# Brijendra Kumar Agarwal v. State Of U.P

- **Citation:** (2016) 7 ILRA 530
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-27
- **Bench:** Satyendra Singh Chauhan, Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijendra-kumar-agarwal-v-state-of-u-p-44122
- **Pages:** 5

## Text

530 INDIAN LAW REPORTS ALLAHABAD SERIES

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.07.2016

BEFORE

THE HON'BLE SATYENDRA SINGH CHAUHAN, J.
THE HON'BLE ANIL KUMAR, J.

Service Bench No.- 1369 Of 2010

Brijendra Kumar Agarwal ...Petitioner
Versus
State Of U.P. ...Respondent

Counsel for Petitioner:
P.K. Srivastava

Counsel for Respondent:
C.S.C

1. Service Law - Departmental Proceedings - Punishment Order - Advice of Public Service
Commission - Non-Supply of Copy to Delinquent Employee - Violation of Principles of Natural
Justice - Punishment Order Unsustainable.
Where, in the course of a departmental enquiry against a government servant, the Disciplinary Authority
seeks the advice of the Public Service Commission and such advice is received by the State
Government/Disciplinary Authority, it is mandatory that a copy thereof be supplied to the delinquent employee
before the final order of punishment is passed. The failure to supply the copy of such advice deprives the
delinquent employee of the opportunity to make an effective representation before the Disciplinary Authority
with regard to the proposed punishment, and constitutes a violation of the principles of natural justice. In the
present case, after the advice of the Public Service Commission, Allahabad was received by the State
Government, no copy thereof was furnished to the petitioner before the impugned punishment order was
passed. Held: The non-supply of the copy of the advice of the Public Service Commission to the petitioner is
fatal to the punishment order; the impugned order of punishment imposing recovery of Rs. 1,81,000/- and
reduction of pension by 20% is vitiated and cannot be sustained in law. Relied upon: S.N. Narula v. Union of
India & Others, (2011) 4 SCC 591; Union of India & Others v. S.K. Kapoor, (2011) 4 SCC 589.

2. Service Law - Departmental Proceedings - Advice of Public Service Commission - Reliance by
Disciplinary Authority - Distinction between Cases where Advice is Relied upon and where it is
Not - Obligation to Supply Copy Arises only When Relied upon.
The obligation to supply a copy of the advice of the Public Service Commission to the delinquent employee is
not absolute in all cases. A distinction must be drawn between cases where the Disciplinary Authority does not
rely upon the advice of the Public Service Commission and cases where it does. In the former category, it is
not necessary to supply a copy of the advice to the concerned employee. However, where the Disciplinary
Authority relies upon the advice of the Public Service Commission in arriving at the quantum of punishment or
the decision to punish, the copy of such advice must be supplied to the delinquent employee in advance to
enable him to make an effective representation; failing which there will be a violation of the principles of
natural justice rendering the consequent order of punishment liable to be set aside. Held: As laid down by the
Supreme Court in Union of India & Others v. S.K. Kapoor, (2011) 4 SCC 589, the supply of the advice of the
Public Service Commission is mandatory wherever the same is relied upon by the Disciplinary Authority.
7 All. Brijendra Kumar Agarwal Vs State Of U.P.
531
3. Constitutional Law - Doctrine of Precedent - Per Incuriam - Subsequent Co-ordinate Bench
Decision Without Noticing Earlier Binding Decision - Effect - Reference to Larger Bench
Required for Departure.
It is a well-settled principle of the doctrine of precedent that if a subsequent co-ordinate bench of equal
strength desires to take a view different from that of an earlier co-ordinate bench, it cannot do so on its own
and must refer the matter to a larger bench. A decision rendered by a co-ordinate bench without noticing a
binding earlier decision of equal strength on the same point is a judgment rendered per incuriam and does
not have precedential value. The earlier decision, having not been noticed, retains its full binding force. Held:
In Union of India & Others v. S.K. Kapoor, (2011) 4 SCC 589, the Supreme Court affirmed that the decision in
T.V. Patel's case, which had purported to take a contrary view without noticing S.N. Narula v. Union of India
(2011) 4 SCC 591, was per incuriam and that S.N. Narula continued to hold the field as binding precedent.

4. Service Law - Post-Retirement Departmental Proceedings - Civil Service Regulations - Article
351-A - Departmental Enquiry Continued After Retirement - Reduction of Pension and Recovery
as Punishment - Impugned Order Set Aside - Post-Retiral Dues Directed to be Released.
Departmental proceedings against a government servant may, under the Civil Service Regulations (Article
351-A), be continued after his retirement and consequential punishment may be imposed in the form of
reduction of pension or recovery. However, such proceedings must be conducted in strict compliance with the
principles of natural justice, including the obligation to supply a copy of the advice of the Public Service
Commission to the delinquent before the punishment order is passed. Where the impugned order of
punishment - imposing recovery of Rs. 1,81,000/- and reduction of pension by 20% - is set aside on
account of violation of natural justice, the petitioner is entitled to be restored to his full post-retiral benefits
including revised pension. Held: Where the petitioner, aged 82 years at the time of adjudication, had been
subjected to a prolonged departmental proceeding spanning over two decades and the punishment order was
found to be vitiated for non-supply of the Public Service Commission's advice, the writ petition was allowed
and the opposite parties were directed to release all post-retiral dues including revised pension.

Result: Writ petition allowed. The impugned punishment order dated 23rd June, 2010 directing
recovery of Rs. 1,81,000/- and reduction of pension by 20% set aside. The opposite parties
directed to release all post-retiral dues including revised pension to the petitioner forthwith.

Cases Referred:

1. S.N. Narula v. Union of India & Others, (2011) 4 SCC 591 - Applied.
2. Union of India & Others v. S.K. Kapoor, (2011) 4 SCC 589 - Applied.

(Delivered by Hon'ble Satyendra Singh Chauhan, J.
&
Hon'ble Anil Kumar, J.)

1. Heard learned counsel for the petitioner and learned Standing Counsel.

2. By means of this writ petition, the petitioner has challenged the order dated 23rd June,
2010, by which certain punishment has been awarded by making recovery of the amount to the tune
of Rs. 1,81,000/- and also reduction of pension to the extent of 20% from the petitioner.

3. The petitioner was placed under suspension by means of the order dated 20th June, 1986
while working on the post of Sales Tax Officer in the department. A departmental proceeding was
532 INDIAN LAW REPORTS ALLAHABAD SERIES

initiated against him. The Deputy Commissioner(Executive) Moradabad was appointed as an
Enquiry Officer vide order dated 21-08-1986. A Chargesheet was also served on the petitioner on
03-09-1986. The petitioner demanded certain documents by means of letter dated 20th September,
1986. A reminder letter was also given by the petitioner in this regard on 09-1-1987. The Enquiry
Officer supplied the copies of the documents on 19th February, 1987, but, it is stated that the said
documents were not relevant. Ultimately, the petitioner retired from service on 12th November,
1987. The State Government issued an order staying the disciplinary proceeding on account of
pendency of a vigilance enquiry against him on 2nd April,1988. However, the enquiry was
restarted by lifting the said stay order. The Joint Commissioner(Establishment) Jhansi, informed
the petitioner vide order dated 30th September, 2002 that he has been authorized to hold enquiry in
the matter and sought reply from him within a week. The petitioner demanded copy of the order
dated 30th September, 2002 indicating that the enquiry had already been stayed by the State
Government, but, he did not receive any reply from the Enquiry Officer. The petitioner requested
the Principal Secretary to the Government of U.P. to get conducted the enquiry at Ghaziabad
keeping in view his ill health and old age by means of letter dated 21st April, 2004. On 11th
January, 2005, a reminder was also given by the petitioner to the Enquiry Officer as well as to the
Principal Secretary of the department, but, no reply was received from them. The Enquiry Officer
proceeded with the enqiry ex-parte on 10th June, 2005. On 9th March, 2006, the State Government
issued another order to continue the enquiry under Article 351-A of the Civil Service Regulations.
A show cause notice was also issued to the petitioner alongwith the enuiry report on 7th
April,2006. The petitioner submitted reply to the show cause notice on 28th April, 2006. The
Disciplinary Authority issued another notice to the petitioner on 12th April, 2007, by means of
which he was informed that as to why the reduction of pension to the extent of 20% and recovery
of Rs. 1,81,000/- should not be made from him. The petitioner submitted reply to the show cause
notice dated 12th April, 2007. On 8th June, 2007, the State Government sought advice from the
Public Service Commission, Allahabad and the Public Service Commission, Allahabad, gave its
advice to the State Government on 20th May, 2010 and thereafter, the impugned order of
punishment has been passed.

4. Learned counsel for the petitioner has submitted that while receiving the advice from the
Public Service Commission, Allahabad by the State Government, its copy was never supplied to
him, therefore, the impugned order is vitiated in the eyes of law. It also amounts to violation of
principles of natural justice.

5. On the other hand, learned Standing Counsel has submitted that petitioner's punishment
order has been passed in accordance with law and there was no delay in supply of the copy of
advice of the Public Service Commission to the petitioner. He has also submitted that the enquiry
was held in accordance with law.

6. We have gone through the record. From perusal of the record, we find that after
initiation of disciplinary proceeding, an ex-parte enquiry was conducted against the petitioner. The
opposite parties did not take into account the objections raised by the petitioner and ultimately a
show cause notice was issued to the petitioner and the petitioner submitted reply to the said show
7 All. Brijendra Kumar Agarwal Vs State Of U.P.
533
cause notice. However, another notice was issued to him with regard to the proposed punishment.
An advice was sought from the Public Service Commission, Allahabad and the copy of the advice
was received by the State Government, but, the same was never supplied to the petitioner. The non
supply of document amounts to violation of principles of natural justice.

7. In this regard, learned counsel for the petitioner has relied upon a case reported in (2011)
4 Supreme Court Cases, 591 S.N. Narula Versus Union of India and Others. Relevant paragraphs
from the case of S.N.Narula (Supra) are reproduced as under:

"5. This order was challenged by the Union of India by way of Writ Petition
before the High Court of Delhi and by the impugned judgment the High Court interfered with that
order. The Writ Petition was partly allowed and it was directed that the matter be again considered
by the Tribunal. Against that order the Appellant has come up in appeal by way of Special Leave
Petition.

6. We heard the learned Counsel for the Appellant and the learned Counsel for
the Respondent. It is submitted by the counsel for the Appellant that the report of the Union Public
Service Commission was not communicated to the Appellant before the final order was passed.
Therefore, the Appellant was unable to make an effective representation before the disciplinary
authority as regards the punishment imposed.

7. We find that the stand taken by the Central Administrative Tribunal was
correct and the High Court was not justified in interfering with the order. Therefore, we set aside
the judgment of the Division Bench of the High Court and direct that the disciplinary proceedings
against the Appellant be finally disposed of in accordance with the direction given by the Tribunal
in Paragraph 6 of the order. The Appellant may submit a representation within two weeks to the
disciplinary authority and we make it clear that the matter shall be finally disposed of by the
disciplinary authority within a period of 3 months thereafter."

8. He has also relied upon a decision of the Hon'ble Supreme Court reported in (2011)4
Supreme Court Cases, 589, Union of India and Others Versus S.K.Kapoor. Relevant paragraphs
of the said case are reproduced as under:-

"8. There may be a case where the report of the Union Public Service
Commission is not relied upon by the disciplinary authority and in that case it is certainly not
necessary to supply a copy of the same to the concerned employee. However, if it is relied upon,
then a copy of the same must be supplied in advance to the concerned employee, otherwise, there
will be violation of the principles of natural justice. This is also the view taken by this Court in the
case of S.N. Narula v. Union of India and Ors. Civil Appeal No. 642 of 2004 decided on 30th
January, 2004.

9. It may be noted that the decision in S.N. Narula's case (supra) was prior to
the decision in T.V. Patel's case (supra). It is well settled that if a subsequent co-ordinate bench of
534 INDIAN LAW REPORTS ALLAHABAD SERIES

equal strength wants to take a different view, it can only refer the matter to a larger bench,
otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal
strength. Since, the decision in S.N. Narula's case (supra) was not noticed in T.V. Patel's case
(supra), the latter decision is a judgment per incuriam. The decision in S.N. Narula's case (supra)
was binding on the subsequent bench of equal strength and hence, it could not take a contrary
view, as is settled by a series of judgments of this Court."

9. We have considered the submissions of learned counsel for the petitioner and also the
law laid down by the Hon'ble Supreme Court in the cases cited by the learned counsel for the
petitioner and find that opposite parties have not supplied the copy of the advice of the Public
Service Commission, which is in violation of principles of natural justice. Therefore, we are of the
view that the punishment order on account of aforesaid fault cannot sustain. The petitioner has
already attained the age of 82 years. In these circumstances, we allow the writ petition and set the
impugned order of punishment directing the opposite parties to release all the post retiral dues
including the revised pension to the petitioner.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.07.2016

BEFORE

THE HON'BLE OM PRAKASH-VII, J.

Criminal Appeal No. 1401 Of 2013
&
Criminal Appeal No. 1255 of 2013

Jabir & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Rajesh Kumar Pal, P.K. Singh, Yogesh Kumar Singh, Rajiv Gupta, Dileep Kumar, Rajrshi Gupta, Shristi Gupta

Counsel for the Respondent:
Govt. Advocate, Shri Z.K. Hasan, A.G.A.

Procedural History:
Appeals under Section 374 Cr.P.C. against the judgment and order dated 12.03.2013 passed by the Additional
District & Sessions Judge, Court No. 3, Ballia in Session Trial No. 96 of 1999 (State of U.P. vs. Murtaza &
Others), whereby the appellants were convicted under Sections 147, 148, 307, 333, 336, 504, 506 IPC read
with Section 149 IPC and Section 7 Criminal Law Amendment Act and sentenced to various terms of
imprisonment with fine.

Headnotes: