The Allahabad High Court has allowed a petition saying an employee ceases to be an employee the moment he attains age of superannuation and, as per rules, a departmental inquiry cannot be conducted against him after retirement.
A Single Bench of Justice Ajit Kumar passed this order while hearing a petition filed by Sunder Lal.
The petitioner Sunder Lal was a Warehouse Assistant of the U.P. State Warehousing Corporation.
He has filed this petition challenging the order of removal from service on the ground that the entire domestic enquiry in the matter of disciplinary proceedings instituted against him was flawed one as the procedures prescribed under relevant Regulations, 1966 were not followed.
Petitioner was served with a chargesheet on 26.05.2014 to which he submitted his reply on 14.07.2014. An enquiry report was submitted on 16.07.2015 and the impugned decision was taken on 24.10.2016 on the basis of the enquiry report.
Thus, according to the chargesheet, petitioner was not able to discharge his duties properly and hence it amounted to misconduct. Resultantly, the order was passed by the Managing Director directing for recovery of Rs 27,21,930.26/- from the salary and other dues to which the petitioner was entitled in law.
The submission advanced by the counsel for the petitioner is that petitioner was chargesheeted by holding a regular disciplinary proceedings and hence, the Disciplinary Authority was under obligation of law to conclude the entire proceedings as per the procedure prescribed.
He submitted that when the departmental enquiry was being conducted, petitioner was not given any opportunity to participate in the enquiry as no date and time was fixed, nor any place was decided to hold enquiry so as to permit petitioner due participation. It is thus argued that in the absence of any opportunity being afforded to the petitioner to participate in the enquiry, the entire enquiry was ex-parte and so was the report.
He further submitted that neither the Enquiry Officer considered his reply submitted in the charge-sheet, nor the Disciplinary Authority while passing the order considered the reply given by the petitioner in response to the notice issued to him.
It is also contended by the Counsel for the petitioner that enquiry could not have been continued after the petitioner had attained the age of superannuation, in the absence of provisions to that effect under the relevant regulations.
Per Contra, it is argued by O.P Singh, Senior Advocate appearing for respondent-Warehousing Corporation that it is not a strict rule to provide oral participation to the employee and the opportunity of cross examination in the event the documents relied upon are not disputed.
It is an argument now raised by the counsel appearing for the petitioner that since petitioner has retired, the matter should not be remitted to be enquired into afresh for the reason that regulations do not permit for continuation of disciplinary proceedings after retirement. He has placed reliance upon the Chapter IV of the Regulations, 1966 which deals with the conduct of the employees and imposition of penalties and the procedure prescribed for.
The Court observed that,
Having heard counsel for the respective parties and having perused the records, I find that a specific plea has been taken in the petition to the effect that no date, time and place was fixed for holding oral enquiry. Thus, it is pleaded specifically in the petition that the petitioner had no opportunity to participate in the enquiry and to get himself orally examined and cross-examined by the departmental witnesses.
From the perusal of the aforesaid pleadings, it clearly transpires that no date, time and place was fixed for oral enquiry. The petitioner was not afforded any opportunity to participate in the enquiry and it has also not been specifically denied.
From a bare reading of the aforesaid regulations, it is clear that only punishment prescribed under Sub-Rule (1)(b) and (1)(c) can be imposed without holding a formal enquiry, but in the matter of other punishments, a formal enquiry was necessary.
Thus, it is clear that for imposing a penalty in the nature of recovery, it is necessary to hold a regular formal enquiry and to give opportunity to the delinquent employee not only to offer explanation in writing but to cross-examine the witnesses against him, if any, and also to produce evidence in defence. This opportunity, having been denied by the respondents while conducting enquiry will certainly render the enquiry a flawed enquiry for want of compliance of prescribed procedure.
“Besides the above, I further notice that the petitioner’s reply in the enquiry report has just been referred to and there is no discussion as to why the reply made could not be relied upon. The finding is based upon documentary evidence which was produced before the enquiry Officer in the absence of the petitioner. Thus, the findings returned in the enquiry report are certainly ex-parte. This report has been relied upon by the Managing Director in arriving at a conclusion that the petitioner was rightly held guilty but the aspect of non-compliance of the regulations as far as procedure for holding formal enquiry for imposing penalty of recovery, was not taken care of.
O.P Singh, Senior Advocate, has contended that the Government Servant Rules provide for imposition of penalty even after the retirement if the proceedings had been initiated prior to the retirement. However, he could not cite any provision of law under which disciplinary proceedings could have been continued even after the retirement.
Even if it is taken to be presumably that if the employee has been subjected to the disciplinary proceedings then it can be brought to its logical end even if the employee has retired but nothing has been shown that such a rule has been adopted by the Warehousing Corporation.
In the given facts and circumstances when the petitioner is no longer an employee of the Warehousing Corporation, it would not be appropriate now to order him to face the departmental enquiry. An employee ceases to be an employee the moment he attains age of superannuation. The matter has remained of course, sub-judice before the Court but this does not mean that the department will get an opportunity to re-enquire the matter,” the Court further observed while allowing the petition.
In view of the above the order dated 24.10.2016 is hereby quashed by the high court.