# Dharmendra Dhish Dubey v. Chairman, Rani Laxmi Bai Kshetria Gramin Bank and others

- **Citation:** (2003) 1 ILRA 76
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-01-07
- **Case number:** Civil Misc. Writ Petition No. 54380 of 2002
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-dhish-dubey-v-chairman-rani-laxmi-bai-kshetria-gramin-bank-and-others-40073
- **Pages:** 4

## Headnote

Sri Nripendra Mishra
http://www.allahabadhighcourt.nic.in
1 All] D.D. Dubey Vs. Chairman, Rani Laxmi Bai Kshetriya Gramin Bank and others
77
Sri K.L. Grover

Constitutions of India Act 226 Writ
petition against notice to show cause-
enquiry officer has already submitted his
report- instead of submitting the reply -
rushed up to High Court- petitioner
already participate in enquiry precedingcourt declined to interfere.

Held para 7

In view of the aforesaid, this court is of
the
considered
view
that
as
the
petitioner has already participated in the
disciplinary proceedings and now the
enquiry officer has already submitted his
report, challenge to the show cause
notice
in
respect
to
the
proposed
punishment is not to be entertained at
this
stage
and
thus
writ
petition
deserves dismissal.
Case law discussed:
AIR 1940SC 1308
1992(1) SLR 38
1991 (4) SLR 647
1992 (2) SLR 715

## Text

http://www.allahabadhighcourt.nic.in
76 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
employees, including the petitioner from
the trade tax impartment. Learned counsel
for the petitioner has relied upon the
decision reported in AIR 1971 Supreme
Court-998- K.H. Phandnis vs. State of
Maharashtra, wherein the apex court has
held that reversion from temporary
officiating post without compliance of
provisions of Article 311 (2) of the
Constitution of India even in the case of
reversion
from
temporary
post
to
substantive post, amounts to violation of
Article 311 (2) of the Constitution of
India and in that case in the absence of
regular enquiry having been done, as in
the present case, the impugned order
deserves to be set aside. The facts of the
case narrated above and the facts of the
present case are different though, the
learned counsel for the petitioner referring
to paragraph 3 of the aforesaid judgement
has stated that since the petitioner was not
selected to the post on which he was sent
on deputation and was working on
deputation which was higher post i.e.
substantive post, therefore, the impugned
order repatriating the petitioner to his
parent department to his substantive post
has been held by the apex court in the
facts and circumstance of the case to be a
case of reversion which could not have
been done except after compliance of
provisions of Article 311(2) of the
Constitution of India. In the present case
in the narration of facts, as stated in the
writ petition, the petitioner who was
working on the same post to which he was
appointed in his parent department in
substantive capacity. Thus the present
case cannot be said to be a case of
reversion. It is a case of repatriating
simplicitor and, therefore, the law laid
down by the apex Court relied upon by
the learned counsel for the petitioner do
not apply to the present case.
4. In view of what has been stated
above, since the petitioner was admittedly
on deputation in Trade Tax Department
and no punishment has been awarded to
the petitioner, the petitioner has been
simply
repatriated
to
his
parent
department, the same order does not cast
stigma on the petitioner or is an order of
punitive
in
nature.
Therefore,
the
contention of the learned counsel for the
petitioner, that the respondents who are
constitutionally mandate to comply with
the provisions of Article 311 (2) of the
Constitution of India which, admittedly,
has not been complied with in the present
case, is not applicable. Therefore, the
argument advanced on behalf of learned
counsel for the petitioner deserves to be
rejected and is hereby rejected.

5. In view of what has been said
above, this writ petition deserves to be
dismissed and is hereby dismissed.
However, there shall be no order as to
cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 7.1.2003

BEFORE
THE HON'BLE S.K. SINGH J,

Civil Misc. Writ Petition No. 54380 of 2002

Dharmendra Dhish Dubey
...Petitioner
Versus
Chairman,
Rani
Laxmi
Bai
Kshetria
Gramin Bank and others ...Respondents

Counsel for the Petitioner:
Sri Indra Mani Tripathi

Counsel for the Respondents:
Sri Nripendra Mishra
http://www.allahabadhighcourt.nic.in
1 All] D.D. Dubey Vs. Chairman, Rani Laxmi Bai Kshetriya Gramin Bank and others
77
Sri K.L. Grover

Constitutions of India Act 226 Writ
petition against notice to show cause-
enquiry officer has already submitted his
report- instead of submitting the reply -
rushed up to High Court- petitioner
already participate in enquiry precedingcourt declined to interfere.

Held para 7

In view of the aforesaid, this court is of
the
considered
view
that
as
the
petitioner has already participated in the
disciplinary proceedings and now the
enquiry officer has already submitted his
report, challenge to the show cause
notice
in
respect
to
the
proposed
punishment is not to be entertained at
this
stage
and
thus
writ
petition
deserves dismissal.
Case law discussed:
AIR 1940SC 1308
1992(1) SLR 38
1991 (4) SLR 647
1992 (2) SLR 715

(Delivered by Hon'ble S.K. Singh, J.)

1. Heard learned counsel for the
petitioner and Sri Nripendra Mishra,
Advocate appearing for the respondents.

2. Challenge before this court is the
show cause notice dated 20.11.2002
(annexure no. 23 to the writ petition) by
which the petitioner has been intimated
about the proposed punishment and he has
been called upon to place his version
either by appearing in person or through
his representative.

3. Ground as has been taken in writ
petition and as argued by the learned
counsel for the petitioner against show
cause notice appears to be several i.e. (i)
delay in starting proceedings which leads
violation of the principles of natural
justice; (ii) charge sheet was issued under
the old regulations but the impugned
show cause notice has been issued under
the new regulation; (iii) proceedings
against the petitioner are malafides (iv)
the charges against the petitioner are
frivolous and they are not proved; and (v)
other employees facing same charges
have been exonerated and they have been
finally reinstated. In support of the
submission
that
in
the
event
the
disciplinary proceedings have been started
after much delay that is vitiated on that
ground itself, reliance has been placed on
decision given in the case of State of
Madhya Pradesh Vs Bani Singh and
another reported in AIR 1990 S.C.
1308, Subhash Chandra Basu vs. Bank
of Baroda and others reported in 1992
(1) SLR 38, Binayak Datta vs. State of
West Bengal and others reported in
1991 (4) SLR 647 and a decision given in
the case of Arun Kumar Basu Vs. Union
of India and another reported in 1992
(2) SLR 715.

4. Sri Nripendra Mishra, learned
Advocate
who
appeared
for
the
respondents at the very outset raises a
preliminary objection and submits for
dismissal of the writ petition on the
ground (i) that writ petition has been filed
against only show cause notice and the
petitioner has a remedy to file reply and it
is only after the final decision if it goes
against the petitioner he can take up the
matter to this Court; (ii) even if the
decision goes against the petitioner, he
has an alternative remedy of approaching
higher forum under para 47 of the
relevant regulation of employees service
regulation and thus he submits that no
interference is required. Otherwise also he
submits that as acceptance of the
contention of the petitioner is dependent
http://www.allahabadhighcourt.nic.in
78 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
on examination of various factual aspects
which at this state may not be proper for
this Court to go into and thus on this
ground as well writ petitioner is not
entitled to get any relief at this stage.

5. Having heard the arguments from
both sides as indicated above the matter
has been considered.

6. The question which requires
consideration in this petition is that
whether on the facts of present case
challenge to the show cause notice about
proposed punishment is to be permitted
and the writ petition is to be entertained.
The facts as has come on record
demonstrated that the petitioner was
placed under suspension on 4.2.1999 and
it
is
thereafter
the
disciplinary
proceedings proceeded by serving charge
sheet on the petitioner on 10.4.1999 and
on conclusion of the enquiry, the enquiry
officer submitted its report on 10.7.2001
and thereafter the disciplinary authority
having considered the report of the
enquiry officer has issued the impugned
show cause notice against which the
petitioner has come up in this writ
petition. In view of the aforesaid, it is
quite
clear
that
the
disciplinary
proceedings
proceeded
without
any
intervention and that has now been
completed and the report by enquiry
officer has already come and now it is just
a final decision in respect to the
punishment if it is so to be given to the
petitioner
is
to
be
taken
by
the
disciplinary authority. It is not the stage
where the petitioner has come against the
very
initiation
of
the
disciplinary
proceedings i.e. at the stage of issuance of
the charge sheet, on the ground of delay
in starting the disciplinary proceedings
and thus this court is of the view that the
cases which has been referred by the
learned counsel for the petitioner being
related to very start of the disciplinary
proceedings can have no application to
the facts of the present case. In the event
petitioner has permitted enquiry to go on
and same proceeded for more than 2-3
years, which includes the submission of
the reply on behalf of the petitioner to the
charge sheet, adducing of the evidence
from either of the sides and then the
submission of the enquiry officer's report,
he cannot be permitted to challenge show
cause notice against proposed punishment
at this stage. So far the ground as has been
argued by the learned counsel for the
petitioner, in respect to the merits of the
prove or disapprove of various kinds of
charges
and
the
proceedings
being
malafide, charges being frivolous, suffice
it to say that at all these aspects required
adjudication
of
various
factual
contentions it will not be proper for this
court to go into at this stage. The
submission of the learned counsel for the
petitioner that other similarly situated
employees have been exonerated is also
dependent on examination of the factual
aspect inasmuch as verifying the nature of
the charges against those employees,
evidence in support thereof and thus it is
the first job of the disciplinary authority
to examine all these pleas which requires
examination of record and facts which
have been raised by the petitioner before
this court, and only then this court may
examine, the correctness of reasoning,
finding and conclusion, so arrived by
competent authority. There also appears
to be another reason for declining to
intervene in the matter. Pursuant to the
show cause notice, the petitioner was
required to appear personally in support
of his reply or through his representative
on 9.12.2002. as he could not appear on
http://www.allahabadhighcourt.nic.in
1 All] Gokul Prasad Rai and others Vs. State of U.P. and others
79
that date, he moved application on
18.12.2002 for giving another date to
appear and to place his version upon
which the disciplinary authority taking a
reasonable view in the matter has allowed
petitioner to appear himself and to bring
his representative on 8.1.2003 and thus
the petitioner has already joined the
proceedings pursuant to the show cause
notice. In view of the aforesaid filing of
the writ petition at this stage by the
petitioner
appears
to
be
totally
misconceived
and
it
appears
that
petitioner has unnecessarily rushed to this
court at a premature stage. As all
objections whether factual or legal which
have been taken by the petitioner before
this court can always be raised by him
before the disciplinary authority, who will
be in a better position, to go into and to
take appropriate decision in the matter in
accordance with law either way, which
this court cannot anticipate like the
petitioner, and thus no examination on
merits in respect to the various grounds is
required at this stage.

7. In view of the aforesaid, this court
is of the considered view that as the
petitioner has already participated in the
disciplinary proceedings and now the
enquiry officer has already submitted his
report, challenge to the show cause notice
in respect to the proposed punishment is
not to be entertained at this stage and thus
writ petition deserves dismissal.

8. Accordingly writ petition fails
and it is dismissed at the admission stage.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.1.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition no. 12 of 2003(Tax)

Gokul Prasad Rai and others ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri H.P. Dube

Counsel for the Respondents:
S.C.

U.P.
Motor
vehicles
taxation
(Amendment) Ordinance 2002 ordinance
no. 19 of 2002 Validity of the enhance
amount
of
Taxation
challenged-
provisions of new ordinance are on the
same footing as Act of the legislature
vide Art 213 (2) of the Constitution held
Governor is competent to promulgate
the ordinance under Entries No. 56 and
57 of list II of the 7th schedule of the
constitution - petition dismissed.

Held para 4-5

In H.C. Misra Vs State of U.P. C.M. Writ
Petition No. 1025 of 2001 (tax) decided
on 10.9.2002 the imposition of additional
tax has been upheld. In H.C. Misra's case
(Supra) it was observed by the Division
Bench:

"As a matter of fact even if it be assumed
that the tax liability under the new Act
has increased that by itself would be no
ground to hold that the legislation has
lost its regulatory and compensatory
character."

We are in respectful agreement with the
aforesaid division Bench decision. There
is legislative competence in the Governor