IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SEVENTEENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 17432 of 2006 Between: N. Susheel Kumar S/o. Late N. Shyam Snder Rao Hyderabad. ..... PETITIONER AND A.P. State Cooperative Marketing Federation Ltd., 5-9-58/B, 7th Floor, Parishram Bhavan, Rep. by its Managing Director. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ of Mandamus or any other appropriate writ, Order or orders Direction or Directions declaring the action of the Respondent in withholding the retirement benefits due to the petitioner as arbitrary, illegal and unconstitutional and to issue direction to the Respondent to pay the retirement benefits due to the petitioner with interest from 1-2-2005 till the date of payment and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.V.SRINIVAS Counsel for the Respondent No.: MR.MPAPA REDDY The Court made the following : HONOURABLE MS JUSTICE G.ROHINI WRIT PETITION No. 17432 of 2006 ORDER: This writ petition is filed seeking a declaration that the action of the respondent-A.P. State Cooperative Marketing Federation Limited (MARKFED) in withholding retirement benefits due to the petitioner is arbitrary and illegal. The petitioner, who was working as a Zonal Manager with the A.P.MARKFED, was permitted vide proceedings dated 15.12.2004 to retire on 31.01.2005 on attaining the age of superannuation. However, the terminal benefits to which the petitioner is entitled to have not been paid in spite of the repeated representations. Aggrieved by the said action of the respondent, the present writ petition is filed. It is claimed by the petitioner that his entire service was unblemished and no disciplinary proceedings were initiated against him at any point of time and therefore, the impugned action of the respondents in withholding the terminal benefits is arbitrary and illegal. It is also pleaded by the petitioner that similarly situated employees of the respondent-A.P.MARKFED filed W.P.No.21603 of 2000 and batch for settlement of retirement benefits and the said writ petitions were allowed by a common order dated 10.11.2004 thereby directing A.P.MARKFED to release all the retirement benefits to the petitioners therein. It was also declared by this Court in the said order that the respondent cannot proceed against the employees departmentally after their retirement. The said order was confirmed by a Division Bench by judgment dated 14.03.2006 in W.A.No.260 of 2004. A counter affidavit has been filed on behalf of the respondent in which the fact that the petitioner was permitted to retire on 31.01.2005 on attaining the age of superannuation has not been disputed. However, it is alleged that the respondent- Federation was put to heavy loss on account of negligence on the part of the petitioner at the time of purchase of the stocks while he was in service and therefore, disciplinary action was initiated against all the concerned including the petitioner. A memo dated 10.09.2004 was issued to the petitioner calling upon him to submit his explanation and thereafter, an Enquiry Officer was appointed and a notice was issued by the Enquiry Officer calling upon the petitioner to attend the enquiry on 17.07.2006. However, the petitioner failed to attend the enquiry and therefore, the petitioner was called upon to explain vide memo dated 23.03.2006 for his failure to supervise procurement of red chillies at Jammikunta procurement center. Thus, it is contended that the petitioner was guilty of various lapses while on duty and by his negligence heavy loss was caused to the Federation. It is also contended that as per Service Regulations of MARKFED as amended with effect from 11.01.2005, disciplinary proceedings can be continued against an employee even after his retirement and as such, the impugned action of the respondents in withholding the terminal benefits of the petitioner cannot be held to be arbitrary and illegal. I have heard the learned counsel for both the parties. It is true that while in service, the petitioner was served with a memo dated 10.09.2004 alleging that during the crop season 2003-2004, inferior quality of chillies were purchased and calling upon him to explain the reasons for purchasing the said stocks, which were not qualifying to FAQ standards. According to the petitioner, except the above said memo to which he had submitted his explanation, no further proceedings were served on him nor any disciplinary proceedings were initiated. Nothing could be placed before this Court by the respondent contradicting the petitioner’s plea. As a matter of fact, the counter affidavit itself shows that the appointment of the Enquiry Officer and issuance of notices for appearance was in July, 2006 long after the retirement of the petitioner. While considering an identical question in W.P.No.604 of 1999 and batch, this Court, relying upon a judgment of the Division Bench in Bhagiratha Jena and Board of Director, O.S.F.C., C.h. Sarayya v. Nizam Sugars Limited, Hyderabad[1] held that continuation of departmental proceedings after the retirement is illegal and unsustainable. Accordingly, the respondent-MARKFED was directed in W.P.No.604 of 1999 to release the pensionary benefits payable to the petitioners therein. The Division Bench in W.A.No.260 of 2005 and etc., upheld the decision of the learned Single Judge holding that in the absence of any specific provision, the A.P.MARKFED cannot be allowed to continue the disciplinary proceedings. However, learned counsel for the respondent sought to distinguish the said judgment on the basis of a subsequent amendment to the bye-laws of the society. The material placed before this Court shows that in exercise of powers vested under Section 16 of the A.P.Co-operative Societies Act, 1964, the bye- laws and the service conditions of the employees of the MARKFED were amended on 16.12.2006 and the amended bye- law stands as under: “In the event of employee reaching superannuation before the completion of the disciplinary case pending against him, Markfed will have a right to proceed to superannuate him but the terminal benefits of such an employee shall be settled subject to final orders in the disciplinary case and the relationship of employer and employee shall however continue for the limited purpose of such disciplinary case only.” A reading of the above provision shows that the same is applicable only where the employee reaches superannuation before the completion of the disciplinary case pending against him. In the case on hand, admittedly, no such disciplinary case was pending against the petitioner as on the date of his retirement. Hence, even according to the amended provision the impugned action of the respondent in withholding the terminal benefits of the petitioner cannot be justified. Accordingly, the writ petition is disposed of with a direction to the respondent to pay the retirement benefits due to the petitioner as expeditiously as possible, preferably within a period of eight weeks from the date of receipt of a copy of this order. No costs. _____________ G. ROHINI,J Date:17-08-2009 KLP [1] 2000(2) ALD 805 (DB)