Prematurely Retiring An Employee During Pending Enquiry Without Due Process Amounts To Misconduct : Jharkhand HC

The Jharkhand High Court bench comprising Justice Deepak Roshan held that prematurely retiring an employee during pendency of departmental enquiry on disputed records, without following due process, amounts to misconduct by the officers as it prejudices the employer's interest. Background Facts In the year 1980, employee was appointed as Senior Overman in Central Coalfields Limited (CCL). His date of birth was recorded in the service book as 15.02.1956 on the basis of a medical certificate. In 2014, during a certificate verification exercise under RTI, he failed to produce his matriculation and statutory certificates despite repeated reminders. Therefore, a departmental enquiry was initiated against him on 23.12.2014. During the pendency of enquiry, the Directorate General of Mines Safety (DGMS), Dhanbad, by letter dated 13.01.2015, intimated that as per its records, employee's date of birth was 05.01.1953. It meant that he had already superannuated on 31.01.2013. On 10.04.2015, the Enquiry Officer prepared a note recommending removal of the employee on the ground of deemed superannuation. The Senior Manager (Personnel) at CCL Headquarters, endorsed the note and advised that employee's name be struck off from the rolls and the pending enquiry be dropped. Based on these recommendations, the employee was disengaged from service on 21.04.2015. He was allowed retiral benefits. Subsequently, on the basis of a vigilance report, both officers were served with charge-memos dated 07.10.2016 alleging that they had facilitated the premature retirement of the employee during pendency of departmental proceedings, thereby conferring undue benefit upon him. By order dated 31.08.2017, minor penalties were imposed. The Directorate General was awarded withholding of two increments for two years, and Senior Manager was awarded withholding of three increments for three years. Further their departmental appeals were dismissed on 28.01.2020. Aggrieved by the same, both officers filed the writ petitions. It was submitted by the petitioners that the charge-memo dated 07.10.2016 did not disclose which particular rule or provision had been violated by them. Further it did not explain how allowing the employee to retire peacefully and receive his retiral dues was prejudicial to the interest of the company. The petitioners relied upon Clause 34 of the Certified Standing Orders of CCL which provides that an employee shall superannuate on attaining 60 years of age, and once superannuated, no departmental enquiry can be continued. They further referred to the administrative guidelines dated 17/18.07.2006, which also clarified that a proceeding cannot be pursued against an employee after retirement. It was also contended that even if their decision was later viewed as erroneous, at best it amounted to an error of judgment and not "misconduct," as misconduct requires a wrongful intention or mala fide motive. The petitioners argued that mere negligence or mistake cannot be equated with misconduct. On the other hand it was submitted by the respondents that the petitioners, by their recommendations, permitted the employee to retire peacefully during the pendency of a departmental enquiry, which was contrary to procedure. It caused undue benefit to the employee. It was argued that petitioners' actions effectively nullified the pending enquiry and enabled release of retiral dues, thereby acting against the interest of the company. It was further submitted that the DGMS letter dated 13.01.2015, which mentioned a different date of birth, was never produced in the enquiry proceedings and no fresh notice was issued to the employee for verification. Instead of following due process, the petitioners hastily recommended treating him as superannuated and dropped the enquiry without any rule or circular supporting such a course of action. Findings of the Court It was observed by the Court that the petitioners, by recommending the superannuation of the employee and dropping the pending departmental enquiry, acted in a manner prejudicial to the interest of the company. It was held by the Court that Clause 34 of the Certified Standing Orders of CCL provides for retirement on attaining the age of 60 and bars continuation of an enquiry after natural superannuation, but the same cannot be extended to a situation where an employee is forced to retire on the basis of disputed records during the pendency of proceedings. The correct course would have been to issue a fresh show-cause notice and place the DGMS letter dated 13.01.2015 on record, which was not done. It was further observed that by recommending immediate action with the note “immediate action please,” the petitioners showed undue leniency towards an employee against whom misconduct proceedings were pending. This action effectively enabled him to retire peacefully and receive retiral benefits. It...

Prematurely Retiring An Employee During Pending Enquiry Without Due Process Amounts To Misconduct : Jharkhand HC

Namdev Singh

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