# Ram Surat Chaudhary v. State of U.P & Ors

- **Citation:** (2021) 7 ILRA 714
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-29
- **Case number:** Service Single No. 28509 of 2018
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-surat-chaudhary-v-state-of-u-p-ors-47259
- **Pages:** 5

## Headnote

Law
-
Continuation
of
disciplinary proceeding after retirement -
U.P.
Cooperative
Societies
Employees
Service
Regulations,
1975
-
U.P.
Cooperative Societies Employees Service
22nd Amendment Regulations, 2018.

Under the Regulations, 1975, there was no
provision to continue the disciplinary proceeding
after the retirement of the employee. The State
Government amended the rule vide notification
dated 27.8.2018, which is known as U.P. Cooperative Societies Employees Service 22nd
Amendment Regulations, 2018, wherein under
Regulation 85, it was notified that the disciplinary
proceeding can be continued after retirement, if
applicable rules permit. (Para 14, 15)

In absence of any provision to continue
the
disciplinary
proceeding
after
retirement, the same cannot be continued.
Once there was no provision (under the rules
applicable i.e. Regulations, 1975), at the time of
retirement of the petitioner, to continue the
disciplinary proceeding after retirement, the
same becomes non est in the eyes of law after
retirement of the petitioner on 29.2.2016.
Therefore, stoppage of payment of post retiral
dues to him cannot be held to be legally
sustainable. (Para 9, 16, 18, 19)

Challenge to disciplinary proceeding - The
proceeding due to non existence of provisions at
the time of retirement cannot be continued,
thus the challenge to said proceeding is futile
exercise. (Para 17)

Payment of interest on the gratuity
amount and other dues - The payment of
gratuity was made to the petitioner after some
time from the date of retirement, therefore, the
petitioner is entitled to get simple interest on
the delayed payment after the retirement. In
regard to the payment of other dues like leave
encashment and security deposit, the petitioner
is entitled for simple interest on the amount due
to be paid like leave encashment and security
deposit. (Para 19)
Writ petition allowed. (E-3)

Precedent cited:

## Text

714 INDIAN LAW REPORTS ALLAHABAD SERIES

Provided further that no order
under the first proviso shall be made except
after
giving
the
person
effected
a
reasonable opportunity of being heard in
the matter.

(2) The procedure prescribed for
appeal applies also to application for
revision. An application for revision of an
order
rejecting
an appeal
shall
be
accompanied by a copy of the original
order as well as the order of appellate
authority."

13. Rule 25 of Rules of 1991 is an
enabling provision under which the State
Government has been empowered to
confirm, modify or revise the order passed
by any such authority or direct that a
further enquiry be held in a case or reduce
or enhance the penalty imposed by the
order or make such other order in the case
as it may deem fit on its own motion or
otherwise after calling for and examining
the records of any case decided by the
authority, subordinate to it. It does not
mean that a delinquent employee without
exhausting the statutory remedy of appeal
and revision as provided under Rules 20
and 23 of Rules of 1991 can avail the
powers of State Government under Rule 25
of
Rules
of
1991
by
making
a
representation. In case the argument of
learned counsel for the petitioner in this
regard is accepted, it will frustrate the
entire scheme of Rules as provided under
Rules of 1991 relating to punishment and
the appeal and revision thereafter.

14. We cannot accept the arguments
made in this regard by learned counsel for
the petitioner.

15. Now, if we examine the impugned
judgment and order dated 28.06.2021,
passed by learned Tribunal, we see that the
learned Tribunal has dealt, in detail, the
provisions under Rules of 1991 and the
relevant legal position with respect to the
limitation in approaching the Court.

16. Learned Tribunal has rightly
relied on the law laid down by the Apex
Court in the case of S.S. Rathor Vs. State
of Madhya Pradesh and others;1 and
judgment of this court in the case of Dr.
Anil Kumar Agrawal Vs. State of U.P. and
others;2. Learned Tribunal has rightly
come to the conclusion that the claim
petition preferred by the petitioner was
time barred and, as such, is liable to be
rejected.

17. We do not find any infirmity or
illegality in the impugned judgment and
order dated 28.06.2021, passed by U.P.
State Public Service Tribunal, Lucknow in
Claim Petition No.2321 of 2018; Amol
Kumar Sharma Vs. State of U.P. and
others.

18. The writ petition being devoid of
merit is dismissed.
----------
(2021)07ILR A714
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.06.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Single No. 28509 of 2018

Ram Surat Chaudhary ...Petitioner
Versus
State of U.P & Ors. ...Respondents

Counsel for the Petitioner:
Rakesh
Chandra
Tewari,
Gyan
Prakash
Srivastava
7 All. Ram Surat Chaudhary Vs. State of U.P. & Ors.
715
Counsel for the Respondents:
C.S.C., Shireesh Kumar, Vinod Singh

A.
Service
Law
-
Continuation
of
disciplinary proceeding after retirement -
U.P.
Cooperative
Societies
Employees
Service
Regulations,
1975
-
U.P.
Cooperative Societies Employees Service
22nd Amendment Regulations, 2018.

Under the Regulations, 1975, there was no
provision to continue the disciplinary proceeding
after the retirement of the employee. The State
Government amended the rule vide notification
dated 27.8.2018, which is known as U.P. Cooperative Societies Employees Service 22nd
Amendment Regulations, 2018, wherein under
Regulation 85, it was notified that the disciplinary
proceeding can be continued after retirement, if
applicable rules permit. (Para 14, 15)

In absence of any provision to continue
the
disciplinary
proceeding
after
retirement, the same cannot be continued.
Once there was no provision (under the rules
applicable i.e. Regulations, 1975), at the time of
retirement of the petitioner, to continue the
disciplinary proceeding after retirement, the
same becomes non est in the eyes of law after
retirement of the petitioner on 29.2.2016.
Therefore, stoppage of payment of post retiral
dues to him cannot be held to be legally
sustainable. (Para 9, 16, 18, 19)

Challenge to disciplinary proceeding - The
proceeding due to non existence of provisions at
the time of retirement cannot be continued,
thus the challenge to said proceeding is futile
exercise. (Para 17)

Payment of interest on the gratuity
amount and other dues - The payment of
gratuity was made to the petitioner after some
time from the date of retirement, therefore, the
petitioner is entitled to get simple interest on
the delayed payment after the retirement. In
regard to the payment of other dues like leave
encashment and security deposit, the petitioner
is entitled for simple interest on the amount due
to be paid like leave encashment and security
deposit. (Para 19)
Writ petition allowed. (E-3)

Precedent cited:

1. Dev Prakash Tewari Vs Uttar Pradesh
Cooperative Institutional Service Board, Lko &
ors., (2014) 7 SCC 260 (Para 9)

Present
petition
assails
order
dated
24.12.2013 and 29.01.2014, chargesheet
dated 23.06.2014 and the showcause
notice dated 31.01.2015.

(Delivered by Hon'ble Irshad Ali, J.)

1. In view of COVID-19 pandemic,
this case is being heard through video
conferencing.

2. Heard Sri R.C. Tewari, learned
counsel for the petitioner, Sri Shireesh
Kumar, learned counsel for respondent
Nos.2&3 and learned ACSC for respondent
No.1- State.

3. By means of present writ petition,
the petitioner has prayed as under:

"i) Issue a writ, order or direction
in the nature of Certiorari quashing the
disciplinary proceedings pursuant to the
impugned order dated 24.12.2013 &
29.01.2014, impugned chargesheet dated
23.06.2014 & the showcause notice dated
31.01.2015.

ii) Issue a writ, order or direction
in the nature of Certiorari quashing the
impugned order dated 24.12.2013 &
29.01.2014 (after summoning the same
from the opposite parties as the same is not
available with the petitioner), impugned
chargessheet
dated
23.06.2014
(as
contained in ANNEXURE NO.02 to this
writ petition) & showcause notice dated
716 INDIAN LAW REPORTS ALLAHABAD SERIES
31.01.2015 (as contained in ANNEXURE
NO.04 to this writ petition).

iii) Issue a writ, order or direction
in the nature of Mandamus commanding
/directing the opposite parties to pay the
petitioner
Leave
Encashment,
Security
Deposits along with interest on the delayed
payment of the aforesaid dues as well as
interest on the delayed payment of gratuity
which has been given to the petitioner after
more than 2 years of retirement.

iv) Such other order or direction
deemed just and proper in the circumstances
of the case, may also be passed.

v) Allow the writ petition with
costs."

4. Brief fact of the case is that the
petitioner while holding the post of Assistant
Manager (Accounts) in U.P. Cooperative
Federation Ltd. retired from service on
29.02.2016. After the retirement, vide order
dated 17.09.2018 the petitioner was the
amount of gratuity, however, he has not been
paid interest on delayed payment of gratuity
and amount of leave encashment and security
deposit.

5. In the short counter affidavit filed by
respondent - Federation, it has been stated that
the rules governing service conditions of the
petitioner was amended vide notification
published in the official gazette on 27.08.2018
providing that in case the employees of
respondent - department retired pending
disciplinary
proceeding,
the
same
will
continue and conclude after his retirement.

6. Learned ACSC also submitted that
at the time of retirement, there was no rule
prescribing continuance of disciplinary
proceeding of retired employee. The rule
was subsequently amended and it was
incorporated vide notification issued on
27.08.2018.

7. Learned counsel for the petitioner
submitted that the petitioner retired from
service on 29.02.2016 and in absence of
any provision to continue the disciplinary
proceeding as soon as the petitioner retired,
the disciplinary proceeding became nonest
in the eyes of law.

8. He next submitted that even though
the
amended
rule
was
notified
on
27.08.2018, the proceeding, which has
become nonest, cannot be revised in view
of amendment incorporated in the rules.

9. In support of his submission he
placed reliance upon a judgment in the case
of Dev Prakash Tewari Vs. Uttar
Pradesh
Cooperative
Institutional
Service Board, Lucknow and others;
(2014) 7 Supreme Court Cases 260 and
submitted that similar controversy in this
regard has been decided that in absence of
any provision to continue the disciplinary
proceeding after retirement, the same
cannot be continued. He further submitted
that the petitioner retired from service on
29.02.2016 and payment of gratuity has
been made to him on 17.09.2018, however,
no interest on delayed payment of gratuity
has been made to him, therefore, he
requested that in case direction is issued for
payment of interest on the amount due to
be paid, ends of justice would be met.

10. On the other hand, learned
counsel for the respondent Nos.2&3
submitted that the submission advanced by
learned counsel for the petitioner in regard
to provision to continue the disciplinary
proceeding was not in existence under the
rules at the time of retirement but it was
7 All. Ram Surat Chaudhary Vs. State of U.P. & Ors.
717
incorporated
vide
notification
dated
27.08.2018,
therefore,
treating
the
petitioner
to
be
under
disciplinary
proceeding, the payment was stopped. He
further submitted that there is no delayed
payment of gratuity to the petitioner,
therefore, he is not entitled for payment of
interest on the amount due to be paid.

11. Learned ACSC also followed the
submission advanced by learned counsel
for respondent Nos.2 & 3 that although in
the existing rule at the time of retirement of
the petitioner there was no provision to
continue the disciplinary proceeding after
the retirement, however, after amendment
in the rules, it was treated that against him
there is a disciplinary proceeding pending
and the payment was stopped.

12. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record as well
as submissions of learned counsel for the
parties on the payment of interest on
amount of gratuity.

13. To resolve the controversy
involved in the writ petition, I have perused
the
U.P.
Co-operative
Societies
Employees Service Regulations, 1975.

14. Under the rules, there is no
provision to continue the disciplinary
proceeding after the retirement of the
employee. The State Government amended
the rule vide notification dated 27.08.2018,
which is known as U.P. Co-operative
Societies
Employees
Service
22nd
Amendment Regulations, 2018, wherein
under Regulation 85, following amendment
was made:

"Amendment of regulation-85:

2- In the Uttar Pradesh Cooperative Societies Employees Service
Regulations, 1975, in regulations 85, after
sub regulation (X) the following sub
regulation shall be inserted, namely:-

(XI) Rules regarding disciplinary
proceedings after retirement applicable for
the employees of the State Government,
shall also be applicable for the employees
of the Co0operative Society with due
modification from time to time:

Explanation- For the purposes of
this sub rules, the word, "Governor" has
been used under the rules of the State
Government, the word "Register" shal be
deemed to be substituted.

(vii) If an employee retires from
the service while disciplinary proceeding
against him is already in operation, the
disciplinary proceedings will continue after
his retirement."

15. On its perusal, it is evident that
under the rules it has been provided that
the same will be made effective from the
date of its publication in the official
gazette. The rule was published in the
official gazette on 27.08.2018. Law is
settled in this regard that the disciplinary
proceeding
can
be
continued
after
retirement, if applicable rules permit.

16. Here, in the present case, it is
admitted case of the parties that at the
time of retirement of the petitioner, under
the
rules
applicable
there
was
no
provision to continue the disciplinary
proceeding
against
the
petitioner,
therefore, stoppage of payment of post
retiral dues to him cannot be held to be
legally sustainable.
718 INDIAN LAW REPORTS ALLAHABAD SERIES

17. In regard to challenge of
disciplinary proceeding in the present writ
petition, it is recorded that the proceeding
due to non existence of provisions at the
time of retirement cannot be continued,
thus the challenge to said proceeding is
futile exercise.

18. In view of the above, I am of the
considered opinion that once there was no
provision to continue the disciplinary
proceeding after retirement, the same
becomes nonest in the eyes of law after
retirement of the petitioner on 29.02.2016.

19. Accordingly, the disciplinary
proceeding initiated against the petitioner
prior to his retirement is declared nullity
and the same cannot be continued. In
regard to the payment of interest on the
gratuity amount already paid to the
petitioner, it is recorded that the payment of
gratuity was made to the petitioner after
some time from the date of retirement,
therefore, the petitioner is entitled to get
simple interest on the delayed payment
after the retirement. In regard to the
payment
of
other
dues
like
leave
encashment and security deposit, once this
Court has held that the disciplinary
proceeding is not permitted as per the rules
applicable
against the petitioner and
amendment was incorporated on 27.8.2018,
the petitioner is entitled for simple interest
on the amount due to be paid like leave
encashment and security deposit.

20. In view of the finding recorded
above, the petition succeeds and is allowed.

21. The respondents are directed to
release the post retiral dues to the petitioner
like interest on gratuity, leave encashment
and security deposit with simple interest of
8% within a period of two months from the
date of production of a certified copy of
this order.
----------
(2021)07ILR A718
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.07.2021

BEFORE

THE HON'BLE ABDUL MOIN, J.

Service Single No. 14055 of 2021

Sandeep Kumar Pandey ...Petitioner
Versus
State of U.P & Anr. ...Respondents

Counsel for the Petitioner:
Rakesh Chandra Tewari

Counsel for the Respondents:
C.S.C.

A. Service Law - Suspension - Central Civil
Services (Class, Control & Appeal) Rules,
1965 - Rule 10 - U.P. Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
4(8).

Petitioner placed reliance on the judgment of
Ajay Kumar Choudhary (infra), to contend that
the suspension order should not extend beyond
three
months
if
within
this
period
the
memorandum of charges/charge sheet is not
served on the delinquent officer/employee.
(Para 9)

It was observed that petitioner would be
governed by the provisions of the U.P.
Government Servant (Discipline and Appeal)
Rules, 1999 (1999 Rules). Rule 4 of 1999 Rules
pertains to suspension of a State Government
employee. The said rule does not contain any
stipulation of the order of a suspension
becoming invalid after 90 days or three months,
rather Rule 4(8) of 1999 Rules itself stipulates
that any suspension ordered or deemed to have
been ordered shall continue to remain in force
unless and until it is modified or revoked by the
competent authority. (Para 18)