# Mahendra Nath Sharma v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 777
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-09
- **Case number:** Writ - A No. 4338 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-nath-sharma-v-state-of-u-p-ors-51478
- **Pages:** 7

## Headnote

A. Service Law - Disciplinary Proceedings
Post-Retirement - Lack of Jurisdiction -
Petitioner,
a
retired
Senior
Warehouse
Superintendent, challenged the order dated
12.05.2010
imposing
a
recovery
of
Rs.
12,60,586/- from his post-retirement benefits
for alleged negligence, and the appellate order
dated 13.06.2019 - Held, under the U.P. St.
Warehousing Corporation Staff Regulations,
1961, there is no provision akin to Regulation
351-A of the Civil Service Regulations allowing
continuation of disciplinary proceedings against
a retired employee - The employer's disciplinary
778 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction ends upon superannuation, and no
statutory provision extended the Corporation's
authority to penalize the petitioner postretirement on 31.07.2009 - Impugned orders
quashed as nullity for lack of jurisdiction. (Paras
5, 10, 11, 12, 15, 16)

B. Service Law - Statutory Regulations Vs
Contractual Employment - The employment
relationship in the U.P. St. Warehousing
Corporation is governed by statutory Staff
Regulations, 1961, framed under Section 42 of
the Warehousing Corporations Act, 1962, not by
contract - Held, in the absence of a specific
provision
in
the
Regulations
permitting
continuation of disciplinary proceedings postretirement, the Corporation lacked authority to
impose
penalties
after
the
petitioner's
superannuation
-
General
principle
that
employer's disciplinary jurisdiction ceases upon
retirement upheld, as no statutory fiction
extended such jurisdiction. (Paras 10, 11, 12)

C. Service Law - Precedents on PostRetirement Disciplinary Proceedings -
Relying on *Dev Prakash Tewari Vs U.P.
Cooperative Institutional Service Board* and
*Rishi Pal Singh Vs St. of U.P.*, the court held
that without explicit provisions in the governing
regulations, disciplinary proceedings cannot
continue post-retirement, and any penalty
imposed is invalid - Held, the Corporation's
failure to cite any enabling provision in the
Regulations, coupled with judicial precedents,
confirmed that the disciplinary proceedings
lapsed upon petitioner's retirement, entitling
him to full retiral benefits. (Paras 12, 13, 14, 15)

Writ Petition Allowed - Orders Dated
12.05.2010 and 13.06.2019 Quashed -
Petitioner Entitled to Full Retiral Benefits.

List of Cases cited:

## Text

2 All. Mahendra Nath Sharma Vs. State of U.P. & Ors.
777
This case is very similar to the
situation that arose in G.M. Tank (supra).

30. In so far as criminal trial is
concerned in respect of present petitioner
being sessions trial no. 381 of 2018 not
only
the
accused
persons
including
petitioner were acquitted giving them
benefit of doubt but the Court has
proceeded for institution of a case under
Section 344 of the Cr.P.C. against
complainant Nagesh @ Kanhaiya. The
proceedings under Section 344 are to be
instituted against a person who gives false
evidence. The entire criminal case got
instituted against petitioner and other
persons only on the complaint of one
Kanhaiya Lal and so also on that basis
disciplinary proceeding was instituted. In
the criminal trial, the Court having rejected
all false evidence led by the prosecution
witness Nagesh @ Kanhaiya directed for
issuance of notice to him vide judgment
dated 31st July 2023 Enquiry Officer in the
departmental proceeding has also found
charges not proved against the petitioner.
Thus there was no occasion for the
disciplinary authority to have issued notice
for major penalty.

31. Having not discussed anything on
facts to justify disagreement with findings
arrived
in
the
enquiry
report,
the
disciplinary authority is not justified in
taking the view that petitioner deserved
punishment of dismissal/termination even
without charges being proved. Thus, I am
not able to sustain show cause notices
issued to the petitioner on 30.12.2018 and
10.06.2019 and so also the final order of
punishment.

32. In view of the above, writ petition
succeeds and is allowed . The order of
dismissal dated 19th March, 2020, and the
appellate authority and revisional order
dated 20.08.2020 and 30.12.2020 as well as
first and second show cause notices issued
on 30.12.2018 and 10.06.2019 respectively
are hereby quashed.

33. Consequences to follow.

34. The disciplinary authority is
directed to reconsider the matter to take
decision afresh on the basis of enquiry
report, if it so wishes and desires.
----------
(2024) 2 ILRA 777
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ - A No. 4338 of 2019

Mahendra Nath Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashutosh Tripathi

Counsel for the Respondents:
C.S.C., Sri Girijesh Kumar Tripathi (Addl.
C.S.C.), Sri O.P. Singh (Sr. Advocate), Sri
Sushil Kumar Rao

A. Service Law - Disciplinary Proceedings
Post-Retirement - Lack of Jurisdiction -
Petitioner,
a
retired
Senior
Warehouse
Superintendent, challenged the order dated
12.05.2010
imposing
a
recovery
of
Rs.
12,60,586/- from his post-retirement benefits
for alleged negligence, and the appellate order
dated 13.06.2019 - Held, under the U.P. St.
Warehousing Corporation Staff Regulations,
1961, there is no provision akin to Regulation
351-A of the Civil Service Regulations allowing
continuation of disciplinary proceedings against
a retired employee - The employer's disciplinary
778 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction ends upon superannuation, and no
statutory provision extended the Corporation's
authority to penalize the petitioner postretirement on 31.07.2009 - Impugned orders
quashed as nullity for lack of jurisdiction. (Paras
5, 10, 11, 12, 15, 16)

B. Service Law - Statutory Regulations Vs
Contractual Employment - The employment
relationship in the U.P. St. Warehousing
Corporation is governed by statutory Staff
Regulations, 1961, framed under Section 42 of
the Warehousing Corporations Act, 1962, not by
contract - Held, in the absence of a specific
provision
in
the
Regulations
permitting
continuation of disciplinary proceedings postretirement, the Corporation lacked authority to
impose
penalties
after
the
petitioner's
superannuation
-
General
principle
that
employer's disciplinary jurisdiction ceases upon
retirement upheld, as no statutory fiction
extended such jurisdiction. (Paras 10, 11, 12)

C. Service Law - Precedents on PostRetirement Disciplinary Proceedings -
Relying on *Dev Prakash Tewari Vs U.P.
Cooperative Institutional Service Board* and
*Rishi Pal Singh Vs St. of U.P.*, the court held
that without explicit provisions in the governing
regulations, disciplinary proceedings cannot
continue post-retirement, and any penalty
imposed is invalid - Held, the Corporation's
failure to cite any enabling provision in the
Regulations, coupled with judicial precedents,
confirmed that the disciplinary proceedings
lapsed upon petitioner's retirement, entitling
him to full retiral benefits. (Paras 12, 13, 14, 15)

Writ Petition Allowed - Orders Dated
12.05.2010 and 13.06.2019 Quashed -
Petitioner Entitled to Full Retiral Benefits.

List of Cases cited:

1. Rishi Pal Singh Vs St. of U.P. & anr., Neutral
Citation No. 2017:AHC:73316-DB

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

3. Bhagirathi Jena Vs Orissa St. Financial
Corpn., (1999) 3 SCC 666
4. U.P. Coop. Federation Ltd. Vs L.P. Rai, (2007)
7 SCC 81

5. Chatter Sen Vs St. of U.P. & anr., 2015 (33)
LCD 2724

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against an order dated 12.05.2010 passed
by the Managing Director, U.P. State
Warehousing Corporation, punishing the
petitioner,
a
former
Warehouse
Superintendent
post
retirement,
with
recovery of a sum of Rs.12,60,586/-.

2. The facts giving rise to this petition
are:

The
petitioner
was
a
Senior
Warehouse Superintendent with the U.P.
State Warehousing Corporation (for short,
'the Corporation'). He retired from the
Corporation's employ upon attaining the
age of superannuation on 31st July, 2009.
He
had
joined
the
service
of
the
Corporation in the year 1971 as a Clerk and
was a permanent employee. In course of
time, he was promoted to the post of a
Senior
Warehouse
Superintendent.
Disciplinary proceedings were instituted
against the petitioner with the issue of a
charge-sheet dated 08.11.2005. It carried
allegations marshalled into five charges, all
about
negligence
in
the
matter
of
maintenance of records and storage of rice,
leading
to
loss
sustained
by
the
Corporation.

3. The petitioner submitted his reply
to the charge-sheet on 18.11.2005, denying
the charges. He offered his explanation to
each of the charge. The Inquiry Officer
submitted
an
inquiry
report
dated
17.01.2006, holding the petitioner guilty of
all the charges and finding him negligent in
2 All. Mahendra Nath Sharma Vs. State of U.P. & Ors.
779
taking care of the stored stock at the
Centre, laxity in control, deficiency in
upkeep of records, storage of substandard
rice and detection of damage to the stored
rice beyond the approved limits by the
Food Department.

4. The petitioner superannuated from
the
service
of
the
Corporation
on
31.07.2009 without any final orders being
made
in
the
pending
disciplinary
proceedings. The Managing Director of the
Corporation passed the order impugned
dated 12.05.2010, notifying a decision of
the Executive Committee dated 19.04.2010,
holding the total loss occasioned to the
Corporation on account of misfeasance
charged against the petitioner and three
other
employees
in
the
sum
of
Rs.25,21,171.38. Apportioning the liability
between the petitioner and the three other
employees, the petitioner was held liable to
make good a loss of Rs.12,60,586.19 from
his post retirement benefits and other
assets. It was also resolved that the
petitioner's subsistence allowance, that he
had received during the period he was
under suspension, that is to say, between
16.09.2005 and 17.05.2009, alone would be
payable. This decision of the Executive
Committee was notified and enforced
through the order impugned passed by the
Managing Director on 12.05.2010. It was
directed that in order to realize the sum of
Rs.12,60,586.19 to be recovered from the
petitioner's post retirement benefits and
other dues, the sum of money payable to
him on account of four increments that he
had earned between 1st March, 2006 to 1st
March, 2009, would be adjusted.

5. It appears that the petitioner
preferred an appeal dated 06.07.2010 and a
supplementary appeal dated 10.02.2011,
challenging the order of the Disciplinary
Authority dated 12.05.2010, raising a
ground that there is no jurisdiction with the
Corporation
under
the
U.P.
State
Warehousing
Corporation
Staff
Regulations,
1961
(for
short,
'the
Regulations') to pass the impugned order,
inasmuch as there was no provision in the
Regulations
to
continue
disciplinary
proceedings against a retired employee. As
such, the proceedings lapsed and the
impugned order was a nullity.

6. The petitioner has raised a
grievance that this appeal preferred on
06.07.2010 has remained pending for years
together - as long as nine years - with no
result or information about its disposition
being conveyed to the petitioner. It was in
these circumstances that the petitioner
invoked our jurisdiction under Article 226
of the Constitution, praying that the
impugned order be quashed on the basis of
grounds raised.

7. A counter affidavit has been filed
on behalf of respondent No.2 dated
08.04.2019, to which a rejoinder has been
filed by the petitioner. A supplementary
counter affidavit has also been filed on
behalf of the Corporation on 20th January,
2023.

8. Heard Mr. Ashutosh Triptahi,
learned Counsel for the petitioner, Mr. O.P.
Singh, Senior Advocate assisted by Mr.
Sushil
Kumar
Rao, learned
Counsel
appearing on behalf of the Corporation and
Mr. Girijesh Kumar Tripathi, learned
Additional
Chief
Standing
Counsel
appearing for the State.

9. This Court must remark that the
petitioner's appeal carried to the Board of
Directors of the Corporation was kept
pending for an unpardonably long period of
780 INDIAN LAW REPORTS ALLAHABAD SERIES
time, that is to say, from 06.07.2010 to
13.06.2019, a period of almost nine years.
Departmental remedies are meant to be
remedies
of
convenience;
not
inconvenience or a trap for the indefinite
postponement of determination of an
employee's
rights.
Now,
that
the
departmental appeal has been rejected by
the order dated 16.06.2019, a copy of
which has been brought on record through
the
supplementary
counter
affidavit
dated12.01.2023, this Court is of opinion
that there is no impediment for this Court
to hear this writ petition on merits. Even if
the appeal had not been decided, there was
no impediment, because an alternative
remedy after all does not oust the
jurisdiction of this Court. If this Court finds
that the remedy is being utilized as an
abuse of the statutory process, it can and
ought to be ignored in the interest of
justice.

10. The short question involved in
this petition is: If it was within the
jurisdiction of the Corporation to continue
pending disciplinary proceedings against
the petitioner post retirement and pass the
order impugned, punishing him in the
exercise of their disciplinary jurisdiction?
The
general
principle
is
that
the
disciplinary jurisdiction of the employer
comes to an end with the end of the
employer-employee relationship, upon the
employee's
superannuation.
Generally,
therefore, the employer ceases to exercise
any kind of the employer's authority, vis-avis his quondam employee upon the latter's
exit from service in consequence of
superannuation. The relationship of an
employer and employee in case of the
Government
or
Government
owned
corporations, like the Corporation, which
have a constitutive statute of their own, is
more often than not governed by statutory
rules, generally called service rules. The
relationship between the employer and the
employee in such establishments, that have
statutory service rules is not governed by
contract, which is otherwise invariably the
case. In case of any other private employer
or even a State employer, where there are
no statutory Service Rules governing the
terms and conditions of employment, the
rights,
liabilities
and
duties
of
the
employer, vis-a-vis the employee, are
governed by contract. However, wherever
there are statutory Service Rules governing
the terms of employment, the relationship
between the employer and employee is not
governed by contract. It is a status.

11. Here, there are Regulations in
force governing the terms and conditions of
service
for
the
petitioner.
These
Regulations are framed by the Corporation
in the exercise of powers conferred upon
them by Section 42 of the Warehousing
Corporations Act, 1962 (No.58 of 1962). If
these Service Rules were to provide in
terms akin to Regulation 351-A of the Civil
Service Regulations, which permit the
employer
to
hold/
continue
pending
disciplinary
proceedings,
after
the
employee's
retirement
and
impose
penalties, it would have been a different
matter. A provision of that kind in the
Regulations would then, by fiction of law,
extend
the
employer's
disciplinary
jurisdiction over a retired employee,
against whom proceedings were initiated
prior to his retirement. Some regulations
invest employer with powers to initiate
proceedings against their employees post
retirement up to a certain period of time, of
course, with permission of some higher
authority. It is, thus, only by dint of statute
that the employer can enjoy extended
disciplinary jurisdiction over his retired
employee; not otherwise.
2 All. Mahendra Nath Sharma Vs. State of U.P. & Ors.
781

12. There is hardly cavil on the issue
that the Regulations do not empower the
Corporation any kind of disciplinary
jurisdiction over their retired employees,
enabling them to continue disciplinary
proceedings post retirement. Reference in
this connection may be made to the
decision of this Court in Rishi Pal Singh v.
State of U.P. and another, Neutral
Citation No. 2017:AHC:73316-DB, where
it has been held:

"We
have
considered
the
submissions raised and having heard
learned counsel for the parties, no provision
has been pointed out to be available under
the U.P. State Warehousing Corporation
Staff Regulation, 1961, that may permit the
Corporation to proceed to hold disciplinary
proceedings and impose any penalty on its
employees governed by the aforesaid
Regulations
under
the
same
after
retirement. There is no such provision pari
materia with Regulation 351-A of the Civil
Services Regulation. The Division Bench
in the case of Dhananjay Prasad Pandey
(supra) has held as follows:-

"The petitioner was to retire on
31 October 2014 and it appears that for this
reason action was taken against the
petitioner because the Rules do not permit
initiation or continuance of disciplinary
proceedings after retirement. The action of
the respondents is clearly arbitrary and
against the principles of natural justice."

The aforesaid case was in relation
to the Warehousing Corporation itself. The
same ratio has been followed in the case of
Surendra
Singh
(supra)
decided
on
22.02.2017, as referrred to hereinabove.

Consequently, since there is no
such provision available under which the
disciplinary proceedings can be continued
or penalty imposed, as a consequence there
of, the writ petitions deserve to be
allowed." (emphasis by Court)

13. In Dev Prakash Tewari v. Uttar
Pradesh
Cooperative
Institutional
Service Board, Lucknow and others,
(2014) 7 SCC 260, the issue that is
involved here came up before the Supreme
Court in the context of the Uttar Pradesh
Cooperative Societies Employees' Service
Regulations, 1975. In those regulations
also, there was no provision at the time for
initiation or continuation of disciplinary
proceedings against a retired employee.
The employer in Dev Prakash Tewari
(supra) initiated disciplinary proceedings
against an employee of theirs, whose earlier
punishment order was quashed on grounds
of violation of principles of natural justice
with a direction to reinstate. Liberty was,
however, was granted to pursue fresh
proceedings. Pending those proceedings,
the employee retired. It was in the context
of these facts that in Dev Prakash Tewari,
it was held by their Lordships of the
Supreme Court:

"5. .......... There is no provision
in the Uttar Pradesh Cooperative Societies
Employees' Service Regulations, 1975, for
initiation or continuation of disciplinary
proceeding after retirement of the appellant
nor is there any provision stating that in
case misconduct is established a deduction
could be made from his retiral benefits.

6. An occasion came before this
Court to consider the continuance of
disciplinary inquiry in similar circumstance
in Bhagirathi Jena case [Bhagirathi Jena v.
Orissa State Financial Corpn., (1999) 3
SCC 666 : 1999 SCC (L&S) 804] and it
was laid down as follows: (SCC pp. 66869, paras 5-7)

"5. Learned Senior Counsel for
the respondents also relied upon clause
782 INDIAN LAW REPORTS ALLAHABAD SERIES
(3)(c) of Regulation 44 of the Orissa State
Financial Corporation Staff Regulations,
1975. It reads thus:

'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
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.'

6. 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.

7. 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 30-6-1995, 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."

7. In a subsequent decision of this
Court in U.P. Coop. Federation case [U.P.
Coop. Federation Ltd. v. L.P. Rai, (2007) 7
SCC 81 : (2007) 2 SCC (L&S) 598] 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 case [Bhagirathi Jena v.
Orissa State Financial Corpn., (1999) 3
SCC 666 : 1999 SCC (L&S) 804] 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.

8. 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.

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."
2 All. Mahendra Pal Sharma Vs. State of U.P. & Ors.
783

14. In similar circumstances, a
learned Single Judge of this Court in
Chatter Sen v. State of U.P. and
another, 2015 (33) LCD 2724 has held
in the context of the Regulations that
the Corporation have no jurisdiction to
initiate
or
continue
disciplinary
proceedings against an employee after
his retirement.

15. The decision of the Supreme
Court in Dev Prakash Tewari clinches the
issue. It has not at all been suggested or
urged by the respondents that there is
indeed any provision in the Regulations
empowering them to continue proceedings
against a retired employee. This Court on a
perusal of the said Regulations has not
found
any
provision
enabling
the
Corporation
to
continue
pending
disciplinary proceedings against a retired
employee.

16. In the result, this writ petition
succeeds and is allowed with costs. The
impugned order dated 12.05.2010 passed
by
the
Managing
Director
of
the
Corporation, the appellate order dated
13.06.2019 passed by the Board of
Directors of the Corporation are hereby
quashed.

17. The consequences shall follow.
Costs easy.
----------
(2024) 2 ILRA 783
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ - A No. 4628 of 2023
Connected with
Writ - A No. 12441 of 2023

Mahendra Pal Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri R.K. Mishra

Counsel for the Respondents:
C.S.C.,
Sri
Abhishek
Srivastava,
Sri
Kaushlendra Nath Singh

A. Service Law - Disciplinary Proceedings
- Forfeiture of Pension - Major penalty
imposed without holding regular inquiry - No
witness examined - No copy of inquiry report
furnished - Violation of principles of natural
justice - Punishment unsustainable.

Held, before imposing a major penalty like
forfeiture of pension, it is imperative that the
disciplinary authority establish charges through
oral and documentary evidence in a duly
convened inquiry, where the delinquent has a
right of defence. Mere reliance on preliminary
inquiry report or interrogatories put by the
Inquiry Officer cannot substitute a valid inquiry.
(Paras 13-17)
B. Service Law - Appellate Authority -
Power of enhancement of punishment -
Must be exercised after fair procedure -
Enhancement of punishment from 3% to 100%
forfeiture of pension - Not sustainable when
inquiry itself is vitiated.

Held, when the foundation of punishment itself
is unlawful, the order of enhancement also falls.
(Paras 9, 17)
C. Departmental Inquiry - Nature of
proceedings - Quasi-judicial function -
Inquiry Officer must act as independent
adjudicator
-
Cannot
assume
role
of
investigator.

Held,
proceedings
conducted
without
examination of witnesses and without proof of
documents vitiate the inquiry. (Paras 14-15)
D. Consequential Orders - Recovery of Pension
already paid - Orders of Accounts Officer and
Treasury Officer - Having no independent basis