Wednesday, January 13, 2021
11 January, 2021, By Cross Town News
Supreme Court of India
Dev Prakash Tewari vs U P Cooperative Institution
in APPEAL NO(s).5848-49 OF 2014 ordered as:
1. Leave granted.
2. These appeals are preferred by the appellant who was working as Assistant Engineer with respondent No.2. A disciplinary proceeding was initiated under Rule 85 of the Uttar Pradesh Co-operative Employees Service Regulations, 1975, against him by serving a charge-sheet and after inquiry he was dismissed from service by order dated 27.4.1988.
The appellant sought for quashing the said order by filing a writ petition in Writ Petition No.4328(S/B) of 1988 on the file of the High Court of Judicature at Allahabad and the High Court held that the inquiry was not conducted in accordance with the procedure stipulated in the Regulation 85 since no opportunity was given to cross-examine the witness and there is violation of principles of natural justice and quashed the disciplinary proceeding by allowing the Writ Petition on 10.1.2006.
The order also directed for reinstatement and payment of back wages in accordance with the Rules. Liberty was also granted to conduct a fresh disciplinary inquiry in accordance with the Regulations.
Pursuant to the order the appellant joined duty on 26.4.2006. Fresh disciplinary proceeding was initiated by order dated 7.7.2006, appointing Shri G.S. Srivastava, Mukhya Abhiyanta as Inquiry Officer and it was pending.
Meanwhile the appellant reached the age of superannuation and retired from service as Assistant Engineer on 31.3.2009.
3. The appellant challenged the continuance of disciplinary proceeding after his retirement by filing Writ Petition No.1919(SB) of 2009 on the file of High Court of Judicature at Allahabad, Lucknow Bench.
The High Court relying on the decision of this Court in U.P. Cooperative Federation Ltd. and Others Vs. L.P.Rai [(2007) 7 SCC 81] held that there is no ground to interfere with the disciplinary proceeding and directed to complete it within four months by the impugned order dated 18.12.2009.
The appellant filed Review Petition No.139 of 2010 and the High Court dismissed the same by order dated 29.3.2010. Challenging both the orders the appellant has preferred the present appeals.
4. The learned counsel for the appellant contended that the disciplinary proceeding was not completed for more than three years and in the absence of any provision in the Regulations providing for continuation of disciplinary proceedings after retirement of the employee, the respondents could not continue the disciplinary proceeding against the appellant after his superannuation.
It is his further contention that the High Court has failed to appreciate the law laid down by this Court in similar circumstances in the decision reported in Bhagirathi Jena vs. Board of Directors, O.S.F.C. and Others [(1999) 3 SCC 666] and for the said reason the impugned order is liable to be set aside.
5. Per contra the learned counsel appearing for the respondents contended that pursuant to the liberty given by the High Court in its order dated 10.1.2006 fresh disciplinary proceeding was initiated and as held by this Court in its decision rendered in U.P. Coop. Federation Ltd. case (supra) the right of the employer to hold a fresh inquiry cannot be denied on the ground that the employee has since retired from service and the impugned order is sustainable.
6. We have carefully considered the rival submissions. The facts are not in dispute. The High Court while quashing the earlier disciplinary proceedings on the ground of violation of principles of natural justice in its order dated 10.1.2006 granted liberty to initiate the fresh inquiry in accordance with the Regulations.
The appellant who was reinstated in service on 26.4.2006 and fresh disciplinary proceeding was initiated on 7.7.2006 and while that was pending, the appellant attained the age of superannuation and retired on 31.3.2009.
There is no provision in the Uttar Pradesh Co-operative Employees Service Regulations, 1975, for initiation or continuation of disciplinary proceeding after retirement of the appellant nor there is any provision stating that in case misconduct is established a deduction could be made from his retiral benefits.
An occasion came before this Court to consider the continuance of disciplinary inquiry in similar circumstance in Bhagirathi Jena’s case (supra) and it was laid down as follows:
“ 5. Learned Senior Counsel for the respondents also relied upon Clause (3) (c) of Regulation-44 of the Orissa State Financial Corporation Staff Regulations, 1975. It reads thus : "When the employee who has been dismissed, removed or suspended is reinstated, the Board shall consider and make a specific order :-
(i) Regarding the pay and allowances to be paid to the employee for the period of his absence from duty, and (ii) Whether or not the said period shall be treated as a period on duty."
6. It will be noticed from the abovesaid regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of the departmental enquiry after superannuation.
7. In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. 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 30.6.95 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.
7. In the subsequent decision of this Court in U.P. Coop. Federation case (supra) on facts, the disciplinary proceeding against employee was quashed by the High Court since no opportunity of hearing was given to him in the inquiry and the management in its appeal before this Court sought for grant of liberty to hold a fresh inquiry and this Court held that charges levelled against the employee were not minor in nature, and therefore, it would not be proper to foreclose the right of the employer to hold a fresh inquiry only on the ground that the employee has since retired from the service and accordingly granted the liberty sought for by the management.
8. While dealing with the above case, the earlier decision in Bhagirathi Jena’s case (supra) was not brought to the notice of this Court and no contention was raised pertaining to the provisions under which the disciplinary proceeding was initiated and as such no ratio came to be laid down. In our view the said decision cannot help the respondents herein.
9. Once the appellant had retired from service on 31.3.2009, there was no authority vested with the respondents for continuing the disciplinary proceeding 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 get full retiral benefits.
10. The question has also been raised in the appeal with regard to arrears of salary and allowances payable to the appellant during the period of his dismissal and upto the date of reinstatement.
Inasmuch as the inquiry had lapsed, it is, in our opinion, obvious that the appellant would have to get the balance of the emoluments payable to him.
11. The appeals are, therefore, allowed and the judgment and order of the High Court are set aside and the respondents are directed to pay arrears of salary and allowances payable to the appellant and also to pay him his all the retiral benefits in accordance with the rules and regulations as if there had been no disciplinary proceeding or order passed therein.
Saturday, January 9, 2021
Friday, January 8, 2021
Wednesday, January 6, 2021
Thursday, December 31, 2020
Friday, November 20, 2020
Tuesday, November 17, 2020
Sunday, November 8, 2020
Thursday, November 5, 2020
Wednesday, November 4, 2020
EITHER FIGHT OR PERISH
Ex- Secretary General, NFPE & Confederation
1. Central Government employees, particularly postal employees have a history of one and a half century of struggle spanning from pre-independence period to post-independence era. I am not venturing to explain the history of that period of sacrifice, brutal repression, severe punishments, and martyrdom in this article. That can be, on another occassion. I am trying to explain the common character of the struggles conducted by the Central Government employees and postal employees in pre and post independence era and their future task based on this experience.
2. If one analyse the struggles organised during seventy years period prior to 1947, it can be seen that majority of those struggles were mainly for achieving defined wage structure and service conditions which was not in existence at that period. Thus, through several big and small agitations and strikes, fixed working hours, wage structure based on the nature of duty performed, annual increments, leave entitlement, allowance to compensate price rise, pensionery benefits, right to organise and collective bargaining were achieved by employees from the most oppressive and unwilling British Government.
3. None of the benefits were granted as a gratis by the British Government. Each benefit was obtained through heroic struggle. The strike oganised by Postmen of Pune Head Post Office under the guidance of great freedom fighter Late Balagangadhara Tilak in the year 1880, the indefinite strike of Telegraph workers in 1908 under the leadership of Henry Barton, the indefinite strike of 1918 by Postmen of Mumbai under the leadership of V.G.Dalvi, the struggle organised by Potal Clerks in the years 1920-21 against the retrograde recommendations of Postal Enquiry Committee Report under the inspiring leadership of late Tarapada Mukherjee, the founder father of Postal Trade Union movement, the historic speech and clarion call for struggle by Tarpada Mukherjee in the 1921 Lahore speech and his consequent dismissal from service, the non-coperation agitation in 1931 of Postal employees under the leadership of Dada Ghosh, the 25 days strike of 1946 which is written in golden letters in the history of Indian Independence struggle, commenced by Postmen of Mumbai and then joined by entire P & T employees and finally converted into a biggest working class strike, inspired and guided by the revolutionary leader Late K.G.Bose, who electrified the entire Central Government employees movement --- all these struggles were organised for achieving new benefits which were not available to Central Government employees till then. Most of the benefits which are now enjoyed by the Central Government employees are the result of the prolonged struggles conducted in pre-independent India, during British regime. Thousands of known and unnown leaders and workers had sacrificed their entire life for the cause of posterity during those period.
4. After independence (1947) upto 1990’s the struggle conducted by Central Government employees and Postal employees was mainly for improving or betterment of the benefits earned during the pre-independence period and to some extent for realizing some left out benefits like Bonus. The main cause of the struggles were for betterment of wages and other service conditions mainly through various pay commission mechanisms and also through various ED committees in the case of Gramin Dak Sevaks formerly called as Extra-Departmental Agents. The indefinite strike notice of 1957 demanding appointment of second Central Pay Commission and nationwide preparations thereof, indefinite strike of 1960 which lasted for five days demanding modifications and improvement of second pay commission recommendations, the historic one day strike of 1968 September 19th demanding Need Based Minimum Wage, 1974 Bonus strike of Railway Employees in which other Central Government employees also joined as solidarity strike for few days, the struggle against the attack on wages, DA and other service conditions during the 1975 Emergency period, the historic 1984 one day strike solely for realization of GDS demands, many other agitational programmes other than strikes --- all were conducted for improvement of wages and other service conditions. These struggles were organised at national level under the leadership of legendary leaders like Dada Ghosh, K.G.Bose, N.J.Iyer, K.Adinarayana, Om Prakash Gupta, S.K.Vyas, and N.P.Padmanabhan and many other leaders in various states.
5. The post independence period upto 1990’s was also the period of tremendous growth and leap forward of Central Government services and departments. It was a period of all-round development of Central services. Through the five year plan, the Central Government expanded the Central services to all parts of the nation for catering to various needs of the people like Communications, health, education, industry etc. etc. More and more offices were opened in cities and villages. To cope up with the work load due to opening of new offices and further expansion of services thousands of new posts were created and lakhs of new employees were recruited and appointed. To supervise and coordinate the activities of field offices, Administrative offices at State, Central and Ministry level were also established. Thus there was big increase in the number of offices and number of employees in Central Services during this period. The quality of the services also has improved a lot.
6. This growth trajectory lasted for 42 years from 1947 to 1990. From 1991 onwards very big policy change took place in Central Services. Neo-liberal globalisation policies were implemented in all sectors of the economy. Central services were not an exception. Closure of offices, merger of offices, Ban on recruitment, abolition of vacant posts, Ban on creation of new posts, Largescale outsourcing of the work performed by Central Government employees, introduction of Casual, Contract and daily rated mazdoor system, corporatisation of Government departments as a prelude to eventual privatisation are some of the neo-liberal policies introduced in Central Government services. Fifth, Sixth and Seventh Pay Commissions, Expenditure Reforms Commission and various expert committees gave recommendations to expedite the implementation of neo-liberal policies in all Central Goverment departments. During this period various types of resistance struggles were organised by Central Government employees in general and in each department. In Postal department struggle and strikes against reorganisation and closure of Post Offices and RMS Offices, outsourcing of speed post booking, non-filling up of vacancies and closure of Branch Post Offices took place during the period from 1991 onwards along with the struggle for improvement of wages and service conditions and also against curtailment of trade union facilities.
7. From 1991 onwards, the struggle of Central Government employees are mainly against the neo-liberal policies of closure, downsizing, outsourcing, corporatisation and casual contract system. Unlike in the pre-independence period upto 1947 and post-independence period upto 1990’s, when the struggles were mainly for achieving benefits and for improving the wages and service conditions, the struggles from 1991 onwards in the Central Government departments was mainly for job security of employees. Existence of each department and its employees faced big challenge from the policy of the Government. Consequently, as a corollary to these attacks, attack on wage structure, social security and trade union rights also intensified. The contributory pension system (NPS) was introduced. Instead of struggle for improving the existing benefits, the struggle for protecting the existing benefits became more prominent. Confederation of Central Government Employees & Workers organised strikes in 2012, 2014 and 2016. The historic sixteen days All India strike of Gramin Dak Sevaks took place during this period.
8. The Telecom department, which was a part of Central Government Services with about five lakhs employees and 10000 crore rupees yearly profit was corporatised during the period of neo-liberal reforms. Private telecom companies are given licences to operate. Government privatised VSNL. Ultimate result was that BSNL and MTNL became loss making entities and lakhs of employees were sent out on Voluntary Retirement scheme (VRS).
9. After coming to power at Centre in 2014, the BJP-led Modi Government started vigourously implementing the extreme neo-liberal polices of naked privatisation and dismantling of public sector and Government departments. In the defence sector the FDI limit is raised to 74% from 49%. Defence ordinance factories are going to be corporatised and privatised. In postal department India Post Payment Bank (IPPB), a public limited company, started functioning. Proposal for corporatisation of Postal Life Insurance and Rural Postal Life Insurance is pending approval of the cabinet. Conversion of the existing parcel Directorate into a seperate company is in the pipeline. Most of the work now done by postal employees such as booking of registered and speed post articles, money orders, acceptance of all savings bank deposits etc are going to be handed over to a public limited company called Common Service Centre (CSC). If all the above reforms are implemented, thousands of postal employees will become surplus and their job security will be in danger. The situation in other Central Government departments is also more or less the same. Govt’s decision to close down 12 out of 17 Government of India Printing Preses is an eye-opener to all those who believe that NDA Government will protect their job. During the Covid-19 pandenic period, the Government has declared unbridled privatisation of all strategic sectors including Space Research, Atomic energy, Defence production etc. The refusal of the Central Government to honour the assurance to increase the minimum pay and fitment formula, rejection of the demand to scrap Contributory Pension Scheme (NPS) and restore Old Pension Scheme (OPS), refusal to grant civil servant status and all benefits of regular employees to Gramin Dak Sevaks, increasing attack on the trade union rights are all part of this extreme neo-liberal policies pursued by the Government. Freezing of Dearness Allowance and impounding of arrears till 30-06-2021 in the name of Covid-19 crisis is another blow to the Central Government employees. Stringent measures to implement the provisions of FR 56(j),(l) and Pension Rules 48 is a calculated move by Government to terrorise the employees.
10. Central Government employees in general and Postal employees in particular are facing very very serious challenges and crisis, never faced in the past, due to the ruthless policies being implemented by Modi Government. Their job security, wage structure, social security and trade union rights are under severe attack. How to overcome this situation? How to protect the hard-won benefits of the employees which are the fruits of the struggle and sacrifice made by thousands of workers and leaders in the past 150 years? The answer is that the Central Government employees, especially Postal Employees, who have a history of heroic struggles and sacrifice, should be ready for uncompromising struggle and for more sacrifices than the sacrifices of our earlier leaders and workers at grass root level. Benefits, wages and service conditions which are the products of hard-won battles of the past, can be protected through still bigger and more militant struggles only. This is what history teaches us. There is no short-cut. There is no substitute for the struggle for existence. There is only two options left - either fight or perish. Let us not surrender. Let us stand up and fight. Let us make the 2020 November 26th one day National Strike a resounding success.
Tuesday, October 27, 2020
Very Sad News:
Sri.V. Radhaiah, ABPM, Vallipedu, BO., Vidyanagar S.O expired on 26-10-20 (06-30pm)
He is a sincere worker and due to retire on superannuation on 7.1.2021 i.e., within 3 months, which is highly painful.
Though he is not at present member of NFPE, we will pay Rs.3000/- towards funeral expenses tomorrow as per NFPE decission.
Further NFPE will try to get job to his son.
God may give strength to his family...