A Single Bench of Justice Sanjay Dhar in a Writ Petition challenging the order passed by the respondents against Petitioner treating his service period with effect from 23.12.1988 to 26.02.2001 dies non, as well as holding enquiry against him after his superannuation, answered whether enquiry against an employee can be conducted after his superannuation or not, and in the facts of the case, whether such enquiry was conducted as per law.
The contention of the Petitioner’s Counsel was that it was not open to the respondents to hold an enquiry against the petitioner after he had superannuated from service, and as such any enquiry against him has no legal sanctity; besides arguing that adequate opportunity to participate in the enquiry was not given to him as he was not provided with the copy of the enquiry report.
While dealing with the first question, viz., whether enquiry can be conducted against a delinquent employee after his superannuation, the Court laid that “in normal course, enquiry cannot be held against a government employee after he has demitted the office on superannuation.” However, given the peculiar facts of the case, the Court observed that it was in the earlier rounds of litigation between the parties that a direction was given by the High Court to the Respondents hold a fresh enquiry in accordance with law, and this direction was passed when the Petitioner had already superannuated. As such, the Court observed, “Thus, holding of the enquiry against the petitioner even after his superannuation was in pursuance to the directions of the Court. In these peculiar circumstances, the normal position of law that enquiry cannot be held against an employee who has demitted office on superannuation, would not apply to the instant case.”
Furthermore, the Bench also clarified that even otherwise an employer is entitled to hold an enquiry against his employee after his superannuation in service, when the same is provided for.
Moreover, as far as the question of not providing the enquiry report is concerned, the Court upon a cumulative consideration of the rules [J&K Civil Services (Classification, Control and Appeal) Rules, 1956– Rule 30]((hereinafter referred to as the CS(CAA) Rules)as well as the pronouncements of the Supreme Court in “Union of India and others v Mohd Ramzan Khan [1991 (1) SCC 588]” and “Managing Director, ECIL Hyderabad vs. B. Karunakara, [(1993) 4 SCC 727]” held that even though there is nothing in the said Rule (Rule 35 CS(CAA) Rules), which mandates an employer to furnish copy of the enquiry report to a delinquent employee, from the analysis of law on the subject, it emerges that whatever may be the nature of the punishment to be imposed, whenever an enquiry is held and punishment is proposed to be inflicted, an employee must have the benefit of report of enquiry so as to enable him to make a representation before the Disciplinary Authority, even if the Rules do not provide for the same. The Court held this position to be applicable to employees of all establishments whether Government, non-Government, public or private.
Therefore, observing that the Respondents in the instant case had not followed the mandate of law as admittedly a copy of enquiry report was not provided to him, thus, denying him the opportunity to make a representation before the Disciplinary Authority, the Court quashed the impugned order, and inter-alia, directed the respondents to pay the salary due to the Petitioner due to him for the period treated as dies non.
