Point of Law: There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30-6-1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement

JUDGMENT :

1. Heard Sri Satendra Nath Rai, learned counsel for the petitioner. Notice for opposite party no.1 has been accepted by the office of learned CSC. Sri Anurag Vikram has put in appearance for opposite party no.2, 3 & 4.

2. By means of this petition, the petitioner has assailed the impugned order/ recovery notice dated 8.10.2020 (Annexure No.1), impugned order/ recovery notice/ office letter dated 8.12.2020 (Annexure No.4) and notice dated 21.12.2020 (Annexure No.5). The petitioner has also prayed that the opposite parties may be directed to release his post retiral dues and to make payment of arrears of salary for 16 months i.e. March, 2018 and July to December, 2018 as well as January, 2019 to September, 2019.

3. The precise submission of learned counsel for the petitioner is that the petitioner retired from service on 30.11.2019 after attaining the age of superannuation. Till retirement of the petitioner, no departmental enquiry was initiated. However, after eleven months from the retirement of the petitioner, recovery order dated 8.10.2020 has been issued by opposite party no.4. Subsequent impugned orders dated 8.12.2020 and notice dated 21.12.2020 have been issued for making recovery of Rs.83,12,398.49.

4. Learned counsel for the petitioner has drawn attention of this Court towards the decision of the Hon'ble Apex Court in re; Bhagirathi Jena v. Board of Directors, O.S.F.C. and others, (1999) 3 SCC 666, referring paras 6 & 7, which are as under:-

"6. It will be noticed from the abovesaid regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of the departmental enquiry after superannuation.

7. In view of the absence of such provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30-6-1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement."

5. The Hon'ble Apex Court has held that if there are no provision, rules or regulation authorizing the competent authority to make deduction of any amount or to punish employee after retirement on any of the misconduct, no such order can be passed after the retirement of the employee. Sri Satendra Nath Rai has submitted that in the present case, admittedly, the impugned orders have been issued after retirement of the petitioner as the petitioner retired from service on 30.11.2019 whereas the impugned orders/ recovery notices have been issued on 8.10.2020, 8.12.2020 and 21.12.2020. Therefore, in view of the dictum of the Hon'ble Apex Court in re; Bhagirathi Jena (supra), those impugned orders are not sustainable in the eyes of law.

6. He has also drawn attention of this Court towards the decision of this Court in re; Chandra Prakash Verma Vs. Chairman, U.P. Govt. Employees Welfare Corpn. and another, [2018 (36) LCD 82], whereby the Division Bench, while dealing the identical issue, has referred the dictum of Hon'ble Apex Court in re; Bhagirathi Jena (supra) and allowed the writ petition after quashing the charge sheet.

7. Therefore, Sri Satendra Nath Rai has submitted that he is raising the legal ground at the admission stage by submitting that when there are no rules with the opposite parties to punish the employee after his/her retirement, the impugned orders passed against the petition