# Durgesh Kumar Tiwari v. Chief General Manager, S.B.I. and others

- **Citation:** (2003) 3 ILRA 641
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-04-10
- **Case number:** Civil Misc. Writ Petition No. 44407 of 1992
- **Bench:** R.B. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/durgesh-kumar-tiwari-v-chief-general-manager-s-b-i-and-others-40144
- **Pages:** 5

## Headnote

Constitution of India, Article 226-Service
law-disciplinary proceeding-initiated in
1967-Petitioner
placed
under
suspension-during
pendency
of
disciplinary Proceeding the petitionerretired from service in July, 2000-for
unreasonable
delay
the
authorities
themselves are responsible-held-for all
practical
purpose-the
delinquent
employee shall be treated in servicesuspension order quashed with 75%
past salary.

Held- Para 11

The
disciplinary
proceedings
have
illegally
been
delayed
by
the
respondents themselves and were not
concluded within reasonable time and
when the petitioner has already retried
from service in July, 2000 the entire
proceedings deserve to be quashed by
this
Court,
in
the
light
of
the
observations given in the Judgement of
N. Radhakishan (supra) and also in
Shatrughan (supra) with the further
direction to the respondents that the
petitioner
should
be
treated
in
continuous
service
for
all
practical
purposes and should be paid arrears of
75% salary of his past salary. The
petitioner
has
already
retired
from
service
on
31.07.2000
his
postretirement benefits is also directed to be
finalised.
Case law discussed:
AIR 1988 SC 1833
1998 (3) SCC 123
J.T. 1998 (6) SC-55

## Text

3 All] Durgesh Kumar Tiwari V. Chief General Manager, S.B.I. and others
641
square meal per head, the family bereft of
other basic facilities would need a sum of
Rs.60/- per day and by this reckoning, the
need of the family would aggregate to not
less than a sum of Rs. 1800/- for fooding
alone excepting other necessities of life. I
am, therefore, constrained to observe that
while rejecting the request of the
petitioner a second time pursuant to the
direction
of
this
Court,
the
Bank
authorities showed their insensitivity at its
crudest form and did not seem to act like
a model and an ideal employer. Rather
they seemed to be oblivious that they
were authorities within the meaning of
Article 12 of the Constitution and were
obligated to act in terms of avowed
objective of social and economic justice
as enshrined in the Constitution.

8. In the facts and circumstances
discussed above, the petition is allowed
and the impugned order is quashed and
the respondents are directed to offer
appointment to the petitioner having
regard to the financial condition in the
light of what has been discussed in the
present petition.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.4.2003

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 44407 of 1992

Shiv Shanker Tiwari

...Petitioner
Versus
Director of Agriculture, U.P. and others

 ...Respondents

Counsel for the Petitioner:
Sri Ramesh Upadhyaya

Counsel for the Respondents:
Sri N.B. Tiwari
S.C.

Constitution of India, Article 226-Service
law-disciplinary proceeding-initiated in
1967-Petitioner
placed
under
suspension-during
pendency
of
disciplinary Proceeding the petitionerretired from service in July, 2000-for
unreasonable
delay
the
authorities
themselves are responsible-held-for all
practical
purpose-the
delinquent
employee shall be treated in servicesuspension order quashed with 75%
past salary.

Held- Para 11

The
disciplinary
proceedings
have
illegally
been
delayed
by
the
respondents themselves and were not
concluded within reasonable time and
when the petitioner has already retried
from service in July, 2000 the entire
proceedings deserve to be quashed by
this
Court,
in
the
light
of
the
observations given in the Judgement of
N. Radhakishan (supra) and also in
Shatrughan (supra) with the further
direction to the respondents that the
petitioner
should
be
treated
in
continuous
service
for
all
practical
purposes and should be paid arrears of
75% salary of his past salary. The
petitioner
has
already
retired
from
service
on
31.07.2000
his
postretirement benefits is also directed to be
finalised.
Case law discussed:
AIR 1988 SC 1833
1998 (3) SCC 123
J.T. 1998 (6) SC-55

(Delivered by Hon'ble R.B. Misra, J.)

1 In this petition prayer has been
made for the writ of certiorari quashing
entire proceedings of enquiry initiated
against the petitioner in sequence to his
suspension and further prayer has been
made for direction of mandamus to
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642 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
reinstate the petitioner into service with
entire arrears of salary.

(1) Heard learned counsel Sri Ramesh
Upadhyay for the petitioner as well as
learned
Standing
counsel
for
the
respondents.

(2) It has been submitted for petitioner
that he was suspended in the year 1971
and the disciplinary proceedings were
initiated, however, before its conclusion
the petitioner was retired from service on
31.07.2000.

(3) As contended by the petitioner he
was appointed as Assistant Agriculture
Inspector on 20.05.1964 and was posted
at Ghazipur on -9.06.1994. The petitioner
was, however, suspended on 29.01.1971
and a 'charge sheet' was served on him on
27.09.1971 without any documents relied
upon. The petitioner made an application
on 10.12.1971 requesting for copies of the
documents referred to in the charge sheet
and as shown in Annexure-8 to the writ
petition. Without following the procedure
prescribed by law and in utter disregards
to the principles on natural justice the
petitioner was dismissed by an order
dated 24.07.1976.

(4) The
order
of
dismissal
was
challenged by the petitioner before the
U.P. Public Service Tribunal whereby the
order of dismissal was quashed on the
ground that adequate opportunity was not
given to the petitioner and the documents
relied in support of the charges were
neither shown nor supplied to the
petitioner. The Tribunal directed for
reinstatement of the petitioner with
continuity of service with a liberty to the
respondents to conduct the enquiry afresh,
if they so desire, however, case was
decided by the Tribunal the petitioner was
again placed under suspension by an order
dated 02.05.1983 (annexure-2 to the writ
petition)
and
the
Project
Officer
Agriculture, Varanasi was appointed as
Inquiry Officer. It appears the petitioner
kept
on
approaching
the
District
Agriculture Officer Gazipur and also the
Inquiry Officer and the Inquiry Officer
wrote several letters to the District
Agriculture Officer Ghazipur one namely
9.2.1987 (annexure no.5 to the writ
petition) to show the petitioner all the
documents relied by them in support of
the charges yet the concerned documents
were never shown to the petitioner nor its
copies were ever made available to the
petitioner.

(5) It was also contended by the
petitioner that the delay in conducting the
enquiry was not due to any fault of the
petitioner as reflected from the letter
dated 21.07.1988 (annexure 1 to the
supplementary
affidavit)
by
which
subsistence allowance has been raised to
3/4th. In this letter the Additional Director
of Agriculture (Administration), Lucknow
has specifically written that the delay in
the enquiry is not because of any fault of
the petitioner.

(6) In the counter affidavit filed by Dr.
Ashok Kumar Singh on behalf of all the
respondents in earlier paragraphs efforts
have been made to justify the enquiry
proceedings which was already quashed
by the Tribunal. According to the
petitioner without showing the documents
the
respondents
have
erroneously
mentioned in the counter affidavit that the
documents have already been shown to
the petitioner in the year 1984 itself and
all the other 15 letter were wrongly issued
by the respondents, however, on filing the
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3 All] Shiv Shanker Tiwari V. Director of Agriculture, U.P. and others
643
present writ petition Court was pleased to
stay the order of suspension and the
enquiry by observing "there is not only
undue
delay
in
concluding
the
departmental proceedings, but prima facie
it also appears to be abuse of power".
"The respondents are called upon to show
cause as to why the said proceedings be
not quashed".

(7) No justification was given in the
entire counter affidavit for prolonging the
enquiry unnecessarily and delaying the
enquiry without there being any fault of
the petitioner from 1983 to December,
1992. Even a single word has not been
stated in the counter affidavit as well as in
the supplementary affidavit to justify the
inordinate delay in concluding the enquiry
from 02.05.1983 to 01.12.1992.

(8) Learned counsel for the petitioner
has placed reliance on A.I.R. 1988
S.C.(1833) = J.T. 1998 (3) S.C. 123 State
of Andhra Pradesh Vs. Radha-specifically
paragraph 15, 17, 19 and 20.

"In considering whether delay has
vitiated the disciplinary proceedings the
Court has to consider the nature of charge,
its complexity and on what account the
delay has occurred. If the delay is
unexplained prejudice to the delinquent
employee is writ large on the face of it. It
could also be seen as to how much
disciplinary
authority
is
serious
in
pursuing the charges against its employee.
Disciplinary
proceedings
should
be
allowed to take its course as per relevant
rules but then delay defeats justice. Delay
causes prejudice to the charged officer
unless it can be shown that he is to blame
for the delay or when there is proper
explanation for the delay in conducting
the disciplinary proceedings. Ultimately,
the court is to balance these two diverse
considerations.(Para 19)"

"It is not possible to lay down any
predetermined principles applicable to all
cases and in all situations where there is
delay in concluding the disciplinary
proceedings. Whether on that ground the
disciplinary
proceedings
are
to
be
terminated each case has to be examined
on the facts and circumstances in that
case. The essence of the matter is that the
court has to take into consideration all
relevant factors and to balance and weigh
them to determine if it is in the interest of
clean and honest administration that the
disciplinary
proceedings
should
be
allowed
to
terminate
after
delay
particularly when delay is abnormal and
there is no explanation for the delay. (Para
19)"

"Charges have been framed against
the respondent merely on the basis of the
report dated November 7, 1987 from the
Director
General,
Anti-
Corruption
Bureau, which is of general in nature
raising accusing fingers on the various
officers of the Corporation, but without
any reference to the relevant files and pin
pointing if respondent or any other
official charged was at all concerned with
the alleged deviations and unauthorised
construction in multi-storied complex.
(Para 15)"

"If memo of charge had been served
for the first time before 1991 there would
have been no difficulty. However, in the
present case it could be only an
irregularity and not an illegality vitiating
the inquiry proceedings in as much as
after the Inquiry Officer was appointed
under memo no.1412 dated December 22,
1987, there had not been any progress. If
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644 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
a fresh memo is issued on the same
charges against the delinquent officer it
cannot be said that any prejudice has been
caused to him. (Para 17)"

"The case depended on records of the
Departmental only and Director General,
Anti Corruption Bureau had pointed out
that no witnesses had been examined
before he gave his report. The Inquiry
Officer, who had been appointed one after
the other, had just to examine the records
to see if the alleged deviations and
constructions
were
illegal
and
unauthorised and then as to who was
responsible for condoning or approving
the same against the bye-laws. It is
nobody's case that respondent at any stage
tried to obstruct or delay the inquiry
proceedings. The Tribunal rightly did not
accept the explanations of the State as to
why delay occurred. In fact there was
hardly
any
explanation
worth
consideration. In the circumstances the
Tribunal was justified in quashing the
charge memo dated July 31, 1995 and
directing the State to promote the
respondent as per recommendation of the
DPC ignoring memos dated October 27,
1995 and June 1, 1996. (Para 20)"

(9) In J. T. 1998(6) SC 55 (State of U.P.
Versus Shatrughan Lal and another) it
was held;

"One of the principles of natural
justice is that a person against whom an
action is proposed to be taken has to be
given an opportunity of hearing. This
opportunity has to be an effective
opportunity and not a mere pretence. In
departmental proceedings where chargesheet is issued and the documents which
are proposed to be utilised against that
person are indicated in the charge sheet
but copies thereof are not supplied to him
in spite of his request, and he is, at the
same time, called upon to submit his
reply, it cannot be said that an effective
opportunity to defend was provided to
him. (Para 4)"

"Preliminary
inquiry
which
is
conducted invariably on the back of the
delinquent
employee
may,
often,
constitute the whole basis of the chargesheet. Before a person is, therefore, called
upon to submit his reply to the charge
sheet, he must, on a request made by him
in that behalf, be supplied the copies of
the statements of witnesses recorded
during
the
preliminary
enquiry
particularly
if
those
witnesses
are
proposed
to
be
examined
at
the
departmental trial. (Para 6)"

"Merely saying that the respondent
could have inspected the documents at
any time is not enough. He has to be
informed that the documents, of which the
copies were asked for by him may be
inspected. The access to record must be
assured to him. The respondent was not
afforded an effective opportunity of
hearing particularly as the appellant failed
to establish that non-supply of the copies
of statements recorded during preliminary
enquiry had not caused any prejudice to
the respondent in defending himself. (Para
8, 10)"

(10) In the present case there is no
explanation for the delay in conducting
the disciplinary proceedings and the
respondents themselves had written the
letter dated 21.7.1988 (Annexure-1 to the
supplementary affidavit) that the delay is
not because of any fault of the petitioner,
rather it is their own fault and that they
could not complete the enquiry. It appears
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3 All] Shiv Shanker Tiwari V. Director of Agriculture, U.P. and others
645
that till today the documents relied in
support of the charges levelled against the
petitioner have not been shown to the
petitioner.

(11) The disciplinary proceedings have
illegally been delayed by the respondents
themselves and were not concluded
within reasonable time and when the
petitioner has already retried from service
in July, 2000 the entire proceedings
deserve to be quashed by this Court, in
the light of the observations given in the
Judgement of N. Radhakishan (supra) and
also in Shatrughan (supra) with the further
direction to the respondents that the
petitioner should be treated in continuous
service for all practical purposes and
should be paid arrears of 75% salary of
his past salary. The petitioner has already
retired from service on 31.07.2000 his
post-retirement benefits is also directed to
be finalised.

In view of the above observations
writ petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.05.2003

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 44599 of 1998

Nazra

...Petitioner
Versus
State of U.P. and another ...Respondent

Counsel for the Petitioner:
Sri S.P. Singh

Counsel for the Respondent:
C.S.C.

U.P. Fundamental Rule 1987-Rule 56 (i)-
Retirement-challenge made on ground
whether retirement Notice attaining the
age of Superannuation is correct?

Held- Yes Rule 56(1) provides the age of
retirement extended from 58 year to 60
year appointed before 5 th November
1985 on regular & permanent postpetitioner appointed on temporary post
after the cut off date.

Held- Para 6

From the records the petitioner has not
been able to conclusively prove that he
was a permanent Beldar working in
permanent capacity on a permanent
post. The appointment of the petitioner
being 11.3.1988, which is undisputed,
the petitioner is not entitled to any relief.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. This petition has been preferred
for
quashing
the
order
dated
17/18.11.1998 (Annexure-3 to the writ
petition) whereby the petitioner was
informed that he would retire on attaining
the age of superannuation on 31.12.98.
The petitioner was class IV (Group-D)
employee working in the office of
Executive Engineer Lok Nirman Vibhag
District Bulandshahar. He was retired by
the impugned order 18.11.98 on attaining
the age of 58 years. The date of birth
recorded in his service book was
30.12.1940. By Government Order dated
28.7.1987 U.P. Fundamental Rules were
amended. The amendment was introduced
in
the
U.P.
Fundamental
First
Amendment Rule, 1987 and on that basis
Rule 56 (i) was amended which provides
that Group-D employees appointed before
1985 are to retire from service on the
attaining the age of 60 years. The
amended G.O. dated 28th July, 1987 is as
under:

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