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2020 Supreme(HP) 219
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Tarlok Singh Chauhan, Anoop Chitkara, JJ.
Lokinder Dutt Sharma - Petitioner
Versus
The Board of Directors Himachal Pradesh Horticulture Produce Marketing and Processing Corporation Ltd. and another - Respondents
CWPOA No. 138 of 2019
Decided On : 18-03-2020
For the Petitioner:Mr. Ramesh Kaundal, Advocate
For the Respondents:Mr. P.D. Nanda, Advocate
The departmental enquiry initiated against a retired employee must be in accordance with the relevant rules governing the service conditions of the employee.
Headnote:
departmental proceedings - retirement of employee - Himachal Pradesh Horticultural Produce Marketing and Processing Corporation, Ltd., Employees Service ByeLaws - Chapter-VI Amended Provision - 6.17(1) - 6.17(1) - [Chapter-VI Amended Provision] - The departmental enquiry initiated against the petitioner after the retirement of the petitioner is totally illegal and without any authority of law. Even the order of recovery passed on such enquiry is also illegal.
Fact of the Case:
The petitioner, a Deputy General Manager, retired from the respondent Corporation. After retirement, he was served with chargememo and departmental enquiry was initiated, leading to the imposition of recovery of Rs.2,46,139.
Finding of the Court:
The departmental enquiry initiated against the petitioner after retirement is illegal and without authority of law. The recovery order passed on such enquiry is also illegal.
Issues: Validity of initiating departmental proceedings after the retirement of an employee and the authority to exercise power based on amended byelaws.
Ratio Decidendi: The relevant rules governing the service conditions of an employee are determinative of whether and in what manner the domestic enquiry can be held against a retired employee. The departmental enquiry initiated against the petitioner after retirement is illegal and without any authority of law.
Final Decision: The departmental proceedings initiated against the petitioner, including the penalty order, are quashed and set aside. The respondents are directed to release the entire amount of leave encashment withheld by them.
JUDGMENT :
Tarlok Singh Chauhan, J.
The seminal issue that arises for consideration in this writ petition is whether after the retirement of an employee the departmental proceedings in absence of any provision in the byelaws could have been initiated and whether such power and authority could have been exercised on the basis of the amended byelaws which admittedly had been amended after the petitioner already retired from service.
2. However, before answering the said questions, certain admitted facts need to be noticed.
3. The petitioner was working with the respondent Corporation and retired from the post of Deputy General Manager on 31.3.2014. After about four months of the retirement of the petitioner, he was served with chargememo, which led to initiation of the departmental enquiry and the same finally culminated into imposition of recovery of Rs.2,46,139/.
4. It is not in dispute that as per the Byelaws that were in force at the time of the retirement of the petitioner known as the ‘Himachal Pradesh Horticultural Produce Marketing and Processing Corporation, Ltd., Employees Service ByeLaws”, there was no provision for conducting departmental enquiry against the petitioner and it is only vide amendment carried out in the byelaws pursuant to the Board of Directors meeting of the respondent Corporation held on 29.9.2014 that an amendment was carried out in the byelaws, which reads as under:
| Chapter –VI Existing Provision | Chapter-VI Amended Provision |
| CONDUCT, DISCIPLINE AND APPEALS | CONDUCT, DISCIPLINE AND APPEALS |
| 6.17(1). Without prejudice to the provision of other regulation an employee who commits a breach of the regulations of the Corporation or who displays negligence in efficiency or indolence, or who knowingly does anything detrimental to the interest of prestige of the Corporation or in conflict with its instructions, or who commits a breach of discipline or is guilty of any other act of misconduct or misbehaviour, shall be liable to the following penalties: Minor Penalties: (i) Censure: (ii) Withholding of his promotion; (iii) Recovery from his pay of the whole or part of any peculiarly loss caused by him to the Corporation or negligence or breach of order: (iv) Withholding of increments | 6.17(1). Without prejudice to the provision of other regulation an employee who commits a breach of the regulations of the Corporation or who displays negligence in efficiency or indolence, or who knowingly does anything detrimental to the interest of prestige of the Corporation or in conflict with its instructions, or who commits a breach of discipline or is guilty of any other act of misconduct or misbehaviour, shall be liable to the following penalties: Minor Penalties: (v) Censure: (vi) Withholding of his promotion; (vii) Recovery from his pay of the whole or part of any peculiarly loss caused by him to the Corporation by negligence or breach of order: (viii) Withholding of increments Provided further that the departmental proceedings/vigilance inquiry pending against the retired employees or who commits a breach of regulations of the corporation, displays negligence in efficiency or indolence who knowingly does anything detrimental to the interest or prestige of the Corporation during the past four years from the date of retirement and any act of omission and commission committed are detected within a period of two years after retirement which cause financial loss to the corporation, the departmental proceedings against such employees shall be initiated and financial loss so caused to the Corporation, if proved, shall be recovered from their retirement dues i.e. leave encashment, gratuity or any other arrears”. |
5. In what circumstances, an enquiry can be ordered against a retired employee, has been a
