# Dakshinanchal Vidyut Vitran Nigam Ltd. Agra & Ors v. Aziz Ullah Opp. Party

- **Citation:** (2014) 3 ILRA 1327
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-11-10
- **Case number:** Special Appeal Defective No. 880 of 2014
- **Bench:** Rakesh Tiwari, Mrs Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dakshinanchal-vidyut-vitran-nigam-ltd-agra-ors-v-aziz-ullah-opp-party-43130
- **Pages:** 7

## Headnote

INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution
of
India,
Art.-226Termination-on ground of forged high
school certificate-without holding enquiry
as envisaged under Rule 7-in responce
show cause notice after reply-termination
order
on
14.05.12
retirement
on
31.07.12-when no disciplinary proceeding
pending-Learned Single Judge rightly
interfered-appeal dismissed.
Held: Para-12
In view of the above, learned counsel for
the appellants has failed to point out any
rule as to whether disciplinary proceedings
could be initiated against the delinquent
employee after retirement. The order of
termination was passed on 14.5.2012
merely on a show cause notice and two
months thereafter i.e. on 31.7.2012 he
retired from the service after attaining the
age of superannuation. It appears that on
the date of superannuation there was no
enquiry pending or contemplated against
the respondent. The procedure as provided
under rule 7 of the Rules, 1999 was not
followed and straight way the services of
the respondent were terminated. The Writ
Court has rightly quashed the termination
order
dated
14.5.2012
directing
the
appellants to pay post retirement benefits
to the respondents.
Case Law discussed:
AIR 2004 SC 1469.

## Text

3 All].
Dakshinanchal Vidyut Vitran Nigam Ltd. Agra & Ors. Vs. Aziz Ullah
1327
very serious, but imminent. A concept or an
idea which should not have cropped up in
anybody's mind, connected with the system
of justice, if has cropped up, deserves to be
nipped at earliest, else, it may spreads its
tentacles to cover others and that would be a
dooms day for the very institution.
34. This Court also made similar
observations in Smt. Munni Devi and
others Vs. State of U.P. and others,
2013(2) AWC 1546 and in para 10, said:
"10. Be that as it may, so far as the
present case is concerned, suffice is to
mention that the Constitution makers have
imposed constitutional obligation upon the
High Court to exercise control over
subordinate judiciary. This control is both
ways. No aberration shall be allowed to
enter the Subordinate Judiciary so that its
purity
is
maintained.
Simultaneously
Subordinate Judiciary can not be allowed to
be attacked or threatened to work under
outside
pressure
of
anyone,
whether
individual or a group, so as to form a threat
to objective and independent functioning of
Subordinate Judiciary."
35. Sometimes transfer of suit has
also been justified on the ground of
convenience to the parties or witnesses
etc. but in such cases the paramount factor
which should be considered is the
convenience
of
both
parties.
An
exception, however, to some extent, has
been made in matrimonial cases where
convenience of wife has been given a
dominating
factor
than
husband,
particularly when she has none to escort
her or of quite young age or where she
has financial constrained etc.
36. In Satyasri Fertilisers vs. E.I.D.
Parry (India) Ltd., AIR 2003 AP 312 the
transfer of case was declined which was
sought only on the ground that the
applicant is a diabetic patient.
37. The observations made above
are only illustrative to show that Court,
though has wide power of transfer under
Section 24 C.P.C. but it must be exercised
for valid reasons and not in whimsical and
arbitrary manner.
38. Now, this has to be seen,
whether any valid reason exist in the case
justifying transfer.
39. In the light of the above exposition
of law, the pleadings in the case in hand have
been examined. The grounds taken by
applicant is vague and wholly unsubstantiated.
The mere allegation is not sufficient to justify
transfer unless it is also substantiated by
relevant material, which is not the case in
hand. No ground, therefore, justifying transfer
is made out under Section 24 C.P.C.
40.
The
transfer
application,
therefore, fails and is dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.11.2014
BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE MRS VIJAY LAKSHMI, J.
Special Appeal Defective No. 880 of 2014
Dakshinanchal Vidyut Vitran Nigam Ltd.
Agra & Ors.
 Appellants
Versus
Aziz Ullah
Opp. Party
Counsel for the Appellants:
Sri Baleshwar Chaturvedi
Counsel for the Respondents:
Sri Shekhar Srivastava
1328
 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution
of
India,
Art.-226Termination-on ground of forged high
school certificate-without holding enquiry
as envisaged under Rule 7-in responce
show cause notice after reply-termination
order
on
14.05.12
retirement
on
31.07.12-when no disciplinary proceeding
pending-Learned Single Judge rightly
interfered-appeal dismissed.
Held: Para-12
In view of the above, learned counsel for
the appellants has failed to point out any
rule as to whether disciplinary proceedings
could be initiated against the delinquent
employee after retirement. The order of
termination was passed on 14.5.2012
merely on a show cause notice and two
months thereafter i.e. on 31.7.2012 he
retired from the service after attaining the
age of superannuation. It appears that on
the date of superannuation there was no
enquiry pending or contemplated against
the respondent. The procedure as provided
under rule 7 of the Rules, 1999 was not
followed and straight way the services of
the respondent were terminated. The Writ
Court has rightly quashed the termination
order
dated
14.5.2012
directing
the
appellants to pay post retirement benefits
to the respondents.
Case Law discussed:
AIR 2004 SC 1469.
(Delivered by Hon'ble Rakesh Tiwari, J.)
1.
Heard learned counsel for the
appellants
on
Civil
Misc.
Delay
Condonation Application No. 344900 of
2014 and perused the affidavit filed in
support of this application. Cause shown for
delay in filing the special appeal is
sufficient. Delay is condoned and the
Application for Condonation of Delay is
allowed.
2. Heard learned counsel for the
appellants on merit of the appeal also and
perused the record.
3. The appellants have filed this intra
court appeal challenging the validity and
correctness of the impugned judgment and
order dated 24.7.2014 passed by the Writ
Court in Civil Misc. Writ Petition No.
30714 of 2012, Aziz Ullah versus
Dakshinanchal
Vidyut
Vitran
Nigam
Limited and others whereby the aforesaid
writ petition was allowed.
4. Brief facts giving rise to the
instant appeal are that the respondent was
initially appointed in 1971 as Kuli on
Class-IV post with Dakshinanchal Vidyut
Vitaran Nigam Limited, Agra, and
thereafter on qualifying examination, he
was promoted on Class-III post as
Technical Grade-II (TG-2). The minimum
qualification for promotion is that the
incumbent apart from qualifying the
examination must be a High School. On
6.8.2008,
appellant
no.3,
Executive
Engineer,
Electricity
Distribution
Division, Dakshinanchal Vidyut Vitaran
Nigam Limited, District Banda issued a
show cause notice directing him to
produce his High School certificate.
Pursuant thereto, he approached appellant
no.3 along with original mark sheet as
well as certificates, However, appellant
no. 3 did not examine the original mark
sheet and again a notice was issued on
20.10.2008 calling upon the respondent to
submit his mark sheet. Similar notice was
issued on 5.9.2009. In response thereto,
the respondent submitted a detailed reply
on 3.10.2009 and due to the pendency of
the enquiry, he was not given the benefit
of "Sixth Pay Commission" hence he
preferred Civil Misc. Writ Petition No.
75588 of 2010 praying that the pending
enquiry be concluded and finalized which
was dismissed vide judgment and order
dated 4.1.2011. The judgment and order
dated 4.1.2011 reads thus:-
3 All].
Dakshinanchal Vidyut Vitran Nigam Ltd. Agra & Ors. Vs. Aziz Ullah
1329
"Heard learned counsel for the
parties.
It appears that some enquiry is going
on against the petitioner with regard to
authenticity of papers submitted by the
petitioner and in pursuance thereto the
petitioner has been asked to submit
certain document vide orders dated
7.4.2010 and 23.9.2010.
It is stated by the petitioner that he
has supplied all the documents but no
decision is being taken.
If that is the case, the respondents
may complete the said enquiry within six
weeks from the date of submission of a
certified copy of this order, provided the
petitioner cooperates.
Subject to the aforesaid, this petition
is dismissed. "
5. In compliance of the aforesaid
judgment and order dated 4.1.2011 of the
High Court, inquiry was conducted
against the respondent in which it was
found by the Enquiry Officer that the
original documents submitted by the
respondent-employee do not tally with
High School Certificate of the respondent.
He was found guilty in the enquiry and
vide order dated 14.5.2012 his services
were terminated.
6. Aggrieved by the order dated
14.5.2014 the respondent preferred Civil
Misc. Writ Petition No. 30714 of 2012,
Aziz Ullah versus Dakshinanchal Vidyut
Vitaran Nigam Limited and others, which
was allowed vide judgment and and order
dated 24.7.2014, hence the instant appeal.
7. The impugned judgment and
order of the Writ Court is assailed on the
ground that the Writ Court has failed to
consider that the respondent does not
fulfill eligibility criteria for the post of
T.G.-2 and has been promoted on the
basis of forged certificate, hence he has
caused financial loss to the Nigam; that
the enquiry was held of which proper
notice and opportunity was given to the
respondent to put his defence and
thereafter on the basis of proper scrutiny
the order dated 14.5.2012 terminating his
services was passed, hence in view of the
law laid down by the Apex Court in the
case of R. Vishwanath Pillai versus State
of Kerala, AIR 2004, SC-1469, issuance
of fresh notice under the rules was not
necessary as the genuineness of the
certificate has already been examined by
the Enquiry Officer.
8. It is also submitted that the Writ
Court has quashed the order dated
14.5.2012
on
the
ground
that
no
disciplinary enquiry as provided under
rule 7 was initiated and no charge sheet
was served upon the delinquent employee,
hence it has committed an error in law by
not giving a liberty to the appellants to
hold departmental enquiry in respect of
the allegation of misconduct and take
necessary action thereafter in accordance
with law and as such the impugned
judgment and order dated 24.7.2014
passed by the Writ Court is liable to be set
aside.
9. Per contra, learned counsel for the
respondent submits that only a show
cause notice was issued to the respondent
to which he submitted his reply and
thereafter the enquiry was conducted
behind his back; that opportunity was
afforded to the respondent to put his
defence and the authority has imposed
major penalty which is not permissible
under the 1999 Rules; that the Writ Court
has rightly allowed the writ petition,
hence no interference is required by this
1330
 INDIAN LAW REPORTS ALLAHABAD SERIES
Court. The Writ Court appreciated the
arguments and the case laws thus:-
"Enquiry commences with the issue
of charge-sheet as held in the case of
Union of India vs. K.V. Jankiraman (AIR
1991 SC 2010), Union of India vs. Anil
Kumar Sarkar, 2013 (4) SCC 161 and
State of Andhra Pradesh vs. C.H. Gandhi,
2013 (5) SCC 111; Framing of the
charge-sheet is the first step taken for
holding enquiry into the allegations on
the decision taken to initiate disciplinary
proceedings. Service of charge-sheet on
the Government servant follows decision
to initiate disciplinary proceedings and it
does not precede and coincide with that
decision
(vide
Delhi
Development
Authority vs. H.C. Khurana 1993 (3) SCC
196). Once the enquiry was not initiated
or contemplated or pending before the
retirement, the same cannot be continued
after retirement, unless there is a rule to
that effect. The learned counsel for the
respondents has failed to show any rule
or circular as to whether disciplinary
proceedings could be initiated after
retirement and under what circumstances.
A Division Bench of this Court in
Smt. Parmi Maurya vs. State of U.P. and
others [(2014) 2 UPLBEC 1060] held that
the provisions of Rule 7 is mandatory and
it is obligatory for the employer to frame
charge/conduct disciplinary enquiry by
applying the principles of natural justice
and
prove
that
certificates
were
fabricated,
without
adopting
such
procedure order passed terminating the
delinquent employee is illegal. Paragraph
7 is as follows:-
"7. On these facts, the learned Single
Judge, in our view, was clearly in error in
arrogating to the Court the task of
determining whether the certificate and
mark sheets submitted by the appellant
were genuine or otherwise. This, with
respect, was no part of the jurisdiction of
the writ Court under Article 226 of the
Constitution. When a substantive charge
of misconduct is levied against an
employee of the State, the misconduct has
to be proved in the course of a
disciplinary inquiry. This is not one of
those cases where a departmental inquiry
was dispensed with or that the ground for
dispensing with such an inquiry was made
out. The U.P. Government Servants
(Discipline and Appeal) Rules, 1999 lays
down a detailed procedure in Rule 7 for
imposing a major penalty. Admittedly, no
procedure of that kind was followed since
no disciplinary inquiry was convened or
held."
In Smt. Munni Devi vs. State of U.P.
and others [(2014) 2 UPLBEC 974] it
was held that once an enquiry is initiated
under Rule 7 it is mandated that the
enquiry
officer
would conduct oral
enquiry. It was held that oral enquiry
would be mandatory before imposing
major punishment. Paragraph 9 is as
follows:-
"9. The question as to whether non
holding of oral inquiry can vitiate the
entire proceeding or not has also been
considered in detail by a Division Bench
of this Court (in which I was also a
member) in the case of Salahuddin Ansari
Vs. State of U.P. and others, 2008(3) ESC
1667 and the Court clearly held that non
holding of oral inquiry is a serious flaw
which vitiates the entire disciplinary
proceeding
including
the
order
of
punishment. This Court has said in paras
10 and 11 of the judgement as under:
"10. ----------- Non holding of oral
inquiry in such a case is a serious matter
and goes to the root of the case.
11. A Division Bench of this Court in
Subhash Chandra Sharma Vs. Managing
3 All].
Dakshinanchal Vidyut Vitran Nigam Ltd. Agra & Ors. Vs. Aziz Ullah
1331
Director
&
another,
2000
(1)
U.P.L.B.E.C.
541,
considering
the
question as to whether holding of an oral
inquiry is necessary or not, held that if no
oral inquiry is held, it amounts to denial
of principles of natural justice to the
delinquent employee. The aforesaid view
was reiterated in Subhash Chandra
Sharma Vs. U.P. Cooperative Spinning
Mills & others, 2001 (2) UPLBEC 1475
and Laturi Singh Vs. U.P. Public Service
Tribunal & others, Writ Petition No.
12939 of 2001, decided on 06.05.2005."
The Supreme Court in Dev Prakash
Tewari vs. U.P. Cooperative Institutional
Service Board [LAWS (SC)-2014-6-14]
was considering the case that as to
whether disciplinary proceedings after
retirement of an employee could be
continued in absence of any rule to that
effect. In paragraph 6 and 7 held as
follows:-
"6. While dealing with the above case,
the earlier decision in Bhagirathi Jena's case
(supra) was not brought to the notice of this
Court and no contention was raised
pertaining to the provisions under which the
disciplinary proceeding was initiated and as
such no ratio came to be laid down. In our
view the said decision cannot help the
respondents herein.
Once the appellant had retired from
service on 31.3.2009, there was no
authority vested with the respondents for
continuing the disciplinary proceeding
even for the purpose of imposing any
reduction in the retiral benefits payable to
the appellant. In the absence of such an
authority it must be held that the enquiry
had lapsed and the appellant was entitled
to get full retiral benefits.
7. The question has also been raised
in the appeal with regard to arrears of
salary and allowances payable to the
appellant during the period of
his
dismissal
and
upto
the
date
of
reinstatement. Inasmuch as the inquiry
had lapsed, it is, in our opinion, obvious
that the appellant would have to get the
balance of the emoluments payable to
him."
The Full Bench judgment in case of
State of U.P. v. Jai Singh Dixit and
others, 1974 A.L.J. 862, the words
'inquiry'
and
'contemplated'
was
considered.
"34. A formal departmental inquiry
is invariably preceded by an informal
preliminary inquiry which itself can be in
two phases. There can be a summary
investigation to find out if the allegations
made against the Government servant
have any substance. Such investigation or
inquiry
is
followed
by
a
detailed
preliminary or fact finding inquiry
whereafter final decision is taken whether
to initiate disciplinary proceeding. The
first preliminary inquiry may be in the
shape of secret inquiry and the other, of
an open inquiry. In the alternative, when
complaints containing serious allegations
against
a
Government
servant
are
received, the authority may peruse the
records to satisfy itself if a more detailed
preliminary inquiry be made.
37.
Departmental
inquiry
is
contemplated
when
on
objective
consideration of the material the appointing
authority considers the case as one which
would lead to a departmental, inquiry,
irrespective of whether any preliminary
inquiry, summary or detailed, has or has
not been made or if made, is not complete.
There can, therefore, be suspension pending
inquiry even before a final decision is taken
to initiate the disciplinary proceeding i.e.,
even before the framing of the charge and
the
communication
thereof
to
the
Government servant."
1332
 INDIAN LAW REPORTS ALLAHABAD SERIES
The Supreme Court in Mathura
Prasad v. Union of India and others,
(2007) 1 SCC (L&S) 292), held that when
an employee is sought to be deprived of
his livelihood for alleged misconduct, the
procedure laid down under the rules are
required to be strictly complied with:
"When an employee, by reason of an
alleged act of misconduct, is sought to be
deprived of his livelihood, the procedure laid
down under the sub-rules are required to be
strictly followed: It is now well settled that a
judicial review would lie even if there is an
error of law apparent on the face of the
record. If statutory authority uses its power
in the manner not provided for in the statute
or passes an order without application of
mind, judicial review would be maintainable.
Even an error of fact, for sufficient reasons
may attract the principles of judicial review."
The Division Bench of this Court in Dr.
Subhash Chandra Gupta v. State of U.P. and
others, [2012(1) ESC 279 (All)(DB)] while
dealing with the provision of rule 7 and 9 of
the Rules, held that the procedure for
imposition of major penalty is mandatory
and where the statute provides to do a thing
in a particular manner that thing has to be
done in that manner. Paras 15 and 16 is as
follows:-
"15. It is well settled that when the
statute provides to do a thing in a particular
manner that thing has to be done in that very
manner. We are of the considered opinion
that any punishment awarded on the basis of
an enquiry not conducted in accordance with
the enquiry rules meant for that very
purposes is unsustainable in the eye of law.
We are further of the view that the procedure
prescribed under the inquiry rules for
imposing major penalty is mandatory in
nature and unless those procedures are
followed, any out come inferred thereon will
be of no avail unless the charges are so
glaring and unrefutable which does not
require any proof. The view taken by us find
support from the judgment of the Apex Court
in State of U.P. and another v. T.P. Lal
Srivastava, 1997 (1) LLJ 831, as well as by a
Division bench of this Court in Subash
Chandra Sharma v. Managing Director and
another, 2000(1) UPLBEC 541.
16.A Division Bench decision of this
Court in the case of Salahuddin Ansari v.
State of U.P. and others, 2008(3) ESC
1667 (All)(DB), held that non holding of
oral inquiry is a serious flaw which can
vitiate
the
order
of
disciplinary
proceedings including the order of
punishment has observed as under:
"10..........Non holding of oral inquiry
in such a case, is a serious matter and
goes to the root of the case.
11. A Division Bench of this Court in
Subash Chandra Sharma v. Managing
Director and another, 2000(1) UPLBEC
541, considering the question as to whether
holding of an oral inquiry is necessary or
not, held that if no oral inquiry is held, it
amounts to denial of principles of natural
justice to the delinquent employee. The
aforesaid view was reiterated in Subash
Chandra Sharma v. U.P. Cooperative
Spinning Mills and others, 2001(2) UPLBEC
1475 and Laturi Singh v. U.P. Public Service
Trinunal and others, Writ Petition No. 12939
of 2001, decided on 6.5.2005."
10. After hearing learned counsel for
the parties and on perusal of the impugned
judgment of the Writ Court and the record it
appears that the respondent had been
working since 1971 and had passed his high
school examination in 1990. Thereafter he
appeared for the written examination for
promotion to the next higher post (TG-II).
On the basis of some complaint that the
respondent's high school certificates were
forged, an enquiry was initiated. At the best
3 All].
Devi Prasad Katiyar & Ors. Vs. U.P. Sahkari Gram Vikas Bank Ltd. & Anr.
1333
it could be said that it was a fact finding
enquiry and on the basis of a fact finding
enquiry the services of the respondent were
terminated without following the procedure
as prescribed under rule 7 of the Rules. The
impugned order of termination was passed
on 14.5.2012 and he had since superannuated
on 31.7.2012.
11. The Writ Court after considering
the following admitted facts has recorded
the findings in the impugned judgment
dated 24.7.2014 thus:-
"The facts are not in dispute between
the parties. It is admitted that no chargesheet was issued to the petitioner as required
under rule 7 for initiating disciplinary
proceedings for imposing major penalty. The
enquiry had not commenced before the
petitioner
superannuated.
The
learned
counsel for the respondents failed to point
out any rule as to whether disciplinary
proceedings could be initiated against the
petitioner after retirement. Even otherwise,
after retirement the petitioner cannot be
imposed the penalty of termination as the
employer/employee relationship no longer
exists. There is no allegation of causing loss
to the corporation that is to be recovered,
hence no enquiry can be initiated against the
petitioner after retirement. The impugned
order of termination was passed on
14.5.2012 merely on a show cause notice
and two months thereafter i.e. on 31.7.2012
the petitioner retired on attaining the age of
superannuation thus on the date of
superannuation there was no enquiry
pending or contemplated, and admittedly the
procedure as contemplated under rule 7 of
the Rules of 1999 was not followed and
straightway the petitioner's services was
terminated.
For the facts and circumstances stated
herein above, the impugned order dated
14.5.2012 is quashed. The petitioner shall
be entitled to post retirement benefits. The
writ
petition
is
allowed
with
all
consequential benefits. Legal expenses
assessed as Rs. 15,000/-."
12. In view of the above, learned counsel
for the appellants has failed to point out any
rule as to whether disciplinary proceedings
could be initiated against the delinquent
employee after retirement. The order of
termination was passed on 14.5.2012 merely
on a show cause notice and two months
thereafter i.e. on 31.7.2012 he retired from the
service
after
attaining
the
age
of
superannuation. It appears that on the date of
superannuation there was no enquiry pending
or contemplated against the respondent. The
procedure as provided under rule 7 of the
Rules, 1999 was not followed and straight way
the services of the respondent were terminated.
The Writ Court has rightly quashed the
termination order dated 14.5.2012 directing the
appellants to pay post retirement benefits to the
respondents.
13.
For the reasons stated above, the
special appeal is dismissed. No order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.11.2014
BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.
Alongwith
Service Single No. 3140 of 2005 along
with Service Single No. 2160 of 2005,
Service Single No. 597 of 2011 and
Service Single No. 7995 of 2011
Devi Prasad Katiyar & Ors. ...Petitioners
Versus
U.P. Sahkari Gram Vikas Bank Ltd. & Anr.
...Respondents