# Dr. C.B. Agarwal v. State of U.P. & Ors

- **Citation:** (2024) 11 ILRA 466
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-06
- **Case number:** Writ A No. 2003852 of 1991
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-c-b-agarwal-v-state-of-u-p-ors-51077
- **Pages:** 13

## Headnote

A. Civil Law - Service Law- Constitution of
India,1950 - Articles 14, 226, 300-A & 311
- Service Law - Pension - Disciplinary
proceedings- Inquiry report - non-supply
of report to delinquent before passing
punishment order - Violation of principles
of natural justice. (Para 18)

HELD:
On careful consideration of the aforesaid
judgment, it is evident that even after the
amendment in Article 311 of the Constitution of
India, the supply of enquiry report is necessary.
It is admitted case of the parties that the
petitioner has not been supplied with the
enquiry report by the Administrative Tribunal
while concluding the enquiry. As such, the ratio
of the judgment relied upon is fully applicable to
the facts and circumstances of the case of the
petitioner. (Para 18)

B. Interim orders - Restoration of writ
petition - Revival of interim orders-
Interim orders granted prior to dismissal
of writ petition are automatically revived
upon restoration of the petition unless
explicitly
vacated-
Interim
protection
granted
on
16.07.1991
remained
operative upon restoration of the writ
petition. (Paras 23 and 26)
HELD:
It is submitted that it is well settled that
restoration of a petition automatically revives its
ancillary orders/ interlocutory orders passed
before its dismissal. In aforesaid regard, reliance
has been placed on a judgment rendered in the
case of Vareed Jacob Vs Sosamma Geevarghese
& ors.[(2004) 6 SCC 378]. (Para 23)

Thus, in the peculiar set of facts wherein in
respect of the impugned punishment order,
already interim protection was granted and the
same continues while the petitioner has already
left for his heavenly abode on 17.1.2018, the
impugned punishment order dated 20.12.1990
and consequential order dated 12.4.1991 are
liable to be aside on the aforesaid ground as
well. (Para 26)

C. Pension - Withholding of pension -
Whether pension can be withheld or
stopped by administrative orders without
due
process
of
law-
pension
is
a
constitutional right under Article 300-A-
Right
to
property-
Executive
orders
without statutory backing or breach of
due
process
violate
constitutional
protections-petition allowed. (Paras 28
and 31)
HELD:
In the instant matter, as has already been
enumerated in the discussion of Issue No.1, the
procedure prescribed by law, more particularly
in constitutional provisions enshrined in Articles
14 and 311, have not been followed inasmuch
as the punishment order has been passed
without serving a copy of the enquiry report in
disciplinary proceedings upon the petitioner,
such an action cannot be sustained as the same
infringes Right to Property of petitioner as
envisaged
under
Article
300-A
of
the
Constitution of India, which also includes Right
to receive pension of petitioner. As for stopping
the pension, due procedure established by law
was required to be mandatorily followed and the
same could not have been done in utter
defiance of mandate contained in Article 14 read
with Article 311 of Constitution of India. (Para
28)
11 All. Dr. C.B. Agarwal Vs. State of U.P. & Ors.
467
In a recent judgment dated 23.8.2023, passed
in Writ-A No.3180 of 2023 (Prof. Ranjana
Sharma & anr.Vs St. of U.P. & others), this Court
while allowing the writ petition, has followed the
dictum of Hon'ble Supreme Court in St. of
Jharkhand (Supra) and Dr. Hiralal (Supra) while
reiterating inter alia that right to receive pension
is included in Right to property under Article
300-A of the Constitution of India. (Para 31)

Petition allowed. (E-14)

List of Cases cited:

## Text

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466 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 11 ILRA 466
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.11.2024

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ A No. 2003852 of 1991

Dr. C.B. Agarwal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Gaurav Mehrotra, Anurag Srivastava, Rani
Singh

Counsel for the Respondents:
C.S.C.

A. Civil Law - Service Law- Constitution of
India,1950 - Articles 14, 226, 300-A & 311
- Service Law - Pension - Disciplinary
proceedings- Inquiry report - non-supply
of report to delinquent before passing
punishment order - Violation of principles
of natural justice. (Para 18)

HELD:
On careful consideration of the aforesaid
judgment, it is evident that even after the
amendment in Article 311 of the Constitution of
India, the supply of enquiry report is necessary.
It is admitted case of the parties that the
petitioner has not been supplied with the
enquiry report by the Administrative Tribunal
while concluding the enquiry. As such, the ratio
of the judgment relied upon is fully applicable to
the facts and circumstances of the case of the
petitioner. (Para 18)

B. Interim orders - Restoration of writ
petition - Revival of interim orders-
Interim orders granted prior to dismissal
of writ petition are automatically revived
upon restoration of the petition unless
explicitly
vacated-
Interim
protection
granted
on
16.07.1991
remained
operative upon restoration of the writ
petition. (Paras 23 and 26)
HELD:
It is submitted that it is well settled that
restoration of a petition automatically revives its
ancillary orders/ interlocutory orders passed
before its dismissal. In aforesaid regard, reliance
has been placed on a judgment rendered in the
case of Vareed Jacob Vs Sosamma Geevarghese
& ors.[(2004) 6 SCC 378]. (Para 23)

Thus, in the peculiar set of facts wherein in
respect of the impugned punishment order,
already interim protection was granted and the
same continues while the petitioner has already
left for his heavenly abode on 17.1.2018, the
impugned punishment order dated 20.12.1990
and consequential order dated 12.4.1991 are
liable to be aside on the aforesaid ground as
well. (Para 26)

C. Pension - Withholding of pension -
Whether pension can be withheld or
stopped by administrative orders without
due
process
of
law-
pension
is
a
constitutional right under Article 300-A-
Right
to
property-
Executive
orders
without statutory backing or breach of
due
process
violate
constitutional
protections-petition allowed. (Paras 28
and 31)
HELD:
In the instant matter, as has already been
enumerated in the discussion of Issue No.1, the
procedure prescribed by law, more particularly
in constitutional provisions enshrined in Articles
14 and 311, have not been followed inasmuch
as the punishment order has been passed
without serving a copy of the enquiry report in
disciplinary proceedings upon the petitioner,
such an action cannot be sustained as the same
infringes Right to Property of petitioner as
envisaged
under
Article
300-A
of
the
Constitution of India, which also includes Right
to receive pension of petitioner. As for stopping
the pension, due procedure established by law
was required to be mandatorily followed and the
same could not have been done in utter
defiance of mandate contained in Article 14 read
with Article 311 of Constitution of India. (Para
28)
11 All. Dr. C.B. Agarwal Vs. State of U.P. & Ors.
467
In a recent judgment dated 23.8.2023, passed
in Writ-A No.3180 of 2023 (Prof. Ranjana
Sharma & anr.Vs St. of U.P. & others), this Court
while allowing the writ petition, has followed the
dictum of Hon'ble Supreme Court in St. of
Jharkhand (Supra) and Dr. Hiralal (Supra) while
reiterating inter alia that right to receive pension
is included in Right to property under Article
300-A of the Constitution of India. (Para 31)

Petition allowed. (E-14)

List of Cases cited:

1. U.O.I. & ors.Vs Mohd. Ramzan Khan [(1991)
1 Supreme Court Cases 588]

2. Vareed Jacob Vs Sosamma Geevarghese &
ors.[(2004) 6 SCC 378].

3. Jitendra Singh @ Guddan Vs St. of U.P. &
others; judgment and order dated 24.8.2009,
passed in Writ-C No.545 of 2009

4. St. of Jharkhand & ors.Vs Jitendra Kumar
Srivastava [2013 (12) SCC 210]

5. Dr. Hiralal Vs St. of Bihar & others, 2020 (4)
SCC 46

6. Prof. Ranjana Sharma & anr.Vs St. of U.P. &
others, judgment dated 23.8.2023, passed in
Writ-A No.3180 of 2023

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Gaurav Mehrotra alongwith
Mrs. Rani Singh and Mrs. Alina, learned
counsel for the petitioner and Sri Rajiv Kumar
Singh, learned Standing Counsel for the Staterespondent.

2. By means of the present writ petition,
the petitioner has challenged the orders dated
20.12.1990,
12.4.1991
and
7.5.1991
(Annexures-11, 12 and 10 respectively). It has
been prayed to issue writ of mandamus
restraining the respondents from giving effect
to the impugned orders referred above and not
to stop the pension of the petitioner and not to
make any recoveries from the petitioner by
adopting coercive means or otherwise in
pursuance of the impugned orders.

3. At the time of filing of the writ
petition, vide order dated 16.7.1991, following
interim order was granted :-

"Put up this petition after two weeks
to enable the Standing Counsel to obtain
instructions. In the meantime, the opposite
parties shall pay and continue to pay pension
to the petitioner as hereto fore the recovery
proceedings shall remain stayed."

4. At the very outset, it is essential to
advert to the brief factual background to
provide context to the manner in which the
present proceedings have arisen.

5. The petitioner was appointed in the
Provincial Medical Services, Cadre-I on
22.9.1959. In the year 1974, he was promoted
to the post of Consultant (equivalent to the
Chief Medical Officer). He was posted at
Sitapur between the period 29.6.1978 to
5.2.1980. Thereafter, he was transferred to
Kanpur vide order dated 6.2.1980 to join as
Joint Director, Employees State Insurance
Scheme, Kanpur and he remained there up to
27.2.1980.

6. The petitioner received a demotion
order dated 26.2.1980, alleging the charge of
illegal purchases of medicine during his tenure
at Sitapur. He challenged the said order by
filing Writ Petition No.521 of 1980 (C.B.
Agarwal Vs. State of U.P.) before this Court,
which was allowed vide judgment and order
dated 2.9.1982 and the demotion order was
quashed.

7. Thereafter, the petitioner was
subjected to preventive detention under the
National
Security
Act,
which
was
468 INDIAN LAW REPORTS ALLAHABAD SERIES
challenged vide Writ Petition No.3480 of
1981 before this Court and the detention
order was quashed by this Court vide
judgment and order dated 4.9.1981. He was
served with charge sheet in disciplinary
proceeding by the Administrative Tribunal
levelling
seven
charges
on
him
on
28.4.1982. He was then served with second
charge sheet in disciplinary proceeding
levelling eight charges on 31.5.1982.

8. The disciplinary proceedings were
stayed by the Administrative Tribunal till
the decision of the Special Judge, Lucknow
as both the criminal proceeding and
disciplinary proceeding was based on same
set of facts vide order dated 21.5.1983. The
petitioner was superannuated from service
on 31.1.1985.

9. The petitioner was served notice to
show cause as to why stay of disciplinary
proceedings be not vacated and stipulating
that proceeding would proceed ex-parte in
event of non turning up of the petitioner on
29.2.1988. The Administrative Tribunal
apprised the petitioner that disciplinary
enquiry was fixed for 28.4.1989 vide letter
dated 27.3.1989. The petitioner in response
to the aforesaid letter, filed his reply dated
25.4.1989. He filed reply to the letter dated
2.6.1989,
requesting
the
Tribunal
to
consider his objection and submissions
made vide letter dated 25.4.1989. He then
sent letter to Administrative Tribunal on
23.9.1989, requesting to communicate the
decision of the Tribunal on his applications
dated 25.4.1989 and 22.6.1989.

10. The respondent No.1 i.e. the State
of U.P. issued an order dated 20.12.1990,
whereby full pension of the petitioner was
stopped as also alleged loss caused to the
government was sought to be recovered.
Consequential order dated 12.4.1991 was
issued by respondent No.2 i.e. Director
General, Directorate of Medical, Health
Services and Family Welfare. Both the
aforesaid orders were served upon the
petitioner by means of letter dated 7.5.1991
of C.M.O., Sitapur.

11. Feeling aggrieved by the orders
dated 20.12.990, 12.4.1991 and letter dated
7.5.1991, the petitioner preferred the
instant writ petition, wherein interim order
was granted on 16.7.1991 in favour of the
petitioner at admission stage providing that
pension shall be continued to be paid and
recovery proceeding shall remain stayed.

12.
Thereafter,
the
present
writ
petition was dismissed as having been
rendered infructuous due to efflux of time
on the statement of learned Standing
Counsel. The erstwhile counsel for the
petitioner had been elevated to the Bench,
hence, the petitioner was not represented on
the aforesaid date. On 17.1.2018, the
petitioner left for his heavenly abode. On
10.9.2018, substitution application was
filed by legal heirs of the petitioner on
account of death of the petitioner alongwith
delay condonation application.

13. Recall and restoration application
was allowed and the instant writ petition
was restored to its original number vide
order dated 19.5.2023. It is submitted that
with the revival of the present writ petition,
the interim order passed on 16.7.1991 also
got revived and the same still continues.

14. There are three issues which are
likely to be decided by this Court on which
basis the impugned orders have been
challenged, the issues are as under :-

Issue No.1- Whether at all a
punishment order passed without providing
11 All. Dr. C.B. Agarwal Vs. State of U.P. & Ors.
469
copy of the enquiry report in disciplinary
proceedings to the delinquent employee can
sustain in the eyes of law ?

Issue No.2- Whether in the
instant matter in the peculiar set of facts,
where an interim protection was granted by
this Court at admission stage providing that
pension to the petitioner shall be continued
to be paid and the recovery proceeding
shall remain stayed which continues to be
in operation ?

Issue No.3- Whether pension of
the petitioner could have been stopped by
respondents by issuing impugned order,
without
meticulously
following
the
procedure prescribed by law as also by the
constitutional provisions more particularly
Articles 14 and 311 of Constitution of India
?

15. In regard to the first issue,
submission of learned counsel for the
petitioner is that it is well settled that in
disciplinary proceeding, serving a copy of
the enquiry report is a condition precedent
for inflicting punishment on the delinquent
employee and a punishment order issued
without serving an enquiry report is
untenable and is liable to be set aside by
this Court.

In this regard the petitioner has
made specific averment in paragraphs-27
and 32 of the writ petition that the
petitioner was not provided with enquiry
report. It was directly supplied to the
disciplinary authority who has not issued
second show cause notice alongwith
enquiry report to file representation raising
objection to the report.

16. The reply of paragraphs-27 and 32
of the writ petition has been given in
paragraphs-28 and 32 of the counter
affidavit, wherein there is no specific denial
in regard to the supply of the enquiry report
nor there is any averment in regard to the
supply of enquiry report to the petitioner,
therefore, the petitioner has made out a
case for the grant of relief in exercise of
power under Article 226 of the Constitution
of India.

17. In support of the submission
advanced, learned counsel for the petitioner
placed reliance upon a judgment in the case
of Union of India & others Vs. Mohd.
Ramzan Khan [(1991) 1 Supreme Court
Cases 588]. Relevant paragraphs-2, 3, 7,
11, 13, 14, 15, 17 and 18 are being quoted
below :-

"2. The short point that falls for
determination in this bunch of appeals is as
to whether with the alteration of the
provisions of Article 311(2) under the
Forty-second
Amendment
of
the
Constitution
doing
away
with
the
opportunity of showing cause against the
proposed punishment, the delinquent has
lost his right to be entitled to a copy of the
report of enquiry in the disciplinary
proceedings.

3. Sub-article (2) of Article 311 in
the original Constitution read thus:

"311. (2) No such person as
aforesaid shall be dismissed or removed or
reduced in rank until he has been given a
reasonable opportunity of showing cause
against the action proposed to be taken in
regard to him;"

The effect of this provision came
to be considered by a Constitution Bench of
this Court in Khem Chand v. Union of
India [1958 SCR 1080 : AIR 1958 SC 300 :
(1959) 1 LLJ 167] . The learned Chief
Justice traced the history of the growth of
the service jurisprudence relating to
security of the civil service in the country
beginning from the Government of India
470 INDIAN LAW REPORTS ALLAHABAD SERIES
Act of 1915 followed by Section 240 of the
Government of India Act of 1935. This
Court on that occasion also noticed the
judgments of the Privy Council in the cases
of R. Venkata Rao v. Secretary of State for
India [64 IA 55 : AIR 1937 PC 31] , High
Commissioner for India v. I.M. Lall [75 IA
225 : AIR 1948 PC 121] and the judgment
of the Federal Court in Secretary of State
for India v. I.M. Lall [1945 FCR 103 : AIR
1945 FC 47] and summed up the meaning
of 'reasonable opportunity' thus: (SCR pp.
1096-97)

"The
reasonable
opportunity
envisaged
by
the
provision
under
consideration includes-

(a) An opportunity to deny his
guilt and establish his innocence, which he
can only do if he is told what the charges
levelled against him are and the allegations
on which such charges are based;

(b) an opportunity to defend
himself by cross-examining the witnesses
produced against him and by examining
himself or any other witnesses in support of
his defence; and finally

(c) an opportunity to make his
representation as to why the proposed
punishment should not be inflicted on him,
which he can only do if the competent
authority, after the enquiry is over and
after applying his mind to the gravity or
otherwise of the charges proved against the
government servant tentatively proposed to
inflict one of the three punishments and
communicates the same to the government
servant."

7. Then came the Forty-second
Amendment of the Constitution under
which the sub-article (2) was substantially
altered. As amended in 1976 the sub-article
now reads:

"311. (2) No such person as
aforesaid shall be dismissed or removed or
reduced in rank except after an enquiry in
which he has been informed of the charges
against him and given a reasonable
opportunity of being heard in respect of
those charges.

Provided
that
where
it
is
proposed, after such inquiry, to impose
upon him any such penalty, such penalty
may be imposed on the basis of the
evidence adduced during such inquiry and
it shall not be necessary to give such
person
any
opportunity
of
making
representation on the penalty proposed:"

In terms, the omission of the
words 'and where it is proposed, after such
inquiry, to impose on him any other
penalty, until he has been given a
reasonable
opportunity
of
making
representation on the penalty proposed, but
only on the basis of the evidence adduced
during such inquiry' as also the proviso
clearly omit the second part of the inquiry
as envisaged in Goel case [(1964) 4 SCR
718 : AIR 1964 SC 364 : (1964) 1 LLJ 38]
and
the
concept
of
'reasonable
opportunity' is satisfied by the delinquent
being informed of the charges and of being
heard in respect thereof.

11. The question which has now
to be answered is whether the Forty-second
Amendment has brought about any change
in the position in the matter of supply of a
copy of the report and the effect of nonsupply thereof on the punishment imposed.

13. Several pronouncements of
this Court dealing with Article 311(2) of
the Constitution have laid down the test of
natural justice in the matter of meeting the
charges. This Court on one occasion has
stated that two phases of the inquiry
contemplated under Article 311(2) prior to
the Forty-second Amendment were judicial.
That perhaps was a little stretching the
position. Even if it does not become a
judicial proceeding, there can be no
dispute that it is a quasi-judicial one. There
11 All. Dr. C.B. Agarwal Vs. State of U.P. & Ors.
471
is a charge and a denial followed by an
inquiry at which evidence is led and
assessment
of
the
material
before
conclusion is reached. These facets do
make the matter quasi-judicial and attract
the principles of natural justice. As this
Court rightly pointed out in the Gujarat
case [(1969) 2 SCC 128 : (1970) 1 SCR
251] , the disciplinary authority is very
often influenced by the conclusions of the
Inquiry
Officer
and
even
by
the
recommendations relating to the nature of
punishment to be inflicted. With the Fortysecond Amendment, the delinquent officer
is not associated with the disciplinary
inquiry beyond the recording of evidence
and the submissions made on the basis of
the material to assist the Inquiry Officer to
come to his conclusions. In case his
conclusions are kept away from the
delinquent officer and the Inquiry Officer
submits his conclusions with or without
recommendation as to punishment, the
delinquent is precluded from knowing the
contents thereof although such material is
used against him by the disciplinary
authority. The report is an adverse material
if the Inquiry Officer records a finding of
guilt and proposes a punishment so far as
the delinquent is concerned. In a quasijudicial matter, if the delinquent is being
deprived of knowledge of the material
against him though the same is made
available to the punishing authority in the
matter of reaching his conclusion, rules of
natural justice would be affected. Prof.
Wade has pointed out: [ Administrative
Law, 6th edn., p. 10]

"The concept of natural justice
has existed for many centuries and it has
crystallised into two rules: that no man
should be judge in his own cause; and that
no man should suffer without first being
given a fair hearing.... They (the courts)
have been developing and extending the
principles of natural justice so as to build
up a kind of code of fair administrative
procedure, to be obeyed by authorities of
all kinds. They have done this once again,
by assuming that Parliament always
intends powers to be exercised fairly."

14. This Court in Mazharul Islam
Hashmi v. State of U.P. [(1979) 4 SCC 537
: 1980 SCC (L&S) 54] pointed out:

"Every person must know what
he is to meet and he must have opportunity
of meeting that case. The legislature,
however, can exclude operation of these
principles expressly or implicitly. But in the
absence of any such exclusion, the
principle of natural justice will have to be
proved."

15. Deletion
of
the
second
opportunity from the scheme of Article
311(2) of the Constitution has nothing to do
with providing of a copy of the report to the
delinquent in the matter of making his
representation. Even though the second
stage of the inquiry in Article 311(2) has
been
abolished
by
amendment,
the
delinquent is still entitled to represent
against the conclusion of the Inquiry
Officer holding that the charges or some of
the charges are established and holding the
delinquent guilty of such charges. For
doing away with the effect of the enquiry
report or to meet the recommendations of
the Inquiry Officer in the matter of
imposition of punishment, furnishing a
copy of the report becomes necessary and
to have the proceeding completed by using
some material behind the back of the
delinquent is a position not countenanced
by fair procedure. While by law application
of natural justice could be totally ruled out
or truncated, nothing has been done here
which could be taken as keeping natural
justice out of the proceedings and the series
of pronouncements of this Court making
rules of natural justice applicable to such
472 INDIAN LAW REPORTS ALLAHABAD SERIES
an inquiry are not affected by the Fortysecond Amendment. We, therefore, come to
the conclusion that supply of a copy of the
inquiry report along with recommendation,
if any, in the matter of proposed
punishment to be inflicted would be within
the rules of natural justice and the
delinquent would, therefore, be entitled to
the supply of a copy thereof. The Fortysecond Amendment has not brought about
any change in this position.

17. There have been several
decisions in different High Courts which,
following the Forty-second Amendment,
have taken the view that it is no longer
necessary to furnish a copy of the inquiry
report to delinquent officers. Even on some
occasions this Court has taken that view.
Since
we
have
reached
a
different
conclusion the judgments in the different
High Courts taking the contrary view must
be taken to be no longer laying down good
law. We have not been shown any decision
of a coordinate or a larger bench of this
Court taking this view. Therefore, the
conclusion to the contrary reached by any
two-Judge bench in this Court will also no
longer be taken to be laying down good
law, but this shall have prospective
application and no punishment imposed
shall be open to challenge on this ground.

18. We make it clear that
wherever there has been an Inquiry Officer
and he has furnished a report to the
disciplinary authority at the conclusion of
the inquiry holding the delinquent guilty of
all or any of the charges with proposal for
any particular punishment or not, the
delinquent is entitled to a copy of such
report and will also be entitled to make a
representation against it, if he so desires,
and non-furnishing of the report would
amount to violation of rules of natural
justice and make the final order liable to
challenge hereafter."

18. On careful consideration of the
aforesaid judgment, it is evident that even
after the amendment in Article 311 of the
Constitution of India, the supply of enquiry
report is necessary. It is admitted case of
the parties that the petitioner has not been
supplied with the enquiry report by the
Administrative Tribunal while concluding
the enquiry. As such, the ratio of the
judgment relied upon is fully applicable to
the facts and circumstances of the case of
the petitioner.

19. In regard to the second issue, as a
matter of fact, as has already been
enumerated,
two
punishments
were
inflicted upon the petitioner by means of
the orders dated 20.12.1990, 12.4.1991,
however, on account of grant of interim
order at the admission stage itself on
16.7.1991 by this Court, the petitioner was
continuously paid pension and no recovery
has been made from him.

20. The aforesaid interim order was
never vacated by this Court, however, on
the statement made by the learned Standing
Counsel, the instant writ petition was
dismissed
as
having
been
rendered
infructuous by efflux of time vide order
dated 5.9.2013. The aforesaid order was
passed in absence of counsel for the
petitioner as the then counsel had been
elevated to the Bench and no name was
shown in the order dated 5.9.2013.
Subsequently, on having come to know of
the aforesaid order dated 5.9.2013, three
applications were filed by the petitioner on
24.9.2019
and
another
substitution
application was filed on 10.9.2018.

21. The aforesaid four applications
were considered by a Division Bench of
this Court and were allowed vide order
dated
19.5.2023.
Vide
order
dated
11 All. Dr. C.B. Agarwal Vs. State of U.P. & Ors.
473
19.5.2023, passed by a Division Bench of
this Court, the order dated 5.9.2013,
dismissing
the
writ
petition
being
infructuous,
was
set
aside
and
the
application for recall was allowed as also
the instant writ petition was restored to its
original number.

22. In the instant matter, since even
while dismissing the writ petition vide
order
dated
5.9.2013
for
want
of
prosecution, this Court had not explicitly
vacated the interim order dated 16.7.1991.
Further in light of the fact that on
19.5.2023, the aforesaid order has been set
aside and the writ petition has been restored
to its original number, the interim order
dated 16.7.1991 continues to be in
operation.

23. It is submitted that it is well settled
that restoration of a petition automatically
revives its ancillary orders/ interlocutory
orders passed before its dismissal. In
aforesaid regard, reliance has been placed
on a judgment rendered in the case of
Vareed Jacob Vs. Sosamma Geevarghese
and others [(2004) 6 SCC 378]. Relevant
paragraphs-17, 18, 20 and 21 are being
quoted as under :-

"17.
In
the
case
of Shivaraya v. Sharnappa [AIR 1968 Mys
283 : (1967) 1 Mys LJ 414] it has been
held
that
the
question
whether
the
restoration of the suit revives ancillary
orders passed before the dismissal of the
suit depends upon the terms in which the
order of dismissal is passed and the terms
in which the suit is restored. If the court
dismisses the suit for default, without any
reference to the ancillary orders passed
earlier, then the interim orders shall revive
as and when the suit is restored. However,
if the court dismisses the suit specifically
vacating
the
ancillary
orders,
then
restoration will not revive such ancillary
orders. This was a case under Order 39.

18. In
the
case
of Saranatha
Ayyangar v. Muthiah Moopanar [AIR 1934
Mad 49 : ILR 57 Mad 308] it has been held
that on restoration of the suit dismissed for
default all interlocutory matters shall stand
restored, unless the order of restoration
says to the contrary. That as a matter of
general rule on restoration of the suit
dismissed for default, all interlocutory
orders shall stand revived unless during the
interregnum between the dismissal of the
suit and restoration, there is any alienation
in favour of a third party.

20. In the case of Nandipati Rami
Reddi v. Nandipati
Padma
Reddy [AIR
1978 AP 30 : (1977) 2 APLJ 64] it has
been held by the Division Bench of the
Andhra Pradesh High Court that when the
suit is restored, all interlocutory orders and
their operation during the period between
dismissal of the suit for default and
restoration shall stand revived. That once
the dismissal is set aside, the plaintiff must
be restored to the position in which he was
situated, when the court dismissed the suit
for default. Therefore, it follows that
interlocutory orders which have been
passed before the dismissal would stand
revived along with the suit when the
dismissal is set aside and the suit is
restored unless the court expressly or by
implication excludes the operation of
interlocutory orders passed during the
period between dismissal of the suit and the
restoration.

21. In the case of Nancy John
Lyndon v. Prabhati Lal Chowdhury [(1987)
4 SCC 78] it has been held that in view of
Order 21 Rule 57 CPC it is clear that with
the dismissal of the title execution suit for
default, the attachment levied earlier
ceased. However, it has been further held
474 INDIAN LAW REPORTS ALLAHABAD SERIES
that when the dismissal was set aside and
the suit was restored, the effect of restoring
the suit was to restore the position
prevalent till the dismissal of the suit or
before dismissal of the title execution suit.
We repeat that this judgment was under
Order 21 Rule 57 whose scheme is similar
to Order 38 Rule 11 and Rule 11-A CPC
and
therefore,
we
cannot
put
all
interlocutory orders on the same basis."

24. In a recent judgment of the
Hon'ble Supreme Court in the case of Jai
Balaji Industries Vs. D.K. Mohanty &
another, the Court has reiterated the law
laid down in the case of Vareed Jacob
(Supra).

25. In a judgment and order dated
24.8.2009, passed in Writ-C No.545 of
2009 (Jitendra Singh @ Guddan Vs.
State of U.P. & others), this Court,
keeping in view the principles laid down in
the case of Vareed Jacob (Supra), held
that restoration of a petition automatically
restores the interim order if not vacated
vide a specific order. Relevant extract of
the aforesaid judgment passed by this Court
is being quoted as under :-

"It is submitted by Sri Pradeep
Chauhan that despite the fact that the order
dated 15.5.2009 dismissing the writ petition
in default has been recalled on 16.7.2009,
the respondents are not treating the interim
order dated 15.1.2009 to have revived.

In
the
circumstances,
Sri
Chauhan prays that necessary clarification
be made by the Court. He has placed
reliance on para 17 of the decision of the
Supreme Court in Vareed Jacob Vs.
Sosamma Geevarghese and others, (2004)
6 SCC 378.

Civil
Misc.
Application
No.
201688 of 2009 has also been filed on
behalf of the petitioner for restoration of
the interim order. We have considered the
submissions made by the learned counsel
for the petitioner.

In Vareed Jacob case (supra)
their Lordships of the Supreme Court have
laid down (paragraph 17 of the said SCC)
that the question whether the restoration of
the suit revives ancillary orders passed
before the dismissal of the suit depends
upon the terms in which the order of
dismissal is passed and the terms in which
the suit is restored. If the Court dismisses
the suit for default, without any reference
to the ancillary orders passed earlier, then
the interim orders shall revive as and when
the suit is restored. However, if the Court
dismisses the suit specifically vacating the
ancillary orders, then restoration will not
revive such ancillary orders.

Keeping in view the principles
laid down in the above decision, let us
consider the present case.

In the present case, by the order
dated 15.5.2009, the writ petition was
dismissed in default. However, no specific
order was passed vacating the interim
order dated 15.1.2009. Consequently, when
by the order dated 16.7.2009, the order
dated 15.5.2009 dismissing the writ petition
in default was recalled by the Court, not
only the writ petition stood restored but the
interim order dated 15.1.2009 also stood
revived. Therefore, the interim order dated
15.1.2009 is continuing in the writ petition.

In view of the above, no further
order is required to be passed on the
aforesaid Civil Misc. Application No.
201688 of 2009 filed on behalf of the
petitioner for the restoration of the interim
order. The said application stands disposed
of."

26. Thus, in the peculiar set of facts
wherein in respect of the impugned
11 All. Dr. C.B. Agarwal Vs. State of U.P. & Ors.
475
punishment
order,
already
interim
protection was granted and the same
continues while the petitioner has already
left for his heavenly abode on 17.1.2018,
the impugned punishment order dated
20.12.1990 and consequential order dated
12.4.1991 are liable to be aside on the
aforesaid ground as well.

27. In regard to the third issue that
whether pension of the petitioner could
have been stopped by respondents by
issuing
impugned
order,
without
meticulously
following
the
procedure
prescribed
by
law
as
also
by
the
constitution provisions more particularly
Articles 14 and 311 of the Constitution of
India, submission of learned counsel for the
petitioner is that it can never be done. It is
no more res-integra that right to receive
pension is included in constitutional right
of Right to Property as envisaged under
Article 300-A thereof.

28. In the instant matter, as has already
been enumerated in the discussion of Issue
No.1, the procedure prescribed by law,
more
particularly
in
constitutional
provisions enshrined in Articles 14 and
311, have not been followed inasmuch as
the punishment order has been passed
without serving a copy of the enquiry
report in disciplinary proceedings upon the
petitioner, such an action cannot be
sustained as the same infringes Right to
Property of petitioner as envisaged under
Article 300-A of the Constitution of India,
which also includes Right to receive
pension of petitioner. As for stopping the
pension, due procedure established by law
was required to be mandatorily followed
and the same could not have been done in
utter defiance of mandate contained in
Article 14 read with Article 311 of
Constitution of India.

29. In the aforesaid issue, law has been
laid down in catena of judgments holding
that benefit of gratuity and pension is a
property of an employee. Reliance has been
placed in the case of State of Jharkhand
& others Vs. Jitendra Kumar Srivastava
[2013
(12)
SCC
210].
Relevant
paragraphs-14, 15 and 16 are being quoted
below :-

"14. The right to receive pension
was recognised as a right to property by
the Constitution Bench judgment of this
Court in Deokinandan Prasad v. State of
Bihar [(1971) 2 SCC 330 : 1971 Supp SCR
634] , as is apparent from the following
discussion: (SCC pp. 342-43, paras 27-33)

"27. The last question to be
considered, is, whether the right to receive
pension by a government servant is
property, so as to attract Articles 19(1)(f)
and 31(1) of the Constitution. This question
falls to be decided in order to consider
whether the writ petition is maintainable
under Article 32. To this aspect, we have
already adverted to earlier and we now
proceed to consider the same.

28. According to the petitioner
the right to receive pension is property and
the respondents by an executive order
dated 12-6-1968 have wrongfully withheld
his
pension.
That order
affects
his
fundamental rights under Articles 19(1)(f)
and
31(1) of
the
Constitution. The
respondents, as we have already indicated,
do not dispute the right of the petitioner to
get pension, but for the order passed on 58-1996. There is only a bald averment in
the counter-affidavit that no question of
any
fundamental
right
arises
for
consideration. Mr Jha, learned counsel for
the respondents, was not prepared to take
up the position that the right to receive
pension cannot be considered to be
476 INDIAN LAW REPORTS ALLAHABAD SERIES
property
under
any
circumstances.
According to him, in this case, no order has
been passed by the State granting pension.
We understood the learned counsel to urge
that if the State had passed an order
granting pension and later on resiles from
that order, the latter order may be
considered to affect the petitioner's right
regarding property so as to attract Articles
19(1)(f) and 31(1) of the Constitution.

29. We are not inclined to accept
the contention of the learned counsel for
the respondents. By a reference to the
material provisions in the Pension Rules,
we have already indicated that the grant of
pension does not depend upon an order
being passed by the authorities to that
effect. It may be that for the purposes of
qualifying the amount having regard to the
period of service and other allied matters,
it may be necessary for the authorities to
pass an order to that effect, but the right to
receive pension flows to an officer not
because of the said order but by virtue of
the rules. The rules, we have already
pointed out, clearly recognise the right of
persons like the petitioners to receive
pension under the circumstances mentioned
therein.

30. The question whether the
pension granted to a public servant is
property attracting Article 31(1) came up
for consideration before the Punjab High
Court
in Bhagwant
Singh v. Union
of
India [AIR 1962 Punj 503] . It was held
that such a right constitutes 'property' and
any interference will be a breach of Article
31(1) of the Constitution. It was further
held that the State cannot by an executive
order curtail or abolish altogether the right
of the public servant to receive pension.
This decision was given by a learned Single
Judge. This decision was taken up in letters
patent appeal by the Union of India. The
Letters Patent Bench in its decision
in Union of India v. Bhagwant Singh [ILR
(1965) 2 Punj 1] approved the decision of
the learned Single Judge. The Letters
Patent Bench held that the pension granted
to a public servant on his retirement is
'property' within the meaning of Article
31(1) of the Constitution and he could be
deprived of the same only by an authority
of law and that pension does not cease to
be property on the mere denial or
cancellation of it. It was further held that
the character of pension as 'property'
cannot possibly undergo such mutation at
the whim of a particular person or
authority.

31. The matter again came up
before a Full Bench of the Punjab and
Haryana High Court in K.R. Erry v. State
of Punjab [AIR 1967 Punj 279 : ILR (1967)
1 Punj 278] . The High Court had to
consider the nature of the right of an
officer to get pension. The majority quoted
with approval the principles laid down in
the two earlier decisions of the same High
Court, referred to above, and held that the
pension is not to be treated as a bounty
payable on the sweet will and pleasure of
the Government and that the right to
superannuation
pension
including
its
amount is a valuable right vesting in a
government servant. It was further held by
the
majority
that
even
though
an
opportunity had already been afforded to
the officer on an earlier occasion for
showing cause against the imposition of
penalty for lapse or misconduct on his part
and he has been found guilty, nevertheless,
when a cut is sought to be imposed in the
quantum of pension payable to an officer
on the basis of misconduct already proved
against him, a further opportunity to show
cause in that regard must be given to the
officer. This view regarding the giving of
further opportunity was expressed by the
learned Judges on the basis of the relevant
11 All. Dr. C.B. Agarwal Vs. State of U.P. & Ors.
477
Punjab Civil Service Rules. But the learned
Chief Justice in his dissenting judgment
was not prepared to agree with the
majority that under such circumstances a
further opportunity should be given to an
officer when a reduction in the amount of
pension payable is made by the State. It is
not necessary for us in the case on hand, to
consider the question whether before taking
action by way of reducing or denying the
pension on the basis of disciplinary action
already taken, a further notice to show
cause should be given to an officer. That
question does not arise for consideration
before us. Nor are we concerned with the
further question regarding the procedure, if
any, to be adopted by the authorities before
reducing or withholding the pension for the
first time after the retirement of an officer.
Hence we express no opinion regarding the
views expressed by the majority and the
minority Judges in the above Punjab High
Court decision on this aspect. But we agree
with the view of the majority when it has
approved its earlier decision that pension
is not a bounty payable on the sweet will
and pleasure of the Government and that,
on the other hand, the right to pension is a
valuable right vesting in a government
servant.

32.
This
Court
in State
of
M.P. v. Ranojirao Shinde [AIR 1968 SC
1053 : (1968) 3 SCR 489] had to consider
the question whether a 'cash grant' is
'property' within the meaning of that
expression in Articles 19(1)(f) and 31(1) of
the Constitution. This Court held that it
was property, observing 'it is obvious that
a right to sum of money is property'.

33. Having due regard to the
above decisions, we are of the opinion that
the right of the petitioner to receive pension
is property under Article 31(1) and by a
mere executive order the State had no
power to withhold the same. Similarly, the
said claim is also property under Article
19(1)(f) and it is not saved by clause (5) of
Article 19.