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2023 DIGILAW 142 (HP)

Bir Singh v. H. P. State Forest Dev. Corp. Ltd.

2023-03-13

TARLOK SINGH CHAUHAN, VIRENDER SINGH

body2023
JUDGMENT : Tarlok Singh Chauhan, J. The instant petition has been filed for the grant of following substantive reliefs:- i. That the impugned charge-sheet memorandum dated 08.11.2019 (Annexure P-1) qua the petitioners and the impugned order dated 18.08.2022 (Annexure P-5) passed by the respondent No. 1 may kindly be quashed and set aside being arbitrary, illegal, constitutionally void, discriminatory, cryptic and violative of the judgments rendered by the Hon'ble Apex Court in case titled as P.V. Mahadevan v. M.D. Tamilnadu Housing Board reported in 2005 (4) CTC 403 and also in case of Mahavir Prasad v. State of U.P. (AIR 1970 SC 302) and Rule 9(2) (b) (ii) of Chapter 9 of the CCS (CC&A) Rules, 1965, by issuing writ of Certiorari; ii. That a writ in the nature of mandamus may kindly be issued, directing the respondents to drop the charges in respect of the petitioners with all consequential benefits and justice be done. 2. It is not in dispute that the petitioners were retired from service on attaining age of superannuation on 31.01.2013 and 29.02.2012, whereas the disciplinary proceedings have been initiated after the retirements by issuing memorandum on 08.11.2019. 3. In this background, the moot question is whether the departmental inquiry, which was not initiated while the petitioners were in service, can be permitted to continue after their retirements. 4. The issue in question is squarely answered by the Hon'ble Supreme Court in Anant R. Kulkarni vs. Y.P. Education Society and Ors. (2013) 6 SCC 515 . It shall be apt to reproduce paras 18 to 23 of the judgment, which read as under:- 18. This Court in NOIDA Entrepreneurs Association v. NOIDA & Ors., AIR 2011 SC 2112 , examined the issue, and held that the competence of an authority to hold an enquiry against an employee who has retired, depends upon the statutory rules which govern the terms and conditions of his service, and while deciding the said case, reliance was placed on various earlier judgments of this Court including B.J. Shelat v. State of Gujarat & Ors., AIR 1978 SC 1109 ; Ramesh Chandra Sharma v. Punjab National Bank & Anr., (2007) 9 SCC 15 ; and UCO Bank & Anr. v. Rajinder Lal Capoor, AIR 2008 SC 1831 . 19. In State of Assam & Ors. v. Rajinder Lal Capoor, AIR 2008 SC 1831 . 19. In State of Assam & Ors. v. Padma Ram Borah, AIR 1965 SC 473 , a Constitution Bench of this Court held that it is not possible for the employer to continue with the enquiry after the delinquent employee stands retired. The Court observed:- “7.....According to the earlier order of the State Government itself, the service of the respondent had come to an end on March 31, 1961. The State Government could not by unilateral action create a fresh contract of service to take effect from April 1, 1961. If the State Government wished to continue the service of the respondent for a further period, the State Government should have issued a notification before March 31, 1961.” (Emphasis added) While deciding the said issue, the Court placed reliance on the judgment in R.T. Rangachari v. Secretary of State, AIR 1937 PC 27 20. In State of Punjab v. Khemi Ram, AIR 1970 SC 214 , this court observed: “There can be no doubt that if disciplinary action is sought to be taken against a government servant it must be done before he retires as provided by the said rule. If a disciplinary enquiry cannot be concluded before the date of such retirement, the course open to the Government is to pass an order of suspension and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final order is passed therein.” 21. In Kirti Bhusan Singh v. State of Bihar & Ors., AIR 1986 SC 2116 , this Court held as under: “6…. We are of the view that in the absence of such a provision which entitled the State Government to revoke an order of retirement……. which had become effective and final, the order passed by the State Government revoking the order of retirement should be held as having been passed without the authority of law and is liable to be set aside. It, therefore, follows that the order of dismissal passed thereafter was also a nullity.” 22. which had become effective and final, the order passed by the State Government revoking the order of retirement should be held as having been passed without the authority of law and is liable to be set aside. It, therefore, follows that the order of dismissal passed thereafter was also a nullity.” 22. In Bhagirathi Jena v. Board of Directors, O.S.F.C. & Ors., AIR 1999 SC 1841 , this Court observed: “7..… There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30-6-1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.” 23. In U.P. State Sugar Corporation Ltd. & Ors. v. Kamal Swaroop Tondon, (2008) 2 SCC 41 , this Court dealt with a case wherein statutory corporation had initiated proceedings for recovery of the financial loss from an employee after his retirement from service. This Court approved such a course observing that in the case of retirement, master and servant relationship continue for grant of retrial benefits. The proceedings for recovery of financial loss from an employee is permissible even after his retirement and the same can also be recovered from the retrial benefits of the said employee. 5. It is evident from the above that the relevant rules governing the service conditions of an employee are the determining factors as to whether and in what manner the domestic inquiry can be held against an employee who stood retired after reaching the age of superannuation. Generally, if the inquiry has been initiated while delinquent employee was in service, it would continue even after his retirement, but the nature of the punishment would change. The punishment of dismissal/removal from service would not be imposed. 6. Generally, if the inquiry has been initiated while delinquent employee was in service, it would continue even after his retirement, but the nature of the punishment would change. The punishment of dismissal/removal from service would not be imposed. 6. At this stage, we need to clarify that the aforesaid judgment in Anant R. Kulkarni's case (supra) was considered by a Bench of three Hon'ble Judges of the Hon'ble Supreme Court in Chairman-cum-Managing Director Mahanadi Coalfileds Ltd. vs. Rabindra Nath Choubey (2020) 18 SCC 71 , and partly over-ruled only to the extent that the general observations that if the inquiry had been initiated while the delinquent employee was in service, it would continue even after his retirement, but the nature of punishment would change. The punishment of dismissal, removal from service would not be imposed. 7. This is clearly evident from the observations made in para-44 of the judgment, which reads as under:- 44. On the basis of the above-mentioned decisions in the State of Assam & Ors. v. Padma Ram Borah, AIR 1965 SC 473 , State of Punjab v. Khemi Ram, 1969 (3) SCC 28 , Bhagirathi Jena v. Board of Directors, O.S.F.C. & Ors., 1999 (3) SCCC 666, Kirti Bhusan Singh v. State of Bihar, 1983 (3) SCC 675, U.P. State Sugar Corporation Ltd. & Ors. v. Kamal Swaroop Tandon 2008 (2) SCC 41 , this court in Anant R. Kulkarni (supra) opined that relevant rules governing the service conditions of an employee are the determining factor as to whether or not the domestic inquiry can be held against an employee who stood retired after reaching the age of superannuation. To this extent, there is no problem caused by the aforesaid decision. However, this court made a general observation that if the inquiry had been initiated while the delinquent employee was in service, it would continue even after his retirement, but the nature of punishment would change. The punishment of dismissal, removal from service would not be imposed. The general observation made cannot come in the way of a specific rule and decision cannot be said to be of universal application and cannot be said to be binding in a case the rules provide legal fiction and continuance of employee in the service as if he had continued in service. 8. The general observation made cannot come in the way of a specific rule and decision cannot be said to be of universal application and cannot be said to be binding in a case the rules provide legal fiction and continuance of employee in the service as if he had continued in service. 8. Having perused the record, we find that the respondents have not placed the copy of the Rules, which contains a provision which entitled the State to revoke an order of retirement, which had become effective and final. 9. Once that be so, obviously, the action of the respondents in initiating and thereafter continuing with the departmental proceedings against the petitioners are totally illegal because once the petitioners had retired from service, there is no authority vested in the Corporation for opening a departmental inquiry and charge-sheeting the petitioners. The reason is obvious. Master and servant relationship between the petitioners and the Corporation has come to an end, save and except, for a limited purpose like grant of retiral benefits. 10. In view of the aforesaid discussion and for the reasons stated above, we find merit in this petition and the same is accordingly allowed and the inquiry as has been ordered to be initiated against the petitioners, by issuing memorandum dated 08.11.2019, and all consequential action/order thereafter are ordered to be quashed and set aside.