# Ashok Kumar Singh v. U.P. State Food & Essential Commodities Corp. & Ors

- **Citation:** (2021) 8 ILRA 125
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-14
- **Case number:** Service Single No. 17614 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-singh-v-u-p-state-food-essential-commodities-corp-ors-47160
- **Pages:** 4

## Headnote

A. Service Law - Post-retiral dues - If
there is no provision, rules or regulations
authorizing the Competent Authority to
make deduction of any amount or to
punish employee after retirement on any
of the misconduct, no such order can be
passed against such employee after his
retirement. (para 7)

Writ Petition Allowed. (E-8)

List of Cases cited:-

## Text

8 All. Ashok Kumar Singh Vs. U.P. State Food & Essential Commodities Corp. & Ors.
125
seek further instructions and I decide this
writ petition finally at the admission stage
quashing
the
impugned
order
dated
14.07.2021 passed by the Secretary, Basic
Education Board, Prayagraj, which is
contained as Annexure No.1 to the writ
petition. The direction is issued to the
Secretary,
Basic
Education
Board,
Prayagraj to consider the petitioner's
candidature for appointment on the post of
Assistant Teacher in the Primary School
run by the U.P. Basic Education Board by
passing such order within a period of three
weeks from the date of presentation of a
certified/ computerized copy of this order.

14. Since this order has been passed
considering
the
peculiar
facts
and
circumstances
of
the
present
issue,
therefore, this order may not be cited as
precedence in other cases.

15. Accordingly, the writ petition is
allowed.

16. No order as to costs.
----------
(2021)08ILR A125
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.08.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN , J.

Service Single No. 17614 of 2021

Ashok Kumar Singh ...Petitioner
Versus
U.P. State Food & Essential Commodities
Corp. & Ors. ...Respondents

Counsel for the Petitioner:
Mahendra Pratap Singh, Abhishek Dwivedi

Counsel for the Respondents:
Shreeprakash Singh

A. Service Law - Post-retiral dues - If
there is no provision, rules or regulations
authorizing the Competent Authority to
make deduction of any amount or to
punish employee after retirement on any
of the misconduct, no such order can be
passed against such employee after his
retirement. (para 7)

Writ Petition Allowed. (E-8)

List of Cases cited:-

1. Bhagirath Jena Vs Board of directors, O.S.F.C.
& ors. (1999) 3 SCC 666 (followed)

2. Dev Prakash Tewari Vs Uttar Pradesh
Cooperative
Institutional
Service
Board,
Lucknow & ors. (2014) 7 SCC 260 (followed)

3. Shri Prakash Upadhyaya Vs St.of U.P. & ors.
Writ Petition No. 1106 (S/S) of 2021

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard learned counsel for the
parties.

2. This Court has passed the order
dated 13.08.2021 as under:-

"Heard Sri M.P. Singh, learned
counsel for the petitioner and Sri Devak
Vardhan, Advocate holding brief of Sri
Shree Prakash Singh, learned counsel for
the opposite parties.

By means of this writ petition, the
petitioner has submitted that he was retired
from service on 31.12.2015, however, at
that point of time one departmental enquiry
against the petitioner was pending wherein
the charge-sheet dated 02.07.20215 was
served upon the petitioner on 08.09.2015.

Sri M.P. Singh, learned counsel
for the petitioner has submitted that that
126 INDIAN LAW REPORTS ALLAHABAD SERIES
due to compelling circumstances the
petitioner could not submit the defency
reply to the charge-sheet before his
retirement.
After
his
retirement,
the
petitioner
requested
the
authorities
concerned to make payment of his post
retiral dues but no payment of post retiral
dues of the petitioner except the amount of
P.F. has been paid to the petitioner.

Sri M.P. Singh, learned counsel
for the petitioner has drawn attention of
this Court towards the judgment and order
dated 18.01.2021 passed by this Court in
Writ Petition No.1106 (S/S) of 2021;
Shriprakash Upadhyaya vs. State of U.P.
& others of the same department, whereby
the legal question was decided as to
whether after retirement of an employee,
the departmental enquiry can be initiated if
such prescription is not provided under the
statutory rules etc. This Court considering
the dictum of Hon'ble Apex Court in re:
Bhagirathi Jena vs. Board of Directors,
O.S.F.C. and other (1999) 3 SCC 666, has
clearly held that if there is no provision,
rule
or
regulation
authorizing
the
Competent
Authority
to
conduct
the
departmental enquiry after retirement, no
such departmental enqiry can be conducted
and in that case no prejudice may be
caused to an employee. In the judgment of
Shriprakash Upadhyaya (supra), another
judgment of this Court in re: Chandra
Prakash Verma vs. Chairman, U.P. Govt.
Employees Welfare Corpn. and another
[2018 (36) LCD 82] has been considered
whereby the dictum of Hon'ble Apex Court
in re: Bhagirathi Jena (supra) has been
considered.

On being confronted learned
counsel for the opposite parties as to how
the departmental proceeding against the
petitioner can be conducted and concluded
when there is no statutory prescription to
that effect and in that case as to how the
retiral dues of the petitioner can be
withheld, learned counsel for the opposite
parties has prayed that two days' time may
be granted to seek complete instructions in
the matter.

The time prayed for is granted.

List / put up this case on
18.08.2021 as fresh in the additional cause
list."

3. In compliance of the aforesaid
order, Sri Devak Vardhan, Advocate
holding brief of Sri Shree Prakash Singh,
learned counsel for the opposite parties has
submitted that the present petitioner had
committed misconduct during his service
period.
Therefore,
the
departmental
proceeding was initiated against him but
the same could not be concluded for the
reason of non-cooperation of the petitioner
with the enquiry proceedings. As per him,
the department has suffered huge loss on
account of misconduct of the petitioner. So
far as the dictum of Hon'ble Apex Court in
re:
Bhagirathi
Jena
vs.
Board
of
Directors, O.S.F.C. and others, (1999) 3
SCC 666 and subsequent judgments relying
upon the judgment of Bhagirathi Jena
(supra) by the Hon'ble Apex Court, he has
nothing to say.

4. Sri M.P. Singh, learned counsel for
the petitioner has drawn attention of this
Court towards Annexure No.6 of the writ
petition, which is the dictum of Hon'ble
Apex Court rendered in re: Dev Prakash
Tewari vs. Uttar Pradesh Cooperative
Institutional Service Board, Lucknow and
others reported in (2014) 7 SCC 260
whereby
the
Hon'ble
Apex
Court
considering the dictum of Bhagirathi Jena
(supra), issued positive directions against
the opposite parties vide paras-8 and 9 of
such judgment. For convenience, paras-8 &
9 are being reproduced here-in-below:-
8 All. Ashok Kumar Singh Vs. U.P. State Food & Essential Commodities Corp. & Ors.
127

"8. Once the appellant had
retired from service on 31.03.2009, 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.

9. 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 up to 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."

5. Sri Singh has also drawn attention
of this Court towards judgment and order
dated 18.01.2021 passed by this Court in
Writ Petition No.1106 (S/S) of 2021; Shri
Prakash Upadhyaya vs. State of U.P. &
others, whereby while considering the
identical facts and circumstances and legal
position, this Court allowed the said writ
petition directing the opposite parties to
make payment of admissible dues to that
writ petitioner. As per Sri Singh, the
aforesaid order was assailed before the
Appellate Court but later on such appeal
was withdrawn, therefore, the decision of
this Court rendered in re:Shri Prakash
Upadhyaya (supra) has attained finality for
all practical purposes.

6. The sole question before this
Court to adjudicate is that if there is no
provision, rules or regulations authorizing
the
Competent
Authority
to
make
deduction of any amount or to punish
employee after retirement on any of the
misconduct, as to whether such employee
may
be
compelled
to
face
the
departmental trial after retirement and
whether any punishment order may be
awarded against him after his retirement.

7.

Admittedly,
the
aforesaid
question is no more res integra after the
dictum of Bhagirathi Jena (supra) and it
has been held by the Hon'ble Apex Court
that if there is no such statutory
prescription to make deduction of any
amount from the employee or to punish
him/ her after his/ her retirement for any
misconduct, no such order can be passed
against such employee after his/ her
retirement. Even the Hon'ble Apex Court
in re: Dev Prakash Tewari (supra) has
held that not only such departmental
enquiry would lapse after retirement of
such employee, he/ she shall be entitled
for the emoluments payment to him/ her.

8. In view of the above, the writ
petition succeeds and is allowed.

9. A writ in the nature of certiorari is
issued quashing the charge-sheet dated
02.07.2015
and
the
disciplinary
proceedings in pursuance thereto, which
is contained as Annexure No.1 to the writ
petition. A
writ
in
the
nature
of
mandamus is also issued commanding the
opposite parties to pay all the post retiral
benefits to the petitioner as well as
arrears of subsistence allowance, if the
same has not been paid till date, with
expedition, preferably within a period of
three months, failing which, the petitioner
may claim the admissible interest on
delayed payment at the rate of 6% per
annum.

10. No order as to costs.
----------
128 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)08ILR A128
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.08.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN , J.

Service Single No. 19723 of 2020

Rabi Kant Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Meenakshi Singh Parihar, Ashok Shukla

Counsel for the Respondents:
C.S.C., Manjive Shukla, R.K. Upadhyay

A. Service Law - Disciplinary enquiry - It
is a settled proposition of law that once the
Court sets aside an order of punishment, on
the ground that the enquiry was not properly
conducted, the Court cannot reinstate the
employee rather it remits the matter to the
disciplinary
authority
who
conducts
the
enquiry from the point where it stood vitiated
and conclude the same. (Para 11) (E-8)

List of Cases cited:-

1. Chairman, LIC of India & ors. Vs
Masilamani (2013) 6 SCC 530 (followed)

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri H.G.S. Parihar, learned
Senior Advocate assisted by Ms. Meenakshi
Singh Parihar, learned counsel for the
petitioner, Sri Manjive Shukla, learned
Additional Chief Standing Counsel for the
State-respondent and Sri R.K. Upadhyay,
learned counsel for respondent no.4.

2. In the proposed order, notices to
opposite party nos. 5 and 6 are dispensed
with as no prejudice is caused to
respondent nos. 5 & 6 by means of the
impugned order.

3. The order under challenge is a
punishment order dated 01.10.2020 passed
by
the
Additional
Chief
Secretary,
Cooperative Department, Government of
U.P., Lucknow awarding major punishment
to the petitioner reverting him from the post
of Additional
Commissioner/Additional
Registrar
to
the
post
of
Joint
Commissioner/Joint
Registrar
in
the
minimum pay scale withholding two
increments with cumulative effect.

4. Counter affidavit and rejoinder
affidavit have been exchanged, but Sri
Manjive Shukla, learned Additional Chief
Standing Counsel has submitted that for the
redressal of his grievance the present
petitioner has got two alternative remedies
and before exhausting those two remedies
his writ petition under Article 226 of the
Constitution
of
India
may
not
be
entertained.

5. As per Sri Manjive Shukla, since
the order impugned has been passed after
due approval from the Governor, therefore,
the petitioner may very well file either
revision under Rule 13 or review under
Rule 14 of UP Government Servant
(Discipline
&
Appeal)
Rules,
1999.
Secondly,
the
alternative
remedy
to
approach the UP State Public Services
Tribunal, Lucknow is also available to the
petitioner. As per Sri Manjive Shukla, both
the aforesaid grounds have been taken in
the counter affidavit.

6. I am also of the considered opinion
that the alternative statutory remedy may
not
be
circumvented
and
the
person/employee concerned should first