorded by the Enquiry Officer is that since the petitioner did not cooperate with the disciplinary proceedings and that from his conduct, it is clear that he does not want the proceedings to be concluded, he had no option but to record a finding that the charges stand proved. It is trite law that even if disciplinary proceedings are continued and culminate ultimately ex parte, the Enquiry Officer is under a positive obligation to record his satisfaction with respect to the charges levelled against the delinquent employee with reference to the evidence based upon which the employer seeks to take action against the employee. Even this rudimentary and settled principle was not borne in mind by the Enquiry Officer. Even this rudimentary and settled principle was not borne in mind by the Enquiry Officer. The mistake committed by the Enquiry Officer, as noted above, was reiterated by the Disciplinary Authority inasmuch as neither in the order dated 24 April 1998 nor in the order dated 13 August 1999, has the Disciplinary Authority recorded any independent satisfaction with respect to the guilt of the petitioner based upon the evidence or material on record. This, of course, subject to the caveat that the failure of the Enquiry Officer to record his conclusions on each charge is not a flaw which could perhaps have been cured by the Disciplinary Authority for the first time. That leaves this Court to deal with the last submission of Sri Mishra that the judgment and order of this Court dated 2 November 1995 conferred authority upon the Corporation to continue and conclude the enquiry despite the superannuation of the petitioner. It becomes pertinent to point out here that the judgment and order of the Court dated 2 November 1995 required the Corporation to conclude the proceedings within a period of eight weeks therefrom. Admittedly, this period of eight weeks had expired long before the passing of the orders impugned. This Court has not been referred to any material or circumstance which may have constrained or injuncted the Corporation from proceeding ex parte and concluding the enquiry in case it was its contention that the petitioner was deliberately not permitting the conclusion of the enquiry and adopting a procedure of non cooperation. From the facts notices herein above it appears that the Corporation fell into deep slumber post 30 April 1996 till it issued a notice on 3 February 1998. Even otherwise this Court finds itself unable to view or read the order dated 2 November 1995 as conferring or clothing the Corporation with jurisdiction to continue with a departmental enquiry against a delinquent employee post his retirement in the absence of any statutory provision, rules or regulation conferring such authority upon the Corporation. 9. The last significant issue which must be noted is this. Admittedly, the show-cause notice was dated 22 April 1998. This notice required the petitioner to submit a reply within 15 days. Even before the said period could expire, the impugned order came to be passed on 24 April 1998. 9. The last significant issue which must be noted is this. Admittedly, the show-cause notice was dated 22 April 1998. This notice required the petitioner to submit a reply within 15 days. Even before the said period could expire, the impugned order came to be passed on 24 April 1998. As noted above, no steps were taken by the Corporation between 30 April 1996 to 3 February 1998. For a period of almost two years, the Corporation was struck by unexplained inertia. If it were its contention that the petitioner was not cooperating, it could have proceeded and concluded the enquiry ex parte. The report of the Enquiry Officer suffers from fundamental flaws noted above. These fundamental flaws were not [and even otherwise could not have been] cured by the Disciplinary Authority. This clearly establishes a failure on the part of the Corporation to follow due process and to act in a fair and reasonable manner. The entire proceedings culminating in the passing of the impugned orders apart from being in violation of the rudimentary and fundamental principles of fair play, are even otherwise rendered without authority of law in light of the proceedings having been continued and penalties inflicted after the retirement of the petitioner on 31 January 1998. 10. Accordingly and for the reasons noted above, this writ petition stands allowed. The impugned orders dated 24 April 1998 and 13 August 1999 are hereby quashed. The petitioner shall as a result thereof be entitled to all consequential benefits and reliefs. Since the final orders inflicting punishments upon the petitioner already stand quashed in Writ Petition No. 5311 of 2000, the application seeking extension of time filed in Writ Petition No. 1975 of 1992 is rejected.