Point of Law: If inquiry has been initiated while delinquent employee was in service, it would continue even after his retirement, but nature of punishment would change.

JUDGMENT :

Tarlok Singh Chauhan, J.

The instant petition has been filed for the grant of following substantive reliefs:-

i. That the impugned charge-sheet memorandum dated 08.11.2019 (Annexure P-1) qua the petitioners and the impugned order dated 18.08.2022 (Annexure P-5) passed by the respondent No. 1 may kindly be quashed and set aside being arbitrary, illegal, constitutionally void, discriminatory, cryptic and violative of the judgments rendered by the Hon'ble Apex Court in case titled as P.V. Mahadevan v. M.D. Tamilnadu Housing Board reported in 2005 (4) CTC 403 and also in case of Mahavir Prasad v. State of U.P. (AIR 1970 SC 302) and Rule 9(2) (b) (ii) of Chapter 9 of the CCS (CC&A) Rules, 1965, by issuing writ of Certiorari;

ii. That a writ in the nature of mandamus may kindly be issued, directing the respondents to drop the charges in respect of the petitioners with all consequential benefits and justice be done.

2. It is not in dispute that the petitioners were retired from service on attaining age of superannuation on 31.01.2013 and 29.02.2012, whereas the disciplinary proceedings have been initiated after the retirements by issuing memorandum on 08.11.2019.

3. In this background, the moot question is whether the departmental inquiry, which was not initiated while the petitioners were in service, can be permitted to continue after their retirements.

4. The issue in question is squarely answered by the Hon'ble Supreme Court in Anant R. Kulkarni vs. Y.P. Education Society and Ors (2013) 6 SCC 515. It shall be apt to reproduce paras 18 to 23 of the judgment, which read as under:-

18. This Court in NOIDA Entrepreneurs Association v. NOIDA & Ors., AIR 2011 SC 2112, examined the issue, and held that the competence of an authority to hold an enquiry against an employee who has retired, depends upon the statutory rules which govern the terms and conditions of his service, and while deciding the said case, reliance was placed on various earlier judgments of this Court including B.J. Shelat v. State of Gujarat & Ors., AIR 1978 SC 1109; Ramesh Chandra Sharma v. Punjab National Bank & Anr., (2007) 9 SCC 15; and UCO Bank & Anr. v. Rajinder Lal Capoor, AIR 2008 SC 1831.

19. In State of Assam & Ors. v. Padma Ram Borah, AIR 1965 SC 473, a Constitution Bench of this Court held that it is not possible for the employer to continue with the enquiry after the delinquent employee stands retired. The Court observed:-

“7.....According to the earlier order of the State Government itself, the service of the respondent had come to an end on March 31, 1961. The State Government could not by unilateral action create a fresh contract of service to take effect from April 1, 1961. If the State Government wished to continue the service of the respondent for a further period, the State Government should have issued a notification before March 31, 1961.” (Emphasis added) While deciding the said issue, the Court placed reliance on the judgment in R.T. Rangachari v. Secretary of State, AIR 1937 PC 27

20. In State of Punjab v. Khemi Ram, AIR 1970 SC 214, this court observed:

“There can be no doubt that if disciplinary action is sought to be taken against a government servant it must be done before he retires as provided by the said rule. If a disciplinary enquiry cannot be concluded before the date of such retirement, the course open to the Government is to pass an order of suspension and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final order is passed therein.”

21. In Kirti Bhusan Singh v. State of Bihar & Ors., AIR 1986 SC 2116, this Court held as under :

“6…. We are of the view that in the absence of such a provision which entitled the State Government to revoke an order of retirement……. which had become effective and final, the order passed by the State Government revoking the order of retirement should be held as having been passed without the authority of law and is liable to be set asid