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Raj Kishore Dubey v/s U.P. State Ware Housing Corp. & Another


Company & Directors' Information:- RAJ CORPORATION LIMITED [Active] CIN = U74900UP2008PLC035742

Company & Directors' Information:- G CORP PRIVATE LIMITED [Active] CIN = U70102KA2001PTC028962

Company & Directors' Information:- RAJ COMPANY PRIVATE LIMITED [Active] CIN = U74999PB1949PTC000515

Company & Directors' Information:- G RAJ & COMPANY PVT LTD [Active] CIN = U67120WB1993PTC058140

Company & Directors' Information:- P KISHORE & CO PVT LTD [Strike Off] CIN = U51909WB1980PTC033193

Company & Directors' Information:- S CORP PRIVATE LIMITED [Strike Off] CIN = U74900TN2011PTC083426

Company & Directors' Information:- R K HOUSING PRIVATE LIMITED [Active] CIN = U74899DL1988PTC032252

Company & Directors' Information:- RAJ & RAJ PVT. LTD. [Active] CIN = U51109WB1991PTC052055

Company & Directors' Information:- J HOUSING PRIVATE LTD [Active] CIN = U74899DL1980PTC010338

Company & Directors' Information:- K-HOUSING PRIVATE LIMITED [Strike Off] CIN = U45200TN2009PTC070655

Company & Directors' Information:- KISHORE INDIA PVT LTD [Strike Off] CIN = U70101AS1984PTC002242

    Civil Misc. Writ Petition (S/B) No. 1734(S./B.) of 2013

    Decided On, 27 February 2014

    At, High Court Of Judicature At Allahabad Lucknow Bench

    By, THE HONOURABLE MR. JUSTICE SATYENDRA SINGH CHAUHAN & THE HONOURABLE MR. JUSTICE RAKESH SRIVASTAVA

    For the Appellant: Ratnesh Singh Tomar, Advocate. For the Respondents: R.K. Chaudhary, Advocate.



Judgment Text

1. Heard learned counsel for the petitioner as well as learned counsel for the opposite parties. This writ petition has been filed with the following prayer:

(a) Issue any writ order or direction in the nature of certiorari for quashing of the impugned orders dated 14.10.2013, 12.7.2013 and 18.5.2012 contained as Annexure 1, 2 & 6 to the petition.

(b) Issue any writ order or direction in the nature of mandamus commanding the opposite parties not to make recovery against the petitioner in pursuance of the order dated 14.10.2013, 12.7.2013 and 18.5.2012 contained as Annexure 1, 2 & 6 to the petition.

(c) Issue any writ order or direction in the nature of mandamus commanding the opposite parties to make the payment of Leave encashment and Security amount to the petitioner along-with interest @ 12% per-annum from the date it became due till the date of actual payment.

(d) Issue such other order or direction which this Hon'ble Court may deem just and proper of the case.

(e) Allow the writ petition with cost.

2. After filing of the writ petition, a counter-affidavit has been filed. The petitioner has also filed rejoinder-affidavit. In the counter-affidavit, it has been stated that some proceedings have been initiated against the petitioner for a loss of Rs. 2,48,261.44/-.

3. Earlier the petitioner has filed a writ petition No. 755(S/B) of 2011 before this Court for payment of retiral dues and the said writ petition was disposed of vide order dated 27.4.2011 directing the respondents to conclude the disciplinary proceedings within period of four months and a further direction was given that in case the disciplinary proceedings are not completed within said period the respondents shall pay the entire post retiral dues provisionally of the petitioner. Thereafter, petitioner again filed writ petition No. 1919 (S/B) of 2011 which was disposed of vide order dated 23.11.2013 with liberty to the petitioner to file an appeal and till then the operation of recovery order was stayed. Thereafter, petitioner filed an appeal on 15.6.2012 which was decided fide order dated 14.10.2013 maintaining the punishment order dated 18.5.2012.

4. The Court has put a specific query to the counsel for the opposite parties that whether the Service Rules permit initiation of disciplinary proceedings after retirement of the petitioner. Learned counsel replied that U.P. Warehousing Corporation Staff Regulation (for short "the Service Rules") in this regard are silent. It has also been stated that Regulation 351-A of the Civil Services Regulations has not been adopted by the Corporation.

5. Learned counsel for the petitioner has placed reliance upon two judgments rendered in the case of U.P. State Ware Housing Corp. Vs. Brish Bhan Singh and Another, and Ravindra Pal Singh Vs. State of U.P. and Others, . Learned counsel has submitted that in identical situation, this Court has taken a view that power to initiate disciplinary proceedings is not vested with the opposite parties after retirement of the petitioner. Regulation 351-A of the Civil Services Regulations has not been adopted and Service Rules also do not permit initiation of disciplinary proceedings after retirement. Submission, therefore, is that once this Court has settled the legal position, the action of the opposite parties is wholly illegal and without authority of law and initiation of disciplinary proceedings after retirement cannot be sustained in law.

6. Having heard learned counsel for the parties. We find that the power to initiate disciplinary proceedings under the Service Rules is not vested with the Corporation. Regulation 351-A of the Civil Services Regulations has also not been adopted by the Corporation. In these circumstances, if the very source of power is lacking, then initiation of disciplinary proceedings after retirement is without authority of law. Reliance has been placed by the learned counsel for the petitioner upon the case of U.P. State Warehousing Corp, Lucknow (supra), wherein the Division Bench of this Court has held as under:

7. During the course of argument, learned counsel for the petitioner admitted that the Service Rules and Regulations of the corporation do not contain any provision to initiate disciplinary proceedings against the retired employee. It has also been admitted that the Board of the corporation has not adopted the provisions contained in Regulation 351-A of Civil Services Regulations to regulate the service conditions of the employees.

8. Keeping in view the admitted facts, the argument advanced by the learned counsel for the respondents seems to be correct that in absence of any provision, the petitioner has got no right to initiate or continue with the disciplinary proceedings against a retired employee.......

7. In the case of Ravindra Pal Singh (Supra) this Court has held as under:

13. The petitioner was a technician and he retired in the year 2005. After three years of his retirement the memorandum of charge has been issued to him wherein some of the allegations with regard to the alleged loss pertaining to the year 1998-2000, 2002, 2003 & 2004. The respondent Nos. 2 and 3 have initiated disciplinary proceeding even after three years of his retirement. There is no explanation in the counter-affidavit that the disciplinary proceeding was not initiated when the petitioner was in service particularly when the charges were pertaining to the year 1998-2000. There is no explanation also initiating the disciplinary proceeding after a lapse of three years of his retirement. A meagre amount has been paid to the petitioner after his retirement. In the counter-affidavit there is no reference that the petitioner's service record was unsatisfactory and in past he was awarded any adverse entry in respect of negligence or misconduct. The charge-sheet also indicates that alongwith the petitioner, names of some other employees have been mentioned for causing the peculiar loss with the Corporation. It is not clear whether those employees also retired or in the service.

15. Likewise in the case of Lal Babu v. State of U.P. and another, Writ A No. 24752 of 2012 decided on 22.5.2012, the petitioner was employee of the same corporation and in the said case also after his retirement in the year 2010 the alleged loss caused by him and which was intended to be recovered by the Corporation. A Division Bench of this Court has observed as under:

In our opinion, after the retirement of the petitioner on 31.12.2010 he cannot be proceeded with or held liable for the alleged loss caused to the Corporation more than six years prior to his retirement. The respondents are thus not justified in withholding the amount of leave encashment, contributory provident fund and security.

17. Learned counsel for the Corporation was unable to point out any provision under the U.P. Warehousing Corporation Staff Regulation which empowers the Management to initiate the disciplinary proceeding after three years of the retirement.

18. For the reasons given here in above, the disciplinary proceeding in pursuance of the charge memo 26.4.2008, which relates to the petitioner is quashed.

19. Respondents are directed to pay t

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he entire outstanding dues payable to the petitioner as expeditiously as possible preferably within a period of three months from the date of communication of this order. 8. Case of the petitioner is squarely covered by the aforesaid decisions. Therefore, in these circumstances, we do not find any reason to disallow the prayer made by the petitioner. The writ petition is accordingly allowed. A writ in the nature of mandamus is issued directing the opposite parties to release the leave encashment and security amount in favour of the petitioner within a period of one month from the date of receipt of a certified copy of this order. It is further directed that if any proceedings have been initiated without any knowledge of the petitioner, the same shall not be processed and be dropped.
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