JUDGMENT :

Attau Rahman Masoodi, J.

1. Heard Sri Manish Kumar learned Senior Counsel assisted by Sri Ghufran Hussain learned counsel for the petitioner, Sri N.K. Seth learned counsel assisted by Sri Puneet Chandra learned counsel for the opposite parties. Shri Alok Sharma learned Additional Chief Standing Counsel has put in appearance for the State.

2. At the very outset, a preliminary objection was raised by Sri N.K. Seth learned Senior Counsel appearing for the opposite parties that the present writ petition as against the charge-sheet and show cause notice is not maintainable. The show cause notice dated 14.8.2019 is contained as annexure 1 to this writ petition whereas the charge-sheet dated 27.2.2019 is contained as annexure 2.

3. It is well settled that ordinarily this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India would not entertain a writ petition arising out of the charge-sheet and show-cause notice but if the charge-sheet and show cause notice issued by an authority suffer from lack of jurisdiction, the Court may overrule an objection and proceed on merit.

4. Learned counsel for the opposite parties has placed reliance upon the judgments of the Hon'ble Apex Court in the case of Special Director and another versus Mohd. Ghulam Ghouse and another, (2004) 3 SCC 440 and case of Union of India and another versus Kunisetty Satyanarayana,200612 SCC 28 as well as the order passed by this Court in Writ-A No. 11382 of 2015(Vijay Pal Singh versus State of U.P. and 3 others). The judgments mentioned above propound the same principle as has been appreciated herein-above.

5. The present case however is a case where lack of jurisdiction in the issuance of charge-sheet and consequently show cause notice on the basis of inquiry report submitted is prima facie made out. Thus, the preliminary objection raised by learned Senior counsel for the opposite parties is overruled. The prayer for seeking time to file counter affidavit in a situation where pure question of law is involved would merely prolong the case for no purpose, hence the same is declined.

6. Proceeding to consider the matter on merit, it may be stated that the petitioner while holding the post of Chief Engineer attained the age of superannuation on 28.2.2019. It is on 28.2.2019 that a charge-sheet dated 27.2.2019 came to be served upon him. Merely for the fact that the charge-sheet is dated 27.2.2019 would not amount to the initiation of the disciplinary proceedings unless a copy thereof was duly served upon the petitioner or at least the same was dispatched to him through the permissible mode of service.

7. On the aspect of dispatch of the charge-sheet, the only mode adopted by the opposite parties as has been explained before this Court is through an email sent on 28.2.2019 at 12.20 p.m. That apart, the charge-sheet was also served upon the petitioner on 28.2.2019 at 5.47 p.m. personally. Both the modes of service as disclosed before this Court by the opposite parties on the basis of instructions are clearly in the afternoon on 28.2.2019. There is no proof of service of charge-sheet through any other mode except what has been stated above.

8. This being the factual position, learned counsel for the petitioner taking aid of Rule 56(a) of the Fundamental Rules has argued that a public servant is deemed to have retired from service in the afternoon of the last working day of his service tenure. Therefore, the issuance of charge-sheet after public servant has retired is impermissible and would serve no purpose of the Discipline and Appeal Rules which postulate minor and major punishments.

9. For ready reference, Rule 56 of the Fundamental Rules is produced hereunder:-

"56. (a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years:

Provided that a Government servant, whose date of birth is the first day of a month, shal