Shri Anant R. Kulkarni vs. Y.P. Education Society & Ors, Civil Appeal No. 3935
of 2013 (Decided on 26.04.2013)
The
Court examined following question:
“Under
what circumstances enquiry can be conducted against the delinquent employee who
has retired on reaching the age of superannuation?”
The
Court held:
“the relevant rules governing the service
conditions of an employee are the determining factors as to whether and in what
manner the domestic enquiry can be held against an employee who stood retired
after reaching the age of superannuation. Generally, if the enquiry has been
initiated while the delinquent employee was in service, it would continue even
after his retirement, but nature of punishment would change. The punishment of
dismissal/removal from service would not be imposed. [Para 18]
The
court also quoted following case laws:
‘NOIDA
Entrepreneurs Association v. NOIDA & Ors’., AIR 2011 SC 2112, in which the
court examined the issue, and held that:
“the competence of an authority to hold an enquiry against an employee
who has retired, depends upon the statutory rules which govern the terms and
conditions of his service.”
‘State
of Assam & Ors. v. Padma Ram Borah’, AIR 1965 SC 473, the Constitution
Bench held that:
“it is not possible for the employer to continue with the
enquiry after the delinquent employee stands retired.”
The Court observed:-
“According to the earlier order of the State Government
itself, the service of the respondent had come to an end on March 31, 1961. The
State Government could not by unilateral action create a fresh contract of
service to take effect from April 1, 1961. If the State Government wished to continue
the service of the respondent for a further period, the State Government should
have issued a notification before March 31, 1961.”
‘State
of Punjab v. Khemi Ram’, AIR 1970 SC 214, this court observed:
“There can be no doubt that if disciplinary action is sought
to be taken against a government servant it must be done before he retires as
provided by the said rule. If a disciplinary enquiry cannot be concluded before
the date of such retirement, the course open to the Government is to pass an
order of suspension and refuse to permit the concerned public servant to retire
and retain him in service till such enquiry is completed and a final order is passed
therein.”
‘Kirti
Bhusan Singh v. State of Bihar & Ors’., AIR 1986 SC 2116, this Court held
as under:
“…. We are of the view that in the absence of such a provision
which entitled the State Government to revoke an order of retirement……. which
had become effective and final, the order passed by the State Government
revoking the order of retirement should be held as having been passed without
the authority of law and is liable to be set aside. It, therefore, follows that
the order of dismissal passed thereafter was also a nullity.”
‘Bhagirathi
Jena v. Board of Directors, O.S.F.C. & Ors’., AIR 1999 SC 1841, the Court
observed:
“… There is also no provision for conducting a disciplinary
enquiry after retirement of the appellant and nor any provision stating that in
case misconduct is established, a deduction could be made from retiral
benefits. Once the appellant had retired from service on 30-6-1995, there was no
authority vested in the Corporation for continuing the departmental enquiry
even for the purpose of imposing any reduction in the retiral benefits payable
to the appellant. In the absence of such an authority, it must be held that the
enquiry had lapsed and the appellant was entitled to full retiral benefits on
retirement.”
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