Amendments to regulations cannot apply retrospectively to actions taken before their enactment, but an employee's undertaking may allow for recovery in certain circumstances.

JUDGMENT :

Abdul Moin, J.

1. Heard learned counsel for the petitioner, Shri Pankaj Patel, learned Standing counsel appearing on behalf of respondent No.1 and Shri Rishabh Tripathi, learned counsel appearing on behalf of respondents No.2 to 4.

2. With the consent of learned counsels appearing for the contesting parties, the writ petition is finally being decided.

3. The instant petition has been filed praying for the following main relief(s):

"(i). Issue a writ, order or direction in the nature of certiorari thereby quashing the impugned order dated 13.10.2023 passed by the respondent No.3, a copy of which has been filed as annexure 1 to the petition.

(ii). Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay the amount of Rs.553407.29/- along with interest which has been recovered by the respondents from the post retiral dues of the petitioner."

4. The contention of learned counsel for the petitioner is that the petitioner retired on attaining the age of superannuation on 30.11.2021 while working on the post of Sales Officer. Subsequent thereto, the respondents have issued the order impugned dated 13.10.2023, a copy of which is Annexure-1 to the writ petition, whereby they have made a recovery from the dues of the petitioner.

5. The contention is that at the time of retirement of the petitioner the Rules with which the petitioner was governed namely Model Conduct, Discipline and Appeal Rules for Services of U.P. State Enterprises Regulations (hereinafter referred to as "the Regulations") did not provide for taking of any action against a retired employee subsequent to the retirement of the employee concerned.

6. It is contended that an amendment in the Regulations has only been made by the respondent Corporation in its meeting held on 10.10.2022, a copy of which is part of Annexure SCA-2 to the supplementary affidavit dated 04.09.2024 per which it has been provided that in case subsequent to retirement of an employee any fact emerges then disciplinary proceedings can be held provided a period of four years has not lapsed since then.

7. The contention is that in terms of Rule 48 of the Regulations any amendment could only come into force after a decision is taken by the Board and a decision has only been taken by the Board for amending its rules on 10.10.2022 consequently the petitioner having retired prior to the said date, the amended rules could not be made applicable for the petitioner for the purpose of taking action against the petitioner by way of recovery and hence the order impugned so far it pertains to recovery from the dues of the petitioner, merits to be set-aside.

8. The further contention is that the respondents have also indicated about an excess payment having been made on account of wrong fixation of his own salary by the petitioner while he was working as the Drawing & Disbursing Officer for which an amount of Rs.3,23,756/- has been adjusted from the gratuity payable to the petitioner.

9. The contention is that keeping in view of the law laid by the Hon'ble Supreme Court in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and Others 2015 (4) SCC 334, no recovery is permissible from a retired employee and as such the order impugned dated 13.10.2023, so far as it pertains to recovering the amount of Rs.323756/-, merits to be quashed on this ground alone.

10. So far as the second recovery is concerned i.e. for an amount of Rs.229651.29/-, the contention of learned counsel for the petitioner is that the said recovery is towards the alleged loss which is said to have been caused by the petitioner to the Corporation and the order impugned for recovery having passed on 13.10.2023 and the petitioner having retired on 30.11.2021 and at the time of retirement of the petitioner there being no provision in the rules for making recovery from a retired employee, consequently, the amendment in rules, which has come into force subsequent to retirement of petitioner that is w.e.