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2024 DIGILAW 414 (UTT)

Rajesh Kumar Nigam v. State of Uttarakhand

2024-06-14

MANOJ KUMAR TIWARI, PANKAJ PUROHIT

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JUDGMENT : Manoj Kumar Tiwari, J. Petitioners in these writ petitions were permanent employees of Uttarakhand Seeds and Tarai Development Corporation Ltd. (hereinafter referred to as ‘the Corporation’), who retired from service on different dates in the year 2017. After their retirement, disciplinary proceedings were initiated against them and the amount payable to them as gratuity, leave encashment, group insurance etc. has been withheld due to pendency of disciplinary proceedings. Thus, feeling aggrieved, petitioners have approached this Court for relief. 2. Since common question of law and facts are involved in these petitions, therefore, they are heard and decided by this common judgment, however, for the sake of brevity, facts of WPSB No. 407 of 2021, alone are being considered and discussed. Mr. Rajesh Kumar Nigam, who was appointed as Company Secretary in the Corporation, and retired on 31.08.2017, has filed WPSB No. 407 of 2021 with the following prayers:- “(I) Issue a writ, order or direction in the nature of mandamus commanding the respondents to release the gratuity, leave encashment, group insurance and salary for the month of August, 2017. (II) Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay interest at the market rate on the delayed payment of gratuity, leave encashment, group insurance and salary of August, 2017. (III) Issue a writ, order in the nature of declaration, declaring the entire disciplinary proceedings initiated against the petitioner to be illegal and against the provisions of law.” 3. In paragraph no. 9 of the writ petition, it is stated that State Government has 30% shares, while Government of India through National Seed Corporation has 21% share and G.B. Pant University of Agriculture and Technology, Pantnagar has 15% share in Uttarakhand Seeds and Tarai Development Corporation. From the pleadings made in the writ petition, it is apparent that State Government has all pervasive administrative and financial control over the affairs of the Corporation. Thus, it is ‘State’ within the meaning of Article 12 of the Constitution of India. 4. Learned counsel for petitioners submits that under the Rules, governing the service conditions of employees of the Corporation, there is no provision enabling the Corporation to initiate disciplinary proceedings, after retirement of an employee. 5. Thus, it is ‘State’ within the meaning of Article 12 of the Constitution of India. 4. Learned counsel for petitioners submits that under the Rules, governing the service conditions of employees of the Corporation, there is no provision enabling the Corporation to initiate disciplinary proceedings, after retirement of an employee. 5. It is contended that employer-employee relationship is severed upon retirement of an employee, and thereafter, he cannot be subjected to disciplinary control of the employer, unless there is a provision enabling the employer to issue a charge-sheet or institute a disciplinary enquiry. 6. Learned counsel appearing for the Corporation was given time to get the relevant provisions of law, which enable the Corporation to issue chargesheet to a retired employee. Learned counsel, states that the Service Rules applicable to employees of the Corporation are absolutely silent on the said aspect. He, however, relies upon an order of Managing Director issued on 03.01.2019. By the said order, it is provided that provision contained in Regulation 351-A of Civil Service Regulations, applicable to Government employees, has been adopted by the Board of Directors of the Corporation in its 230th meeting, held on 26.09.2018. Thus, he submits that in view of the said order, the Corporation is justified in continuing the disciplinary proceedings initiated against petitioner, after his retirement. 7. The said submission cannot be accepted, as the order relied by the Corporation was issued on 03.01.2019; while the petitioner had retired in the year 2017 itself, therefore, any decision taken by the Corporation, post retirement of the petitioner cannot be pressed into service for defending the disciplinary proceedings pending against the petitioner. 7. The said submission cannot be accepted, as the order relied by the Corporation was issued on 03.01.2019; while the petitioner had retired in the year 2017 itself, therefore, any decision taken by the Corporation, post retirement of the petitioner cannot be pressed into service for defending the disciplinary proceedings pending against the petitioner. Regulation 351-A of Civil Service Regulations, which was adopted by the Board of Directors in its meeting held on 26.09.2018, is extracted below:- “351-A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement; Provided that- (a) Such departmental proceedings, if not instituted while the officer was on duty either before retirement or during reemployment – (i) shall not be instituted save with the sanction of the Governor. (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made. (b) Judicial proceedings, if not instituted while the officer was on duty either before retirement or during reemployment, shall have been instituted in accordance with Sub-clause(ii) of Clause (a); and (c) The Public Service Commission, UP shall be consulted before final orders are passed. (b) Judicial proceedings, if not instituted while the officer was on duty either before retirement or during reemployment, shall have been instituted in accordance with Sub-clause(ii) of Clause (a); and (c) The Public Service Commission, UP shall be consulted before final orders are passed. Explanation - For the purpose of this article – (a) departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the officer has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to have been instituted: (i) in the case of criminal proceedings, on the date on which complaint is made, or a charge-sheet is submitted, to a criminal court; and (ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to a Civil Court.” 8. Regulation 351-A is applicable only to employees of the State Government. The said Regulation enables the State Government to institute disciplinary proceedings against a Government Servant after retirement, with the sanction of the Governor. It is further provides that the State Public Service Commission shall be consulted before final order in the disciplinary enquiry is passed. The purpose of holding disciplinary enquiry, post retirement by invoking Regulation 351-A would be either to withhold pension or part of it, permanently or for specified period. 9. Learned counsel for the petitioner submits that Regulation 351-A contemplates approval from Governor, which can be obtained only in respect of State Government employees, and such approval cannot be obtained in respect of employees of the Corporation. It is further contended that the condition of consultation with the State Public Service Commission, mentioned in Regulation 351-A, also cannot be fulfilled in respect of employees of the Corporation, as Public Service Commission does not make any selection for the Corporation. 10. At the moment, we are not going into the question, as to whether Regulation 351-A can be invoked in respect of employees of the Corporation or not. The only question, which falls for our consideration is whether petitioners, who retired in 2017, before the Resolution to adopt Regulation 351-A was passed, would be covered by Regulation 351-A or not. Our answer to the said question would be an absolute no. The only question, which falls for our consideration is whether petitioners, who retired in 2017, before the Resolution to adopt Regulation 351-A was passed, would be covered by Regulation 351-A or not. Our answer to the said question would be an absolute no. At the time of retirement of petitioners, there was nothing with the Corporation on the strength of which the disciplinary proceedings was initiated against the petitioner. Law is well settled that disciplinary proceedings cannot be initiated after retirement of an employee, unless there is some enabling provision in the Statute to do so. Hon’ble Supreme Court in the case of Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and others, reported in (1999) 3 SCC 666 has held that disciplinary proceedings, even if initiated before retirement, would lapse with retirement of an employee and his retiral benefits cannot be withheld on the strength of pendency of a disciplinary enquiry. Relevant extract of the said judgment is reproduced below:- “6. It will be noticed from the abovesaid regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of the departmental enquiry after superannuation. 7. In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. 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.” 11. The view expressed in the case of Bhagirathi Jena (supra) was reiterated by Hon’ble Supreme Court in Dev Prakash Tewari v. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and others, (2014) 7 SCC 260 . 12. The view expressed in the case of Bhagirathi Jena (supra) was reiterated by Hon’ble Supreme Court in Dev Prakash Tewari v. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and others, (2014) 7 SCC 260 . 12. Learned counsel for Uttarakhand Seeds and Tarai Development Corporation Ltd. submitted that the allegation against the petitioners is that they committed financial irregularities by causing huge financial loss to the Corporation, therefore, the Corporation was justified in initiating disciplinary proceedings against the petitioners. 13. We are not impressed by the said submission. Uttarakhand Seeds and Tarai Development Corporation Ltd. is a Government Company, which is owned and controlled by the State, therefore, it is a ‘State’ within meaning of the term under Article 12 of the Constitution. Rule of law is bedrock of the constitutional systems and law may be harsh in some cases; but, it has to be followed irrespective of the extent of financial loss caused to the Corporation. We have been informed that criminal proceedings have also been initiated against the petitioners, therefore, the Criminal Court will examine the question, whether they are guilty or not. 14. In such view of the matter, the writ petitions are allowed. The act of Uttarakhand Seeds and Tarai Development Corporation Ltd. to withhold Gratuity, Leave Encashment, Group Insurance and other monetary benefits of the petitioners, is declared to be illegal. Petitioners shall be entitled to Gratuity, Leave Encashment, Group Insurance and other monetary benefits, which shall be released by Uttarakhand Seeds and Tarai Development Corporation Ltd. to the petitioners, without any further delay.