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2021 DIGILAW 592 (ALL)

Ram Surat Chaudhary v. State of U. P.

2021-06-29

IRSHAD ALI

body2021
JUDGMENT : IRSHAD ALI, J. 1. In view of COVID-19 pandemic, this case is being heard through video conferencing. 2. Heard Sri. R.C. Tewari, learned counsel for the petitioner, Sri. Shireesh Kumar, learned counsel for respondent Nos. 2 and 3 and learned ACSC for respondent No. 1-State. 3. By means of present writ petition, the petitioner has prayed as under: “(i) Issue a writ, order or direction in the nature of Certiorari quashing the disciplinary proceedings pursuant to the impugned order dated 24.12.2013 and 29.01.2014, impugned charge-sheet dated 23.06.2014 and the show-cause notice dated 31.01.2015. (ii) Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 24.12.2013 and 29.01.2014 (after summoning the same from the opposite parties as the same is not available with the petitioner), impugned charges-sheet dated 23.06.2014 (as contained in ANNEXURE NO. 02 to this writ petition) and show-cause notice dated 31.01.2015 (as contained in ANNEXURE NO. 04 to this writ petition). (iii) Issue a writ, order or direction in the nature of Mandamus commanding/directing the opposite parties to pay the petitioner Leave Encashment, Security Deposits along with interest on the delayed payment of the aforesaid dues as well as interest on the delayed payment of gratuity which has been given to the petitioner after more than 2 years of retirement. (iv) Such other order or direction deemed just and proper in the circumstances of the case, may also be passed. (v) Allow the writ petition with costs.” 4. Brief fact of the case is that the petitioner while holding the post of Assistant Manager (Accounts) in U.P. Cooperative Federation Ltd. retired from service on 29.02.2016. After the retirement, vide order dated 17.09.2018 the petitioner was the amount of gratuity, however, he has not been paid interest on delayed payment of gratuity and amount of leave encashment and security deposit. 5. In the short counter affidavit filed by respondent-Federation, it has been stated that the rules governing service conditions of the petitioner was amended vide notification published in the official gazette on 27.08.2018 providing that in case the employees of respondent-department retired pending disciplinary proceeding, the same will continue and conclude after his retirement. 6. Learned ACSC also submitted that at the time of retirement, there was no rule prescribing continuance of disciplinary proceeding of retired employee. The rule was subsequently amended and it was incorporated vide notification issued on 27.08.2018. 6. Learned ACSC also submitted that at the time of retirement, there was no rule prescribing continuance of disciplinary proceeding of retired employee. The rule was subsequently amended and it was incorporated vide notification issued on 27.08.2018. 7. Learned counsel for the petitioner submitted that the petitioner retired from service on 29.02.2016 and in absence of any provision to continue the disciplinary proceeding as soon as the petitioner retired, the disciplinary proceeding became nonest in the eyes of law. 8. He next submitted that even though the amended rule was notified on 27.08.2018, the proceeding, which has become nonest, cannot be revised in view of amendment incorporated in the rules. 9. In support of his submission he placed reliance upon a judgment in the case of Dev Prakash Tewari vs. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and Others, (2014) 7 SCC 260 and submitted that similar controversy in this regard has been decided that in absence of any provision to continue the disciplinary proceeding after retirement, the same cannot be continued. He further submitted that the petitioner retired from service on 29.02.2016 and payment of gratuity has been made to him on 17.09.2018, however, no interest on delayed payment of gratuity has been made to him, therefore, he requested that in case direction is issued for payment of interest on the amount due to be paid, ends of justice would be met. 10. On the other hand, learned counsel for the respondent Nos. 2 and 3 submitted that the submission advanced by learned counsel for the petitioner in regard to provision to continue the disciplinary proceeding was not in existence under the rules at the time of retirement but it was incorporated vide notification dated 27.08.2018, therefore, treating the petitioner to be under disciplinary proceeding, the payment was stopped. He further submitted that there is no delayed payment of gratuity to the petitioner, therefore, he is not entitled for payment of interest on the amount due to be paid. 11. Learned ACSC also followed the submission advanced by learned counsel for respondent Nos. 2 and 3 that although in the existing rule at the time of retirement of the petitioner there was no provision to continue the disciplinary proceeding after the retirement, however, after amendment in the rules, it was treated that against him there is a disciplinary proceeding pending and the payment was stopped. 12. 2 and 3 that although in the existing rule at the time of retirement of the petitioner there was no provision to continue the disciplinary proceeding after the retirement, however, after amendment in the rules, it was treated that against him there is a disciplinary proceeding pending and the payment was stopped. 12. I have considered the submissions advanced by learned counsel for the parties and perused the material on record as well as submissions of learned counsel for the parties on the payment of interest on amount of gratuity. 13. To resolve the controversy involved in the writ petition, I have perused the U.P. Co-operative Societies Employees Service Regulations, 1975. 14. Under the rules, there is no provision to continue the disciplinary proceeding after the retirement of the employee. The State Government amended the rule vide notification dated 27.08.2018, which is known as U.P. Co-operative Societies Employees Service 22nd Amendment Regulations, 2018, wherein under Regulation 85, following amendment was made: “Amendment of Regulation 85: (2) In the Uttar Pradesh Co-operative Societies Employees Service Regulations, 1975, in regulations 85, after sub-regulation (X) the following sub-regulation shall be inserted, namely:- (XI) Rules regarding disciplinary proceedings after retirement applicable for the employees of the State Government, shall also be applicable for the employees of the Co-operative Society with due modification from time to time: Explanation - For the purposes of this sub-rules, the word, “Governor” has been used under the rules of the State Government, the word “Register” shall be deemed to be substituted. (vii) If an employee retires from the service while disciplinary proceeding against him is already in operation, the disciplinary proceedings will continue after his retirement.” 15. On its perusal, it is evident that under the rules it has been provided that the same will be made effective from the date of its publication in the official gazette. The rule was published in the official gazette on 27.08.2018. Law is settled in this regard that the disciplinary proceeding can be continued after retirement, if applicable rules permit. 16. Here, in the present case, it is admitted case of the parties that at the time of retirement of the petitioner, under the rules applicable there was no provision to continue the disciplinary proceeding against the petitioner, therefore, stoppage of payment of post retiral dues to him cannot be held to be legally sustainable. 17. 16. Here, in the present case, it is admitted case of the parties that at the time of retirement of the petitioner, under the rules applicable there was no provision to continue the disciplinary proceeding against the petitioner, therefore, stoppage of payment of post retiral dues to him cannot be held to be legally sustainable. 17. In regard to challenge of disciplinary proceeding in the present writ petition, it is recorded that the proceeding due to non existence of provisions at the time of retirement cannot be continued, thus the challenge to said proceeding is futile exercise. 18. In view of the above, I am of the considered opinion that once there was no provision to continue the disciplinary proceeding after retirement, the same becomes nonest in the eyes of law after retirement of the petitioner on 29.02.2016. 19. Accordingly, the disciplinary proceeding initiated against the petitioner prior to his retirement is declared nullity and the same cannot be continued. In regard to the payment of interest on the gratuity amount already paid to the petitioner, it is recorded that the payment of gratuity was made to the petitioner after some time from the date of retirement, therefore, the petitioner is entitled to get simple interest on the delayed payment after the retirement. In regard to the payment of other dues like leave encashment and security deposit, once this Court has held that the disciplinary proceeding is not permitted as per the rules applicable against the petitioner and amendment was incorporated on 27.8.2018, the petitioner is entitled for simple interest on the amount due to be paid like leave encashment and security deposit. 20. In view of the finding recorded above, the petition succeeds and is allowed. 21. The respondents are directed to release the post retiral dues to the petitioner like interest on gratuity, leave encashment and security deposit with simple interest of 8% within a period of two months from the date of production of a certified copy of this order.