THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.2643 OF 2006 DATED ________ NOVEMBER, 2010 BETWEEN: S.Krishna Murthy … Petitioner And Jawaharlal Nehru Technological University, Hyderabad, Rep. by its Registrar. And Another. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.2643 OF 2006 O R D E R The petitioner, a retired employee of the Jawaharlal Nehru Technological University, is aggrieved by its proceedings dated 19.12.2005 whereby it sought to recover a sum of Rs.9,55,294-60 ps. from his retirement benefits. He seeks a writ of Certiorari to quash the said proceedings and a consequential direction to the University to pay his retirement benefits as sanctioned under the proceedings dated 23.01.2006 with interest. The petitioner entered the service of the University as a Lower Division Typist in the year 1973. He was promoted as a Senior Assistant on 27.03.1983. His services were regularized in the said post under proceedings dated 28.03.1985. He was placed under suspension pending enquiry under proceedings dated 23.07.1994. Though a report was submitted by the One-Man Preliminary Enquiry Committee on 27.07.1995, no further action was taken thereupon. Aggrieved by his continued suspension, the petitioner approached this Court by way of Writ Petition No.556 of 2003. Interim orders were granted in the said writ petition on 09.01.2003 directing the University to take necessary action in the matter and pass appropriate orders within six weeks. Thereupon, the University revoked the petitioner’s suspension under proceedings dated 09.12.2003 subject to the condition that he would not be entitled to service benefits and was liable to be paid only the pay and allowances admissible at the time of his suspension. The writ petition was thereafter allowed by a learned Judge of this Court on 29.06.2005 setting aside the suspension proceedings dated 23.07.1994. Remedies available to the University under law were however kept open. In the meanwhile, as the petitioner was attaining the age of superannuation in June, 2005 the University, by proceedings dated 08.06.2005, permitted him to retire from its service on 30.06.2005. Separate proceedings were issued on 30.06.2005 relieving the petitioner from service unconditionally on the afternoon of that day. As his suspension period from 23.07.1994 to 11.12.2003 was not regularized in spite of the order of this Court in Writ Petition No.556 of 2003, the petitioner filed Contempt Case No.1160 of 2005. The University thereupon challenged the order of the learned Judge in Writ Petition No.556 of 2003 in Writ Appeal No.2033 of 2005. A Division Bench of this Court dismissed the writ appeal at the stage of admission on 19.10.2005. The Bench took note of the fact that no action had been taken as contemplated under law though the petitioner was kept under suspension for ten years and that he was also allowed to retire from service, after being reinstated pursuant to the orders of the Court. In that view of the matter, the Bench did not find any merit in the appeal and accordingly dismissed the same. The University filed a counter in the contempt case. The stand taken therein was to the effect that it was implementing the order by completing the process of fixation of the petitioner’s pay and allowances and further time was required in this regard. The contempt case was thereupon adjourned by two months on 28.10.2005 to enable the University to implement the order. The University then served charge memo dated 30.06.2005 upon the petitioner on 11.11.2005, whereunder five charges were framed against him basing on the One-Man Enquiry Committee report dated 27.07.1995 which had been allowed to stagnate for over a decade. Thereafter, the University filed extension petition dated 02.01.2006 seeking two more months time for complying with the order in Writ Petition No.556 of 2003. The University finally issued proceedings dated 23.01.2006 stating that sanction had been obtained for releasing the petitioner’s pensionary benefits detailed therein. But when the petitioner approached the University in this regard he was informed about the proceedings dated 19.12.2005 whereby the misappropriated amount of Rs.9,55,295-60 was directed to be recovered from his pensionary benefits. As this development raised a new cause of action, the contempt case was closed leaving it open to the petitioner to challenge the same independently. Hence, this writ petition. The University in its counter, while admitting most of the facts narrated supra, stated that the petitioner refused to take the charge memo on 30.06.2005 but received it only on 11.11.2005. It relied upon the observation made by this Court in Writ Petition No.556 of 2003 to the effect that its remedies in accordance with law were left open and sought to justify its action in recovering the misappropriated amount from the petitioner. The University placed reliance on Rule 9(2)(a) of the Andhra Pradesh Revised Pension Rules, 1980 (for brevity, ‘the Rules of 1980’) to justify the disciplinary action taken against the petitioner after his retirement from service. In his reply, the petitioner reiterated that disciplinary proceedings could not have been initiated against him after his retirement. He pointed out that there was no enquiry into the matter and stated that it was inexplicable as to how the amount of Rs.9,55,294-60 ps. had been arrived at. He disputed the applicability of Rule 9(2)(a) of the Rules of 1980 to his case and prayed for a direction to the University to release his pensionary benefits without effecting the recovery envisaged under the impugned proceedings. Heard Sri V.Jagapathi, learned counsel for the petitioner, and Sri K.Rathangapani Reddy, learned standing counsel for the respondent University. Sri V.Jagapathi, learned counsel, relying upon case law, submitted that the action of the University in permitting his client to retire unconditionally from service estopped it from initiating any disciplinary action against him thereafter. Per contra, Sri K.Rathangapani Reddy, learned standing counsel, stated that the Rules of 1980 have application to the employees of the University in the light of Clause 37 of Statute XIV of the Statutes of the University framed under the Jawaharlal Nehru Technological University Act, 1972, which states to the effect that the rules applicable to the services of the State Government would apply to the services of the University in respect of all matters which are specifically or by implication not covered by the said Statute. He therefore sought to justify the action taken by the University against the petitioner. Clause 33 of Statute XIV of the University’s Statutes deals with disciplinary proceedings and states to the effect that no order imposing the penalty of recovery of the whole or part of the pecuniary loss caused to the University shall be passed by an authority without first giving an opportunity to the employee concerned to make a representation against such penalty. Clause 33(3) which states to this effect speaks of any ‘member of the service’ being visited with such a punishment. It is the case of the respondent University that notwithstanding the use of these words, it would still be entitled to continue the disciplinary proceedings against an employee after his retirement by virtue of Rule 9(2)(a) of the Rules of 1980. It is however to be noticed that the case on hand has a long and chequered history. The petitioner was kept under suspension for over a decade and this litigation is relatable to an enquiry report dating back to the year 1995. The University surprisingly chose to take no action on the said report, while keeping the petitioner under continued suspension. This led to the earlier round of litigation before this Court whereby the action of the University in placing him under suspension was set aside by the learned Judge in Writ Petition No.556 of 2003, thereafter confirmed in appeal. The observations made by the Division Bench while dismissing the appeal touched upon the somnolent attitude of the University in the matter. This being the state of affairs on one hand, the University allowed the petitioner to retire unconditionally from service under its proceedings dated 08.06.2005, which were given effect on 30.06.2005. He therefore ceased to be a member of the University’s service from that date. It is relevant to note that under Rule 9(2)(a) of the Rules of 1980, departmental proceedings if instituted while the employee was in service can be continued and concluded by the authority by which they were commenced. Rule 9(6) clarifies that for the purpose of the Rule, departmental proceedings are deemed to be instituted on the date on which the statement of charges is issued to the employee. Therefore, the departmental proceedings initiated by service of the charge memo upon the employee concerned should be pending as on the date of retirement of the employee. In the present case, though the charge memo was dated 30.06.2005 it was admittedly served upon the petitioner only on 11.11.2005, by which date the petitioner had long since retired. The averment of the University in the counter that the petitioner refused to receive the said charge memo on 30.06.2005 is not borne out by the facts. The University never stated so either in the writ appeal which was filed by it against the order in Writ Petition No.556 of 2003 or in its pleadings in the contempt case. Rule 9(2)(a) of the Rules of 1980 is not available to the University for one other reason. It may be noted that Rule 9(2)(b) specifically posits that departmental proceedings, if instituted while the employee was in service, whether before his retirement or during his re-employment shall not be in respect of any event which took place more than four years before such institution. In the present case, the charge memo dated 30.06.2005 relates to misconduct traceable to the enquiry report of the year 1995, well over the four year period stipulated by the Rule. Thus, viewed from any angle, Rule 9(2)(a) of the Rules of 1980 can have no application to the facts of the case. As matters stand, the disciplinary action taken against the petitioner stemmed from proceedings set in motion only after his retirement. I n BHAGIRATHI JENA v. BOARD OF DIRECTORS, O.S.F.C.[1], the Supreme Court, taking note of the Regulations in that case which did not provide for continuance of the departmental enquiry after superannuation, held that the Corporation had no legal authority to make any reduction in the retiral benefits of the employee. The Court observed that once the employee retired from service and there was no authority vested in the employer for continuing the departmental enquiry, it must be held that the enquiry had lapsed and that the employee was entitled to full retiral benefits on retirement. In STATE BANK OF INDIA v. A.N.GUPTA[2], the Supreme Court reiterated that unless there was a specific provision which authorizes the employer to continue the disciplinary proceedings after retirement, the same would be legally unsustainable. In CH.SARAYYA v. NIZAM SUGARS LTD., HYDERABAD[3], a Division Bench of this Court observed that retirement brings about cessation of the relationship of ‘master’ and ‘servant’ and thereafter no penalty can be imposed upon such a retired employee unless statutorily provided for. Similarly, a learned Judge of this Court in C.SURENDER REDDY v. M.D., A.P.DAIRY DEVELOPMENT CO-OPERATIVE FEDERATION LTD., HYD.[4], held that continuation of disciplinary proceedings after the retirement of the employee, in the absence of enabling regulations or rules, so as to withhold retiral benefits would be legally unsustainable. In the light of the aforestated settled legal position, there can be no doubt that the respondent University was not justified in taking disciplinary action against the petitioner after his unconditional retirement from service, on the basis of an alleged misconduct upon which it chose to sit idle for over a decade. It is relevant to note that even under the charge memo dated 30.06.2005, there were no allegations of misappropriation levelled against the petitioner. That being so, the unilateral finding of the University reflected in the impugned proceedings dated 19.12.2005 to the effect that the ‘misappropriated’ amount of Rs.9,55,294-60 ps. should be recovered from his pensionary benefits cannot be countenanced. Such a finding traverses beyond the charge memo dated 30.06.2005 which, in itself, was legally unsustainable to begin with. It is no doubt true that under Rule 9(7) of the Rules of 1980 provision is made for recovery of pecuniary loss from the employee responsible though he may not have been charge sheeted or called upon to explain as to why the loss should be recovered from him prior to his retirement. This rule was introduced in the statute book only in the year 2002. Further, it requires that a decision should be taken at the highest level, viz., the Government in the case of a Government employee. In the peculiar facts of the present case demonstrating that the University failed to take action in the matter for over a decade, it cannot take recourse to this rule, all the more so, on the basis of an audit report. There is no indication that any decision was taken at the highest level of the University to take recourse to this rule. Thus, the action initiated by the University under the proceedings dated 19.12.2005 are not traceable to Rule 9(7) of the Rules of 1980 which came into existence much later and has no application considering the peculiar fact scenario obtaining in the case. The aforestated sequence of events clearly demonstrate that the University, having committed itself to a particular course of action before this Court in the earlier round of litigation, committed a volte face and came out with a fresh charge memo and thereafter the impugned proceedings. Thereby, it sought to initiate disciplinary action against the petitioner after a long lapse of ten years and that too after his retirement. Simultaneously, it sought to unilaterally recover amounts from the retirement benefits of the petitioner on the ground that he had misappropriated the same. The procedure adopted by the University reeks of arbitrary and illegal use and misuse of power. The proceedings dated 19.12.2005 are therefore without legal foundation and are accordingly set aside. The University is directed to release the retirement benefits of the petitioner in accordance with its proceedings dated 23.01.2006 within a period of four (4) weeks from the date of receipt of a copy of this order. As the University wilfully chose to delay the payment of the said benefits in spite of giving a commitment before this Court in Contempt Case No.1160 of 2005, it would be liable to pay interest to the petitioner on the said amounts. The retirement benefits along with interest at the rate of 6% (six per cent) per annum from 23.01.2006 shall be paid to the petitioner within the time stipulated above. The Writ Petition is allowed but in the circumstances, without any order as to costs. ____________________ SANJAY KUMAR, J. ________NOVEMBER, 2010 PGS/VGSR [1] (1999) 3 SCC 666 [2] (1997) 8 SCC 60 [3] 2000 (2) ALD 805 (DB) [4] 2004 (3) LS 182