C.W.P. No.14775 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.14775 of 2008 DATE OF DECISION: MAY 15, 2009 S.S. Arya .....PETITIONER Versus Uttar Haryana Bijli Vitran Nigam, Panchkula and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL --- Present: Mr.Madan Mohan, Advocate, for the petitioner. Mr. Narender Hooda, Advocate, for the respondents. .. SATISH KUMAR MITTAL, J. The petitioner, a retired Store Keeper of the respondent Nigam, has filed the instant petition for quashing of the charge-sheet dated 31.1.2007 (Annexure P1), order of appointing the Inquiry Officer dated 7.12.2007 (Annexure P3), enquiry report dated 25.3.2008 (Annexure P5) and show cause notice dated 14.7.2008 (Annexure P4); with a further direction to the respondents to release the amount of Rs.1,38,018.40 with interest, which has been illegally deducted from the retiral benefits of the petitioner. The petitioner joined the services of SYL, Haryana State Electricity Board in the year 1972. On re-constitution of the Haryana State Electricity Board, the petitioner was allocated to Uttar Haryana Bijli Vitran C.W.P. No.14775 of 2008 -2- Nigam (hereinafter referred to as `the respondent Nigam') from where he retired on 31.8.2005 as Store Keeper on attaining the age of superannuation. At the time of his retirement, no charge-sheet or enquiry was pending against him. After one year of his retirement, only the amount of leave encashment was released to him on 20.10.2006. The other retiral benefits were withheld without any justification. In order to justify its illegal action, the respondent Nigam served a charge-sheet on the petitioner vide Memo dated 31.1.2007 proposing action against the petitioner under Regulation 7 of the Haryana State Electricity Board Employees (Punishment & Appeal) Regulations, 1990, as applicable to the respondent Nigam, for committing the acts of embezzlement on account of certain shortages alleged to have occurred during the years 2000, 2001 and 2002. The petitioner filed detailed reply to the said charge-sheet and contended that the charges levelled against him regarding the shortages relating to the period 2000, 2001 and 2002 are false and contrary to the rules, and the same were not communicated to the petitioner when he was in service and now after six years of the event of the alleged shortages, the charge-sheet was issued without jurisdiction and against the principles of natural justice. While not accepting the reply to the charge-sheet, the Inquiry Officer appointed vide letter dated 7.12.2007 was directed to submit the report within one month. The said Inquiry Officer submitted a report and found that the petitioner had handed over some of the material in partial to Shri Balwan Singh, Store Keeper, but he had not handed over the complete material to him. Therefore, the said amount of shortages is recoverable from the petitioner. On the basis of the said charge-sheet, a show cause notice was issued to the petitioner. During the pendency of the said inquiry, full pension and computation of C.W.P. No.14775 of 2008 -3- pension was issued to the petitioner after a delay of 2-1/2 years and an amount of Rs.1,38,018.40 was deducted from the gratuity of the petitioner on the ground that on the basis of the show cause notice, the said amount was recoverable from the petitioner. The petitioner has challenged the aforesaid charge-sheet, enquiry report, show cause notice and the action of the respondent-Nigam in deducting the amount of Rs.1,38,018.40 firstly on the ground that the initiation of the departmental proceedings by issuing the charge-sheet against the petitioner after his retirement in respect of the acts of omissions which took place more than four years before the institution of such proceedings, is wholly without jurisdiction in view of the provisions contained in Rules 2.2 (b) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970, Vol.II. In support of his contention, learned counsel for the petitioner has placed reliance on the decision of this Court in Baldhir Singh v. State of Punjab and others, 2009(1) RSJ 351. Secondly, the Inquiry Officer has conducted the enquiry totally in violation of the principles of natural justice. It is the case of the petitioner that the Inquiry Officer called the petitioner and Balwan Singh, the predecessor, to whom the petitioner had handed over the charge. But he did not record any statement or took any evidence. The Inquiry Officer without considering the oral submissions made by the petitioner found the petitioner responsible for the shortages due to non handing over of the complete charge. No embezzlement, as alleged in the charge-sheet, was proved. However, on the basis of the vague enquiry report, the alleged show cause notice was issued, which was also even contrary to the findings recorded by the Inquiry Officer. C.W.P. No.14775 of 2008 -4- I have heard the counsel for the parties. Undisputedly, the petitioner remained posted as Store Keeper in Divisional Store, Narwana from 19.8.1998 to 8.1.2002. Shri Balwan Singh joined as Store Keeper against the petitioner in Divisional Store, Narwana on 3.8.2001. On 3.10.2001 he took over the charge from the petitioner. During the course of handing over or taking over the store charge, Balwan Singh did not mention any shortcomings/discrepancies of any item nor he reported any shortcoming/discrepancy to his seniors/Head Office. As per the enquiry report (Annexure P5), only when on 4.4.2002 Shri S.K. Aggarwal, SDO, Divisional Store, Narwana checked the store vide SVR No.74/634, he found shortages of the following material:- “1. i) 8 no. ACSR Conductor 7468 Mtr amounting to Rs.55637/-. ii) LT Insulator 34 nos. amounting of Rs.542/-. iii) 25 KVA T/F's 1 no. amounting of Rs.23377/-.” (Total amount involved in these items is Rs.79,556/-) It has been found by the Inquiry Officer that Balwan Singh, Store Keeper, who was regularly operating the store and issuing the material from the stock without preparing SVR is responsible for the shortages of these items. It is pertinent to mention that an FIR was also lodged against Balwan Singh and one Nanak Chand, Security Havildar, attributing loss to the tune of Rs.2,45,968/-. After holding an inquiry, 50% of the aforesaid amount, i.e., Rs.1,22,984/- has been ordered to be recovered from the said Shri Balwan Singh. Besides this, an amount equivalent to two annual increments without future effect, has also been ordered to be recovered. It has also been observed by the Inquiry Officer that the responsibility of the petitioner cannot be ignored due to non handing over of the complete C.W.P. No.14775 of 2008 -5- charge. In my opinion, this finding of the Inquiry Officer is based on conjectures without any material. In the enquiry, it is clearly held that after handing over of the charge by the petitioner, Balwan Singh regularly operated the store and issued the material from the stock without preparing SVR. In view of the said fact, Balwan Singh was found responsible and it is admitted position that Balwan Singh has also been punished for the said illegality and a recovery was also effected from him. In view of the said finding, there was no justification for holding the petitioner responsible for the shortages of three items. Therefore, the observation made by the Inquiry Officer that the responsibility of the petitioner cannot be ignored, is not sustainable being based on conjectures. Regarding the other shortages, i.e., items No.2 to 7 (total amount involved in these items is Rs.58,106/-) in the charge-sheet, it is clear from the charge-sheet itself that these shortages were pertaining to the years 2000, 2001 and 2002 when the Division Store, Narwana was checked by Shri H.C. Arora, SDO on different dates. The shortages in the aforesaid checking was never conveyed to the petitioner nor at that time any action was taken. Only after one-and-half years of the retirement of the petitioner, a charge-sheet was issued for initiating departmental action against the petitioner for the acts of omissions, which resulted into loss to the respondent Nigam. It has not been disputed by the respondents that the alleged shortages which related to the period 2000, 2001 and 2002, were not communicated to the petitioner during that period, but were communicated to him after six years of his retirement, i.e., in the year 2007. In these facts, in my opinion, the initiation of the departmental proceedings by issuing charge-sheet in the year 2007 is totally contrary to the provisions of Rule C.W.P. No.14775 of 2008 -6- 2.2(b) of the Punjab Civil Services Rules, 1970, Vol.II, which is reproduced as under:- “Rule 2.2 (b) The Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specific period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental judicial proceedings, the pensioner is found guilty of grave misconduct or negligence, during his service including service rendered on re-employment after retirement. Provided that:- 1) Such departmental proceedings, if instituted while the officer was in service whether before his retirement or during his re-employment shall after the final retirement of the officer, be deemed to be a proceeding under this article and shall be continued and concluded by the authority by which it was commenced in the same manner and as if the officer had continued in service. 2) Such departmental proceedings, if not instituted while the officer was in service whether before retirement or during his re-employment- i) shall not be instituted save with the sanction of the Government; ii) shall not be in respect of an event which took place not more than four years before the institution of such proceedings; and iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service C.W.P. No.14775 of 2008 -7- could be made in relation to the officer during his service. 3) No such judicial proceedings, if not instituted while the officer was in service whether before his retirement or during his employment, shall be instituted in respect of a cause of action which arose or an event which took place more than four years of such institution; and The Public Service Commission should be consulted before final orders are passed.” This Court in Baldhir Singh's case (supra) has held as under:- “A bare perusal of the aforementioned Rule makes it clear that Rule 2.2(b)(ii) places a complete embargo on holding of an enquiry against a retired employee for any event which has happened four years prior to the institution of enquiry. In other words, in case a departmental proceeding is to be initiated against an employee after his retirement, it cannot be in respect of an event, which has taken place more than four years prior to the date of the institution of inquiry. The rationale behind the rule appears to be that a retiree should not be subjected to undue hardship in the evening of his life after having rendered satisfactory service to the State. If old matters which have been settled by afflux of time are permitted to be re-opened after expiry of period of four years then a retiree may not be in a position to defend himself because the evidence in his favour may not be available. The co-employee after retirement might have settled at far flung places and memory may not serve such witnesses and the retiree. The `Sword of Damocles' in the shape of departmental inquiry cannot be kept hanging on the head of the retiree for all times to come and he should be allowed to live in peace after the statutory period of four years of his retirement has come to an end. Moreover, the learned State counsel has not been successfully able to controvert the argument and judgments (supra) relied upon by the learned C.W.P. No.14775 of 2008 -8- counsel for the petitioner.” During the course of hearing, counsel for the respondents could not controvert the aforesaid legal position or cite any contrary judgment which justifies the action of initiation of the departmental proceedings against the petitioner after one-and-half years of his retirement for the acts of omissions, resulting into loss to the respondent Nigam, which took place four years before the institution of such proceedings. In view of this, in my opinion, the initiation of the departmental proceedings against the petitioner by issuing the charge-sheet 31.1.2007 and the subsequent proceedings are illegal and without jurisdiction and hence are not sustainable in the eyes of law. Consequently, the petition is allowed with costs and the charge-sheet dated 31.1.2007 (Annexure P1) and all the subsequent proceedings arising therefrom are set aside, and the respondents are directed to release the amount of Rs.1,38,018.40 with interest @ 9% to the petitioner within a period of two months from today. Costs are assessed at Rs.10,000/-. May 15, 2009 (SATISH KUMAR MITTAL) vkg JUDGE