The Allahabad High Court while allowing the petition said that in lack of provisions in rules and regulations, after retirement, no show cause notice or departmental proceedings can be initiated against any employee.
A Single Bench of Justice Neeraj Tiwari passed this order while hearing a petition filed by Prem Kumar Tripathi.
The petition has been filed seeking following reliefs:-
“a) To issue a writ, order or direction in the nature of certiorari quashing the impugned show cause notice dated 07.11.2014, served by the petitioner on 25.11.2014 as well as the impugned show cause notice dated 08.08.2022;
b) To issue a writ, order or direction in the nature of Mandamus directing the respondents to drop the disciplinary proceedings initiate against the petitioner pursuant to the impugned show cause notices dated 07.11.2014 and 08.08.2022, in view of the fact that the disciplinary proceedings are not permissible to be initiated under the provisions of Uttar Pradesh Rajya Sahakari Bhoomi Vikas Bank Employees Service Rules, 1976 after retirement of an employee;
c) To issue a writ, order or direction in the nature of Mandamus directing the respondents to pay all post-retirement dues, namely; earned leave encashment, gratuity, security, etc, along with interest @ 8% per annum accruing to the petitioner.”
The facts of the case are that the petitioner was working as Assistant Field Officer in Uttar Pradesh Sahkari Gram Vikas Bank Ltd at Bhogaon Branch, Mainpuri and he was superannuated on 31.07.2013.
Counsel for petitioner submitted that after retirement of petitioner, a show cause notice dated 07.11.2014 (served on 25.11.2014) was issued to the petitioner proposing the punishment of recovery of Rs 2,74,380/- from him. The service of petitioners is governed by Uttar Pradesh Rajya Sahakari Bhoomi Vikas Bank Employees Service Rules, 1976.
Apart from other grounds, in his reply dated 05.12.2014, petitioner has taken specific ground that after retirement, no such show cause notice may be issued as Rules, 1976 is having no such provisions for issuance of show cause notice or departmental proceeding against a retired employee. After submission of reply, no action has been taken against the petitioner by the respondent-Bank. Again, a show cause notice dated 08.08.2022 i.e after around eight years was issued to the petitioner for recovery of 50% of Rs 6,47,187/-. Petitioner has replied to the same vide letters dated 06.09.2022 & 11.03.2023.
In these replies too, petitioner has taken specific ground that after retirement, no such show cause notice may be issued. Pursuant to the show cause notices dated 07.11.2014 & 08.08.2022, till date, no decision has been taken and gratuity has also been paid to the petitioner retaining the amount of leave encashment and security. He pointed out that the service of the petitioner is not pensionable. In lack of provisions of Rules, 1976, impugned order is bad and liable to be set aside.
Per contra, Chandra Bhan Gupta, counsel for respondent Bank submitted that service of petitioner is governed under the provisions of Uttar Pradesh Co-operative Society Employees Service Regulation, 1975, but he could not demonstrate any provision in Regulation, 1975 authorizing the respondent-Bank to initiate departmental proceeding or show cause notice after retirement.
He further submitted in light of judgment of Apex Court in the matter of U.P State Sugar Corp Ltd vs Kamal Swaroop Tondon; (2008) 2 SCC 41, even after retirement, show cause notice may be issued, but he could not dispute that in the case, no departmental proceeding has ever been initiated against the petitioner till his retirement and the impugned show cause notices are based upon general inquiry against some other persons.
The Court observed that,
It is undisputed that in Rules, 1976 as well as Regulation, 1975, there is no provision for initiating any disciplinary proceeding or issuing show cause notice against the employee after retirement. This fact is also undisputed that against the petitioner, no inquiry has ever been instituted till his retirement. Now, by two show cause notices dated 07.11.2014 & 08.08.2022, direction has been issued to recover Rs 2,74,380/- and 50% of Rs 6,47,187/- from the petitioner. The question is as to whether such show cause notices can be issued to petitioners in absence of any provisions in Rules, 1976 and Regulations, 1975.
From the perusal of judgments relied upon by the counsel for petitioner, it is apparently clear that after retirement, in case of lack of provisions in Rules or Regulations, neither departmental proceedings nor any show cause notice can be issued for recovery of any amount. In the case, during the course of service, no inquiry has even been initiated against the petitioner fixing the liability.
The judgment of Kamal Swaroop Tondon (Supra) relied on by the counsel for respondents is based upon entirely different facts. In that case, show cause notice was issued to petitioner on 13.01.2000 when he was in service, reply was also submitted on 15.01.2000, which was not found satisfactory. Thereafter, regular show cause notice was issued on 31.01.2000 and served upon the employee on the very same date, therefore, Court was of the view that proceeding had been initiated against the employee before his retirement. So far as case is concerned, without any dispute, first and second show cause notices have been issued to the petitioner much after his retirement, therefore, ratio of law of Kamal Swaroop Tondon (Supra) shall not be applicable in the case.
Here the case is entirely different as undisputedly, after 15 months from the date of retirement, first show cause notice dated 07.11.2014 has been issued to the petitioner proposing the punishment of recovery of Rs 2,74,380/- and surprisingly, even after submission of reply of show cause notice on 05.12.2014, no action had been taken by the respondent-Bank. Now, after around eight years, in the year 2022, again a show cause notice dated 08.08.2022 was issued to the petitioner directing to submit his reply as to why 50% of Rs 6,47,187/- may not be recovered from him, but till date, final decision has not been taken except detaining the leave encashment and security amount.
“In the light of facts of law discussed hereinabove, the Court is of the considered view that in lack of provisions in rules and regulations, after retirement, no show cause notice or departmental proceeding can be initiated against any employee. Further, in case a show cause notice has been issued by the department, duly replied by the employee and no action has been taken for a long time, it is not open for the department to issue another show cause notice at a very belated stage for the same cause of action after.
In this case, under Rules, 1976 and Regulation, 1975, there is no provision to issue show cause notice or initiate departmental proceedings after retirement, therefore, issuance of show cause notice in lack of provisions is bad after retirement. Further, first show cause notice was issued in the year 2014 and for the same cause of action, another show cause notice was issued in the year 2022, which is also not permissible”, the Court further observed while allowing the petition.
Therefore, in view of aforesaid facts and circumstances, the Court quashed the show cause notices dated 07.11.2014 and 08.08.2022.
Respondents are directed to pay all post-retirement dues, namely; earned leave encashment, security, etc, along with interest @ 7% per annum from due date to the date of actual payment, the Court ordered.