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IN THE HIGH COURT OF ALLAHABAD
IRSHAD ALI, J.
Ram Surat Chaudhary – Petitioner
Versus
State of U.P. and Others – Respondents
Service Single No. 28509 of 2018
Decided On : 29-06-2021
U.P. Co-operative Societies Employees Service Regulations, 1975 - U.P. Co-operative Societies Employees Service 22nd Amendment Regulations, 2018 - Post of Assistant Manager (Accounts) in company - Retired from service - Delayed payment of gratuity and amount of leave encashment and security deposit - Seeking direction to opposite parties to pay the petitioner Leave Encashment, Security Deposits along with interest on the delayed payment of the aforesaid dues as well as interest on delayed payment of gratuity which has been given to the petitioner after more than 2 years of retirement - Quash the disciplinary proceedings pursuant to impugned order, charge-sheet and show-cause notice
Finding of the court: At time of retirement of petitioner, under rules applicable there was no provision to continue disciplinary proceeding against petitioner, therefore, stoppage of payment of post retiral dues to him cannot be held to be legally sustainable - Disciplinary proceeding initiated against petitioner prior to his retirement is declared nullity and the same cannot be continued - Petitioner is entitled to get simple interest on the delayed payment after retirement. In regard to payment of other dues like leave encashment and security deposit, once this Court has held that the disciplinary proceeding is not permitted as per rules applicable against the petitioner and amendment was incorporated, petitioner is entitled for simple interest on the amount due to be paid like leave encashment and security deposit.
Result: Petition allowed
JUDGMENT :
IRSHAD ALI, J.
1. In view of COVID-19 pandemic, this case is being heard through video conferencing.
2. Heard Sri. R.C. Tewari, learned counsel for the petitioner, Sri. Shireesh Kumar, learned counsel for respondent Nos. 2 and 3 and learned ACSC for respondent No. 1-State.
3. By means of present writ petition, the petitioner has prayed as under:
(ii) Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 24.12.2013 and 29.01.2014 (after summoning the same from the opposite parties as the same is not available with the petitioner), impugned charges-sheet dated 23.06.2014 (as contained in ANNEXURE NO. 02 to this writ petition) and show-cause notice dated 31.01.2015 (as contained in ANNEXURE NO. 04 to this writ petition).
(iii) Issue a writ, order or direction in the nature of Mandamus commanding/directing the opposite parties to pay the petitioner Leave Encashment, Security Deposits along with interest on the delayed payment of the aforesaid dues as well as interest on the delayed payment of gratuity which has been given to the petitioner after more than 2 years of retirement.
(iv) Such other order or direction deemed just and proper in the circumstances of the case, may also be passed.
(v) Allow the writ petition with costs.”
4. Brief fact of the case is that the petitioner while holding the post of Assistant Manager (Accounts) in U.P. Cooperative Federation Ltd. retired from service on 29.02.2016. After the retirement, vide order dated 17.09.2018 the petitioner was the amount of gratuity, however, he has not been paid interest on delayed payment of gratuity and amount of leave encashment and security deposit.
5. In the short counter affidavit filed by respondent-Federation, it has been stated that the rules governing service conditions of the petitioner was amended vide notification published in the official gazette on 27.08.2018 providing that in case the employees of respondent-department retired pending disciplinary proceeding, the same will continue and conclude after his retirement.
6. Learned ACSC also submitted that at the time of retirement, there was no rule prescribing continuance of disciplinary proceeding of retired employee. The rule was subsequently amended and it was incorporated vide notification issued on 27.08.2018.
7. Learned counsel for the petitioner submitted that the petitioner retired from service on 29.02.2016 and in absence of any provision to continue the disciplinary proceeding as soon as the petitioner retired, the disciplinary proceeding became nonest in the eyes of law.
8. He next submitted that even though the amended rule was notified on 27.08.2018, the proceeding, which has become nonest, cannot be revised in view of amendment incorporated in the rules.
9. In support of his submission he placed reliance upon a judgment in the case of Dev Prakash Tewari vs. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and Others, (2014) 7 SCC 260 and submitted that similar controversy in this regard has been decided that in absence of any provision to continue the disciplinary proceeding after retirement, the same cannot be continued. He further submitted that the petitioner retired from service on 29.02.2016 and payment of gratuity has been made to him on 17.09.2018, however, no interest on delayed payment of gratuity has been made to him, therefore, he requested that in case direction is issued for payment of interest on the amount due to be paid, ends of justice would be met.
10. On the other hand, learned counsel for the respondent Nos. 2 and 3 submitted that the submission advanced by learned counsel for the petitioner in regard to provision to continue the disciplinary proceeding was not in existence under
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