The Lucknow Bench of the Allahabad High Court has dismissed an appeal filed by the Managing Director of UP Upbhokta Sahakari Sangh Ltd against the widow of a deceased employee.
The Division Bench of Chief Justice Arun Bhansali and Justice Jaspreet Singh passed this order while hearing a petition filed by Managing Director, UP Upbhokta Sahakari Sangh Ltd, Lucknow.
The appeal is directed against the order dated 11.03.2024, whereby the writ petition filed by the respondent has been allowed and the appellant has been directed to release all post-retiral benefits due to respondent’s late husband as well as due to her upon his demise within a period of four months from the date certified copy of the order is produced before the authority.
The petition was filed with the averments that respondent’s husband, who passed away on 12.11.2020, had superannuated from the service on 30.09.2016 from the post of Manager with the Consumer Cooperative Society. Husband of the respondent, it was claimed, had made several representations for payment of his retiral benefits and filed Writ Petition for the benefits.
The petition was disposed of on 22.03.2018, granting liberty to the appellant to consider the grievance within a period of two months. It was claimed that post retiral benefits have not been paid to her.
The appellant filed a short counter affidavit inter-alia indicating that pursuant to the order dated 22.03.2018, order was passed on 04.06.2018. Whereafter another order dated 19.02.2024 was passed, which was addressed to the respondent herself. However, both the orders have not been challenged and no reference thereto has been made in the petition, which amounts to concealment of fact.
Submissions were made that during life time of respondent’s husband, disciplinary proceedings were initiated against him on 16.09.2016, chargesheet was issued to him on 28.03.2017 to which he submitted his reply on 26.01.2018 and in the inquiry report dated 28.5.2018, he was found guilty of causing financial loss to the appellant, a show cause notice was issued to him on 01.06.2018. However, due to the uncooperative attitude of the husband of the respondent, the same could not be concluded.
The plea raised by the appellant was countered by the respondent with the submissions that admittedly no order had been passed by the disciplinary authority against her husband before his death and therefore, there has been no penalty against him and she was entitled to all the reliefs as claimed in the writ petition.
The Court noted that,
The Single Judge by the order impugned came to the conclusion that as the orders dated 04.06.2018 and 19.02.2024 were not passed on merit, the same were not required to be challenged.
The Single Judge further noticing the judgement of the Supreme Court in Dev Prakash Tiwari v U.P Cooperative Institutional Service Board & others, came to the conclusion that there was no provision in the Service Rules whereby any final order can be passed in the disciplinary proceedings after retirement/demise of the delinquent employee and consequently, passed the order impugned.
Office has reported the appeal as barred by 153 days and an application under Section 5 of the Limitation Act along with an affidavit has been filed seeking condonation of delay in filing the appeal. For the reasons indicated in the application, the same is allowed. Delay in filing the appeal is condoned.
It is submitted by counsel for the appellant that the Single Judge was not justified in allowing the petition. Submission has been made that the petition was barred by principles of res-judicata and in any case, the same was liable to be dismissed for suppression of facts and therefore, the order impugned deserves to be quashed and set aside.
It is submitted that the husband of the respondent had filed writ petition seeking similar relief, which was decided by this Court and filing of the subsequent writ petition claiming similar relief was, therefore, barred by principles of res-judicata.
Counsel for the appellant further submitted that pursuant to the directions issued in the earlier writ petition, order was passed and when the respondent herself again approached the appellant, again an order was passed rejecting the claim. However, the said orders were not produced in the writ petition and their validity was not questioned and on that count, the petition was liable to be dismissed. However, the Single Judge did not deal with the said aspect and therefore, the order deserves to be quashed and set aside.
The Court observed,
The facts are not in dispute that the husband of the respondent was issued a charge-sheet, was found guilty by the inquiry officer and was issued show cause notice by the disciplinary authority, whereafter no order was passed by the disciplinary authority either exonerating the respondent’s husband or imposing any punishment. Respondent’s husband superannuated from the service on 30.09.2016 and died on 12.11.2020.
Once the respondent’s husband was superannuated without imposing any punishment and later on died and till that time also, no punishment was imposed, the action of the appellant in not according retiral benefits to respondent’s husband and to her, cannot be countenanced under any circumstance.
The plea raised pertaining to res-judicata apparently has no substance as res-judicata would only apply in case the previous writ petition was decided on merits, wherein the only order passed was to decide the representation, which cannot be taken as a decision on merits so as to operate as res-judicata.
“The fact that pursuant to the directions given by this Court the representation was decided and even the representation made by respondent herself also came to be decided on 19.02.2024 and the same was not placed on record, by itself, cannot be termed as sufficient so as to seek dismissal of the writ petition as it is well settled that to enable the Court to refuse to exercise its discretionary jurisdiction suppression must be of a material fact as laid down in Arunima Barua v Union of India & others : (2007) 6 SCC 120.
A perusal of the above would reveal that indications made is that on account of the fact that disciplinary proceedings pertaining to causing financial loss remained pending against the deceased, it was not found reasonable to accord retiral benefits to her husband. The said determination being ex-facie against law cannot be termed as having any bearing on the outcome of the petition so as to term non filing of the order as suppression,” the Court further observed while dismissing the appeal.