High Court · 2025

1. Heard Sri Pradeep Kumar Tripathi, learned counsel for the petitioner, learned Standing Counsel for the State-respondent and Ms. Shruti Sahu, learned counsel for respondents No.2 & 3.

2. Ms. Shruti Sahu, Advocate has filed short counter affidavit alongwith Vakalatnama, same is taken on record.

3.By means of this petition, petitioner prayed for following reliefs: "(i) Issue a writ, order or direction in the nature of certiorari quashing thereby the impugned order dated 10.06.2024 passed by the opposite party No.2 whereby arrears of Rs.6,81,278/- of 1st and 2nd promotional pay scale on completion of 19/24 years continuous and satisfactory service of petitioner has been denied on the ground of pending inquiry under Section 65/68 of U.P. Co-operative Act without having any authority of law. (ii) Issue a writ, or order in the nature of Mandamus commanding the opposite party Nos. 2 & 3 to pay the arrears of Rs.6,81,278/- of 1st and 2nd promotinal pay scale along with interest @ 6% per annum from due date to the date of actual payment within stipulated period, in the interest of justice."

4. Learned counsel for the petitioner has stated that since issue in question is covered with various judgments and orders of this Court, therefore, he will not file reply to the short counter affidavit and shall address the Court on the legal submissions.

5. Learned counsel for the petitioner has stated that the petitioner retired on 31.03.2017 from the post of Account Assistant, Dugdh Sangh, Jhansi. Undisputedly, at the time of retirement of the petitioner no inquiry of any kind whatsoever, be it departmental inquiry or vigilance inquiry was pending and the petitioner retired having his unblemished service record. Admittedly, the impugned action initiated against the petitioner pursuant to one audit objection dated 07.03.2019 that is after about two years from his retirement. Learned counsel has further submitted that there is no provision under the rules or regulation of the department permitting to take any action against retired employee. However, Section 85(11) of U.P. Co- operative Societies Employee Regulation, 1975, which provides disciplinary proceedings, has been amended by the notification No.1425/XLiX-2-15-5(419)-2017 w.e.f. 27.08.2018, whereby the competent authority has been permitted to proceed against the retired employee in a same manner the retired employees of the State government are subjected to the disciplinary proceedings. Learned counsel for the petitioner has stated that since the cut of date of the aforesaid amendment is 27.08.2018, therefore, it shall be applicable for those employees who retired on or after 27.08.2018, however, the petitioner retired prior to the aforesaid date i.e. 31.03.2017.

6. Learned counsel has stated that the present petitioner had filed one writ petition bearing Writ-A No.9356/2023, which was disposed of by this Court vide order dated 07.12.2023, which reads as under: "1. Heard learned counsel for the petitioner.

2. Notice on behalf of the respondent no.1 has been accepted by the office of the Chief Standing Counsel.

3. Shri Pankaj Patel, learned counsel has filed his Vakalatnama on behalf of the respondents no. 2 and 3, which is taken on record.

4. The grievance of the petitioner is that he has retired in the year 2017. Despite the aforesaid, the petitioner has not been granted the arrears of the 1st and 2nd Promotional Pay Scale on completion of 19 and 24 years of satisfactory service, respectively. It is stated that the petitioner has escalated the matter before the authority concerned, however, on the basis of some alleged pending Audit objection relating to the year 2015- 16 and 2016-17, the amount has not been paid to the petitioner. It is also urged that under the Rules i.e. no provision for initiating any disciplinary action against the petitioner after his retirement. In the aforesaid circumstances, where admittedly the petitioner had retired in the year 2017 that can be no valid reason to withhold the arrears of the 1st and 2nd Promotional Pay Scale as claimed by the petitioner inasmuch as till date there is no disciplinary inquiry initiating of pending against the petitioner.

5. In view of the aforesaid, this Court directs the respondent no.2 to consider and decide the issue regarding payment of the arrears of 1st and 2nd Promotional Pay Scale within a period of eight weeks from the date a copy of the certified order is placed before the authority concerned. The authority shall also take note of the fact that till date there is no disciplinary inquiry and under what provision the arrears of the Promotional Pay Scale could be withheld. The Court grants liberty to the petitioner to move a fresh representation within a period of two weeks from today and wherein the petitioner shall be at liberty to raise all his grievances and the same is received in the office of the respondent no.2, who shall consider and decide the same within a period of six period thereafter by reasoned and speaking order. In case, there is no legal impediment the petitioner shall be paid arrears for further period of four weeks.

6. With the aforesaid, the petition is disposed of. "

7. While disposing of the aforesaid writ petition, this Court considered the argument of the learned counsel for the petitioner that there is no provision initiating any disciplinary action against the petitioner after his retirement. Learned counsel has also drawn attention of this Court towards the order dated 23.05.2023 passed by this Court in Writ-A No.3386/2023, whereby this Court on the basis of settled position of law has observed that the proceedings under Section 65/68 of the U.P. Co-operative Societies Act cannot be termed as disciplinary proceedings, as such, the stand taken by the respondents is wholly unjustified. Learned counsel has stated that the aforesaid position of law has been considered in so many similar cases and similar orders have been passed, some of the same orders have been enclosed with the writ petition.

8. Learned counsel has stated that the impugned order dated 10.06.2024 has been passed in a mechanical manner without adverting to provisions of law, authorizing the department to pass an impugned order after more than seven years from the retirement of the petitioner and the stand of the department that such action has been taken pursuant to the powers defined under Section 68 of the U.P. Co-operative Societies Act, is misconceived inasmuch as invoking the provisions of Section 68, such order could have not been passed, inasmuch as by means of impugned order, a sum of Rs.6,81,278/- has been withheld for the reason that the petitioner and some others have been found responsible in audit objection dated 07.03.2019 for the loss of the department to the tune of Rs.55,25,029/-.

9. Per contra, Ms. Shruti Sahu, learned counsel for opposite parties No. 2 & 3 has stated that since no departmental proceeding has been initiated against the petitioner but the aforesaid amount has been directed to be realized from the petitioner as surcharge under Section 68 of the Act and that surcharge may be realized from the petitioner. However, she could not dispute the fact that at the time of retirement of the petitioner on 31.03.2017, there was no inquiry of any kind whatsoever pending against the petitioner and all impugned actions have been initiated after the audit objection dated 07.03.2019.

10. Having heard learned counsel for the parties and having perused the material available on record, no departmental proceedings can be initiated against the petitioner after his retirement, since such departmental proceedings may be initiated against the retired employees, who retired on or after 27.08.2018, but the petitioner retired prior that date i.e. on 31.03.2017. So far as, the impugned proceedings under the garb of Section 68 of the Act, is concerned, this Court has considered in so many cases that proceedings under Section 65/68 of the Act cannot be termed as disciplinary proceedings and that stand taken by the respondents is wholly unjustified. The aforesaid observation of this Court has not been overruled by the superior court, therefore, I am also of the view that impugned action/order may not be passed under Section 68 of the Act. Therefore, in view of the above, the impugned order dated 10.06.2024 (Annexure-1) is hereby set-aside/quashed and the respondents are directed to pay the arrears of Rs.06,81,278/- of 1st and 2nd promotional pay scale to the petitioner alongwith interest at the rate of 6% per annum from the date when the benefit fell due till payment/realization, within a period of three months.

11. Accordingly, the writ petition is allowed. Order Date :- 4.4.2025 Reena/- (Rajesh Singh Chauhan,J.) REENA KANNAUJIYA REENA KANNAUJIYA High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

1. Heard Sri Pradeep Kumar Tripathi, learned counsel for the petitioner, learned Standing Counsel for the State-respondent and Ms. Shruti Sahu, learned counsel for respondents No.2 & 3.

2. Ms. Shruti Sahu, Advocate has filed short counter affidavit alongwith Vakalatnama, same is taken on record.

3.By means of this petition, petitioner prayed for following reliefs: "(i) Issue a writ, order or direction in the nature of certiorari quashing thereby the impugned order dated 10.06.2024 passed by the opposite party No.2 whereby arrears of Rs.6,81,278/- of 1st and 2nd promotional pay scale on completion of 19/24 years continuous and satisfactory service of petitioner has been denied on the ground of pending inquiry under Section 65/68 of U.P. Co-operative Act without having any authority of law. (ii) Issue a writ, or order in the nature of Mandamus commanding the opposite party Nos. 2 & 3 to pay the arrears of Rs.6,81,278/- of 1st and 2nd promotinal pay scale along with interest @ 6% per annum from due date to the date of actual payment within stipulated period, in the interest of justice."

4. Learned counsel for the petitioner has stated that since issue in question is covered with various judgments and orders of this Court, therefore, he will not file reply to the short counter affidavit and shall address the Court on the legal submissions.

5. Learned counsel for the petitioner has stated that the petitioner retired on 31.03.2017 from the post of Account Assistant, Dugdh Sangh, Jhansi. Undisputedly, at the time of retirement of the petitioner no inquiry of any kind whatsoever, be it departmental inquiry or vigilance inquiry was pending and the petitioner retired having his unblemished service record. Admittedly, the impugned action initiated against the petitioner pursuant to one audit objection dated 07.03.2019 that is after about two years from his retirement. Learned counsel has further submitted that there is no provision under the rules or regulation of the department permitting to take any action against retired employee. However, Section 85(11) of U.P. Co- operative Societies Employee Regulation, 1975, which provides disciplinary proceedings, has been amended by the notification No.1425/XLiX-2-15-5(419)-2017 w.e.f. 27.08.2018, whereby the competent authority has been permitted to proceed against the retired employee in a same manner the retired employees of the State government are subjected to the disciplinary proceedings. Learned counsel for the petitioner has stated that since the cut of date of the aforesaid amendment is 27.08.2018, therefore, it shall be applicable for those employees who retired on or after 27.08.2018, however, the petitioner retired prior to the aforesaid date i.e. 31.03.2017.

6. Learned counsel has stated that the present petitioner had filed one writ petition bearing Writ-A No.9356/2023, which was disposed of by this Court vide order dated 07.12.2023, which reads as under: "1. Heard learned counsel for the petitioner.

2. Notice on behalf of the respondent no.1 has been accepted by the office of the Chief Standing Counsel.

3. Shri Pankaj Patel, learned counsel has filed his Vakalatnama on behalf of the respondents no. 2 and 3, which is taken on record.

4. The grievance of the petitioner is that he has retired in the year 2017. Despite the aforesaid, the petitioner has not been granted the arrears of the 1st and 2nd Promotional Pay Scale on completion of 19 and 24 years of satisfactory service, respectively. It is stated that the petitioner has escalated the matter before the authority concerned, however, on the basis of some alleged pending Audit objection relating to the year 2015- 16 and 2016-17, the amount has not been paid to the petitioner. It is also urged that under the Rules i.e. no provision for initiating any disciplinary action against the petitioner after his retirement. In the aforesaid circumstances, where admittedly the petitioner had retired in the year 2017 that can be no valid reason to withhold the arrears of the 1st and 2nd Promotional Pay Scale as claimed by the petitioner inasmuch as till date there is no disciplinary inquiry initiating of pending against the petitioner.

5. In view of the aforesaid, this Court directs the respondent no.2 to consider and decide the issue regarding payment of the arrears of 1st and 2nd Promotional Pay Scale within a period of eight weeks from the date a copy of the certified order is placed before the authority concerned. The authority shall also take note of the fact that till date there is no disciplinary inquiry and under what provision the arrears of the Promotional Pay Scale could be withheld. The Court grants liberty to the petitioner to move a fresh representation within a period of two weeks from today and wherein the petitioner shall be at liberty to raise all his grievances and the same is received in the office of the respondent no.2, who shall consider and decide the same within a period of six period thereafter by reasoned and speaking order. In case, there is no legal impediment the petitioner shall be paid arrears for further period of four weeks.

6. With the aforesaid, the petition is disposed of. "

7. While disposing of the aforesaid writ petition, this Court considered the argument of the learned counsel for the petitioner that there is no provision initiating any disciplinary action against the petitioner after his retirement. Learned counsel has also drawn attention of this Court towards the order dated 23.05.2023 passed by this Court in Writ-A No.3386/2023, whereby this Court on the basis of settled position of law has observed that the proceedings under Section 65/68 of the U.P. Co-operative Societies Act cannot be termed as disciplinary proceedings, as such, the stand taken by the respondents is wholly unjustified. Learned counsel has stated that the aforesaid position of law has been considered in so many similar cases and similar orders have been passed, some of the same orders have been enclosed with the writ petition.

8. Learned counsel has stated that the impugned order dated 10.06.2024 has been passed in a mechanical manner without adverting to provisions of law, authorizing the department to pass an impugned order after more than seven years from the retirement of the petitioner and the stand of the department that such action has been taken pursuant to the powers defined under Section 68 of the U.P. Co-operative Societies Act, is misconceived inasmuch as invoking the provisions of Section 68, such order could have not been passed, inasmuch as by means of impugned order, a sum of Rs.6,81,278/- has been withheld for the reason that the petitioner and some others have been found responsible in audit objection dated 07.03.2019 for the loss of the department to the tune of Rs.55,25,029/-.

9. Per contra, Ms. Shruti Sahu, learned counsel for opposite parties No. 2 & 3 has stated that since no departmental proceeding has been initiated against the petitioner but the aforesaid amount has been directed to be realized from the petitioner as surcharge under Section 68 of the Act and that surcharge may be realized from the petitioner. However, she could not dispute the fact that at the time of retirement of the petitioner on 31.03.2017, there was no inquiry of any kind whatsoever pending against the petitioner and all impugned actions have been initiated after the audit objection dated 07.03.2019.

10. Having heard learned counsel for the parties and having perused the material available on record, no departmental proceedings can be initiated against the petitioner after his retirement, since such departmental proceedings may be initiated against the retired employees, who retired on or after 27.08.2018, but the petitioner retired prior that date i.e. on 31.03.2017. So far as, the impugned proceedings under the garb of Section 68 of the Act, is concerned, this Court has considered in so many cases that proceedings under Section 65/68 of the Act cannot be termed as disciplinary proceedings and that stand taken by the respondents is wholly unjustified. The aforesaid observation of this Court has not been overruled by the superior court, therefore, I am also of the view that impugned action/order may not be passed under Section 68 of the Act. Therefore, in view of the above, the impugned order dated 10.06.2024 (Annexure-1) is hereby set-aside/quashed and the respondents are directed to pay the arrears of Rs.06,81,278/- of 1st and 2nd promotional pay scale to the petitioner alongwith interest at the rate of 6% per annum from the date when the benefit fell due till payment/realization, within a period of three months.

11. Accordingly, the writ petition is allowed. Order Date :- 4.4.2025 Reena/- (Rajesh Singh Chauhan,J.) REENA KANNAUJIYA REENA KANNAUJIYA High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench