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Judgment
B. Amit Sthalekar, J.
I have heard Sri A.B. Singh, learned counsel for the petitioner and Sri Mata Prasad, learned Standing Counsel for the respondents.
The petitioner is seeking quashing of the order dated 6.4.2015 whereby a recovery of Rs. 17.50 lakh has been ordered against him on ground of financial transgressions committed by him. The petitioner was issued a chargesheet on 30.4.2008. A departmental enquiry was held and the Enquiry Officer submitted his report on 5.8.2008. The petitioner retired from service on 31.7.2008 and thereafter after almost 7 years the impugned order of recovery has been passed.
It is submitted by Sri A.B. Singh that the District Rural Development Agency (hereinafter referred to as ''the D.R.D.A.'') is a registered society and in terms of the Government Order dated 17.3.1994, copy of which has been filed as Annexure-1 to the writ petition, the Rules, Regulations and orders passed by the State Government under Article 309 of the Constitution of India are not applicable to the employees of the D.R.D.A. and their services including appointment as well as termination etc. would be governed by the Rules to be framed for the D.R.D.A. specifically at a future date.
Reliance has been placed by Sri A.B. Singh on a judgement of this Court dated 23.7.1998 passed in Writ Petition No. 8539 of 1989, Kapil Deo Singh vs. District Rural Development Agency and others wherein a learned Single Judge upon an examination of the Circular dated 17.3.1994 has held that in view of the specific provisions in Circular dated 17.3.1994 the petitioner is not a government servant and the Rules framed under Article 309 of the Constitution of India are therefore not applicable to him.
Reliance has also been placed upon a decision of the Division Bench of this Court dated 19.8.2010 passed in Special Appeal (Defective) No. 687 of 2010, State of U.P. and others vs. Pitamber wherein also the Government Order dated 17.3.1994 was considered and the Division Bench in the said matter, which related to the age of the retirement, held that the employees of the D.R.D.A. do not hold a civil post in the services of the State and therefore Rule 56 of the Fundamental Rules would not be applicable to them.
Para-11 of the judgment reads as follow:-
"11. There is no dispute that the DRDAs are registered as Societies under the Societies Registration Act. DRDAs are registered for each District. The Bye-laws provide for a Governing Body. The powers of the Governing Body has been set out under Bye-law 19 of the Bye-laws. Bye-law 20 provides for other powers conferred on the Governing Body. Bye-law 35 provides the manner in which the Society can sue or be sued. The Memorandum of Association of DRDA provides for Working Committee of the Governing Body, which consists of officers, who hold office in the Working Committee, by virtue of their posts in Government service. The members of the Society hold the post of Chairman or Members or the Executive Director by virtue of the posts they hold in Government service. By virtue of these Bye-laws, the Governing Body can appoint staff subject to the directions issued by the Central Government/State Government. The State Government issued Notification dated 17th March, 1994 which provided for the conditions of service of the employees in respect of employees of DRDA. Once the State Government has issued directions in exercise of its power, the Governing Body is bound by the said directions in the matter of appointment of staff. The power appoint also includes the power to terminate and/or superannuate. The subsequent direction of 09.03.2004 has also been issued by the State Government and would be relatable with the power that it has, under Bye-law 20(h) of the Bye-laws. Considering the findings recorded by the learned Single Judge in Badloo Ram (supra) and the findings recorded by the Division Bench, to which the learned Judge who decided Badloo Ram (supra) was a Member, being Writ Petition No. 458 (SB) of 2000, Anoop Rai Jain and Ors. Vs. State of U.P. and Ors., decided on 24th December, 2009, there can be no dispute that the Society is an instrumentality of the State and, therefore, falling under the expression ''State'' within the meaning of Article 12 of the Constitution of India, but its employees cannot be said to be employees o f the State in view of the Bye-laws including Bye- law 20(h).
The learned Judge in Kalika Prasad (supra), has not discussed the reason as to why F.R. 56 is applicable. If F.R. 56 was applicable because of Guideline No. 2(10) of Government Notification dated 17th March, 1994, then it was within the competence of the State Government to also have issued the Government Order dated 09.03.2004. In these circumstances, considering the Government Notification dated 09.03.2004, the age of superannuation of employees of DRDA would be 58 years from that date. Question (1) is answered in the affirmative."
It is not necessary to dilate upon the matter any longer as the issue is no longer res integra and there is no quarrel on the issue that the Rules and Regulations framed by the Government under Article 309 of the Constitution of India are not applicable to the petitioner.
In view of the legal proposition settled by the Division Bench of this Court in the case of Pitamber (supra) in view of the specific provisions of the G.O. dated 17.3.1994, copy of which has been filed as Annexure-2 to the writ petition, Rules, Regulations and Orders framed under Article 309 of the Constitution of India are not applicable to the employees of the D.R.D.A.. It is not in dispute that the petitioner was an employee of the D.R.D.A. and working as an Accountant in the D.R.D.A., Fatehpur.
No counter affidavit has been filed by the respondents and it has been stated by the learned Standing Counsel that since the matter only involves a question of law regarding applicability of the Rules, counter affidavit is not required and submissions made by him in the similar writ petition No. 22315 of 2015 would also apply in the present case. No Rule, Regulations and Order framed by the D.R.D.A. have been placed before this Court by the respondents.
The submission of Sri A.B. Singh, learned counsel for the petitioner is that there are no Rules, Regulations and Orders equivalent or similar to Article 351-A of the Civil Service Regulations where departmental proceedings may be continued even after retirement of the employee of the D.R.D.A. and penalty awarded. No Rules, Regulations and Orders have been placed by the respondents to show that there are any such Rules equivalent or similar to the provisions of Article 351-A of the Civil Service Regulations which may confer power on the competent authority under the D.R.D.A. to order recovery by way of penalty on an employee of the D.R.D.A. after he has already attained the age of superannuation. It is not in dispute that the petitioner retired from service on 31.7.2008 and the impugned order of recovery by way of penalty has been passed only on 6.4.2015.
In a similar matter relating to Cooperative Societies the Supreme Court in the case of Dev Prakash Tiwari vs. U.P. Co-operative Institutional Service Board Civil Appeals No. 5848 and 5849 of 2014 has held that there are no Rules or Regulation of the Society to provide for the continuation of departmental proceedings after the employee has attained the age of superannuation and that the provisions of Article 351-A of the Civil Service Regulations are therefore not applicable to the employees of the Cooperative Society as there is no such analogous or similar provisions under the U.P. Cooperative Societies Act, 1965.
The Supreme Court has held that once the employee had retired from service, there is no authority vested with the respondents for continuing the disciplinary proceeding even for purposes of imposing any reduction in the retiral benefits payable to the appellant. In the absence of any authority it must be held that the enquiry had lapsed and the appellant was entitled to get full retiral benefits.
Paragraphs 6 to 11 of the judgment of the Supreme Court in Dev Prakash Tiwari (supra) read as follows:
"6. We have carefully considered the rival submissions. The facts are not in dispute. The High Court while quashing the earlier disciplinary proceedings on the ground of violation of principles of natural justice in its order dated 10.1.2006 granted liberty to initiate the fresh inquiry in accordance with the Regulations. The appellant who was reinstated in service on 26.4.2006 and fresh disciplinary proceeding was initiated on 7.7.2006 and while that was pending, the appellant attained the age of superannuation and retired on 31.3.2009. There is no provision in the Uttar Pradesh Co-operative Employees Service Regulations, 1975, for initiation or continuation of disciplinary proceeding after retirement of the appellant nor there is any provision stating that in case misconduct is established a deduction could be made from his retiral benefits. An occasion came before this Court to consider the continuance o f disciplinary inquiry in similar circumstance in Bhagirathi Jena''s case (supra) and it was laid down as follows:
"5. Learned Senior Counsel for the respondents also relied upon Clause (3)(c) of Regulation-44 of the Orissa State Financial Corporation Staff Regulations, 1975. It reads thus:
"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 allowances to be paid to the employee for the period of his absence from duty, and (ii) Whether or not the said period shall be treated as a period on duty."
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.
In view of the absence of such a 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 30.6.95 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 an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement."
In the subsequent decision of this Court in U.P. Coop. Federation case (supra) on facts, the disciplinary proceeding against employee was quashed by the High Court since no opportunity of hearing was given to him in the inquiry and the management in its appeal before this Court sought for grant of liberty to hold a fresh inquiry and this Court held that charges levelled against the employee were not minor in nature, and therefore, it would not be proper to foreclose the right of the employer to hold a fresh inquiry only on the ground that the employee has since retired from the service and accordingly granted the liberty sought for by the management.
While dealing with the above case, the earlier decision in Bhagirathi Jena''s case (supra) was not brought to the notice of this Court and no contention was raised pertaining to the provisions under which the disciplinary proceeding was initiated and as such no ratio came to be laid down. In our view the said decision cannot help the respondents herein.
Once the appellant had retired from service on 31.3.2009, there was no authority vested with the respondents for continuing the disciplinary proceeding 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 get full retiral benefits.
The question has also been raised in the appeal with regard to arrears of salary and allowances payable to the appellant during the period of his dismissal and upto the date of reinstatement. Inasmuch as the inquiry had lapsed, it is, in our opinion, obvious that the appellant would have to get the balance of the emoluments payable to him.
The appeals are, therefore, allowed and the judgment and order of the High Court are set aside and the respondents are directed to pay arrears of salary and allowances payable to the appellant and also to pay him his all the retiral benefits in accordance with the rules and regulations as if there had been no disciplinary proceeding or order passed therein."
Applying the same principle of law to the facts of the present case it is noticed that no Rules or Regulations framed by the Society have been placed before the Court, which might confer power upon the disciplinary authority to continue the departmental proceedings after the employee of the D.R.D.A. has already retired from service. The Civil Service Regulations are not applicable in the case of the petitioner in view of the provisions of G.O. dated 17.3.1994.
In this view of the matter, the impugned order dated 6.4.2015 is absolutely illegal and without jurisdiction and is, therefore, quashed.
The writ petition stands allowed.
The petitioner shall be entitled to all retiral dues and emoluments which shall be paid to him within four months from the date of receipt of the certified copy of this order by the respondents.
There shall be no order as to costs.