# Kalyan Singh v. Union of India & Ors

- **Citation:** (2022) 6 ILRA 33
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-25
- **Case number:** Writ-A No. 10502 of 2019
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kalyan-singh-v-union-of-india-ors-48665
- **Pages:** 7

## Headnote

A. Service Law - Dismissal - Disciplinary
proceeding - Industrial Disputes Act, 1946
- Section 10 - The competence of an
authority to hold an enquiry against an
employee who has retired, depends upon
the statutory rules which govern the
terms and conditions of his service. No
disciplinary proceedings can be continued
against the employee after retirement unless
and until rules governing such proceedings
provided for the same. (Para 10, 12, 15)

The relevant rules governing the service
conditions of an employee are the determining
factors as to whether and in what manner the
domestic enquiry can be held against an
employee who stood retired after reaching the
age of superannuation. Generally, if the
enquiry has been initiated while the
delinquent employee was in service, it
would continue even after his retirement,
but nature of punishment would change.
The
punishment
of
dismissal/removal
from service would not be imposed. (Para
10)

B. Maintainability - There is no factual
controversy involved in the case that may require
any reference inasmuch as it also not being a case
where enforcement of any provision of standing
orders is sought. It would be a futile exercise
to ask for the petitioner to raise reference
because the legal issue involved can be
answered in this petition itself and the
establishment being an authority within the
meaning of Art. 12 of the Constitution of
India, this petition can be decided on merits.
(Para 6, 11)

C. Appointments made long back pursuant
to a selection need not be disturbed. A
three decade old issue of entry into the
service of establishment should not have
been reopened at the fag end of service
career of an employee. (Para 8, 15)

While it may be true that furnishing a forged
document would not justify the appointment
obtained on the said basis but for that
34 INDIAN LAW REPORTS ALLAHABAD SERIES
appropriate time would be a reasonable one
when proper verification of such a document
could be done. It is the duty of those who are
responsible
for
making
selection
and
appointment to verify all the credentials of a
candidate before giving appointment but once
after due verification entry is given, then it
should be only an exceptional circumstance to
annul the appointment. A third party
complaint
should
normally
not
be
entertained
as
of
compulsion.
Establishment
must
safeguard
its
employees'
interest
first
while
embarking upon an enquiry at the
instance of a third partly complaint
which may often be made with ulterior
and ill-motives. (Para 18)

Writ petition allowed. (E-4)

Precedent followed:

## Text

6 All. Kalyan Singh Vs. Union of India & Ors.
33
on which reliance has been placed by the
learned counsel for the respondents does
not indicate that Apex Court has held that
District Inspector of School has jurisdiction
to interfere with the power of management
of a minority institution to take disciplinary
action against their staff. Perusal of the
aforesaid paragraphs further indicates that
Apex Court has elaborated that the
regulations framed for the benefit of public
at large and for minority institution don't
impinge the right of minority to run
minority institution under Article 30 of
Constitution of India, but it does not deal
with a situation as in the present case.

34. Thus, judgement of the Apex
Court relied upon by the learned counsel
for the respondents is not applicable in the
facts of the present case.

35. Accordingly, order impugned
dated 25.02.2021 is quashed with liberty to
respondent no.4 to pursue his remedy
available to him under the law.

36. For the reasons given above, the
writ petition is allowed with no order as to
costs.
----------
(2022)06ILR A33
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.03.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 10502 of 2019

Kalyan Singh ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Satya Prakash Rai, Sri Prateek Rai
Counsel for the Respondents:
A.S.G.I., Sri Ankush Tandon, C.S.C., Sri Ishan
Shishu, Sri Anoop Trivedi (Senior Adv.)

A. Service Law - Dismissal - Disciplinary
proceeding - Industrial Disputes Act, 1946
- Section 10 - The competence of an
authority to hold an enquiry against an
employee who has retired, depends upon
the statutory rules which govern the
terms and conditions of his service. No
disciplinary proceedings can be continued
against the employee after retirement unless
and until rules governing such proceedings
provided for the same. (Para 10, 12, 15)

The relevant rules governing the service
conditions of an employee are the determining
factors as to whether and in what manner the
domestic enquiry can be held against an
employee who stood retired after reaching the
age of superannuation. Generally, if the
enquiry has been initiated while the
delinquent employee was in service, it
would continue even after his retirement,
but nature of punishment would change.
The
punishment
of
dismissal/removal
from service would not be imposed. (Para
10)

B. Maintainability - There is no factual
controversy involved in the case that may require
any reference inasmuch as it also not being a case
where enforcement of any provision of standing
orders is sought. It would be a futile exercise
to ask for the petitioner to raise reference
because the legal issue involved can be
answered in this petition itself and the
establishment being an authority within the
meaning of Art. 12 of the Constitution of
India, this petition can be decided on merits.
(Para 6, 11)

C. Appointments made long back pursuant
to a selection need not be disturbed. A
three decade old issue of entry into the
service of establishment should not have
been reopened at the fag end of service
career of an employee. (Para 8, 15)

While it may be true that furnishing a forged
document would not justify the appointment
obtained on the said basis but for that
34 INDIAN LAW REPORTS ALLAHABAD SERIES
appropriate time would be a reasonable one
when proper verification of such a document
could be done. It is the duty of those who are
responsible
for
making
selection
and
appointment to verify all the credentials of a
candidate before giving appointment but once
after due verification entry is given, then it
should be only an exceptional circumstance to
annul the appointment. A third party
complaint
should
normally
not
be
entertained
as
of
compulsion.
Establishment
must
safeguard
its
employees'
interest
first
while
embarking upon an enquiry at the
instance of a third partly complaint
which may often be made with ulterior
and ill-motives. (Para 18)

Writ petition allowed. (E-4)

Precedent followed:

1. Buddhi Nath Chaudhary & ors. Vs Abahi
Kumar & ors., Appeal (Civil) 1397 of 2001
(Para 8)

2. Anant R. Kulkarni Vs Y.P. Education Society
& ors., (2013) 6 SCC 515 (Para 10)

Present petition assails order dated
17.04.2018, passed by Chief Production
Manager & Disciplinary Authority, Indian
Oil Corporation Ltd. Mathura Refinery,
Mathura,
awarding
the
petitioner
punishment of dismissal from service
and the order dated 12.06.2019, passed
by
Executive
Director
&
Appellate
Authority, Indian Oil Corporation Ltd.
Mathura Refinery, Mathura, rejecting
the appeal.

(Delivered by Hon'ble Ajit Kumar, J.)

1. The sole question of law that arises
for consideration in the present case is as to
whether
petitioner
could
have
been
inflicted
with
a
major
penalty
of
termination/dismissal/removal from service
after attaining the age of superannuation
even in the face of the fact that certified
standing orders framed under the Industrial
Disputes Act, 1946 are absolutely silent on
this point.

2. A preliminary objection has been
raised by the learned counsel for the
respondent regarding maintainability of this
writ petition on the ground that petitioner
has alternative efficacious remedy under
Section 10 of the Industrial Disputes Act
1946, inasmuch as, services of the
petitioner while in service being governed
under the certified Standing orders, writ
jurisdiction under Article 226 of the
Constitution, cannot be invoked to enforce
the same.

3. Briefly stated facts of the case are
that petitioner who was appointed in the
year 1981 as a helper and later on received
promotions, finally came to be retired from
service of respondents establishment on
22nd February, 2017 as a Senior Technical
Assistant Grade VI (production).

4. A disciplinary proceeding was
initiated against the petitioner in the matter
of a complaint made by a third party and
the complaint was that, while petitioner
applying for employment in the year 1981,
he had submitted a transfer certificate, in
which he showed himself as class VIIIth
passed, whereas transfer certificate was
allegedly a forged document. A report was
called for from the District Basic Education
Officer which was submitted on 23rd July,
2016 in which it came to be reported that
transfer certificate did not appear to be
genuine one as per report of the principal.
However, on further verification a second
report suggested that transfer certificate
was genuine one and that there was no
dispute regading the same. Two reports
being
contradictory
to
each
other,
respondent establishment called for a third
report which was submitted on 2nd August,
6 All. Kalyan Singh Vs. Union of India & Ors.
35
2016 and on the basis of same an inhousing
enquiry was got conducted by District
Basic Education Officer and in this report,
it came to be reported that transfer
certificate did not appear to be a genuine
document.
Accordingly,
disciplinary
proceeding was instituted and chargesheet
was issued to the petitioner on 27.8.2016
alomost 34 years after the petitioner was
appointed imputing with the charge that he
obtained employment by submitting forged
document. Petitioner did submit reply as
enquiry proceeded with but the enquiry
could be completed and report could be
submitted
on
12.12.2017
only
after
petitioner got superannuated. On the basis
of the enquiry report petitioner was served
with a show cause notice.

5. Petitioner challenged the enquiry
before Delhi High Court taking the plea
that since he had retired and the standing
orders did not provide for disciplinary
proceedings to continue after retirement of
the employee, hence the enquiry report and
the proceedings pursuant thereto was liable
to be set aside. The Delhi High Court in its
order dated 12.03.2018 provided the
petitioner to submit reply before the
competent authority itself and competent
authority was directed to look into his reply
and pass appropriate orders. Petitioner
submitted
reply
questioning
the
continuance of proceeding even after his
retirement, however, disciplinary authority
rejected the same on the ground that since
the Delhi High Court had rejected the plea
of the petitioner to quash the proceedings,
this chapter was closed. Petitioner preferred
writ petition before this Court against the
said order and this Court remitted the
matter
vide
order
dated
08.02.2019,
directing petitioner to prefer appeal before
the appellate authority and it was left open
for him to take such plea regarding
jurisdiction of the authority to continue
disciplinary proceedings after retirement of
an employee and in the event if petitioner
took such a plea, the same was directed to
be considered. The appellate authority
dismissed the appeal on the same ground
that since Delhi High Court had already
rejected
petitioner's
plea
regarding
continuance of disciplinary proceedings
after retirement, so it was not open to
question the same. Hence this petition.

6. So far as issue regarding
maintainability of the writ petition is
concerned, I am of the view that since there
is no factual controversy involved in the
case that may require any reference
inasmuch as it also not being a case were
enforcement of any provision of standing
orders is sought, the writ petition was
rightly entertained and now case can be
decided on merits as pleadings have been
exchanged.

7. The only issue is as to whether
standing orders did provide to meet such
any eventuality as has cropped up in the
present case and if not, how far employer is
justified to continue with disciplinary
proceedings
against
a
superannuated
employee.

8. In the present case, learned counsel
for the petitioner has relied upon the
judgment of the Supreme Court in the case
Buddhi Nath Chaudhary and Others v.
Abahi Kumar and Others passed in Appeal
(Civil) 1397 of 2001, in which the Supreme
Court has held thus:

"The selected candidates, who have
been appointed, are now in employment as
Motor Vehicle Inspectors for over a decade.
Now that they have worked in such posts
for a long time, necessarily they would
36 INDIAN LAW REPORTS ALLAHABAD SERIES
have acquired the requisite experience.
Lack of experience, if any, at the time of
recruitment is made good now. Therefore,
the new exercise ordered by the High Court
will only lead to anomalous results. Since
we are disposing of these matters on
equitable
consideration,
the
learned
counsel for the contesting respondents
submitted that their cases for appointment
should also be considered. It is not clear
whether there is any vacancy for the post of
Motor Vehicle Inspectors. If that is so,
unless any one or more of the selected
candidates are displaced, the cases of the
contesting
respondents
cannot
be
considered. We think that such adjustment
is not feasible for practical reasons. We
have extended equitable considerations to
such selected candidates who have worked
in the post for a long period, but the
contesting respondents do not come in that
class. The effect of our conclusion is that
appointments made long back pursuant to a
selection need not be disturbed. Such a
view can be derived from several decisions
of this Court including the decisions inRam
Sarup vs. State of Haryana & Ors., 1979
(1)
SCC
168;District
Collector
&
Chairman, Vizianagaram Social Welfare
Residential School Society, Vizianagaram
& Anr. vs. M. Tripura Sundari Devi, 1990
(3) SCC 655; and H.C.Puttaswamy & Ors.
vs. The Honble Chief Justice of Karnataka
High Court, Bangalore & Ors., 1991 Supp.
(2) SCC 421. Therefore, we must let the
matters lie where they are."

9. Learned counsel appearing on
behalf of the respondent Sri Ankush
Tandon submits that there is judgment
that of course, provides that such
proceedings can be continued even after
retirement but he very fairly concedes
that the order of termination from service
cannot be passed.

10. Vide paragraph 18 to 24 of the
judgment in the case of Anant R.Kulkrni
v. Y.P. Education Society and Others
(2013) 6 SCC 515, Supreme Court has held
thus:

"18.
This
Court
in
NOIDA
Entrepreneurs Association v. NOIDA &
Ors., AIR 2011 SC 2112, examined the
issue, and held that the competence of an
authority to hold an enquiry against an
employee who has retired, depends upon
the statutory rules which govern the terms
and conditions of his service, and while
deciding the said case, reliance was placed
on various earlier judgments of this Court
includingB.J. Shelat v. State of Gujarat &
Ors., AIR 1978 SC 1109;Ramesh Chandra
Sharma v. Punjab National Bank & Anr.,
(2007) 9 SCC 15; and UCO Bank & Anr. v.
Rajinder Lal Capoor.

19.In State of Assam & Ors. v. Padma
Ram Borah, AIR 1965 SC 473, a
Constitution Bench of this Court held that it
is not possible for the employer to continue
with the enquiry after the delinquent
employee
stands
retired.
The
Court
observed:-(AIR 475 para 7)

"According to the earlier order of the
State Government itself, the service of the
respondent had come to an end on March
31, 1961. The State Government could not
by unilateral action create a fresh contract
of service to take effect from April 1, 1961.
If the State Government wished to continue
the service of the respondent for a further
period, the State Government should have
issued a notification before March 31,
1961." (Emphasis added) While deciding
the said issue, the Court placed reliance on
the
judgment
inR.T.
Rangachari
v.
Secretary of State for India in Council.

20.In State of Punjab v. Khemi Ram,
AIR 1970 SC 214, this court observed:
(SCC p. 32, para 12)
6 All. Kalyan Singh Vs. Union of India & Ors.
37

"12. There can be no doubt that if
disciplinary action is sought to be taken
against a government servant it must be
done before he retires as provided by the
said rule. If a disciplinary enquiry cannot
be concluded before the date of such
retirement,
the
course
open
to
the
Government is to pass an order of
suspension and refuse to permit the
concerned public servant to retire and
retain him in service till such enquiry is
completed and a final order is passed
therein."

21.In Kirti Bhusan Singh v. State
of Bihar & Ors., AIR 1986 SC 2116, this
Court held as under: (SCC pp. 678-79,
para 6)

"6.... We are of the view that in the
absence of such a provision which entitled
the State Government to revoke an order of
retirement....... which had become effective
and final, the order passed by the State
Government
revoking
the
order
of
retirement should be held as having been
passed without the authority of law and is
liable to be set aside. It, therefore, follows
that the order of dismissal passed thereafter
was also a nullity."

22.In Bhagirathi Jena v. Board of
Directors, O.S.F.C. & Ors., AIR 1999 SC
1841, this Court observed: (SCC pp. 66869, para 7)

"... 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 30-6-1995,
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."

23.In U.P. State Sugar Corporation
Ltd. & Ors. v. Kamal Swaroop Tondon, this
Court dealt with a case wherein statutory
corporation had initiated proceedings for
recovery of the financial loss from an
employee after his retirement from service.
This Court approved such a course
observing that in the case of retirement,
master and servant relationship continue
for
grant
of
retrial
benefits.
The
proceedings for recovery of financial loss
from an employee is permissible even after
his retirement and the same can also be
recovered from the retrial benefits of the
said employee.
24. Thus, it is evident from the above, that
the relevant rules governing the service
conditions
of
an
employee
are
the
determining factors as to whether and in
what manner the domestic enquiry can be
held against an employee who stood retired
after reaching the age of superannuation.
Generally, if the enquiry has been initiated
while the delinquent employee was in
service, it would continue even after his
retirement, but nature of punishment would
change.
The
punishment
of
dismissal/removal from service would not
be imposed."

11. In such above view of the matter,
it would be a futile exercise to ask for the
petitioner to raise reference because this
legal issue can be answered in this petition
itself and the establishment being an
authority within the meaning of Article 12
of the Constitution of India, I proceed to
decide this petition on merits.

12. It is a settled legal position that no
disciplinary proceedings can be continued
after retirement unless and until rules
38 INDIAN LAW REPORTS ALLAHABAD SERIES
governing service conditions provided
otherwise.

13. The only issue is as to whether the
judgment of Delhi High Court will come in
the way of granting relief to the petitioner
in the present case or not. What I find is
that in the order of Delhi High Court, it was
directed that petitioner's reply will be
considered and petitioner did raise specific
point in his reply which was not considered
and same was brushed aside in view of
judgment of the Delhi High Court. I am not
convinced with the finding returned by the
authority on this point. The judgment of
High Court did not close the chapter, it left
it open instead, for the authority to take
decision on this point, if it is raised in reply.

14. Besides above, after decision was
taken by the appropriate appellate authority,
petitioner had preferred an appeal and this
Court in writ petition no. 2037 of 2019 had
again directed for the appellate authority to
consider the jurisdictional aspect of the
matter if raised in appeal. This order had
never been challenged by the respondents
in appeal in this Court or in Supreme Court.
Thus mandate contained in the order of this
Court dated 08.02.2019 was binding upon
the appellate authority. The appellate
authority having not considered the same,
the order passed by the appellate authority
is also not sustainable and deserves to be
quashed.

15. Now this matter can again be
remitted to the appellate authority to
reconsider but since even disciplinary
authority had assigned the same reason to
reject the plea of the petitioner, which is not
sustainable as this legal issue has already
been met and answered by the Supreme
Court in its various decisions, it would be
absolutely a futile exercise to remit the
matter to the appellate authority. The legal
position
is
settled
enough
that
no
disciplinary proceedings can be continued
against the employee after retirement
unless and until rules governing such
proceedings provided for the same and
even if they are continued then major
penalties like termination or dismissal
cannot
be
inflicted
upon
a
retired
employee. Learned counsel appearing for
the respondents could not show any
provision of law that permits the authorities
to continue disciplinary proceedings after
retirement of an employee and to impose
penalty in the nature it is awarded.

16. From the perusal of the order of
this Court as well as the order of the
Supreme Court a three decade old issue of
entry into the service of establishment
should not have been reopened at the fag
end of service career of an employee.

17. Besides the above further I find
that a number of enquiries one after another
got conducted and while one enquiry said
that original documents were not available,
the other enquiry said that the document
supplied could not be appreciated as certain
extracts of an old torn register were only
available. Petitioner has worked for so
many years with the establishment and also
received promotions obviously for his good
work and conduct and there has never been
any complaint against him regarding the
same.

18. One must understand that an
employee has toiled for over three decades
in the service of the establishment and there
being no complaint with regard to work and
conduct of such an employee, he does not
deserve to be reawarded with penalty of
dismissal/removal from service just for a
document submitted at the time of entry
6 All. Preeti & Anr. Vs. State of U.P. & Ors.
39
into service, verification of which was not
possible as the original records got weeded
out and destroyed with the passage of time.
While it may be true that furnishing a
forged document would not justify the
appointment obtained on the said basis but
for that appropriate time would be a
reasonable one when proper verification of
such a document could be done. Again the
question is that at whose instance enquiry is
set up, is equally important. It is the duty of
those who are responsible for making
selection and appointment to verify all the
credentials of a candidate before giving
appointment but once after due verification
entry is given, then it should be only an
exceptional circumstance to annul the
appointment. A third party complaint
should normally not be entrained as of
compulsion. Establishment must safeguard
its
employees'
interest
first
while
embarking upon an enquiry at the instance
of a third partly complaint which may often
be made with ulterior and illmotives.

19. In view of aforesaid, the order
dated 17.04.2018 passed by respondent no.
4 awarding the petitioner punishment of
dismissal from service and the order dated
12.06.2019 passed by respondent no. 3
rejecting the appeal are hereby quashed.
The writ petition succeeds and is allowed.
The petitioner is held entitled to all
consequential benefits.
----------
(2022)06ILR A39
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 10680 of 2021

Preeti & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shantanu Khare, Sri Ashok Khare (Sr. Adv.),
Sri Siddharth Khare

Counsel for the Respondents:
C.S.C., Sri Ajay Kumar Sharma, Sri Manish Dev,
Ms. Dolly Dwivedi, Ms. Archana Singh

A. Service Law - Denial of mutual interdistrict transfer - U.P. Basic Education
(Teachers) (Posting), Rules, 2008 - Rule 8,
8(2)(d) - There was no fault of the
petitioners in not submitting application
for mutual transfer online as the fault is
attributed to the respondents in not giving
any further time to permit the eligible
teachers to submit online application who
could not submit the same in view of Para
2(1)(a) of the GO dated 02.12.2019 limiting
the applicability of the GO to the male teachers
who have completed three years of service on
the date of issuance of GO. In such view of the
fact, the first ground on which the claim of
petitioners is denied, is not sustainable in law.
(Para 24 to 26)

The facts as emerges in the present petition are
that the petitioner nos. 1 & 2 have been
appointed
on 01.11.2018 and 08.02.2018
respectively. Under the GO dated 02.12.2019 on
account of limitation imposed u/Para 2(1)(a),
the petitioner no. 2 having not completed three
years of service could not submit his transfer
application online inasmuch as the eligibility was
to be computed u/Clause 17 of the said GO on
the date of the GO permitting submission of
applications. Once the condition enumerated in
Para 2(1)(a) of the GO dated 02.12.2019 was
excluded in case of mutual transfer by virtue of
GO dated 16.02.2021, the petitioners became
eligible to submit application for grant of mutual
transfer. On being eligible for mutual transfer,
the petitioners submitted application for mutual
transfer. The authorities did not consider their
application for mutual transfer which gave rise
to the petitioners for filing present petition.
(Para 23)

It is obvious that to extend the benefit of GO
dated 16.02.2021 to eligible teachers, the State