# Aditya Kumar Mishra v. State of U.P. Road Transport Corporation, Hqrs. Tehri Kothi

- **Citation:** (2024) 7 ILRA 29
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-08
- **Case number:** Writ A No. 91 of 2022
- **Bench:** Salil Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aditya-kumar-mishra-v-state-of-u-p-road-transport-corporation-hqrs-tehri-kothi-52257
- **Pages:** 14

## Headnote

A. Service Law - UP St. Road Transport
Employees (OtherThan Officers) Service
Regulation, 1981 - Reg. 84 - Financial
Handbook - Vol. 2, Rule 54 & 54-A -
Disciplinary proceeding - Punishment -
Nine passengers were found without
tickets - Charge against conductor was
found proved and removal order was
passed - But, the Revisional authority
punished the conductor by withholding
the four annual increment for dereliction
of duty by setting aside the removal order
as it was found disproportionate - Validity
challenged - No charge of negligence or
dereliction of duty was there in chargesheet - Defence that when nine nine
passengers refused to pay their fare, the
petitioner had asked the driver to station
the bus but on the insistence of other
passengers, the driver of the vehicle
continued to drive, was found proved in
revision - Effect - Held, the disciplinary
authority can not travel beyond the
charge-sheet
and
any
punishment
imposed for a charge which was not the
subject matter of the charge-sheet would
be illegal. In any case, the petitioner
cannot be held liable even for dereliction
of duty once the revisional authority
accepted the defense of the petitioner.
(Para 9 and 20)

B. Constitution of India,1950 - Article 226
- Writ - Judicial review - Disciplinary
proceeding - Scope of interference - Held,
under Article 226 of the Constitution, the
High Court is not a court of appeal over
the decision of the disciplinary authority
and does not either re-appreciate the
evidence submitted against the employee
nor does the High Court records an
independent
finding
on
evidence
-
However, under Article 226 the High Court
can interfere where the findings of the
disciplinary authority are wholly arbitrary
and capricious or are based on no
evidence or where the findings are such
which no reasonable man can ever arrive
at. (Para 12)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–38,847 of 47,432. This is a partial read: ask again with offset=38847 for what follows._

7 All. Aditya Kumar Mishra Vs. State of U.P. Road Transport Corporation, Hqrs. Tehri Kothi
29
special appeal is maintainable and the objection
of the respondents is turned down."
(emphasis supplied)

65. The Division Bench of this Court
in M/s Vajara Yojna Seed Farm10 holds the
special appeal against order of learned Single
Judge passed in exercise of jurisdiction
conferred under Article 226 and 227 of the
Constitution of India against (I) orders of
Labour Court passed under any Uttar Pradesh
Act, (ii) orders of Joint Director of Education
under Statutory Regulations framed under U.P.
Intermediate Act, 1921 and (iii) against orders
of Election Tribunals under the U.P. Panchayat
Raj Act, all State Legislations, to be not
maintainable. Similarly, in A.P. Jeet Singh
(Constable)9, once again the orders impugned
in the writ petition was held to have been
passed
under
U.P.
Police
Officers
of
Subordinate Ranks (Punishment and Appeal)
Rules, 1991 and therefore not maintainable.
Same was the position before the Supreme
Court in Madhav Prasad Sharma11. These
cases are therefore of no help to the
respondents.

66.
Learned
counsel
for
the
respondent also tried to contend that while
construing whether the exercise of power of
appellate or revisional jurisdiction is with
respect to any matter enumerated in the State
List or the Concurrent List, it is the subject
matter of the dispute in hand which has to be
examined and not the legislation itself.
However, we are unable to accept the
contention. It is amply clear that the expression
"with respect to" refers to source of State or
Central Legislation and not the subject matter of
dispute involved in a particular case. Such an
interpretation not only goes against the express
language of the provision itself, but also against
the well established principle that while
interpreting the source of power of the
legislature, any incidental entrenchment on the
power reserved for the other legislature, is of no
consequence.

Conclusion: -

67. We, accordingly, answer the
questions referred to us as follows: -

 (a) Intra-court appeal under Chapter
VIII Rule 5 of the High Court Rules against a
judgment of Single Judge in a writ proceeding
under Article 226 of the Constitution of India,
preferred against an order passed by an officer
or authority exercising appellate or revisional
power under U.P. State Road Transport
Corporation Employees (Other than Officers)
Service Regulations, 1981, is maintainable.

(b) The Division Bench decisions in
Jageshwar Prasad Tiwari vs. UPSRTC and
Others and Madan Pal Singh vs. State of
U.P. and Others lay down the correct law
while the judgment of this court in UPSRTC
through RM vs. Abhai Raj Singh and 2
others does not and is overruled to the extent it
holds the special appeal to be not maintainable.

68. Let the papers of the instant
appeal, be placed before appropriate Bench,
along with our opinion, for disposal.
----------
(2024) 7 ILRA 29
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.07.2024

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Writ A No. 91 of 2022

Aditya Kumar Mishra ...Petitioner
Versus
State of U.P. Road Transport Corporation,
Hqrs. Tehri Kothi ...Respondent
30 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Mohd. Ali

Counsel for the Respondents:
Ratnesh Chandra

A. Service Law - UP St. Road Transport
Employees (OtherThan Officers) Service
Regulation, 1981 - Reg. 84 - Financial
Handbook - Vol. 2, Rule 54 & 54-A -
Disciplinary proceeding - Punishment -
Nine passengers were found without
tickets - Charge against conductor was
found proved and removal order was
passed - But, the Revisional authority
punished the conductor by withholding
the four annual increment for dereliction
of duty by setting aside the removal order
as it was found disproportionate - Validity
challenged - No charge of negligence or
dereliction of duty was there in chargesheet - Defence that when nine nine
passengers refused to pay their fare, the
petitioner had asked the driver to station
the bus but on the insistence of other
passengers, the driver of the vehicle
continued to drive, was found proved in
revision - Effect - Held, the disciplinary
authority can not travel beyond the
charge-sheet
and
any
punishment
imposed for a charge which was not the
subject matter of the charge-sheet would
be illegal. In any case, the petitioner
cannot be held liable even for dereliction
of duty once the revisional authority
accepted the defense of the petitioner.
(Para 9 and 20)

B. Constitution of India,1950 - Article 226
- Writ - Judicial review - Disciplinary
proceeding - Scope of interference - Held,
under Article 226 of the Constitution, the
High Court is not a court of appeal over
the decision of the disciplinary authority
and does not either re-appreciate the
evidence submitted against the employee
nor does the High Court records an
independent
finding
on
evidence
-
However, under Article 226 the High Court
can interfere where the findings of the
disciplinary authority are wholly arbitrary
and capricious or are based on no
evidence or where the findings are such
which no reasonable man can ever arrive
at. (Para 12)

Writ petition allowed. (E-1)

List of Cases cited:

1. Nirmala J. Jhala Vs St. of Guj. & anr.; 2013
(31) LCD 762

2. Pradeep Vs Manganese Ore (INDIA) Limited
& ors.; 2022 (3) SCC 683

3. Deepali Gundu Surwase Vs Krinti Junior
Adhyapak Mahavidyalaya (D.Ed.) & ors.; 2013
(10) SCC 324

4. M.P. St. Agro Industries Development
Cooperation Ltd. & anr. Vs Jahan Khan; 2007
(10) SCC 88

5. Chandra Kumar Mishra Vs St. of U.P. & ors.;
2022 (40) LCD 3001.9

6. U.O.I.& ors. Vs P. Gunasekaran; 2015 (2)
SCC 610

7. Uttar Pradesh St. Road Transport Corporation
& anr. Vs Gopal Shukla & anr.; 2015 (17) SCC
603

8. St. of A.P. Vs S. Sree Rama Rao; AIR (1963)
SC 1723

9. St. of A.P. Vs Chitra Venkata Rao; (1975) 2
SCC 557

10. St. of Haryana Vs Rattan Singh; (1977) 2
SCC 491

(Delivered by Hon'ble Salil Kumar Rai, J.)

1. Heard Shri Mohd. Ali, counsel for
the petitioner and Shri Ratnesh Chandra,
Advocate, representing the Uttar Pradesh
State Road Transport, Corporation.

2. The petitioner was employed as
conductor with Uttar Pradesh State Road
Transport, Corporation (hereinafter referred
7 All. Aditya Kumar Mishra Vs. State of U.P. Road Transport Corporation, Hqrs. Tehri Kothi
31
to as, 'Corporation'). On 1.11.2013, the
petitioner was on duty in a 32 Seater Bus
No. UP 57 T 2765 plying on the
Gorakhpur-Padrauna route. The bus was
inspected in mid route by a team led by the
Transport
Superintendent,
Gorakhpur
Region. The inspection team found that
nine passengers in the bus were travelling
without ticket.

3. On 2.11.2013, the inspection
team submitted a report to the Regional
Manager of the Corporation stating that, on
inspection, nine passengers in the bus were
found to be without ticket even though they
had paid the fare. In his report, the
Regional Manager noted that the nine
passengers had deposed orally but had
refused to give any written statement. It is
relevant to note that the report does not
disclose the contents of the oral statements
of the nine passengers. The report also does
not refer to any evidence in support of the
finding that the petitioner had charged fares
from the nine passengers. By order dated
19.11.2013 disciplinary proceedings were
instituted against the petitioner and a
charge-sheet was served on him. The
charge against the petitioner was that he
had acted against the Uttar Pradesh State
Road Transport Employees (Other Than
Officers)
Service
Regulation,
1981
(hereinafter referred to as, 'Regulation,
1981'), caused financial loss to the
Corporation and indulged in corruption by
not issuing tickets to the nine passengers.

4. In his reply, the petitioner
denied the charges levelled against him.
The defense of the petitioner was that the
nine passengers were students and had
refused to pay their fare, therefore, tickets
were not issued to them. The petitioner
claimed that when the aforesaid nine
passengers refused to pay their fare, the
petitioner asked the driver to halt the bus
but the driver did not halt the bus because
of opposition by other passengers.

5. During the enquiry proceedings,
the Transport Superintendent and two
Assistant Transport Inspectors, who were
part of the inspection team, appeared as
witness of the Corporation to prove the
report
submitted
by
the
Transport
Superintendent.
In
his
defense
the
petitioner
produced,
as
witness,
two
passengers who were travelling in the bus
on
1.11.2013.
The
Inquiry
Officer
submitted his report on 8.1.2014. In his
report
the
Inquiry Officer
held
the
petitioner guilty of the charges levelled
against him. A show cause notice dated
9.1.2023 was served on the petitioner to
show cause as to why he should not be
removed from service.

6. In his reply to the show cause
notice, the petitioner reiterated his defense
as submitted before the Inquiry Officer.
The defense of the petitioner was not
accepted by the Regional Manager, who
vide his order dated 7.10.2014 awarded the
punishment of 'removal from service' to
the petitioner. The petitioner filed appeal
before the Chief Manager (Finance &
Account), which was also rejected vide
order dated 16.11.2015. Against the orders
dated 7.10.2014 and 16.11.2015, the
petitioner
filed
Revision
before
the
Chairman of the Corporation, which was
partly allowed by order dated 31.8.2021. In
his order dated 31.8.2021, the Chairman
accepted the defense of the petitioner and
set aside the orders dated 7.10.2014 and
16.11.2015. In his order dated 31.8.2021,
the Chairman held that the nine passengers
had not paid their fare despite the petitioner
having demanded it from them and when
the passengers refused to pay the fare, the
32 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner asked the driver to halt the bus,
but the driver continued to drive the
vehicle. The Chairman held that the
inspection team was under a duty to
recover the fare from the nine passengers.
However, the Chairman also held that the
petitioner was responsible for letting the
nine passengers to travel without ticket but
the punishment of 'removal from service'
awarded
to
the
petitioner
was
disproportionate to his conduct. By order
dated 31.8.2021, the petitioner has been
reinstated in service without any financial
benefits for the period he was not in service
and four annual increments of the petitioner
have also been withheld.

7. The present petition has been
filed challenging the order dated 31.8.2021
passed by the Chairman so far as it
witholds four annual increments of the
petitioner and also denies financial benefits
to the petitioner for the period he was not in
service.

8. It was argued by the counsel for
the petitioner that the charges levelled
against the petitioner were not established
in the departmental proceedings and there
was no evidence that the petitioner had
purposely not issued tickets to the nine
passengers or the nine passengers had paid
their
fare.
It
was
argued
that
the
explanation of the petitioner that nine
passengers were students and had refused
to pay the fare was proved by the witnesses
of the petitioner. It was argued that the
order passed by the Chairman holding the
petitioner responsible for letting nine
passengers to travel without ticket is also
without any evidence and has been
recorded without considering the evidence
submitted by the petitioner. It was argued
that the driver of the Bus was a material
witness to prove the charges against the
petitioner but was not produced by the
department. It was further argued by the
counsel for the petitioner that withholding
of
financial
benefits
even
after
reinstatement of the employee is not
included
in
Regulation
63
of
the
Regulations, 1989 which prescribes the
penalties that can be awarded to a
delinquent, therefore, the impugned order
passed by the Chairman refusing financial
benefits to the petitioner for the period he
was not in service is without jurisdiction. It
was argued that there is no finding by the
Chairman that the petitioner was gainfully
employed while he was out of service and,
therefore, pay and other allowances for the
period the petitioner was out of service
could not have been denied to him. It was
argued that for the aforesaid reasons, the
impugned order passed by the Chairman so
far as it denies financial benefits to the
petitioner and so far as it withholds four
annual increments of the petitioner is
without jurisdiction. In support of his
contention, the counsel for the petitioner
has relied on the following judgements of
the Supreme Court and of this Court :-

 (a) Nirmala J. Jhala Vs. State of
Gujarat & Another, 2013 (31) LCD 762;

(b) Pradeep Vs. Manganese Ore
(INDIA) Limited & Others, 2022 (3)
SCC 683;

(c) Deepali Gundu Surwase Vs.
Krinti Junior Adhyapak Mahavidyalaya
(D.Ed.) & Others, 2013 (10) SCC 324;

(d) M.P. State Agro Industries
Development
Cooperation
Ltd.
&
Another Vs. Jahan Khan, 2007 (10) SCC
88; and

(e) Chandra Kumar Mishra Vs.
State of U.P. & Others, 2022 (40) LCD
3001.
7 All. Aditya Kumar Mishra Vs. State of U.P. Road Transport Corporation, Hqrs. Tehri Kothi
33
9. Rebutting the argument of the
counsel for the petitioner, the counsel for
the respondents, i.e., the Corporation and
its officers, has argued that the driver was
not a material witness to prove the charges
against the petitioner and it was the
petitioner who was required to produce the
driver as witness to prove his defense. It
was argued that the petitioner did not
inform the inspection team that tickets were
not issued to the nine passengers because
they had refused to pay their fare. It was
argued by the counsel for the respondent
that the petitioner as Conductor had
committed breach of trust and in matters of
corruption no mercy can be shown. It was
argued by the counsel for the respondents
that the findings recorded by the Inquiry
Officer are based on evidence on record
and the punishment awarded to the
petitioner was not disproportionate to the
charges, therefore the findings of the
Inquiry
Officer
and
the
punishment
awarded to the petitioner were not
susceptible to interference under Article
226 of the Constitution of India.

10. Replying to the jurisdictional
issue raised by the petitioner, the counsel
for the respondents has argued that the
petitioner has been held responsible for
letting nine passengers to travel without
ticket and punishment has been awarded to
him, therefore, status quo has not been
restored and thus there is no jurisdictional
error in the order passed by the revisional
authority refusing financial benefits to the
petitioner for the period the petitioner was
out of service and the judgement of the
Supreme Court in Deepali (supra) is not
applicable in the present case. It was
argued that for the aforesaid reasons, the
petition lacks merit and is liable to be
dismissed. In support of his contention, the
counsel for the respondent has relied on the
judgements of the Supreme Court reported
in Union of India and Others Vs. P.
Gunasekaran, 2015 (2) SCC 610 and
Uttar Pradesh State Road Transport
Corporation & Another Vs. Gopal
Shukla & Another, 2015 (17) SCC 603.

11.

I
have
considered
the
submissions of the counsel for the parties.

12. The law regarding judicial
review of disciplinary proceedings is well
settled. Disciplinary proceedings are quasi
judicial proceedings and the Inquiry Officer
performs a quasi judicial function. Under
Article 226 of the Constitution, the High
Court is not a court of appeal over the
decision of the disciplinary authority and
does not either reappreciate the evidence
submitted against the employee nor does
the High Court records an independent
finding on evidence. However, under
Article 226 the High Court can interfere
where the findings of the disciplinary
authority
are
wholly
arbitrary
and
capricious or are based on no evidence or
where the findings are such which no
reasonable man can ever arrive at. The
findings in the disciplinary proceedings as
well as the punishment awarded to the
delinquent should also not be influenced by
irrelevant
considerations.
The
Inquiry
Officer and the disciplinary authority can
not record findings or pass orders of
punishment on mere suspicion. The Inquiry
Officer and the disciplinary authority can
also not travel beyond the charges and any
punishment imposed on the basis of a
charge which was not the subject matter of
the charge-sheet would be illegal.

13. It is also well settled that the
punishment awarded to the delinquent
employee should be proportionate to the
gravity of his alleged misconduct and in
34 INDIAN LAW REPORTS ALLAHABAD SERIES
cases of corruption, there can be no
punishment other than dismissal. It has
been held by the courts that sympathy in
cases of corruption is uncalled for and
opposed to public interest (reference may
be made to the judgement of the Supreme
Court in Gopal Shukla (supra). However,
merely because the employee is charged
with an act of corruption can not be a
reason for the Inquiry Officer or the
disciplinary authority to deviate from the
procedure prescribed in the service rules or
from the principles of natural justice. In
cases of extreme punishment like dismissal,
it is more necessary that the findings
against the employee should not be
recorded on mere probabilities.

14. At this stage it would be apt to
refer to certain judgements of the Supreme
Court which expound the law relating to
judicial review of departmental enquiries.

15. It was observed by the
Supreme Court in State of A.P. Vs. S. Sree
Rama Rao, AIR (1963) SC 1723 that :

 "7. ... The High Court is not
constituted in a proceeding under Article
226 of the Constitution as a court of appeal
over the decision of the authorities holding
a departmental enquiry against a public
servant: it is concerned to determine
whether the enquiry is held by an authority
competent in that behalf, and according to
the procedure prescribed in that behalf, and
whether the rules of natural justice are not
violated. Where there is some evidence,
which the authority entrusted with the duty
to hold the enquiry has accepted and which
evidence may reasonably support the
conclusion that the delinquent officer is
guilty of the charge, it is not the function of
the High Court in a petition for a writ under
Article 226 to review the evidence and to
arrive at an independent finding on the
evidence.
The
High
Court
may
undoubtedly
interfere
where
the
departmental authorities have held the
proceedings against the delinquent in a
manner inconsistent with the rules of
natural justice or in violation of the
statutory rules prescribing the mode of
enquiry or where the authorities have
disabled themselves from reaching a fair
decision
by
some
considerations
extraneous to the evidence and the
merits of the case or by allowing
themselves to be influenced by irrelevant
considerations or where the conclusion
on the very face of it is so wholly
arbitrary
and
capricious
that
no
reasonable person could ever have
arrived at that conclusion, or on similar
grounds. But the departmental authorities
are, if the enquiry is otherwise properly
held, the sole judges of facts and if there be
some legal evidence on which their
findings can be based, the adequacy or
reliability of that evidence is not a matter
which can be permitted to be canvassed
before the High Court in a proceeding for a
writ under Article 226 of the Constitution."
(Emphasis added)

16. In State of A.P. Vs. Chitra
Venkata Rao, (1975) 2 SCC 557, the
Supreme Court observed as follows :-

"The jurisdiction to issue a writ
of certiorari under Article 226 is a
supervisory
jurisdiction.
The
Court
exercises it not as an appellate court. The
findings of fact reached by an inferior court
or tribunal as a result of the appreciation of
evidence are not reopened or questioned in
writ proceedings. An error of law which is
apparent on the face of the record can be
corrected by a writ, but not an error of fact,
however grave it may appear to be. In
7 All. Aditya Kumar Mishra Vs. State of U.P. Road Transport Corporation, Hqrs. Tehri Kothi
35
regard to a finding of fact recorded by a
tribunal, a writ can be issued if it is
shown that in recording the said finding,
the tribunal had erroneously refused to
admit admissible and material evidence,
or
had
erroneously
admitted
inadmissible
evidence
which
has
influenced the impugned finding. Again
if a finding of fact is based on no
evidence, that would be regarded as an
error of law which can be corrected by a
writ of certiorari. A finding of fact
recorded by the Tribunal cannot be
challenged on the ground that the relevant
and material evidence adduced before the
Tribunal is insufficient or inadequate to
sustain a finding. The adequacy or
sufficiency of evidence led on a point and
the inference of fact to be drawn from the
said finding are within the exclusive
jurisdiction of the Tribunal."
(Emphasis added)

17. The Supreme Court observed
in State of Haryana v. Rattan Singh,
(1977) 2 SCC 491 that :-

"4. ...in a domestic enquiry the
strict and sophisticated rules of evidence
under the Indian Evidence Act may not
apply. All materials which are logically
probative
for
a
prudent
mind
are
permissible. There is no allergy to hearsay
evidence provided it has reasonable nexus
and credibility. It is true that departmental
authorities and administrative tribunals
must be careful in evaluating such material
and should not glibly swallow what is
strictly speaking not relevant under the
Indian Evidence Act. For this proposition it
is not necessary to cite decisions nor text
books, although we have been taken
through case-law and other authorities by
counsel on both sides. The essence of a
judicial
approach
is
objectivity,
exclusion of extraneous materials or
considerations and observance of rules of
natural justice. Of course, fair play is the
basis and if perversity or arbitrariness,
bias or surrender of independence of
judgment
vitiate
the
conclusions
reached, such finding, even though of a
domestic tribunal, cannot be held good."
(Emphasis added)

18. At this stage, it would be
relevant to rehearse the facts of the present
case.

19. The inspection team found that
nine passengers were travelling without
ticket. The inspection report noted that the
nine passengers had paid their fare to the
petitioner, i.e., the conductor of the bus.
The inspection report also noted that the
nine passengers had orally deposed before
the inspection team, but had refused to give
their written statement. It is noted that the
inspection report does not attribute to the
passengers the recital in the report that the
petitioner had charged fare from them. The
inspection report does not state as to how
the inspection team came to know that the
passengers had paid their fare. The charge
against the petitioner was that he indulged
in corruption by not issuing tickets to the
nine passengers even after having received
fare from them. In the inquiry proceedings,
the Traffic Superintendent who led the
inspection team, appeared as a witness and
in his evidence, the Traffic Superintendent
only stated that nine passengers were found
to be travelling without ticket. In his
evidence, the Traffic Superintendent again
did not attribute to the passengers any
statement implicating the petitioner, i.e.,
the petitioner had charged fare from the
passengers. It may be noted that none of the
said passengers were produced as witness
in the case. The enquiry report submitted
36 INDIAN LAW REPORTS ALLAHABAD SERIES
against the petitioner only notes that the
petitioner had the duty to ensure that the
bus moved only after the passengers had
paid thier fare and tickets had been issued
to them and the failure of the petitioner to
act accordingly shows bad intention of the
petitioner. There is no finding in the
enquiry report that the petitioner had
charged fare from the nine passengers. The
enquiry report, the order dated 7.10.2014
passed
by
the
disciplinary
authority
removing the petitioner from service and
the order dated 16.11.2015 passed by the
appellate authority do not refer to any
evidence
which
even
prima
facie
establishes that the petitioner had taken the
fare of the bus from the nine passengers.
The mere fact that the passengers were
travelling without ticket would not in itself
lead to the conclusion that the nine
passengers had paid the fare and the
petitioner had misappropriated the amount.
Apparently, there was no evidence on
record that the nine passengers had paid
their fare to the petitioner and the petitioner
had misappropriated the amount. The order
passed by the departmental authorities
removing the petitioner from service and
also dismissing his appeal are based on
findings which are without any evidence.

20. The order dated 31.8.2021
passed by the revisional authority, even
though it exonerates the petitioner of the
charges levelled in the charge-sheet, holds
the petitioner responsible for letting nine
passengers to travel without ticket. In his
impugned order, the revisional authority
has accepted the plea of the petitioner that
when the nine passengers had refused to
pay their fare the petitioner had asked the
driver of the bus to station the bus but the
driver continued to drive because of protest
by other passengers. The opinion of the
revisional authority that the petitioner was
responsible for letting nine passengers to
travel without ticket is contrary to his own
findings that when the nine passengers
refused to pay their fare the petitioner had
asked the driver to station the bus but on
the insistence of other passengers, the
driver of the vehicle continued to drive and
did not halt the bus. Apart from the
aforesaid, the findings of the revisional
authority can, at the most, lead only to a
charge of dereliction of duty by the
petitioner. In the charge-sheet the petitioner
was not charged with negligence or
dereliction of duty and as noted earlier, the
disciplinary authority can not travel beyond
the charge-sheet and any punishment
imposed for a charge which was not the
subject matter of the charge-sheet would be
illegal. In any case, the petitioner can not
be held liable even for dereliction of duty
once the revisional authority accepted the
defense of the petitioner that when the nine
passengers did not pay their fare, the
petitioner asked the driver to station the bus
but the driver did not stop the bus because
other passengers insisted that the bus be not
stationed. Further, no reasons have been
given in the order dated 31.8.2021 for
holding against the petitioner. Evidently,
the
order
31.8.2021
passed
by
the
revisional authority so far as it holds the
petitioner responsible for letting nine
passengers to travel without ticket and
consequently
imposes
punishment
of
withholding
four
increments
of
the
petitioner is a non-speaking order, without
any evidence and is also perverse and to the
said extent the order is liable to be quashed.

21. It has been argued by the
counsel for the petitioner that the order
dated 31.8.2021 passed by the revisional
authority so far as it denies financial
benefits to the petitioner for the period he
was out of service is without jurisdiction
7 All. Aditya Kumar Mishra Vs. State of U.P. Road Transport Corporation, Hqrs. Tehri Kothi
37
because under Regulations 63 and 64 of
Regulations,
1981
the
departmental
authorities do not have the jurisdiction to
award any such punishment. The counsel
for the petitioner has argued that, in any
case, in view of the judgement of the
Supreme
Court
in
Deepali
Gundu
Surwase (supra) the petitioner was entitled
to full back-wages on being reinstated in
service.

22.

For
reasons
stated
subsequently the order dated 31.8.2021 so
far as it denies financial benefits to the
petitioner for the period he was out of
service is contrary to law and is liable to be
quashed.

23. Regulations, 1981 do not
contain any provision regarding payment of
back-wages to an employee for the period
he was out of service if the order removing
or dismissing him from service is set aside
in appeal or revision and the employee is
reinstated in service. However, Regulation
84 of the Regulations 1981 provides as
follows :-

 "84.
Regulation
of
other
matters.-Subject to the orders of the
Board, in regard to maters not covered by
these Regulations or any other Regulations
or orders of the Boards issued from time to
time,
decision
shall
be
taken
in
conformity with the Rules or Orders
applicable to the State Government
employees or issued under the authority of
the State Government, as the case may be."
(Emphasis added)

24. By virtue of Regulation 84 of
the
Regulations,
1981
any
decision
regarding pay and allowances payable to
the petitioner for the period he was out of
service had to be taken in accordance with
the rules and orders applicable to the State
Government Employees or issued under the
authority of the State Government, as the
case may be. The rules applicable to State
Government employees, which regulate the
powers
of
the
appropriate
authority
regarding payment of back-wages to an
employee, for the period the employee was
out of service if the order of dismissal or
removal is set aside and the employee is
reinstated in service, are provided in Rule
54 and Rule 54-A of Financial Handbook
Volume 2 (Parts 2 to 4). Rule 54 and Rule
54-A of the Financial Handbook are
reproduced below :-

 Rule 54

"54. (1) When a Government
servant who has been dismissed, removed
or compulsorily retired is reinstated as a
result of appeal or review or would have
been so reinstated but for his retirement on
superannuation while under suspension or
not, the authority competent to order
reinstatement shall consider and make a
specific order-

(a)
regarding
the
pay
and
allowances to be paid to the Government
servant for the period of his absence from
duty including the period of suspension
preceding his dismissal, removal, or
compulsory retirement, as the case be; and

(b) whether or not the said period
shall be treated as a period spent on duty.

(2)
Where
the
authority
competent to order reinstatement is of
opinion that the Government servant
who had been dismissed, removed or
compulsorily retired, has been fully
exonerated, the Government servant
shall, subject to the provisions of subrule (6), be paid the full pay and
allowances to which he would have been
entitled, had he not been dismissed,
removed or compulsorily retired or
38 INDIAN LAW REPORTS ALLAHABAD SERIES
suspended prior to such dismissal,
removal or compulsory retired, as the
case may be:

Provided
that
where
such
authority is of opinion that the termination
of the proceedings instituted against the
Government servant had been delayed due
to reasons directly attributable to the
Government servant, it may, after giving
him
an
opportunity
to
make
his
representation within sixty days from the
date on which the communication in this
regard is served on him and after
considering the representation, if any,
submitted by him, direct, for reasons to be
recorded in writing, that the Government
servant shall subject to the provisions of
sub-rule (7), be paid for the period of such
delay, only such amount (not being the
whole) of such pay and allowances as it
may determine.

(3) In a case falling under subrule (2), the period of absence from duty
including the period of suspension
preceding
dismissal,
removal
or
compulsory retirement, as the case may
be, shall be treated as a period spent on
duty for all purposes.

[(4) In cases other than those
covered by sub-rule (2) [including cases
where the order of dismissal, removal or
compulsory retirement from service is set
aside by the appellate or reviewing
authority solely on the ground of noncompliance with the requirements of clause
(1) or clause (2) of article 311 of the
Constitution and no further inquiry is
proposed to be held], the Government
servant shall, subject to the provision of
sub-rules (6) and (7) be paid such amount
(not being the whole) of the pay and
allowances to which he would have been
entitled had he not been dismissed,
removed
or
compulsorily
retired
or
suspended prior to such dismissal, removal
or compulsory retirement, as the case may
be, as the competent authority may
determine after giving notice to the
Government servant of the quantum
proposed
and
after
considering
the
representation, if any, submitted by him in
that connection, within such period (which
in no case shall exceed sixty days from the
date on which the notice has been served)
as may be specified in the notice.]

(5) In a case falling under subrule (4), the period of absence from duty
including
the
period
of
suspension
preceding
his
dismissal,
removal
or
compulsory retirement, as the case may be,
shall not be treated as a period spent on
duty, unless the competent authority
specifically directs that it shall be so treated
for any specified purpose:

Provided that if the Government
servant so desires such authority may direct
that the period of absence from duty
including
the
period
of
suspension
preceding
his
dismissal,
removal
or
compulsory retirement as the case may be,
shall be converted into leave of any kind
due and admissible to the Government
servant.

Note-The order of the competent
authority under the preceding proviso shall
be absolute and no higher sanction shall be
necessary for the grant of-

(a) extraordinary leave in excess
of three months in the case of temporary
Government servant; and

(b) leave of any kind in excess of
five years in the case of permanent
Government servant.

(6) The payment of allowances
under sub-rule (2) of sub-rule (4) shall be
subject to all other conditions under which
such allowances are admissible.

(7) The amount determined under
the proviso to sub-rule (2) or under sub-rule
(4), shall not be less than the subsistence
7 All. Aditya Kumar Mishra Vs. State of U.P. Road Transport Corporation, Hqrs. Tehri Kothi
39
allowance and other allowance admissible
under Rule 53.

(8) Any payment made under this
rule
to
Government
servant
on his
reinstatement shall be subject to adjustment
of the amount, if any, earned by him
through an employment during the period
between the date of his removal, dismissal
or compulsory retirement, as the case may
be, and the date of reinstatement. Where
the emoluments admissible under this rule
are equal to or less than the amounts earned
during the employment elsewhere, nothing
shall be paid to the Government servant.

Note-Where the Government
servant does not report for duty within
reasonable time after the issue of the orders
of
the
reinstatement
after
dismissal,
removal or compulsory retirement, no pay
and allowances will be paid to him for such
period till he actually takes over charge."

(Emphasis added)

Rule 54-A

"54-A (1) Where the dismissal,
removal or compulsory retirement of a
Government servant is set aside by a court
of Law and such Government servant is
reinstated without holding any further
inquiry, the period of absence from duty
shall be regularised and the Government
servant shall be paid pay and allowances in
accordance with the provisions of sub-rule
(2) or (3) subject to the directions, if any, of
the Court.

[(2) (i) Where the dismissal,
removal or compulsory retirement of a
Government servant is set aside by the
court solely on the ground of noncompliance with the requirements of clause
(1) or clause (2) of Article 311 of the
Constitution,
and
where
he
is
not
exonerated on merits, and no further
inquiry is proposed to be held, the
Government servant shall subject to the
provisions of sub-rule (7) of Rule 54, be
paid such amount (not being the whole) of
the pay and allowances to which he would
have been entitled had he not been
dismissed, removed or compulsorily retired
or suspended prior to such dismissal,
removal or compulsory retirement, as the
case may be, as the competent authority
may determine, after giving notice to the
Government servant of the quantum
proposed
and
considering
the
representation, if any submitted by him in
that connection within such period (which
in no case shall exceed sixty days from the
date on which the notice has been served)
as may be specified in the notice.

(ii)
The
period
intervening
between the date of dismissal, removal or
compulsory retirement including the period
of suspension preceding dismissal, removal
or compulsory retirement, as the case may
be, and date of judgment of the Court shall
be regularised in accordance with the
provisions contained in sub-rule (5) of Rule
54.]

(3) If the dismissal, removal or
compulsory retirement of a Government
servant is set aside by the Court on the
merits of the case, the period intervening
between the date of dismissal, removal or
compulsory retirement including the
period of suspension preceding such
dismissal,
removal,
or
compulsory
retirement, as the case may be, and the
date of reinstatement shall be treated as
duty for all purposes and he shall be
paid the full pay and allowances for the
period, to which he would have been
entitled, had he not been dismissed,
removed or compulsorily retired or
suspended prior to such dismissal,
removal or compulsory retirement, as
the case may be.

(4) The payment of allowances
under sub-rule (2) or sub-rule (3) shall be
40 INDIAN LAW REPORTS ALLAHABAD SERIES
subject to all other conditions under which
such allowances are admissible.

(5) Any payment made under this
rule to a Government servant on his
reinstatement shall be subject to adjustment
of the amount, if any, earned by him
through an employment during the period
between the date of dismissal, removal or
compulsory retirement and the date of
reinstatement.
Where
the
emoluments
under this rule are equal to or less than
those earned during the employment
elsewhere, nothing shall be paid to the
Government servant.

Note.-Where the Government
servant does not report for duty within
reasonable time after the issue of the orders
of
reinstatement
after
the
dismissal,
removal or compulsory retirement, no pay
and allowances will be paid to him for such
period till he actually takes over charge."
(Emphasis added)

25. A reading of Rules 54(2),
54(4), 54-A(2) and 54-A(3) shows that, in
Uttar Pradesh, the principle 'no work-no
pay' is not applicable while considering the
entitlement
of
State
Government
employees for pay and allowances for the
period they were not in service if the order
dismissing,
removing
or
compulsory
retiring them from service is set aside either
in appeal or review or by a court and the
government servant is reinstated in service
and no further inquiry is proposed to be
held.