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Judgment
Heard Mr. S Dutta, Learned Senior Counsel assisted by Mr. S Dutta, Learned Counsel for the Petitioner. Also heard Mr. K Gogoi, Learned Standing Counsel, Dibrugarh University, Assam.
The Petitioner, by way of instituting the present Writ Petition, has presented a challenge to an order dated 31.12.2004, issued towards imposing upon him a penalty of Compulsory Retirement, w.e.f 31.12.2004, on conclusion of a departmental proceeding instituted against the Petitioner.
The facts, in brief, requisite for adjudication of the issue is noticed, here-in-below:-
The petitioner was initially recruited to the service of the Dibrugarh University as a Typist on 15-03-1967. The Petitioner, advancing in his service career, on promotion, came to hold the post of Section Officer, Examination Branch, in the University, w.e.f. 31-12-2004. A show-cause notice dated 02-06-2003, came to be issued to the petitioner framing against him 05 (five) charges. The charges, so framed, pertain to the manner in which the bills of a printing press, viz. M/s Padmini Printing Press, Dibrugarh, were so cleared.
The petitioner on receipt of the said show-cause notice, submitted written statement, thereto, denying the charges levelled against him, as well as placing his clarifications against the allegations so levelled against him. It is to be noted that along with the petitioner, basing on similar allegations, show-cause notices came to be issued to four other employees/ officials of the University, working in the Examination Branch. The written statement off all the delinquents involved, including the petitioner, being received and perused, the same not being found to be satisfactory, the Disciplinary Authority of the petitioner and the other delinquents, proceeded to constitute a three member Enquiry Committee, to conduct a joint Departmental Enquiry into the charges framed against the petitioner and the other delinquents. A Presenting Officer was also appointed for the purpose. Thereafter, the Enquiry Committee conducted the enquiry and the petitioner participated, therein.
On conclusion of the enquiry, the Enquiry Committee submitted its enquiry report on 14-07-2004. With regard to charges framed against the petitioner, vide the show-cause notice dated 02-06-2003, in the enquiry report, it was held that the charge Nos. 1, 2, 4 and 5, stood established, while the charge No. 3, was held to have not been established.
The said enquiry report came to be placed before the Executive Council, of the Dibrugarh University. The Executive Council, on consideration of the enquiry report, with regard to the petitioner, directed for imposition of penalty of Compulsory Retirement upon him. Accordingly, the Registrar of Dibrugarh University, vide order dated 31-12-2004, proceeded to impose upon the petitioner the penalty of Compulsory Retirement from service, with immediate effect. The petitioner, thereafter, assailed the order dated 31-12-2004, before this Court, by way of instituting a writ petition being W.P.(C) No. 3051/2005. In the said Writ Petition, the order dated 31.12.2004, was also assailed on the ground, that prior to consideration by the Disciplinary Authority of the enquiry report and arriving at a decision with regard to the penalty required to be imposed upon the petitioner, a copy of the enquiry report was not forwarded to the petitioner for his comments. It is to be noted that two further writ petitions being W.P.(C) No. 1750/2005 and W.P.(C) No. 2406/2005, also came to be so instituted by other delinquent employees, who were also involved in the joint enquiry held in the matter. This Court, vide order dated 09-02-2015, proceeded to dispose of the said writ petitions, by holding that the penalty imposed upon the petitioners, therein, stood vitiated, on the ground that a copy of the enquiry report was not furnished to the Petitioners, before the same was considered by the disciplinary authority. Accordingly, the order of penalty dated 31-12-2004, insofar as, it concerns the writ petitioner, herein, was set aside and the matter was remanded to the Disciplinary Authority for a fresh decision. The petitioner, vide his representation dated 13-03-2015, placed the judgment and order dated 09-02-2015, passed in W.P.(C) No. 3051/2005, before the Registrar, Dibrugarh University.
Thereafter, basing on a decision arrived at in the matter by the Executive Council, the Registrar, Dibrugarh University, vide communication dated 19.09.2016, required the Petitioner to show cause, as to why the penalty of Compulsory Retirement from service of the Dibrugarh University, as earlier imposed upon him, be not retained. The petitioner submitted reply, thereto, on 04-10-2016. Thereafter, the matter was placed before the Executive Council of the University in its meeting held on 24-10-2016 and under Resolution No. 26, a decision was arrived at to impose the penalty of “Compulsory Retirement” w.e.f. 31-12-2004, upon the Petitioner.
Being aggrieved, the Petitioner has instituted the present Writ Petition.
The Learned Counsel for the Parties, during the hearing of this Writ Petition, had apprised this Court that the Executive Council of the University, in th its 355 meeting held on 26.09.2023, had revisited the penalty imposed upon the Petitioner. On such reconsideration, while maintaining the penalty of “Compulsory Retirement”, as imposed upon the Petitioner, the Executive Council of the University had modified the date of imposition of the penalty from “31.12.2004” to “10.11.2016”.
This Court had heard the matter and had reserved it for judgment. However, during the passing of the judgment, it had come to the notice of this Court, that the Petitioner, in the present Writ Petition, had retired from his services on 30.04.2009. Accordingly, an issue had arisen as to whether, the penalty of Compulsory Retirement could have been imposed upon the Petitioner after his superannuation from his services. The matter was then again listed for hearing and the Learned Counsel for the Parties were heard at length.
Mr. S Dutta, Learned Senior Counsel for the Petitioner, submits that the penalty of “Compulsory Retirement” was not permissible to be imposed upon the Petitioner, after he had superannuated from his services. Mr. S Dutta, Learned Senior Counsel for the Petitioner, submits that the Petitioner, in the present Writ Petition, had retired from his services, on reaching the age of superannuation, w.e.f 30.04.2009. Mr. S Dutta, Learned Senior Counsel for the Petitioner, further submits that in terms of the provisions of the Dibrugarh University Employees’ Service Condition Ordinance, 2000, the penalty of “Compulsory Retirement” is a penalty that would be permissible to be imposed upon an Officer/Employee of the University, during the currency of his service in the University. He submits that the said penalty would not be permissible to be so imposed after the Officer/Employee concerned had superannuated from his services. Mr. S Dutta, Learned Senior Counsel for the Petitioner, submits that in the said Ordinance of 2000, no provision has been made for continuing an employee in service after his superannuation, for the purpose of conduct of a departmental proceeding against him. Accordingly, Mr. S Dutta, Learned Senior Counsel for the Petitioner, submits that the Petitioner having superannuated from his service on 30.04.2009, the penalty of Compulsory Retirement was not permissible to be so imposed upon him.
Mr. S Dutta, Learned Senior Counsel for the Petitioner in support of his submissions, has placed reliance on the decision of the Hon’ble Supreme Court in the case of UCO Bank & Ors. v. Prabhakar Sadashiv Karvade reported in (2018) 14 SCC 98.
Mr. K Gogoi, Learned Standing Counsel, Dibrugarh University, Assam, has submitted that in the said Ordinance of 2000, no provision has been made for the purpose of facilitating imposition of a penalty upon an Officer/Employee of the University, after such Officer/Employee had superannuated from his or her service. Mr. K Gogoi, Learned Standing Counsel, Dibrugarh University, Assam, however, submits that the penalty, as imposed upon the Petitioner, vide the order dated 10.11.2016, having been so imposed with retrospective effect, i.e. w.e.f 31.12.2004, the Petitioner being in service as on 31.12.2004, the said penalty would not mandate an interference from this Court. Mr. K Gogoi, Learned Standing Counsel, Dibrugarh University, Assam, has further submitted that in the event, this Court is of the considered view that the penalty, as imposed upon the Petitioner, vide order dated 10.11.2016, would not mandate an acceptance from this Court and the same is interfered with, liberty be granted to the Respondent authorities of the Dibrugarh University, Assam, to impose fresh penalty upon the Petitioner following the procedure mandated, in this connection.
I have heard the Learned Counsel for the Parties and perused the materials available on record.
It is not disputed that the Petitioner, on reaching the age of superannuation, had retired from his services, w.e.f 30.04.2009. In pursuance to the departmental proceeding instituted against the Petitioner, he was, vide an order dated 31.12.2004, imposed that the penalty of “Compulsory Retirement”, in accordance with the provisions of Clause 33 (vi)(f) of the said Ordinance of 2000. The said penalty imposed upon the Petitioner was assailed by him before this Court by way of instituting the Writ Petition being WP(C) No. 3051/2005.
This Court, vide order dated 09.02.2015, noticing that the prior to imposition of the said penalty upon the Petitioner, the copy of the Enquiry Report, was not furnished to him and he was not given an opportunity to submit a representation, thereon, proceeded to interfere with the said order dated 31.12.2004. This Court, however, had granted liberty to the Respondent University, for proceeding in the matter and to take a fresh decision, basing on the findings of the Enquiry Committee. The Petitioner was permitted to submit fresh representation before the disciplinary authority against the said Enquiry Report. After the passing of the said order dated, the Registrar, Dibrugarh University, Dibrugarh, Assam, issued to the Petitioner, a notice dated 19.09.2016, requiring him to submit his written show-cause reply, as to why the penalty of Compulsory Retirement from services imposed upon him earlier, be not retained. The Petitioner submitted his response in the matter on 04.10.2016. Thereafter, the disciplinary authority of the Petitioner, i.e. the Executive Council of the University, in its 332 meeting held on 24.10.2016, resolved to impose upon the Petitioner, a penalty of “Compulsory Retirement”, w.e.f 31.12.2004. In pursuance to the said decision arrived at by the disciplinary authority of the Petitioner, the penalty, as imposed upon the Petitioner, was communicated to him by the Registrar of the University, vide issuance of an order dated 10.11.2016. In terms of the said order dated 10.11.2016, the penalty of “Compulsory Retirement” was imposed upon the Petitioner, with retrospective effect, i.e. w.e.f 31.12.2004.
As noticed, hereinabove, during the pendency of the present Writ Petition, the disciplinary authority of the Petitioner had again revisited the penalty of “Compulsory Retirement” imposed upon the Petitioner vide the order dated 10.11.2016, and on such consideration being made by the Executive Council in its 355 meeting held on 26.09.2023, the penalty of Compulsory Retirement was decided to be so imposed upon the Petitioner, w.e.f “10.11.2016”, in lieu of “31.12.2004”. As already noticed hereinabove, the Petitioner had retired from his services on 30.04.2009.
Accordingly, it is to be examined by this Court, as to whether the penalty, as imposed initially upon the Petitioner, vide the order dated 10.11.2016, would be permissible to be so imposed after he had superannuated and also as to whether the said penalty was permissible to be so imposed, with retrospective effect.
This Court has perused the provisions of the Ordinance of 2000 and finds that, therein, there is no provision mandating the imposition of any of the penalties, as specified under the provisions of Clause 33 (vi), upon an Officer/Employee of the University, after he had superannuated from his services. Accordingly, vide the order dated 10.11.2016, the penalty of “Compulsory Retirement” could not have been imposed upon the Petitioner, invoking the provisions of the Ordinance of 2000, after he had superannuated from his services. Further, this Court notices that vide the order dated 10.11.2016, in terms of the decision arrived at in the matter by the disciplinary authority of the Petitioner, i.e. the Executive Council of the University, the said penalty was imposed, w.e.f 31.12.2004. The penalty of “Compulsory Retirement”, as imposed upon the Petitioner, vide the order dated 31.12.2004, was already interfered with by this Court, vide the judgment and order dated 09.02.2015 in WP(C) No. 3051/2005. This Court, on an interference made in the said order, required the Respondent authorities to take fresh decision in the matter, with regard to the penalty that would now be mandated to be imposed upon the Petitioner. The said decision, as directed, was for the purpose of imposing a penalty, if so mandated, with prospective effect and not one which would have the effect of reviving the already interfered penalty of “Compulsory Retirement” with retrospective effect. Further, this Court finds that the provisions of Ordinance of 2000, also does not empower the Respondent University to impose upon its Officer/Employee, a penalty, with retrospective effect.
Accordingly, for the above reasons, the order dated 10.11.2016, cannot be sustained and accordingly, the same would mandate an interference.
Having drawn the above conclusions, this Court would now examine the decision of the Executive Council arrived at in its 355 meeting held on 26.09.2023, deciding to impose the penalty of “Compulsory Retirement” upon the Petitioner, w.e.f “10.11.2016”. The said decision in the considered view of this Court, does not cure the infirmity existing in the order dated 10.11.2016, and for the reasons assigned, hereinabove, the said penalty would not be permissible to be so imposed upon the Petitioner, even, w.e.f 10.11.2016, inasmuch as, he had already superannuated from his services, w.e.f 30.04.2009.
This Court, in support of its conclusions, places reliance on the decision of the Hon’ble Supreme Court in the case of Prabhakar Sadashiv Karvade (Supra). Under similar circumstances, the Hon’ble Supreme Court had drawn the following conclusions :
“9. A reading of the plain language of Regulation 4 of the Discipline and b Appeal Regulations and Regulation 20(3) (iii) of the 1979 Regulations makes it clear that any of the penalties, whether major or minor can be imposed only on a serving officer employee of the Bank. This necessarily implies that none of the penalties specified in Regulation 4 of the Discipline and Appeal Regulations can be imposed on an officer employee after his retirement from service, though in terms of Regulation 20(3)(iii) of the 1979 Regulations, the disciplinary proceedings initiated against an officer employee before his retirement can be continued and final order is passed and further that such officer employee is not entitled to retiral benefits till the conclusion of disciplinary proceedings and passing of final order. The only exception to this is that the officer is entitled to receive his own contribution to CPF. However, there is nothing in the language of these regulations from which it can be inferred that the disciplinary authority has the power to impose a substantive punishment on retired officer employee. This becomes more more explicit from a conjoint reading of Regulation 48 of the Pension Regulations which empowers the competent authority to withhold or withdraw a pension or a part thereof and order recovery from pension of the whole or part of any pecuniary loss caused to the bank if in a departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence or criminal breach of trust or forgery or acts done fraudulently during the period of his service. Second proviso to Regulation 48 contains a fiction and lays down that if the departmental proceedings are instituted while the employee was in service, the same shall be deemed to be proceedings under the regulations and continued and concluded as if the employee had continued in service. The third proviso imposes a bar on the initiation of departmental or judicial proceedings against an employee after his retirement in respect of an event which took place more than 4 years before such institution. The sum and substance of these regulations is that even though a departmental inquiry instituted against an officer employee before his retirement can continue even after his retirement, none of the substantive penalties specified in Regulation 4 of 1979 Regulations, which include dismissal from service, can be imposed on an officer employee after his retirement on attaining the age of superannuation. Therefore, we have no hesitation to hold that order dated 12-10-2004 passed by the disciplinary authority dismissing the respondent from service, who had superannuated on 31-12-1993 was ex facie illegal and without jurisdiction and the High Court did not commit any error by setting aside the same.”
Applying the said decision of the Hon’ble Supreme Court to the facts of the present case, it is clear that the order dated 10.11.2016, cannot be sustained. Accordingly, the order dated 10.11.2016, along with the subsequent th decision of the Executive Council, as arrived at, in its 355 meeting held on 26.09.2023, qua the Petitioner, stands set-aside.
Having interfered with the penalty, as imposed upon the Petitioner, this Court would now consider the reliefs that would be permissible to be extended to the Petitioner. The order of penalty having been interfered with, the Petitioner is deemed to have continued in his services till the date of his superannuation, which had occasioned on 30.04.2009. However, the interference with the penalty by this court, being on a technicality, this Court is of the considered view that the Petitioner not having been exonerated from the charges framed against him, the Petitioner would be deemed to have continued under suspension, w.e.f the date the initial penalty of Compulsory Retirement was imposed upon him, vide order dated 31.12.2004. Balancing the equities in the mater, this Court directs that the Petitioner shall be deemed to have remained under suspension, w.e.f 31.12.2004, till the date of his superannuation, which had occasioned on 30.04.2009. The Petitioner, accordingly, would be entitled to subsistence allowance for the period, he is now deemed to have been placed under suspension. However, the period for which the Petitioner is directed to be continued under suspension, would, however, be reckonable for the purpose of computing the pension and other pensionary benefits of the Petitioner.
Accordingly, the Respondent/University shall fix the salary of the Petitioner, as on the date of his superannuation, i.e. on 30.04.2009, by notionally fixing the salary, w.e.f the date he was originally placed under suspension.
Basing on the pay now determined in respect of the Petitioner on the date of his suspension, the Respondent authorities shall release to the Petitioner, his due pension and other pensionary benefits, after deducting the pension and other pensionary benefits, already released to him, in the meanwhile, along with the arrears of the subsistence allowance, now becoming due to the Petitioner, in terms of the directions passed, hereinabove.
With the above observations and directions, the present Writ Petition stands disposed of.