Point of Law: Disciplinary proceedings already initiated before retirement has to be allowed to be continued

JUDGMENT :

Mohammed Nias.C.P. J

Does the disciplinary proceedings initiated under the Kerala Co-operative Societies Act and Rules, come to an end on the retirement of the employee is the issue to be resolved in this writ appeal.

2. This writ appeal is filed challenging the dismissal of the writ petition filed by the appellant challenging the continuance of the disciplinary proceedings initiated before retirement and also for a direction to disburse the retiral benefits. The petitioner who joined the service of the Kerala State Co-operative Bank in the year 1989 was posted as Manager on 20.02.2014. He was served with Ext.P3 memo of charges on 26.02.2020 on the ground that while officiating as a Manager of the Hosangadi Branch of the first respondent Bank, there were serious irregularities in granting loans to several customers by showing higher value to the secured assets. The petitioner was suspended by Ext.P4 order dated 30.04.2020. By Ext.P6 order certain charges were deleted on 13.05.2020. Thereafter, the appellant retired from service on 31.05.2020. The appellant contended that in the absence of any enabling provision in the Kerala Co-operative Societies Act or Rules for continuing the disciplinary enquiry after retirement, the continuance of the disciplinary proceedings is without jurisdiction and that Rule 198 (7) of the Kerala Co-operative Societies Rules (for brevity the 'KCS Rules') do not grant any permission to go ahead with the disciplinary proceedings, and consequently the appellant is entitled to get all the terminal benefits.

3. The learned single Judge, who considered the matter found that the enquiry can continue against a retired employee in cases where memo of charges was served while the employee was working and that the power of the Society to recover the amounts is not denuded even after the retirement. In the instant case since the memo was issued while the petitioner was in service, which denotes the start of the departmental proceedings, the same can be continued by withholding the retiral benefits. In is only in cases where there are no rules that the employer will be prevented from initiating or continuing departmental proceedings against the retired employee. In that view of the matter the judgments cited before the learned single Judge were distinguished and the writ petition dismissed.

4. In the appeal before us, it is the contention of Adv.Jawahar Jose, the learned counsel for the appellant that there is no provision in the Kerala Co-operative Societies Rules (for brevity 'KCS Rules') for conducting or continuing a disciplinary enquiry after the retirement. He also argues that there is no provision authorising the employer to deduct the retiral benefits. As the enquiry initiated must be treated to be lapsed as it cannot be continued, the appellant is entitled to all the retiral benefits is the submission. He also argues that Rule 198 (7) of the KCS Rules may give the right to the respondent to withhold the retiral benefits, but it does not clothe the respondent with the power to carry on with the disciplinary proceedings initiated. The retiral benefits according to the learned counsel are withheld on the basis of a procedure which has no legs to stand. The pension and gratuity, which are no more considered to be a bounty to be handed over by the employer, cannot be withheld by the respondent in the absence of any valid provision. He also argues that the employer has no authority to withhold the provident fund, welfare fund dues and the leave enchashment as they cannot be treated as retiral benefits. He also cites the following judgments to buttress his contentions:

State Bank of India v. A.N.Gupta and others [(1997) 8 SCC 60]

Ramesh Chandra Sharma v. Punjab National Bank and another [(2007) 9 SCC 15]

Dev Praksh Tewari v. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and others [2014) 7 SCC 260]

State of Jharkhand and others v. Jitendra Kumar Stivatsava and another [(2013) 12 SCC 210]

Girij