Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 1522 (ALL)

Luxmi Devi v. State of U. P.

2022-09-21

SANGEETA CHANDRA

body2022
JUDGMENT : 1. Heard learned counsel for the petitioners and Sri Jai Bahadur Singh, learned counsel who appears on behalf of the respondent nos.2 and 3. 2. This petition has been filed by the petitioners who are the widow and son of Late Ram Nazar Singh challenging the order dated 16.10.2021 passed by the Chief Executive Officer, Fatehpur District Cooperative Bank Ltd. Fatehpur and praying for direction to be issued to the respondent-Bank to release post retiral benefits of the deceased employee with admissible interest. 3. It is the case of the petitioner that they are legal heirs of late Ram Nazar Singh who retired as a Grade-II employee of Fatehpur District Cooperative Bank Ltd. Fatehpur on 31.07.2018. At the time of his retirement, he was not placed under suspension and no charge-sheet was issued to him and no disciplinary proceedings were proposed against him. On 27.08.2018, an amendment was carried out in the U.P. Cooperative Societies Employees Service Regulations, 1975 by which Regulations 85 was amended and sub-Regulations (XI) and (XII) were added by which Rules regarding disciplinary proceedings after retirement of an employee, shall be applicable for employee of Cooperative Societies as were applicable to the retired employees of the State Government and the sanction was to be obtained not from His Excellency the Governor of U.P., but from the Registrar who was the Competent Authority to initiate disciplinary proceedings against such retired employees. 4. On 02.02.2021, the respondent-Bank appointed an Inquiry Officer and on 24.02.2021, charge-sheet was served upon the husband of the petitioner no.1. He replied to the charge-sheet but the disciplinary proceedings remained pending and the husband of the petitioner no.1 died on 02.09.2021. The inquiry report was submitted much after the death of the deceased employee on 30.09.2021. No show cause notice was issued to the deceased employee regarding proposed punishment as he was not alive and the punishment order was issued on 16.10.2021 based on the resolution of the Committee of Management dated 05.10.2021 by which it was resolved to recover an amount of Rs.11,80,363/- along with interest from the retiral dues of late Ram Nazar Singh as he was found guilty of causing loss to the Society. 5. Learned counsel for the petitioners has submitted that late Ram Nazar Singh retired on 31.07.2018. 5. Learned counsel for the petitioners has submitted that late Ram Nazar Singh retired on 31.07.2018. At that time, there was no provision in the Cooperative Societies Employees Service Regulations, 1975 for initiation of disciplinary proceedings against retired employees. This question has been settled finally by the Supreme Court in the judgment rendered in Dev Prakash Tewari Vs. U.P. Cooperative Institutional Service Board, Lucknow and others, [ (2014) 7 SCC 260 ] where the Supreme Court observed that there was no provision in the U.P. Cooperative Societies Employees Service Regulations, 1975 for initiation of disciplinary proceedings against retired employees or for continuing disciplinary proceedings even when they were started before retirement of the employee concerned. 6. It has also been argued by learned counsel for the petitioners that in case of late Ram Nazar Singh, no disciplinary proceedings were initiated before his retirement. The amendment in the Service Regulations came to be notified only on 27.08.2018 with immediate effect. They were not retrospective in nature. Hence they could not be made to apply to an already retired employee. The Inquiry Officer being appointed on 02.02.2021 and charge-sheet being served on 24.02.2021 was completely without jurisdiction. Although the respondents say in their counter affidavit that the Registrar the Competent Authority under the amended Regulations had issued an order granting sanction for initiation of disciplinary proceedings after retirement of late Ram Nazar Singh, a perusal of the order referred to in the counter affidavit as CA-1 dated 09.02.2021 would show that the Registrar had initially raised a doubt regarding the admissibility of initiation of disciplinary proceedings. 7. It has also been argued by learned counsel for the petitioners that the husband of the petitioner was on a non pensionable post and therefore, any Regulation which permits the respondents to initiate disciplinary proceedings for recovery from pension and other retiral dues of such an employee including Article 351-A of the Civil Services Regulations shall not be applicable. Learned counsel for the petitioners has placed reliance upon a coordinate Bench decision in Brahamand Tyagi Vs. State of UP and others [2022 (8) ADJ 624] where the coordinate Bench had placed reliance upon a Division Bench judgment of this Court in Rajya Krishi Utpadan Mandi Parishad and another Vs. Public Services Tribunal, U.P. and others [ 2008 (2) ADJ 11 ]. 8. State of UP and others [2022 (8) ADJ 624] where the coordinate Bench had placed reliance upon a Division Bench judgment of this Court in Rajya Krishi Utpadan Mandi Parishad and another Vs. Public Services Tribunal, U.P. and others [ 2008 (2) ADJ 11 ]. 8. It has been argued by Sri J.B. Singh, learned counsel appearing on behalf of the respondents that the Competent Authority for issuance of sanction for initiation of disciplinary proceedings against late Ram Nazar Singh, is the Registrar of the Cooperative Society and he had already given consent in the matter. A copy of such order passed on 09.02.2021 has been filed as Annexure-1 to the counter affidavit. Learned counsel for the respondents has referred to the amendment carried out in the U.P. Cooperative Societies Employees Service Regulations, 2018 by the XXII Amendment making applicable Article 351-A of the Civil Services Regulation to the employees of Cooperative Societies. It has also been argued by learned counsel for the respondents that the Regulations were amended on 27.08.2018 and in the said amendment, there was no bar for initiating disciplinary proceedings against the retired employees who had caused loss to the Cooperative Society. 9. Learned counsel for the petitioners in rejoinder has submitted that the amendment which was carried out in the Regulations of 1975 was notified only on 27.08.2018 and was made applicable with immediate effect. Hence no retrospective operation can be given in the case of the husband of the petitioner no.1 and the judgment rendered by the Supreme Court in the case of Dev Prakash Tewari (supra) shall squarely apply as at the time of retirement, there was no Regulation permitting such initiation of disciplinary proceedings or their continuation. 10. This Court has carefully considered the judgment rendered by the Supreme Court in Dev Prakash Tewari (supra) where the Supreme Court had followed the judgment rendered by it earlier in Bhagirathi Jena Vs. Orissa State Financial Corporation [ (1999) 3 SCC 666 ] where it was held that in the absence of any provision in the Regulations governing the service of an employee providing for continuation of disciplinary proceedings after retirement, the respondent cannot continue the disciplinary proceedings after the employee's superannuation. 11. The State of U.P., no doubt notified the XXII Amendment to the Regulations of 1975 but it provided the date of enforcement as the date of publication in the Gazette. 11. The State of U.P., no doubt notified the XXII Amendment to the Regulations of 1975 but it provided the date of enforcement as the date of publication in the Gazette. Publication was made only on 27.08.2018 in the official Gazette. Hence, no retrospective operation can be given to the Regulations and the Registrar could not have given sanction on 09.02.2021 for initiation of disciplinary proceedings against the husband of the petitioner no.1. 12. This Court has also considered the Division Bench judgment in the case of Rajya Krishi Utpadan Mandi Parishad (supra), while placing reliance upon the judgment rendered in Bhagirathi Jena (supra), the Division Bench observed that the post of contesting respondent being non pensionable, Article 351-A of Civil Services Regulation was not applicable. After the date of superannuation, the disciplinary proceedings could not go on in the absence of any specific provision. The Court also held that contesting respondent was entitled to interest on the amount payable to him. 13. Having considered the judgments rendered by this Court and by the Supreme Court and the facts as mentioned in the pleadings on record regarding which there is no dispute, this Court is of the considered opinion that the disciplinary proceedings initiated against late husband of the petitioner no.1 is without jurisdiction as he retired on 31.07.2018 much before the amendment in the Regulation was notified with prospective effect. 14. The proceedings initiated against late Ram Nazar Singh being without jurisdiction are liable to be quashed and are quashed. The writ petition is allowed. 15. Consequential benefits shall be available to the petitioners. Recovery of Rs.11,80,363/- from the gratuity and other services benefits of late Ram Nazar Singh, if the same has been deducted, shall be refunded to the petitioners along with 6% compound interest as had the amount been deposited in a Bank by the petitioners on its receipt in time, they would have been entitled to bank's rate of interest on such deposit.