# Shiv Ram Verma v. U.P.Coop. Union Ltd. & Ors. 580 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

- **Citation:** High Court of Judicature at Allahabad #42951
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-23
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-ram-verma-v-u-p-coop-union-ltd-ors-580-indian-law-reports-allahabad-series-42951
- **Pages:** 6

## Headnote

Constitution Of India-Art.-226-Service
Law-
continuation
of
disciplinary
proceeding-even
after
retirementwithout
permission
of
competent
authority to do so-contention that as per
term
of
direction
of
Court-enquiry
continued-held-conferment
of
jurisdiction a creation of legislature-it
can not be either by consent of parties or
by direction of Superior Court-impugned
order quashed-petition allowed.

Held: Para-28 & 29

## Text

1 All Shiv Chand Vs. State of U.P. and another
579
section 125 is quite clear and it
circumscribes the power of the Magistrate
to impose imprisonment for a term which
may extend to one month or until the
payment, is sooner made. This power of
the Magistrate cannot be enlarged and
therefore, the only remedy would be after
expiry of one month. For breach or non
compliance with the order of the
Magistrate the wife can approach the
Magistrate again for similar relief. By no
stretch of imagination can the Magistrate
be permitted to impose sentence for more
than one month. In that view of the matter
the High Court was fully justified in
passing the impugned order and we see no
infirmity in the said order to be interfered
with
by
this
Court.
The
appeal
accordingly fails and is dismissed."

9. In the present case, the Judicial
Magistrate, Mau has passed a composite
order of one year rigorous imprisonment
for the default of payment of maintenance
of Rs.48,000/- relating to 60 months.

10. The provisions of Section 125(3)
Cr.P.C. are clear that an application for
recovery of maintenance amount can be
moved for arrears of 12 months. It is also
settled position of law that once the
execution application has been filed and
the husband is in default of payment of
maintenance, then separate execution
proceedings are not required to be
launched but they may continue in the
same execution application. But as far as
the imprisonment in default of payment of
maintenance is concerned, that may
extend to one month or until payment if
sooner made. It is also clear from the
language of the provisions of Section
125(3) Cr.P.C. that for every breach of
order, a warrant can be issued. In view of
the pronouncement of the Hon'ble the
Apex Court in Shahada Khatoon Vs.
Amjad Ali (supra), the powers of the
Magistrate
cannot
be enlarged
and
therefore, the only remedy would be after
expiry of one month. For breach or non
compliance of the order of Magistrate the
wife can approach the Magistrate again
for similar relief. The Magistrate is not
empowered to impose composite sentence
for more than one month.

11. In the present case, the
composite sentence of one year has been
awarded which can not be sustained in
view of the clear provisions of Section
125(3) Cr.P.C. and the law laid down by
Hon'ble the Supreme Court in Shahada
Khatoon Vs. Amjad Ali (supra) therefore,
the impugned order dated 26.7.2010 is
liable to be set aside.

12. However, the wife-opposite
party no.2 shall be at liberty to move
application for recovery of remaining
amount of maintenance and can pray the
Court to issue a warrant in accordance
with law.

13. For the facts and circumstances
mentioned
above,
the
revision
is
accordingly allowed and orders dated
26.7.2010 is set aside.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.04.2013

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Service Single No. 5665 Of 1994.

Shiv Ram Verma ...Petitioner
Versus
U.P.Coop. Union Ltd. & Ors. ...Respondents
580 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

Counsel for the Petitioner:
Sri S.C. Mishra, Sri K.C. Mishra
Mrs. Seema Srivastava
Sri P.N. Bajpai, Sri Rakesh Kr. Srivastava

Counsel for the Respondents:
Sri Rakesh Kumar

Constitution Of India-Art.-226-Service
Law-
continuation
of
disciplinary
proceeding-even
after
retirementwithout
permission
of
competent
authority to do so-contention that as per
term
of
direction
of
Court-enquiry
continued-held-conferment
of
jurisdiction a creation of legislature-it
can not be either by consent of parties or
by direction of Superior Court-impugned
order quashed-petition allowed.

Held: Para-28 & 29
28.
The
law
is
well
settled
that
conferment of jurisdiction is a legislative
function and it cannot be conferred
either with the consent of the parties or
by the superior court. The court cannot
derive jurisdiction to act in a particular
manner from any other source apart
from the statute.

29. Thus in the absence of any statutory
provision
providing
for
initiation
or
continuation of the departmental inquiry
on the retirement of an employee the
same cannot be conferred by a fiat of the
court issued in oblivion of the statutory
rules.

Case Law discussed:
(1999) 3 SCC 666; 2004 (22) LCD 659; 2007
(7) SCC 81;1903 All England Reporter 1.

(Delivered by Hon'ble Pankaj Mithal, J)

1. Heard Sri Rakesh Kumar
Srivastava,
learned
counsel
for the
petitioner and Sri Rakesh Kumar, learned
counsel for the respondents.

2. The petitioner has challenged the
punishment order dated 11.2.1994 and the
appellate order thereto dated 8.8.1994 by
means of this writ petition.

3. The petitioner was appointed as
Cooperative Supervisor and his services
stood absorbed in Cooperative Federal
Authority. He retired there from on
31.7.1991.

4. Before the retirement petitioner
was put under suspension on 26.2.1990.

5. It appears that even before the
suspension
order
was
passed
a
disciplinary inquiry was initiated against
him and a charge sheet dated 9.11.1989
was submitted to him. The date of the
charge sheet is disputed and according to
the petitioner as per annexure-3 it is 8th
January, 1990.

6. The date of charge sheet either
9.11.1989
or
8.1.1990
makes
no
difference in so far as the present writ
petition is concerned as in either case it
happens to be prior to the retirement of
the petitioner.

7. The suspension order passed
against the petitioner was challenged by
him by filing writ petition No. 4542 of
1990, Shiv Ram Verma Vs. U.P.
Cooperative Union Ltd. And others. The
said writ petition was disposed of vide
judgment and order dated 17.9.1991 with
certain
observations
which
included
direction to conclude inquiry within three
months from the date of furnishing copies
of the documents to the petitioner and in
case the inquiry is not concluded within
the aforesaid period, the suspension shall
stand revoked but the inquiry shall
continue.
1 All Shiv Ram Verma Vs. U.P. Coop. Union Ltd. & others
581

8.

Ultimately,
an
order
of
punishment was passed on 11.12.1994
directing not to pay any salary to the
petitioner for the period of suspension
other than subsistence allowance and to
recover a sum of Rs.21,838/- with 16%
interest as a loss caused to the department
by the action of the petitioner.

9. The departmental appeal against it
was dismissed on 8.8.1994.

10. Challenging the above two
orders, the primary submission of learned
counsel for the petitioner is that as there is
no provision under the U.P. Cooperative
Federal Authority (Business) Regulations,
1976 for initiating or continuing a
departmental inquiry on the retirement of
an employee. The order of punishment is
therefore, without jurisdiction. In support
of the above argument learned counsel for
the petitioner has relied upon a decision
of the Supreme Court in Bhagirathi Jena
Vs. Board of Directors, O.S.F.C. and
others (1999) 3 SCC 666 and a Division
Bench decision of this court in S.S.L.
Verma Vs. U.P. Corporation Bank Ltd.
and others 2004 (22) LCD 659.

11. The aforesaid argument has been
countered by Rakesh Kumar, learned
counsel for the respondents on the basis
of a decision of the Supreme Court in the
case of U.P. Cooperative Federation
Ltd. And others Vs. L.P. Rai 2007 AIR
SCW 5224 and a division Bench of this
court dated 18.12.2009 passed in writ
petition No.1919 of 2009 Dev Prakash
Tewari
Vs.
U.P.
Cooperative
Institutional
Service
Board.
He
contends that as in the writ petition
arising out of the suspension order a
direction was issued on 17.9.1991 to
complete the inquiry within three months
with the further observation that in case
the inquiry is not completed within three
months the suspension will stand revoked
but inquiry will continue, the authorities
were impliedly permitted to proceed with
the inquiry even if the petitioner has
retired in the meantime.

12. In addition to the above rival
submissions advanced by the learned
counsel for the parties, learned counsel
for the petitioner has tried to assail the
impugned orders on various other grounds
namely that the impugned order is not
reasoned, petitioner was not supplied with
the documents referred to in the charge
sheet even after a demand was raised and
that the charge sheet was not issued
signed and approved by the competent
authority.

13. An ancillary argument on the
basis of Fundamental Rule 54 B of the
Financial Hand Book Vol. II part II to IV
was raised that as before stopping part of
the salary opportunity of representation
was not given, the order in so far as it
directs for payment of only subsistence
allowance during the period of suspension
and no other part of the salary, stand
vitiated.

14. The first point as to whether a
departmental inquiry can be instituted
after the retirement of an employee or if
instituted earlier could not be continued
on his retirement clinches the issue and is
sufficient
for
deciding
the
present
petition. Therefore, I refrain my self in
dealing the other points.

15. Admittedly, the departmental
inquiry
against
the
petitioner
was
instituted prior to his retirement on
582 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
31.7.1991 but the order of punishment
was passed on 11.2.1994.

16. Learned counsel for the parties
are unanimous that U.P. Cooperative
Federation
Authority,
(Business)
Regulation, 1976 governs the services of
the petitioner and that the aforesaid
regulations do not provide for initiation or
continuation of any inquiry after the
retirement of the employee.

17. I have also considered the above
regulations and find that they are
completely
silent
as
regards
the
continuation of any departmental inquiry
after the retirement of the employee.

18. A retired employee who is no
longer in service cannot be inflicted any
punishment of dismissal or removal from
service, reversion or reduction in rank and
stoppage of increments etc. It is only by
virtue
of
specific
rule
permitting
imposition of punishment after retirement
that the appointing authority can do so
and if necessary after taking leave of the
authority concern. This logically means
that when a retired employee cannot be
punished as aforesaid there is no point in
continuing a departmental enquiry against
him once he has been superannuated.

19. In the case of Bhagirathi Jena
Vs. Board of Directors, O.S.F.C. and
others (1999) 3 SCC 666 their lordships
while faced with a similar situation in
respect of an employee governed by the
Orissa Financial State Corporation Staff
Regulations, 1975 held that in the absence
of
any
specific
provision
in
the
regulations for continuing of departmental
inquiry
after
superannuation,
the
corporation was vested with no legal
authority to continue the departmental
inquiry even for the purposes imposing
any punishment of reduction in retirel
benefits admissible to the delinquent
employee and that the inquiry lapses with
the retirement.

20. The aforesaid decision has been
followed by a Division Bench of this
court in 2004 (22) LCD 659 S.S.L
Verma Vs. U.P. Cooperative Bank Ltd.
and others and it has been held by their
lordships that in the absence of any
statutory provision or rule, no inquiry can
be initiated or continued after an
employee has retired and consequently no
punishment can be inflicted upon a retired
employee.

21. The reliance placed upon
2007(7) SCC 81 U.P. Cooperative
Federation Ltd. and others Vs. L.P. Rai
wherein the Supreme Court permitted
continuation of the departmental inquiry
even after retirement looking to the
seriousness of the charges does not come
to the rescue of the respondents. In that
case the High Court had quashed the
punishment orders on the ground of
irregularity in holding the inquiry and had
directed for extending all benefits to the
employee. In setting aside the said order
of the High Court, the Supreme Court
observed that as the order of punishment
was set aside on the ground of irregularity
the better course was to direct the
disciplinary authority to pass a fresh order
and it was not proper for the High Court
to have foreclosed such a fresh inquiry
even if the employee has retired from
service. The court in deciding the above
case was not called upon to deal with the
question as to whether in the absence of
statutory
provision,
a
departmental
inquiry
could
be
continued
after
retirement. The said aspect of the matter
1 All Shiv Ram Verma Vs. U.P. Coop. Union Ltd. & others
583
was not raised and considered in the
above decision.

22. The Division Bench of this High
Court in the unreported decision dated
18.12.2009 passed in Writ Petition
No.1919 of 2009 Dev Prakash Tewari Vs.
U.P. Cooperative Institutional Service
Board simply followed the above decision
of the Apex Court without considering
that in the above case of L.P. Rai (Supra)
Supreme Court was not called upon to
decide the above controversy and it was
not even dealt with and as such it was not
an authority on the proposition regarding
continuation of departmental inquiry after
retirement
when
the rules
do
not
specifically permit it.

23. More than a century ago Lord
Halsbury in Quinn Vs. Leathem 19001903
All
England
Reporters
1
propounded that a case is only an
authority for what it actually decides. It
cannot be quoted for a proposition that
may seem to follow logically from it.

24. Applying the above principle it
has been settled by the courts of this
country that the judgment is precedent on
what it actually decides and not what can
logically be inferred from it. Therefore,
since the above two decisions do not
decide
about
the
continuity
of
departmental
proceedings
on
the
retirement when the statutes do not
specifically provide for its continuity,
they are of no assistance to the
respondents.

25.

The
argument
that
the
departmental inquiry could have been
continued even after retirement as there
was direction from the High Court is also
not sustainable.

26. This court while deciding the
Writ Petition No.4242 of 1990 of the
petitioner which related to the suspension
instead of interfering with the suspension
order directed for the completion of the
inquiry expeditiously but in ignorance of
the fact that the petitioner was due to
retire and that the departmental inquiry
cannot be continued against him after his
retirement in the absence of statutory
rules
in
that
regard.
Therefore,
continuation
and
completion
of
departmental inquiry provided therein was
by way of casual observation and not as if
laying down any absolute authority in that
connection.

27. Additionally, the above direction
inherently includes a direction to decide
the matter in accordance with law which
necessarily means only if the authority
under the relevant provision has the
jurisdiction to do so and not otherwise.

28. The law is well settled that
conferment of jurisdiction is a legislative
function and it cannot be conferred either
with the consent of the parties or by the
superior court. The court cannot derive
jurisdiction to act in a particular manner
from any other source apart from the
statute.

29. Thus in the absence of any
statutory provision providing for initiation
or continuation of the departmental
inquiry on the retirement of an employee
the same cannot be conferred by a fiat of
the court issued in oblivion of the
statutory rules.

30. In this view of the matter also
the aforesaid order of the High Court
cannot
be
taken
to
be
conferring
584 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
jurisdiction
upon
the
authorities
to
continue with the departmental inquiry
even on the retirement of the petitioner.

31. Accordingly, in the aforesaid
facts and circumstances and the legal
position, the impugned orders dated
8.8.1994 and 11.2.1994 are not tenable in
law and are hereby quashed.

32. The writ petition is allowed and
the petitioner is held entitle to all
consequential benefits.
---------