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SMT. HOSHILA TIWARI versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Smt. Hoshila Tiwari v. State Of U.P. And Others - WRIT - A No. 20844 of 2007 [2007] RD-AH 8089 (30 April 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 39

Civil Misc. Writ Petition No.20488 of 2007

Bal Krishna Pandey

Versus

State of U.P. and others

Hon'ble V.K. Shukla.J.

In the present case Bal Krishna Pandey, petitioner had been functioning as ad-hoc Principal of Bakhara Inter College, Bakhara Deoria. Said institution in question is duly recognized as per the provisions of the U.P. Act No. II of 1921 and provision of U.P. Act No. V of 1982 are fully applicable in respect of selection, appointment and imposition of punishment. Against petitioner, disciplinary proceedings were under taken and petitioner was placed under suspension on 10.06.2005. District Inspector of Schools, Deoria disapproved the resolution of suspension of the petitioner sent by Committee of Management on 26.08.2005. Managing Committee of the institution filed Civil Misc. Writ Petition No. 60578 of 2005. Said writ petition was allowed and the matter has been remitted back. On 15.10.2005, again resolution of suspension of the petitioner was disapproved by the District Inspector of Schools, Deoria but District Inspector of Schools, Deoria, subsequently recalled his order dated 15.10.2005, on 19.11.2005 and fixed the date of hearing in the matter. On 17.12.2005 order has been passed for ensuring payment of salary to petitioner on the plea that sixty days period has expired. Committee of Management of the institution filed Civil Misc. Writ Petition No. 1844 of 2006 wherein interim order was passed and further Director of Education was asked to nominate any other District Inspector of Schools to decide the matter. Against the said order Special Appeal No. 102 of 2006 has been filed which was disposed of with a direction to District Inspector of Schools, Gorakhpur to decide the matter. Petitioner has contended that he submitted his reply on 08.3.2006 and in the mean time on 20.05.2006 Inquiry Officer submitted report and Managing Committee purportedly accepted the inquiry report on 04.06.2006. Petitioner has contended that he attained the age of superannuation after completing the age of 62 years on 30.05.2006. On 30.05.2006 show cause notice was issued fixing the date 04.06.2006 and thereafter it has been mentioned that resolution was passed on 04.06.2006 for dispensing with the services of the petitioner. On 16.06.2006 the District Inspector of Schools, Gorakhpur granted approval to the suspension of the petitioner. Against the said order dated 16.06.2006, petitioner preferred Civil Misc. Writ Petition No. 4287 of 2006 wherein this Court on 08.08.2006 asked U.P. Secondary Education Services Selection Board, to decide the matter. Petitioner has contended that on 15.09.2006 objection had been filed and thereafter on 06.03.2007 U.P. Secondary Education Services Selection Board  granted approval to the proposal sent by Committee of Management  for dispensing with the services of the petitioner and thereafter the Committee of Management of the Institution on 17.04.2007 has passed consequential order of dispensing with service of the petitioner.

Sri Ashok Khare, Senior Advocate assisted by Sri K. Shahi, Advocate contended with vehemence that petitioner has attained the age of superannuation on 30.06.2006, as such subsequent to his superannuation there being no provision contained either in U.P. Intermediate Education Act 1921 or U.P. Act No. V of 1982 for continuing the disciplinary proceedings, the entire action of U.P. Secondary Education Services Selection Board as well as that of Committee of Management of the institution is void action and totally without jurisdiction as such writ petition deserves to be allowed.

As purely legal question has been raised, Sri R.C. Dwivedi Advocate as well as Sri A.K. Yadav, Advocate on 24.04.2007 requested that matter be taken up on 30.04.2006 so that they may address the Court on purely legal question raised on behalf of the petitioner, as to whether proceedings can be commenced by U.P. Secondary Education Services Selection Board against an incumbent after he has attained the age of superannuation, and as to whether such an action is permissible in law.

Today on the matter being taken up Sri A.K. Yadav, Advocate appearing for U.P. Secondary Education Services Selection Board and Sri R.C. Dwivedi, Advocate appearing for Committee of Management of the institution contended with vehemence action which has been taken is justifiable action and said action can be clearly inferred from the provision as contained under Rule 30 and 32 of U.P. State-aided Educational Institution Employees Provided Fund, Insurance, and Pension Rules 1964.

After respective arguments have been advanced, present writ petition has been taken up with the consent of the parties for final hearing and disposal.

Factual position which is emerging in the present is to the effect that petitioner had been performing and discharging his duties as ad-hoc Principal of the institution. The date of birth of the petitioner is 01.06.1944 and as such under Chapter III Regulation 21 of U.P. Act No. II of 1921 petitioner has completed his statutory age of superannuation of 62 year on 30.05.2006 and after getting benefit of session entitled to continue up to 30.06.2006. On 04.06.2006 Managing Committee of institution has passed resolution for termination of service of petitioner and forwarded relevant papers to the U.P. Secondary Education Services Selection Board. The District Inspector of Schools has accorded approval to the suspension of the petitioner on 16.06.2006 against which Civil Misc. Writ Petition No. 4287 of 2006 had been filed wherein as petitioner has already attained the age of superannuation, qua suspension order writ petition was dismissed as infructuous and further directives were issued to U.P. Secondary Education Services Selection Board to decide the matter in accordance with law. Petitioner filed objection to the same on 15.09.2006 and therein took specific plea that he has attained the age of superannuation and proceedings are not liable to be continued. On 06.03.2007 approval has been accorded to the proposal and thereafter consequential order has been passed by the Committee of Management, dispensing with the service of the petitioner on 17.04.2007.

At this juncture, the view point of Hon'ble Apex Court and this Court in the matter of undertaking disciplinary proceedings after incumbent has attained the age of superannuation is being looked into. Once incumbent has attained the age of superannuation then he ceases to be in employment and qua the said incumbent unless and until the Act, the Rules or the Regulations permit no action is warranted. Hon'ble Apex Court in the case of Bhagirathi Jena Vs. Board of Directors OSFC reported in 1999(82) FLR page 143 has laid down following ratio :

"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 30-6-95, 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 authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement."

In the matter of employee serving at affiliated college of the University as per the provisions of U.P. State Universities Act, 1973. Division Bench  of this Court in the case of R.B. Agnihotri (Dr.) Vs. State of U.P. and others reported in [(2002) 2 UPLBEC 1099]  has taken the view that once incumbent has  attained the age of superannuation then resolution for termination which has been passed and approved by Vice Chancellor, all such action taken subsequent to superannuation are illegal as under U.P. State of Universities Act 1973 there is no provision to proceed after superannuation.  Relevant extract of the aforesaid judgment is as follows in paragraphs 6 to 8:

"6. On the materials on the record this much is crystal clear that the Vice Chancellor had passed his order according approval to the resolution terminating the services of the petitioner on 27th August, 1999 that is to say much after the statutory superannuation of the petitioner. The ratio laid down by the Supreme Court is binding on us.

7. Accordingly, we hold that in the absence of any express provision the departmental inquiry could not have continued after the superannuation of the petitioner on 30th June 1998 and thus it lapsed.

8. The impugned order/resolution passed by different authorities as contained in various Anneuxres all are quashed with his clarification that in view of the fact that this writ petition has to be allowed on a technical point and thus it will not mean our adjudication in regard to the allegations which have been made against the petitioner and in relation to which some matters/cases which are claimed to be are pending and that it will be open for the authorities to take such steps against the petitioner which it may consider expedient and appropriate provided warranted by law and it will be open for the petitioner to take such defences which he may consider valid. The writ petition is thus, allowed to the extent indicated but having regard to the peculiar facts and circumstances."

This Division Bench judgment has again been followed in the case of Janardan Chaturvedi Vs. State of U.P. and others, 2007 (2) ADJ 147 (D.B) wherein also impugned order of punishment has been passed against the petitioner curtailing his right, after he has retired, and as statutes were silent with regard to continuation of disciplinary proceedings against an employee, after his retirement, there being no analogous provision to Regulation 351-A of Civil Service Regulation, under U.P. Krishi Evam Prodyogic Vishwaidyalaya Adhiniyam 1958, which governs the University, the order of punishment after superannuation was not approved. Paragraphs 9 and 10 is being extracted below:

"9. The statutes are completely silent with regard to the continuation of the disciplinary proceedings against an employee after his retirement. There is no provision either under the Act or the Statutes analogous of Regulation, 351-(A) of the Civil Services Regulation. In the absence of any express provision the departmental inquiry could not have continued after the petitioner had retired. The view stand fortified by the Judgment of Apex Court in the case of Chandra Singh Vs. State of Rajasthan and another, JT 2003 (6) SC 20. The view has also been expressed by the Division Bench of this Court in the case of R.B. Agnihotri Vs. State of U.P. and others (2000) 2 UPLBEC 1099. Therefore we are of the opinion that no punishment much less punishment reducing the pensionary benefits of the petitioner could have been imposed upon him after he had retired.

10. Sri Padia in reply has placed heave reliance upon the fact that in the present case disciplinary inquiry was instituted against the petitioner much before his retirement and even an inquiry report had been submitted earlier to the retirement. Therefore, the Disciplinary Authority was well within its jurisdiction to impose the impugned punishment, even though the petitioner had retired. The submission is bereft of merit in the absence of any specific rule or statute providing for the continuation of the disciplinary proceeding against the petitioner even after his retirement. No other provision in this regard has been brought to out notice."  

This Court in the case of in the context of U.P. Secondary Education Services Selection Board Act 1982, Section 21 AND in context of Civil Service Regulations, Regulation 351-A and Rules 30 and 32 of U.P. State-aided Educational Institution Employees Provided Fund, Insurance, and Pension Rules 1964, in case of Ravindra Singh Rathore Vs. District Inspector of Schools, Etawah reported in 2004(1) AWC 310 has taken the view after considering relevant provisions, that disciplinary proceedings after the retirement cannot be continued in absence of any provision of law for such continuance. Relevant paragraphs 16, 17, 19, 20, 21,22,23,24,25,26,27, 32 and 33 are being quoted below:

16. Sri Ramesh Upadhaya, the learned counsel for the Committee of Management, however, submitted that even though a Division Bench of this Court in the case of Dr. R.B.Agnihorti (supra) has held that in the absence of any express provision, the departmental proceedings could not have continued after the superannuation of Dr. R.B.Agnihotri who was the Reader in the department of Hindi in Kalpi College and it lapsed. The said decision would not be applicable in the present case in view of the specific provision in Rules 30 and 32 of the U.P. State Aided Educational Institution Employees Provident Fund, Insurance and Pension Rules, 1964 (hereinafter referred to as "the 1964 Rules"). He relied upon a decision of the Hon'ble Supreme Court in the case of Takhatray Shivadattray Mankad v. State of Gujarat, 1989 Supp.(2) SCC 110. He also referred to Regulation 351-A of the Civil Service Regulations as adapted for application in the State of Uttar Pradesh.

17. After hearing the learned counsel for the parties, I find that Regulation 351-A of the Civil Service Regulations which provide for continuance of an enquiry against a Government servant even after his retirement, is not applicable in the case of employee, teacher and Principal in an aided educational institution in the State of U.P. Thus, the aforesaid provision cannot be pressed into service for justifying the continuance of the disciplinary proceedings after the retirement of Sri Ravindra Singh Rathore.

18. In the case of Dr. R.B.Agnihotri, he was working as Reader in the Department of Hindi in Kalpi College, Kalpi. He retired on 30th June 1998. The question was as to whether disciplinary proceedings could have continued even after the retirement of Dr. R.B.Agnihotri on 30th June 1998 in the absence of any statutory provision. Relying upon the decision of the Hon'ble Supreme Court in the case of Bhagirathi Jena (supra) this Court has held that in the absence of any express provision the departmental enquiry could not have continued after the superannuation of the petitioner therein on 30th June 1998 and, thus, it lapsed.

19. In the case of Bhagirathi Jena (supra) the facts are that Bhagirathi Jena was working as Joint General Manager on 30th June 1995 in the Corporation when he retired. He was relieved on 1st July 1995 by the Corporation without prejudice to the claim of the Corporation. He had been placed under suspension on 22nd July 1992 in respect of various items of alleged misconduct and was issued charge sheet on that day and disciplinary proceedings were initiated under Regulation 44 of the Orissa State Financial Corporation Staff Regulations, 1975. The question arose in regard to the continuance of the disciplinary enquiry for the purpose of reduction of retiral benefit payable to Bhagirathi Jena. The Hon'ble Supreme Court considering the provisions of Regulations 17 and 44(3)(c) of the Orissa State Financial Corporation Employees Provident Fund Regulations, 1959 which reads as under :-

"17.The sum standing to the credit of a subscriber shall become payable on the termination of his/her service or on his/her death, provided that there may if the Board so directs, the Administrators, be deduced therefrom and paid to the Corporation>

(a) any amount due under a liability incurred by the subscriber to the Corporation upto the total amount contributed by the Corporation to his/her account, including the interest credited in respect thereof."

"44(3)(c). When the employee who has been dismissed, removed or suspended, is reinstated, the Board shall consider and make a specific order:-

(i) regarding the pay and allowance to be paid to the employees for the period of his absence from duty, and

(ii) whether or not the said period shall be treated as a period on duty."

has held that the aforementioned Regulations do not contain any specific provision 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. The Apex Court has held as follows :-

"7. In view of the absence of such provision in the above said Regulations, it must be held that the Corporation had no legal authority to make any deduction in the retiral benefit of the appellant. There is also no provision for conducting a disciplinary enquiry after the retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from the retiral benefit. Once the appellant had retired from service on 30.6.95, 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 authority, it must be held that the enquiry had lapsed and the appellant was entitled to fill retiral benefits on retirement."

Reliance placed by Sri Upadhaya on the Rules 30 and 32 of the 1964 Rules is also misplaced. Rules 30 and 32 of the 1964 Rules are reproduced below:-

"30. Future good conduct of the recipient is an implied condition of grant of pension/family pension under these rules Government reserve to themselves the right of withholding or withdrawing such pension or any part thereof if the recipient be convicted of serious crime or be guilty of grave misconduct. Decision of Government in such matters shall be final.

32. Government will have the right to effect recoveries from the pension/family pension sanctioned under this Chapter in respect of any amount due from the employee to the management or the Government."

From a reading of the aforesaid Rule 30 it will be seen that the Government has been given a discretion to withhold or withdraw such pension or any part thereof if the recipient is convicted of serious crime or be guilty of grave misconduct. It does not provide for continuance of the pending enquiry once the employee retires. Likewise, Rule 32 empowers the Government to recover any amount due from the employee to the management or the Government from the pension/family pension sanctioned to such employee. It also does not provide for continuance of the pending enquiry. Moreover these Rules only empower the State Government to withhold or withdraw full or a part of pension on conviction of the recipient of serious crime or on being guilty of grave misconduct and recovery of any amount due from such a person.

In the case of Takhatray Shivadatttray Mankad (supra) on which reliance has been placed by Sri Upadhaya, the Hon'ble Supreme Court had considered the provisions of Rules 188 and 189 of the Bombay Civil Services (Conduct, Discipline and Appeal) Rules, 1959 which reads as under :-

"188. Government may make such reduction as it may think fit in the amount of the pension of a government servant whose service has not been thoroughly satisfactory.

189. Good Conduct is an implied condition of every grant of pension. Government may withhold or withdraw a pension or any part of it if the pensioner be convicted of serious crime or be found to have been guilty of grave misconduct either during or after the completion of his service, provided that before any order to this effect is issued, the procedure referred to in Note 1 to Rule 33 of the Bombay Civil Services (Conduct, Discipline and Appeal) Rules shall be followed."

The Hon'ble Supreme Court has held as follows :-

"An examination of Rule 188 shows that the Government may reduce the amount of pension of a government servant as it may think fit if the service of the government servant has not been thoroughly satisfactory. As per Rule 189 the government may withhold or withdraw a pension or part of it if the petitioner is convicted of serious crime or found to have been guilty of misconduct during or after the completion of service provided that before any order to this effect is issued, the procedure referred to the Bombay Civil Services (Conduct, discipline and Appeal) Rules are followed. These rules, thus, have expressly preserved the State Government's power to reduce or withhold pension by taking proceedings against a government servant even after his retirement. The validity of these rules has not been challenged. These two rules came for interpretation before this Court in State of Maharashtra v. M.H.Mazumdar and this Court expressed its view with reference to these rules as follows:

(SCC pp.55-56, para5)

"The aforesaid two rules empower government to reduce or withdraw a pension. Rule 189 contemplates withholding or withdrawing of a pension or any part of it if the pensioner is found guilty of grave misconduct while he was in service or after the completion of his service. Grant of pension and its continuance to a government servant depend upon the good conduct of the government servant. Rendering satisfactory service maintaining good conduct is a necessary condition for the grant and continuance of pension. Rule 189 expressly confers power on the government to withhold or withdraw any part of the pension payable to a government servant for misconduct which he may have committed while in service. This rule further provides that before any order reducing or withdrawing any part of the pension is made by the competent authority the pensioner must be given opportunity of defence in accordance with the procedure specified in Note I to Rule 33 of the Bombay Civil Services (Conduct, Discipline and Appeal) Rules.  The State Government's power to reduce or withhold pension by taking proceedings against a government servant even after his retirement is expressly preserved by the aforesaid rules.  The validity of the rules was not challenged either before the High Court or before this Court. In this view, the Government has power to reduce the amount of pension payable to the respondent. In M. Narassimhachar v. State of Mysore and State of Uttar Pradesh v. Brahm Datt Sharma, similar rules authorizing the government to withhold or reduce the pension granted to the government servant were interpreted and this court held that merely because a government servant retired form service on attaining the age of superannuation he could not escape the liability for misconduct and negligence or financial irregularities which he may have committed during the period of his service and the government was entitled to withhold or reduce the pension granted to a government servant."

The aforesaid decision was considered by the Hon'ble Supreme Court in the case of Bhagirathi Jena (supra). The Hon'ble Supreme Court in paragraph 8 has held as follows :-

"Learned senior counsel for the respondent placed reliance on the judgment of this Court in T.S.Mankad v. State of Gujarat. It is true that that was a case of imposing a reduction in the pension and gratuity on account of unsatisfactory service of the employee as determined in an enquiry which was extended beyond the date of superannuation. But the above decision cannot help the respondent in as much as in that case there was a specific rule, namely Rule 241-A of the Junagarh State Pension and Parwashi Allowance Rules, 1932 which enabled the imposition of a reduction in the pension or gratuity of a person after retirement. Further, there were rules in that case which enabled the continuance of departmental enquiry even after superannuation for the purpose of finding out whether any misconduct was established which could be taken into account for the purpose of Rule 241-A. In the absence of similar provision with Regulations of the respondent Corporation, the above judgment of Mankad's case cannot help the respondent."

As noticed hereinbefore there is no specific provision which empowers the continuance of a disciplinary proceedings against an employee, teacher and Principal of an aided educational institution in the State of U.P. Rules 30 and 32 of the1964 Rules also do not empower for continuance of departmental enquiry once the person has retired. Thus, the disciplinary proceedings could not have continued and it lapsed.

In the case of State Bank of India v. A.N.Gupta and others, (1997) 8 SCC 60, the Hon'ble Supreme Court was considering the question as to whether a departmental enquiry can be continued after the retirement in case of an employee of the State Bank of India. The Apex Court considered the judgment of the Andhra Pradesh High Court in T. Narasiah v. State Bank of India, (1978) 2 LLJ 173. In paragraph 14 of the judgment, the Hon'ble Supreme Court has held as follows:-

"14. In the case before the Andhra Pradesh high Court (T.Narasiah) the petitioner was an officer in the State Bank. Disciplinary proceedings were initiated against him but before these could be completed the officer was informed by the Bank through its letter dated 5-5-1976 that it was not possible for the Bank to complete the enquiry well in time before the officer attained the age of 60 years which was the date of his superannuation. He was told he would therefore seize to be in the Bank's service on the date of his superannuation and he would not be paid any subsistence allowance with effect from that date. The officer was treated as having retired and ceasing to be in the employment of the Bank with effect from 10-5-1976. The Officer claimed his provident fund and pension and on the Bank's refusal to pay the same, a writ petition was filed. During the course of the hearing of the writ petition it was submitted by the Bank that it had since decided to pay the provident fund in full to the officer and the Bank had also no objection to pay his contribution to the pension and that as far as the payment of the Bank's share in the pension fund was concerned, the officer was not entitled thereto unless and until the Bank granted the same in accordance with Rule 11 of the Pension Rules. It was contended before the Andhra Pradesh High Court by the officer that Rule 11 had no application in his case and on attaining the age of superannuation he automatically went out of the service of the Bank. The Bank, however, relied on Rule 11 to withhold the Bank's contribution to the pension fund. The Court was of the view that Rule 11 had to be read in its context and consistent with the object behind the said Rule. It held that the Rule applied not only in the case of the retirement contemplated by Rule 19 but also to cases of retirement of employees on attaining the age of superannuation. The Court observed that it might happen that the irregularities of misfeasance of an employee could not be detected well before his retirement so as to initiate and complete disciplinary enquiry in the matter and again there might be a case where disciplinary enquiry was initiated but could not be completed before the delinquent employee attained the age of superannuation. The Court noted that there was no provision in the Service Rules of the Bank providing for extension of service of an employee to enable the authorities to complete the disciplinary enquiry against him which power was available under the Government Service Rules. The Court said even if an enquiry was pending against an employee there was nothing to stop him from retiring on his attaining the age of superannuation. The enquiry could not continue after his retirement. The Court was, therefore, of the opinion that it was for that reason that the bank had reserved to itself the power to sanction the pensionary benefit under Rule 11 and if there was nothing wrong with the service of an employee throughout, the Bank would naturally sanction the pension, but if there was sufficient material disclosing grave irregularities on the part of the employee, the Bank might be well within its power in refusing to sanction the pensionary benefits, or in sanctioning them only partly. The learned Single Judge of the Andhra Pradesh High Court then went on to hold as under :-

"Of course, such decision has to be arrived at fairly, which necessarily means after holding an enquiry, giving a fair opportunity to the concerned officer to defend himself against the accusation. Such an enquiry would not be a ''disciplinary enquiry' within the ordinary meaning of the term, but an enquiry confined to the purposes of the Rules, viz., whether the employee should be granted any pensionary benefits; and if so, to what extent ? Such an enquiry can also be made after the retirement (of an employee; and particularly in cases of retirement) on attaining the age of superannuation, probably, such enquiry will have to be conducted only after retirement."

The Court, therefore, gave direction as to how the enquiry was to be conducted against the officer so as to entitle him to the pensionary benefits if he was exonerated. We are afraid that this view of the Andhra Pradesh High Court does not commend to us. By giving such an interpretation to Rule 11 the Andhra Pradesh High Court has, in effect, lent to validity to disciplinary proceeding against an employee even after his superannuation for which no provision existed either in Pension Rules or in the Service Rules and when the High Court had himself observed that an enquiry even if initiated during the service period of the employee could not be continued after his retirement on superannuation."

Thus, the Hon'ble Supreme Court has held that no disciplinary proceedings against an employee even after his superannuation for which no provision existed either in the pension rules or in the service rules, can be continued.

Recently, the Hon'ble Supreme Court in the case of Chandra Singh v. State of Rajasthan and another, JT 2003(6) SC 20 has held as follows:-

"37.....A departmental proceeding can continue so long as the employee is in service. In the event, a disciplinary proceeding is kept pending by the employer the employee cannot be made to retire. There must exist specific provision in the pension rules in terms whereof, whole or a part of the pension can be withheld or withdrawn wherefor a proceeding has to be initiated. Furthermore, no rule has also been brought to our notice providing for continuation of such proceeding despite permitting the employee concerned to retire. In absence of such a proceeding, the High Court or the State cannot contend that the departmental proceedings against the appellant Mata Deen Garg could continue."

Applying the principle laid down in Chandra Singh (supra) and Bhagirathi Jena (supra) to the facts of the present case, in the absence of any specific provision in the 1964 Rules, the proceedings for continuation of enquiry after the retirement of the employee lapsed.

The disciplinary proceedings can also not be saved in the present case on the ground that the Committee of Management had passed a resolution dismissing Sri Ravindra Singh Rathore from the post of Principal in the College and only the proposed punishment was required to be approved by the Board under Section 21 of the Act of 1982. Section 21 of the Act of 1982 reads as follows :-

"21. Restriction on dismissal etc. of teachers. - The Management shall not, except with the prior approval of the Board, dismiss any teacher or remove him from service, or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period (whether temporarily or permanently) and any such thing done without such prior approval shall be void."

The statement of objects and reasons for enacting the Act of 1982, inter alia, provided as follows :-

"....Under Section 16-G(3) of the Intermediate Education Act, 1921, managements were authorised to impose punishment with the approval of the  District Inspectors of Schools in matters pertaining to disciplinary action. This provision was found to be inadequate in cases where the management proposed to impose the punishment of dismissal, removal or reduction in rank and so it was considered necessary that this power should be exercised subject to the prior approval of the Commission or the Selection Boards, as the case may be, which would function as an independent and impartial body."

The Hon'ble Supreme Court in the case of Committee of Management, St. John Inter College v. Girdhari Singh and others, (2001) 4 SCC 296, has, after taking into consideration the statement of objects and reasons of the Act of 1982, held that it unequivocally indicates that earlier provisions contained under Section 16-G(3)(a) of the Education Act were found to be inadequate where the management proposed to impose the punishment of dismissal, removal or reduction in rank. In other words, the Legislature thought that the power of approval/disapproval to an order of punishment imposed by the management should not be vested with a lower educational authority, like the District Inspector of Schools, but should be vested with an independent Commission or Board which would function as an independent and impartial body.

Under Section 21 of the Act of 1982 the Board has to examine the merits of the case and apply its mind independently to the question whether the evidence on record justify the removal or not. The Hon'ble Supreme Court in the case of Committee of Management Bishambhar Sharan Vaidic Inter College, Jaspur, Nainital and another v. U.P. Secondary Education Service Commission and others, 1995 Supp. (3) SCC 244, in paragraph 4 of the judgment, has held as follows :-

".....We have also noticed Section 21 of the Act to which our attention was particularly drawn. We are of the view that the High Court has fallen in error in holding that the enquiry was vitiated because the charge-sheet was not framed by the Enquiry Committee but by the Committee of Management. The High Court has also committed an error in holding that the Commission could not have gone into the merits of the case. According to us, in view of the provisions of the said Section 21, the Commission while deciding whether or not to grant approval or the removal of a teacher, has necessarily to go into the merits of the case and apply its mind independently to the question whether the evidence on record justify the removal. It must be remembered that the Commission appointed under the Act is a high-powered body and as a body entrusted with the important function of supervising the actions taken by the Management against the teachers, it has to discharge its responsibility circumspectively. It cannot exercise its function effectively unless it scrutinizes the material and applies its mind carefully to the facts on record......"

In the case of Punjab National Bank and others v. Kunj Behari Misra, (1998) 7 SCC 84, the Hon'ble Supreme Court has held that the disciplinary proceedings breaks into two stages. The first stage commences when the disciplinary authority arrives at its conclusion on the basis of the evidence, the Enquiry Officer's report and the delinquent employee replied to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusion.  Since under Section 21 of the Act of 1982, it has been provided that if the management dismisses any teacher or removes him from service or serves on him any notice of removal from service or reduces him in rank or reduces his emoluments or withholds his increments for any period, whether temporarily or permanently, except the prior approval of the Board, such thing done without such prior approval shall be void.

Thus, it can safely be said that till such time the Board after considering the relevant material and going into the merits of the charges either approves or disapproves the proposed order of punishment, the disciplinary proceedings are continuing. Since Sri Ravindra Singh Rathore has retired before the Board had considered the matter for according approval, as required under Section 21 of the Act of 1982, the disciplinary proceedings cannot be continued.

33. In the case of Bhagirathi Jena (supra), the Hon'ble Supreme Court had directed for payment of the balance emoluments where the enquiry had lapsed. Paragraph 9 of the judgment is reproduced below :-

"9. The question has also been raised in the appeal in regard to the payment of arrears of salary and other allowances payable to the appellant during the period he was kept under suspension and upto the date of superannuation inasmuch as the enquiry had lapsed, it is, in our opinion, obvious that the appellant would have to get the balance of the emoluments payable to him after deducting the suspension allowance that was paid to him during the above said period."

In the present case claim of petitioner is squarely covered by the principles as have been settled above and specially in the case of Ravindra Singh Rathore Vs. District Inspector of Schools, Etawah reported in 2004 (1) AWC 310.

This Court again in the case of Rama Shanker Ram Vs. State of U.P. and others (Civil Misc. Writ Petition No. 23535 of 2006), decided on 12.04.2007, in respect of Head Clerk of recognized institution, Nehru Vidyapeeth Inter College, Reotipur, District Ghazipur has taken the view that under the U.P. Act No. II of 1921 there being no analogous provision to Regulation 351-A of Civil Service Regulation to continue with disciplinary proceedings and seek approval to dispense with service after superannuation, entire proceedings of approval is thus, unsustainable, illegal and without jurisdiction.

In the present case undisputed position is that on attaining the age of superannuation contract of service comes to an end and thereafter unless and until there is statutory provision permitting continuance of disciplinary proceedings the disciplinary proceedings cannot be carry forwarded under U.P. Act No. II of 1921 and Regulations and U.P. Act No. V of 1982 framed thereunder. Once incumbent has attained the age of superannuation then he ceases to be in employment and qua the said incumbent unless and until the Act, the Rules or the Regulations permit no action is warranted.      

Consequently in the present case also under the U.P. Act No. II of 1921 and U.P. Act No. V of 1982 there being no analogous provision to Regulation 351-A of Civil Service Regulation to continue with disciplinary proceedings and seek approval to dispense with service after superannuation, entire proceedings of approval is thus, unsustainable, illegal and without jurisdiction.

Consequently order dated 6th March 2007 passed by Secretary U.P. Secondary Education Services Selection Board, Allahabad and the subsequent resolution passed by Committee of Management , Bakhara Inter College, Bakhara, Deoria dispensing with the services are hereby quashed and set aside. However passing of this order will not prevent the respondents from fixing pension and other benefit admissible to be petitioner in accordance with law.

In term of the observations made above, present writ petition is allowed.

Dated: 30th April 2007

  Dhruv


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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