WRIT PETITION 2522 of 2020 on 13 March 1979

O R D E R

By way of this petition, the petitioner has prayed for thefollowing relief:- “(i) That the respondent department may kindly bedirected to release the retiral dues to the applicantalongwith up to date interest.”

2. The petitioner herein joined the services of therespondent-department on 13.03.1979 against the post of a Clerk.He superannuated from the post of Assistant Registrar, CooperativeSocieties from the services of respondent-department on 30.06.2017.3.Vide memorandum dated 18.07.2017 (Annexure A-10)the petitioner was informed that the authority concerned proposedto hold an inquiry against him under the provisions of Rule 14 of theCentral Civil Services (Classification, Control and Appeal) Rules,1965 and in terms of the said memorandum, the petitioner wascalled upon to submit his written statement for his defence to thememorandum and if he did not do the needful or failed to appear in1

person before the Inquiring Authority etc., then ex parte proceedingsshall be initiated against him. The article of charges appendedtherewith demonstrated that there were eight article of chargesframed against the petitioner, alleging therein that while thepetitioner was serving against the post of Assistant Registrar,Cooperative Societies, Hamirpur, H.P., he had failed to perform hisofficial as well as statutory duties which allegedly led to hugeembezzlement in the Balute CAS Limited Balute, District Hamirpur,H.P.

4. For completion of facts it is necessary to mention thatwhereas the petitioner was to superannuate on 30.06.2017, videAnnexure A-5, order dated 29.06.2017, the petitioner was ordered tobe placed under suspension one day before his superannuation onaccount of contemplated departmental inquiry.

5. Initially, this Writ Petition was filed, assailing the orderof suspension, but as during the pendency of the Writ Petition, thedepartmental proceedings were also initiated against the petitionerafter his superannuation, accordingly, the petition was amended andthe order of initiating departmental proceedings against him alsostands assailed.

6. Learned counsel for the petitioner has argued that thedepartmental proceedings which have been initiated against thepetitioner vide Annexure A-10, dated 18.07.2017, are void ab initio,because before initiating these departmental proceedings, theprovisions of Rule 9 (2) (b) of the Central Civil Services(Classification, Control and Appeal) Pension Rules, 1972 have notbeen adhered to. He submits that though the departmentalproceedings initiated against the petitioner otherwise are notsustainable on merit, but on this short count, said proceedings areliable to be quashed and set aside as initiation of departmentalproceedings against a superannuated employee without following theprovisions of Rule 9 (2) (b) of the Central Civil Services (Pension)Rules 1972 is bad in law.

7. In support of his contention, learned counsel for thepetitioner has relied upon (2013) 14 Supreme Court Cases 32, titled

as Bhajan Singh Versus State of Uttarakhand and Others, inwhich Hon’ble Supreme Court of India has been pleased to hold thatthe disciplinary proceedings begins with the issuance of chargesissued and in a given case, a show cause notice may be given to anincumbent before his superannuation, but the same is not a Rule.

8. Learned counsel for the petitioner has also relied upon(2014) 7 Supreme Court Cases 260, titled as Dev Prakash TewariVersus Uttar Pradesh Cooperative Institutional Service Board,Locknow and Others, in which Hon’ble Supreme Court has beenpleased to hold as under:- “8. Once the appellant had retired from service on 31-3-2009, there was no authority vested with therespondents for constituting the disciplinary proceedingeven for the purpose of imposing any reduction in theretiral benefits payable to the appellant. In the absenceof such an authority it must be held that the enquiry hadlapsed and the appellant was entitled to get full retiralbenefits.

9. The question has also been raised in the appeal withregard to arrears of salary and allowances payable tothe appellant during the period of his dismissal and upto the date of reinstatement. Inasmuch as the inquiryhad lapsed, it is, in our opinion, obvious that theappellant would have to get the balance of theemoluments payable to him.

10. The appeals are, therefore, allowed and thejudgment and order of the High Court are set aside andthe respondents are directed to pay arrears of salaryand allowances payable to the appellant and also to payhim his all the retiral benefits in accordance with the rules and regulations as if there had been no disciplinaryproceedings or order passed therein. No costs.”

9. Accordingly, a prayer has been made that this petitionbe allowed and the disciplinary proceedings initiated against thepetitioner be quashed.

10. Defending the act of the respondent-department,Learned Additional Advocate General has argued that thoughadmittedly in this case the disciplinary proceedings were initiatedagainst the petitioner after his superannuation, but he was alreadyplaced under suspension before his retirement on 29.06.2017 andthe same tantamount to issuance of a show cause notice for thereason that it was in lieu of the contemplated departmental inquirythat the petitioner was placed under suspension. He furthersubmitted that otherwise also duringthe period when the petitionerwas in the service of respondent-department, on the basis of thecomplaints which were received, an inquiry was held by thedepartment on the issue.

11. In rebuttal, learned counsel for the petitioner stated thatthe order of suspension by no stretch of imagination can be said tobe a show cause notice and further the inquiry which was beingreferred to by the learned Additional Advocate General in fact resulted in the findings that the allegations levelled against thepetitioner were found to be incorrect. He pointed out that saidinquiry report is on record was Annexure R-6 with the reply of therespondent.

12. I have heard learned counsel for the parties and havegone through the record of the case.

13. There is no dispute on facts that the petitionersuperannuated from the post of Assistant Registrar on 30.06.2017.There is no dispute on facts that the departmental proceedings stoodinitiated against the petitioner by way of issuance of a memorandumdated 18.07.2017, i.e. after the superannuation of the petitioner.Order dated 29.06.2017, which is appended with the Writ Petition asAnnexure A-5, is quoted hereinbelow:- “Whereas, disciplinary proceedings against Sh. RoshanLal Khajuria, Assistant Registrar Cooperative Societies,posted at Hamirpur are contemplated.

Conclusion

Now, therefore the undersigned in exercise of thepowers conferred by Sub-Rule (1) of the Rule 10 of theCentral Civil Services (Classification, Control and Appeal)Rulers, 1965 hereby place the said Sh. Roshan LalKhajuria, Assistant Registrar Cooperative Societies undersuspension with immediate effect. Sh. Parveen Kumar,assistant Registrar, Cooperative Societies, Bilaspur shall hold the additional Charges of the post of AssistantRegistrar Cooperative Societies, Hamipur in addition tohis own duties till further orders.”

14. A perusal of this order demonstrates that what wasconveyed to the petitioner by way of this order was simply this thatas the departmental proceedings were being contemplated againstthe petitioner, therefore, he vide order dated 29.06.2017, was beingplaced under suspension till further orders.

15. It is settled law that order of suspension is not a penalorder. In fact, generally the Courts do not even entertain thepetitions which are filed against the order of suspension becausesuspension is not deemed to be a punishment. Office Order, dated29.06.2017 was a simplicitor communication to the effect that onaccount of contemplating disciplinary proceedings, the DisciplinaryAuthority was placing the petitioner under suspension. What thosedisciplinary proceedings were? what were the allegations against thepetitioner? is not borne out from this communication addressed tothe petitioner . By way of this communication, the petitioner was notcalled upon to show cause as to on account of certain allegationslevelled against him why he should not be placed under suspension.Therefore, by no stretch of imagination, Office Order, dated 29.06.2017 can be said to be a show cause pending disciplinaryproceedings.

16. Accordingly, as this Court is satisfied that Office Order,dated 29.06.2017 was not a show cause, this Court has nohesitation in quashing memorandum dated 18.07.2017 (AnnexureA-10), vide which the disciplinary proceedings stood initiated againstthe petitioner for the reason that this memorandum was issued afterthe superannuation of the petitioner and record does notdemonstrates that the provisions of Rule 9 (2) (b) of the Central CivilServices (Classification, Control and Appeal) Pension Rules, werecomplied before issuance of the said memorandum.

17. In view of what has been discussed hereinabove, thisWrit Petition is allowed. The memorandum dated 18.07.2017(Annexure A-10), vide which the disciplinary proceedings stoodinitiated against the petitioner, is quashed and set aside.

18. In view of the fact that the memorandum, vide which thedisciplinary proceedings were initiated against the petitioner hasbeen quashed and set aside, the order of suspension which waspassed against the petitioner one day before his superannuation isalso quashed and set aside with the direction that the period for which the petitioner was placed under suspension, be treated to bethe period on duty for all intents and purposes.

19. Petition stands disposed of in above terms, so alsopending miscellaneous applications, if any. Interim order, if any,stands vacated.

December 30, 2021 (rishi)

(Ajay Mohan Goel) Judge