# Dharmendra Mishra v. U.P. State Public Services Tribunal & Ors

- **Citation:** (2024) 1 ILRA 50
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-23
- **Case number:** Writ A No. 13538 of 2018
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-mishra-v-u-p-state-public-services-tribunal-ors-51373
- **Pages:** 7

## Headnote

A. Service Law - Disciplinary Proceedings
- U.P. Police Officers Subordinate Rank
(Punishment & Appeal) Rules, 1991 -
Time Limit for Inquiry - Petitioner, a
constable,
dismissed
from
service
for
unauthorized absence - Earlier dismissal order
quashed by Tribunal for violating natural justice,
with directions to conduct fresh inquiry within
six months, excluding time consumed by
petitioner - Fresh inquiry delayed due to
petitioner's requests for additional time to
respond to charge-sheet and show-cause notice
-
Tribunal
dismissed
petitioner's
claim
challenging second dismissal order - Held, delay
in concluding inquiry beyond the Tribunal's
stipulated period does not ipso facto nullify
proceedings - Tribunal's direction to exclude
petitioner's consumed time and petitioner's noncooperation justified the delay - Disciplinary
authority's explanation for delay satisfactory -
Dismissal order upheld. (Paras 11, 13, 15, 16)

B. Service Law - Disciplinary Proceedings
- Judicial Discretion to Extend Time -
Tribunal fixed six-month period for concluding
inquiry but retained inherent jurisdiction to
extend time - Held, courts and tribunals have
power to extend time limits for disciplinary
proceedings, even after expiry, if delay is
satisfactorily explained - No statutory mandate
renders proceedings void upon expiry of
stipulated time - Tribunal's dismissal of claim
petition justified as delay was attributable to
petitioner. (Paras 12, 14)

Writ Petition Dismissed.

List of Cases cited:

## Text

50 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 1 ILRA 50
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.01.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 13538 of 2018

Dharmendra Mishra ...Petitioner
Versus
U.P. State Public Services Tribunal & Ors.
 ...Respondents

Counsel for the Petitioner:
Rajendra Prasad Shukla, Rakesh Kumar
Agarwal, Saksham Agarwal

Counsel for the Respondents:
C.S.C.

A. Service Law - Disciplinary Proceedings
- U.P. Police Officers Subordinate Rank
(Punishment & Appeal) Rules, 1991 -
Time Limit for Inquiry - Petitioner, a
constable,
dismissed
from
service
for
unauthorized absence - Earlier dismissal order
quashed by Tribunal for violating natural justice,
with directions to conduct fresh inquiry within
six months, excluding time consumed by
petitioner - Fresh inquiry delayed due to
petitioner's requests for additional time to
respond to charge-sheet and show-cause notice
-
Tribunal
dismissed
petitioner's
claim
challenging second dismissal order - Held, delay
in concluding inquiry beyond the Tribunal's
stipulated period does not ipso facto nullify
proceedings - Tribunal's direction to exclude
petitioner's consumed time and petitioner's noncooperation justified the delay - Disciplinary
authority's explanation for delay satisfactory -
Dismissal order upheld. (Paras 11, 13, 15, 16)

B. Service Law - Disciplinary Proceedings
- Judicial Discretion to Extend Time -
Tribunal fixed six-month period for concluding
inquiry but retained inherent jurisdiction to
extend time - Held, courts and tribunals have
power to extend time limits for disciplinary
proceedings, even after expiry, if delay is
satisfactorily explained - No statutory mandate
renders proceedings void upon expiry of
stipulated time - Tribunal's dismissal of claim
petition justified as delay was attributable to
petitioner. (Paras 12, 14)

Writ Petition Dismissed.

List of Cases cited:

1. Abhishek Prabhakar Awasthi Vs The New
India Assurance Company Ltd. & ors., 2013 SCC
OnLine All 14267

2. U.O.I. & ors. Vs Sharvan Kumar, 2022
LiveLaw (SC) 595

3. Mahanth Ram Das Vs Ganga Das, (1961) 3
SCR 763

(Delivered by Hon'ble Om Prakash Shukla, J.)

(1) The instant writ petition under
Article 226 of the Constitution of India has
been filed by the petitioner, Dharmendra
Mishra, assailing the judgment/order dated
20.03.2018 passed by the State Public
Services Tribunal, Lucknow (hereinafter
referred to as "the Tribunal"), whereby the
claim petition No. 137 of 2016 filed by the
petitioner against the order of punishment/
dismissal dated 12.05.2015 and appellate
order
dated
30.11.2015,
has
been
dismissed.

(2) The brief facts of the case are that
in the year 2005, the petitioner was posted
as Constable in 32nd Battalion, P.A.C.,
Lucknow. On 15.05.2015, he had gone to
his home after getting the Earned Leave of
fifteen days sanctioned i.e. till 01.06.2005,
however, he came back on his duty on
04.06.2005
instead
of
01.06.2005.
Thereafter, on 25.06.2005 again, he had
gone to his home after getting the Earned
Leave of twenty days sanctioned i.e. till
1 All. Dharmendra Mishra Vs. U.P. State Public Services Tribunal & Ors.
51
25.06.2005, however, he did not report for
duty on 25.06.2005. On account of the
absence from duty, he was placed under
suspension vide order dated 14.02.2006 and
an inquiry was instituted against him. A
charge-sheet was issued against him,
however, it was alleged by the petitioner
that the said charge-sheet was not served
upon him. In the absence of reply to the
charge-sheet, the Inquiry Officer had
conducted the inquiry ex parte and
submitted its ex parte inquiry report dated
20.11.2007 to the disciplinary authority. On
receipt of the said inquiry report dated
20.11.2007,
the
disciplinary
authority
dismissed the petitioner from service vide
order dated 24.03.2008.

(3) Aggrieved by the aforesaid order
of
dismissal
dated
24.03.2008,
the
petitioner had preferred an appeal under
Rule 20 of the U.P. Police Officers
Subordinate Rank (Punishment & Appeal)
Rules, 1991 (hereinafter referred to as
'Rules, 1991'), which was rejected vide
order dated 08.08.2008. Against the order
of dismissal dated 24.03.2008 and appellate
order dated 08.08.2008, the petitioner had
preferred revision, which too was rejected
vide order dated 20.12.2012.

(4) The petitioner, thereafter, has
challenged the order of dismissal dated
24.03.2008,
appellate
order
dated
08.08.2008 and revisional order dated
20.12.2012,
before
the
Tribunal
by
instituting Claim Petition No. 129 of 2013.
It is the case of the petitioner before the
Tribunal that since all of a sudden, he
became mentally ill and was admitted in
Mental Hospital, Rajendra Institute of
Medical Science, Ranchi, w.e.f. 20.06.2005
to 23.07.2008, he could not join his
services on the said date and also did not
participate
in
the
inquiry
and
the
punishment of dismissal was passed in utter
violation of natural justice as no chargesheet had ever been served upon him nor
any opportunity of hearing was provided to
him. The learned Tribunal, after hearing the
parties and examining the record, allowed
the claim petition vide judgment/order
dated 23.04.2014. The operative portion of
the judgment/order dated 23.04.2014 reads
as under :-

"The claim petition succeeds. The
impugned
order
dated
24.03.2008
(Annexure no.1), appellate order dated
08.08.2008 (Annexure no.2), revisional
order dated 20.12.2012 (Annnexure no.3)
and the order dated 28.01.2013 (Annexure
no.4) are quahsed. The opposite parties are
given liberty to process afresh if they so
desire and if the decision to proceed fresh
is taken within two month then the inquiry
shall be started from the stage of issuing of
fresh charge-sheet and the Inquiry Officer
shall conduct the inquiry in accordance
with procedure prescribed in Appendix-I of
Rule 14 (1) of U.P. Police Officers of
Subordinate
Rank
(Punishment
and
Appeal) Rules, 1991. The whole inquiry
shall
be
concluded
expeditiously
preferably
within
six
months.
The
petitioner shall be under obligation to cooperate in the inquiry. Any time consumed
by the petitioner shall be excluded from
the period prescribed by this Tribunal.
The petitioner shall be reinstated for the
purpose of inquiry only and will be kept
under suspension and shall be paid
subsistence allowance. The consequential
service benefits shall be subject to final
outcome of the inquiry. If no decision is
taken within two month to proceed afresh
then the consequential service benefits
shall be released in favour of petitioner
which was withheld on account of the
punishment order."
52 INDIAN LAW REPORTS ALLAHABAD SERIES

(5) The aforesaid judgment/order
dated 23.04.2014 was served upon the
department by the petitioner on 08.05.2014.
Pursuant to the aforesaid judgment/order
dated 23.04.2014, the petitioner was
reinstated in service, however, he was kept
under suspension and an inquiry was
instituted against petitioner vide order
dated 21.08.2014. A charge-sheet dated
15.09.2014 was issued upon the petitioner
requiring him to submit his reply by
22.09.2014. On receipt of the charge-sheet
dated 15.09.2014, the petitioner, vide letter
dated 22.09.2014, had sought ten days
additional period for submitting reply and
also for supplying copy of the certain
documents. In response to the letter dated
23.09.2014,
the
Inquiry
Officer
had
accorded ten days further time to file reply
to the aforesaid charge-sheet and also
supplied the required documents to the
petitioner. Subsequently, the petitioner had
again sought 10 days further time for filing
reply to the charge-sheet, which was
accorded by the Inquiry Officer on
03.10.2014. Thereafter, the petitioner had
submitted his reply to the charge-sheet on
09.10.2014. The Inquiry Officer, after
examining the reply of the petitioner and
adducing the evidence of the witnesses, had
submitted its report dated 13.01.2015 to the
disciplinary authority, holding guilty of
unauthorized absence of the petitioner from
duty w.e.f. 01.06.2005 to 04.06.2005 and
25.06.2005 to 24.03.2008.

(6) The disciplinary authority, on
receipt of the aforesaid inquiry report dated
13.01.2015, had issued show cause notice
to the petitioner along with the inquiry
report dated 13.01.2015, requiring him to
submit his reply. The petitioner, thereafter,
vide letter dated 03.02.2015, had sought 15
days further time for submitting his reply,
which was accorded him. Thereafter, the
petitioner had submitted his reply dated
12.02.2015 to the show cause notice. The
disciplinary authority, after examining the
inquiry report dated 13.01.2015 and the
reply of the petitioner dated 12.02.2015 as
well as record available before him, had
passed
the
punishment
order
dated
12.05.2015, dismissing the petitioner from
service. Aggrieved by this order of
dismissal dated 12.05.2015, the petitioner
had filed an appeal, which was dismissed
vide order dated 30.11.2015.

(7) Feeling aggrieved, the petitioner
had preferred Claim Petition No. 137 of
2016 before the Tribunal. The learned
Tribunal, after hearing the parties and
examining the record, dismissed the claim
petition
vide
judgment/order
dated
20.03.2018. It is this judgment/order dated
20.03.2018 as well as dismissal order dated
12.05.2015 and appellate order dated
30.11.2015, which have been assailed in the
instant writ petition.

(8) Heard learned Counsel for the
petitioner and learned Standing Counsel
and gone through the record available
before this Court.

(9) Learned counsel for the petitioner
has strenuously argued that in view of the
mandate of the previous order of the
Tribunal dated 23.04.2014 (supra), the
Disciplinary Authority was duty bound to
decide the matter within six months, but the
Disciplinary Authority had failed to do so.
According to the learned counsel, the order
passed by the Disciplinary Authority on
12.05.2015 dismissing the petitioner from
service is a nullity in the eyes of law, for
the stipulated period of time, as provided
for by the Tribunal, having expired and no
extension having been sought nor granted
by the Tribunal.
1 All. Dharmendra Mishra Vs. U.P. State Public Services Tribunal & Ors.
53

(10) The learned Counsel for the
petitioner has submitted that the Courts and
Tribunals have inherent powers to prescribe
time limits to conduct proceedings and any
such prescription remains binding on the
authority
conducting
the
proceedings.
According to the learned counsel, if such
directions are not properly and punctually
complied with, the proceedings would
come to an end with the expiry of the time
fixed by the Court or the Tribunal. Thus,
learned counsel has contended that the
view taken by the learned Tribunal remains
unjustified and calls for interference. In this
regard, he has placed reliance upon the
decision of Full Bench in Abhishek
Prabhakar Awasthi Vs. The New India
Assurance
Company
Limited
and
others: 2013 SCC OnLine All 14267.

(11) Per contra, learned Standing
Counsel has submitted that though in the
earlier proceedings when order of dismissal
dated 24.03.2008 was set-aside on the
ground of violation of principles of natural
justice, time period was given within which
the disciplinary authority was supposed to
complete the enquiry, which they could not
for the reason of non-cooperation of the
petitioner.
According
to
the
learned
Standing Counsel, inquiry has not been
concluded within the prescribed time
because the petitioner had consumed twice
time for filing reply to the charge-sheet and
further has sought once time by the
petitioner for filing reply to the show cause
notice and the petitioner had not cooperated with the inquiry. According to
learned Counsel, not concluding the inquiry
within the prescribed time would not be a
ground for setting aside impugned order of
dismissal. Moreso, learned Tribunal, in
earlier proceeding while setting-aside the
order of dismissal, specifically provided
that any time consumed by the petitioner
shall
be
excluded
from
the
period
prescribed by this Tribunal. In this
backdrop, he has submitted that if the time
consumed by the petitioner for filing reply
to the charge-sheet and for filing reply to
the show-cause notice be counted, then, the
enquiry proceedings can safely be said to
be concluded within the prescribed time.
Thus, the learned Tribunal has rightly
dismissed the claim petition vide impugned
judgment and the instant writ petition is
liable to be dismissed.

(12)

Having
given
thoughtful
consideration to the rival submissions and
having examined the record available
before this Court, it is required to be noted
herein that in the case of Abhishek
Prabhakar Awasthi Vs. New India
Insurance Company Ltd. and Ors.
(supra), the Full Bench of this Court has
held as under :-

"18. These judgments of the
Supreme Court consequently recognize that
the delay in concluding a departmental
enquiry would not ipso facto vitiate the
proceedings or render it invalid or non est.
The Court has to take into consideration
and balance all the relevant factors. The
Court must consider in that balance the
need for preserving the sanctity of the
administration. On the other hand, fairness
towards the delinquent employee requires
that disciplinary proceedings should be
concluded expeditiously. Hence, the nature
of the charge, its complexity and the
reasons for that delay are all relevant
considerations which have to be borne in
mind. Where the court has stipulated a
period of time within which an enquiry has
to be concluded, the direction of the Court,
particularly in the form of a mandamus,
has to be duly observed. It would not be
open to the employer to willfully disregard
54 INDIAN LAW REPORTS ALLAHABAD SERIES
the fixation of a time limit as a matter of no
consequence. However, the fixation of a
period within which a disciplinary enquiry
has to be concluded, in an order of the
Court, does not deprive the court of its
jurisdiction
to
extend
time
in
an
appropriate case having due regard to all
the facts and circumstances which have
been noted above. Whether the time should
be extended on a consideration of the
relevant circumstances is for the court to
determine.

19.
In
view
of
the
above
discussion, we now proceed to answer the
questions which have been referred to the
Full Bench.

(A) Question No. (a): We hold
that if an enquiry is not concluded within
the time which has been fixed by the Court,
it is open to the employer to seek an
extension of time by making an appropriate
application to the court setting out the
reasons for the delay in the conclusion of
the enquiry. In such an event, it is for the
court to consider whether time should be
extended,
based
on
the
facts
and
circumstances of the case. However, where
there is a stipulation of time by the Court, it
will not be open to the employer to
disregard that stipulation and an extension
of time must be sought;

(B)
Question
No.
(b):
The
judgment of the Supreme Court in the case
of Suresh Chandra (supra) as well as the
judgment of the Division Bench of this
Court in the case of Satyendra Kumar
Sahai (supra) clearly indicate that a mere
delay on the part of the employer in
concluding a disciplinary enquiry will not
ipso facto nullify the entire proceedings in
every case. The court which has fixed a
stipulation of time has jurisdiction to
extend the time and it is open to the court,
while
exercising
that
jurisdiction,
to
consider whether the delay has been
satisfactorily explained. The court can
suitably extend time for conclusion of the
enquiry either in a proceeding instituted by
the employee challenging the enquiry on
the ground that it was not completed within
the stipulated period or even upon an
independent application moved by the
employer. The court has the inherent
jurisdiction to grant an extension of time,
the original stipulation of time having been
fixed by the court itself. Such an extension
of time has to be considered in the interests
of justice balancing both the need for
expeditious conclusion of the enquiry in the
interests of
fairness and an honest
administration. In an appropriate case, it
would be open to the Court to extend time
suo motu in order to ensure that a serious
charge
of
misconduct
does
not
go
unpunished leading to a serious detriment
to the public interest. The court has
sufficient powers to grant an extension of
time both before and after the period
stipulated by the court has come to an
end."

(13) When considered the issue
involved in the instant writ petition on the
touchstone of the aforesaid Full Bench
decision, we find that no doubt, the
disciplinary
proceedings
against
the
petitioner could not be completed within
the period of six months prescribed by the
learned Tribunal vide judgment/order dated
23.04.2014 in earlier proceeding. However,
from perusal of the order of dismissal dated
12.05.2015 reveals that the disciplinary
authority, after examining the record
available before it, had narrated the reasons
for not concluding the inquiry within the
prescribed period. It is stated in the
impugned order of dismissal itself that
though the learned Tribunal in earlier
proceeding, in addition to other direction,
also directed the petitioner to co-operate in
1 All. Dharmendra Mishra Vs. U.P. State Public Services Tribunal & Ors.
55
the
inquiry
and
excluded
any
time
consumed by the petitioner from the period
prescribed by the Tribunal, however, even
then the petitioner had not co-operated in
the inquiry inasmuch as the petitioner had
sought twice time to file reply to the
counter affidavit and sought once time to
file reply to the show cause notice and as
such, the inquiry proceedings could not be
completed within the prescribed period. In
this
backdrop,
learned
Tribunal
has
returned to a finding that the delay in
concluding the inquiry proceedings had
occurred due to the petitioner as well as
due to the witnesses of the defence, which
were produced before the inquiry officer
belatedly.

(14) At this juncture, it would be apt
to mention that in Union of India and
others Vs. Sharvan Kumar : 2022
LiveLaw (SC) 595, the Apex Court has
held as under :-

"9.1.
It
needs
hardly
any
elaboration to say that fixing of the period
of two months by the Tribunal in this case
had only been to ensure expeditious
proceedings because the matter was being
restored for reconsideration in the year
2010 , though the disciplinary proceedings
related with the incident dated 09.01.2005.
However, the said period of two months did
not acquire any status akin to that of a
statutory mandate that the disciplinary
proceedings would have automatically
come to an end with its expiry. It remains
trite that if an Adjudicating Authority in
exercise of its jurisdiction could grant or fix
a time period to do a particular thing, in
the absence of a specific statutory provision
to the contrary, the jurisdiction to fix such a
time period inhers the jurisdiction to extend
the time initially fixed. Such conditional
orders have regularly been construed by
this Court to be in terrorem so as to put a
check on the dilatory tactics by any litigant
or to guard against any laxity on the part of
the Adjucating Authority but, the Court is
not powerless to enlarge the time even
though it had peremptorily fixed the period
at any earlier stage. In the case of Mahanth
Ram Das v. Ganga Das: (1961) 3 SCR 763,
this Court examined the peremptory order
of the Court fixing the period of payment of
deficit court fees in the backdrop of the fact
that the application for extension of time
came up for hearing only after the time
fixed by the Court had expired and the
application was rejected. This Court put
the things in perspective while observing,
inter alia, as under: -

"5...Such orders are not like the
law of the Medes and the Persians. Cases
are known in which Courts have moulded
their practice to meet a situation such as
this and to have restored a suit or
proceeding, even though a final order had
been passed..."

9.2. We may elaborate a little.
When a conditional order is passed by the
Court/ Tribunal to do a particular act or
thing within a particular period but the
order does not provide anything as to the
consequence
of
default,
the
Court/Tribunal fixing the time for doing a
particular thing obviously retains the
power to enlarge such time. As a corollary,
even the Appellate Court/Tribunal or any
higher forum would also be having the
power to enlarge such time, if so required.
In any case, it cannot be said that the
proceedings would come to an end
immediately after the expiry of the time
fixed."

(emphasis supplied)

(15) Keeping in mind the aforesaid
legal proposition and having regard to the
facts and circumstances of the case, what
56 INDIAN LAW REPORTS ALLAHABAD SERIES
we find is that delay in concluding the
inquiry proceedings in pursuance of the
earlier order passed by the learned Tribunal
was on account of the petitioner and the
delay
in
conclusion
of
the
inquiry
proceedings
have
satisfactorily
been
explained by the respondent.

(16) For the aforesaid reasons, we are
of the view that the learned Tribunal has
rightly dismissed the claim petition filed by
the petitioner and there is no error in the
impugned judgment/order.

(17) The writ petition lacks merit and
is, accordingly, dismissed. However, there
shall be no order as to costs.
----------
(2024) 1 ILRA 56
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 17548 of 2023

Deepak Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sri Ashok Khare (Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri Surya Pratap Singh, Sri Jai
Bahadur Singh

A.
Service
Law
-
Compassionate
Appointment
-
U.P.
Recruitment
of
Dependants of Government Servants
(Dying-in-Harness)
Rules,
1974
-
Petitioner sought compassionate appointment
following the death of his father, a Safai
Karmchari with Nagar Nigam, Saharanpur,
who died in harness on 05.04.2023 - Father
was appointed in 1990 after his own father
resigned due to ill-health - Respondents
rejected petitioner's application, claiming the
deceased's appointment was invalid as it was
not in accordance with the 1974 Rules - Held,
the validity of the deceased employee's
appointment
cannot
be
adjudged
posthumously
to
deny
compassionate
appointment - No proceedings were initiated
against the deceased during his lifetime to
challenge his appointment - Posthumous
invalidation of his status violates principles of
natural
justice
and
is
impermissible
-
Petitioner
entitled
to
consideration
for
compassionate appointment. (Paras 8, 11, 13)

B.
Service
Law
-
Disciplinary
Proceedings Against Deceased Employee
- No disciplinary or other proceedings can be
initiated against a deceased employee to
challenge the validity of their appointment
after death - Supreme Court's ruling in
*A.K.S. Rathore (Dead) through LRs* clarifies
that
such
proceedings
abate
upon
the
employee's demise - Respondents' attempt to
deem the deceased's appointment void ab
initio after his death is unsustainable -
Petitioner's
claim
for
compassionate
appointment must be considered based on
the
deceased's
status
as
a
permanent
employee at the time of death. (Paras 11, 12,
13)

Writ Petition Allowed - Impugned Order
Quashed - Respondents Directed to
Consider
Petitioner's
Claim
for
Compassionate Appointment.

List of Cases cited:

1. Karan Addiwal Vs St. of U.P. & ors., Writ-A
No. 15004 of 2022

2. Nagar Ayukt, Nagar Nigam through its
Chief Executive Officer & ors. Vs Karan
Addiwal & ors., Special Appeal Defective No.
103 of 2023

3. A.K.S. Rathore (Dead) through LRs Vs
U.O.I. & anr., Civil Appeal No. 7028 of 2022,
decided on 28.09.2022